Opinion
No. 5-902 / 05-1682
Filed December 7, 2005
Appeal from the Iowa District Court for Wapello County, William S. Owens, Associate Juvenile Judge.
J.H. appeals from a permanency order entered by the juvenile court that placed one of her children with his father and continued placement of her other two children in foster care. AFFIRMED.
Cynthia Hucks of Box and Box Attorneys, Ottumwa, for appellant mother.
William Appel, Ottumwa, for father of D.W.-H.
Ryan Mitchell of Orsborn, Bauerle, Milani Grothe, Ottumwa, for father of N.H.
H. Michael Neary of Neary Law Office, P.C., Ottumwa, for father of J.W.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Mark Tremmel, County Attorney, for appellee State.
Mary Krafka of Krafka Law Office, Ottumwa, for minor children.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Joy appeals from the juvenile court's entry of a permanency order that placed one of her children with his father and continued placement of her other two children in foster care. We affirm.
I. Background Facts Proceedings
Joy is the mother of three children, Nicole, born in January of 2000; Dean, born in December of 2001; and Jenasis, born in May of 2003. Paul is the father of Nicole, Kevin is the father of Dean, and Jeremy is the father of Jenasis
In the spring of 2004, the children came to the attention of the Iowa Department of Human Services (DHS) when their mother left them with an inappropriate caretaker. There were also concerns regarding the health of the children and the unsafe and unhygienic condition of Joy's home, which an investigating police officer described as a "filthy, pathetic mess." The children were adjudicated children in need of assistance (CINA) by the juvenile court on June 25, 2004.
Following their removal from their mother's care, both Dean and Jenasis tested positive for methamphetamine or amphetamine. A dispositional order entered July 28, 2004, placed all three children in foster care. The children suffered from severe tooth decay at the time they entered foster care, and Joy testified that she could not remember if she ever took them to a dentist.
The juvenile court held a permanency hearing on September 30, 2005, pursuant to Iowa Code section 232.104 (2003). Following the hearing, the court ordered Dean to be placed in his father's custody. The court ordered Jenasis and Nicole to remain in the custody of DHS for continued foster care. The court also scheduled a review hearing after six months to determine whether the placements in the permanency order require modification.
Joy has appealed from the permanency order. She contends the children should be placed in her home instead of an out-of-home placement.
II. Scope of Review
Appellate review of a permanency order is de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). The best interests of the children control the court's decision in granting a permanency order in a child custody matter. Id. There is a rebuttable presumption that parental custody serves the children's best interests. Id. We give weight to the juvenile court's findings of fact, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Discussion
On appeal, Joy asserts that the record does not contain sufficient evidence to support continued out-of-home placement for the children because she cooperated with services and has an appropriate home for her children.
During the course of the case, Joy participated in scheduled supervised and unsupervised visits with the children, arranged and attended doctor appointments for the children, underwent a mental health evaluation and was diagnosed with major depressive disorder, and participated in housekeeping services and skill development. Joy is currently unemployed. She attends community college full-time.
Joy receives government assistance and lives with her current boyfriend, Shawn, who has a criminal record that includes drug abuse and domestic abuse. Joy admitted that she initially concealed her relationship with Shawn from DHS because she was afraid the department would not accept him as an appropriate person to be near the children. Shawn has two daughters that were adjudicated CINA in 2003. Shawn testified that he participated in substance abuse treatment and is now sober. Joy testified that although she used to have a drug problem, she quit using drugs before the births of her children.
Joy has clearly made some progress since her children were adjudicated CINA; however, based on the following evidence, we find no reason to disagree with the conclusions of the juvenile court. Tina Walker, a service provider employed at First Resources in Ottumwa, assisted Joy with parenting skills, housekeeping, and supervised visits. Walker testified that she believed Joy made some improvements, but found there was "definitely room for more" improvement despite eleven months of services. She also testified that Joy follows instructions inconsistently, fails to discipline the children, is dishonest with service providers, and makes inappropriate statements to the children. Walker stated that she "would not feel safe" returning the children to Joy's custody, but she would feel comfortable with Dean living with his father and Nicole and Jenasis remaining in foster care.
Jody Wolver, an employee of the Wapello County Department of Human Services, agreed that the children could not safely return to Joy's care. Wolver testified that Joy was consistently dishonest with service providers and placed her own needs before the needs of her children. She also testified that Joy failed to achieve the reasonable goals set by DHS and might revert to her habit of poor parenting without continued DHS intervention. Wolver stated that Joy relies on her live-in boyfriend for financial support and housekeeping, but historically, she only engages in short-term relationships with men. The department recommended Dean's placement with his father because a home study completed on the father's home in Illinois indicated that his home would be appropriate for Dean. The department also recommended continued foster care for Nicole and Jenasis.
In a report to the juvenile court, Wolver noted that Nicole participated in an assessment with Dr. Michelle Green and was diagnosed with reactive attachment disorder of early childhood, enuresis, and nightmare disorder. Dr. Green observed that Nicole displayed negative psychological effects from the chronic neglect in her mother's home. She also observed that Nicole would benefit from continued out-of-home placement and would probably regress if she returned to Joy's home.
Nicole's play therapist, Sarah Erselius, testified that Nicole shows confusion regarding how a typical family acts. She concluded that Nicole may suffer from an attachment disorder. Erselius agreed that if Nicole were returned to her mother's care, and Joy's stability and consistency breaks down so that Nicole must be removed again, this will add to Nicole's trauma and attachment issues and possibly lead to other mental health issues as Nicole gets older.
The children's first foster parent, Deborah, testified that their behavior deteriorated following visits with their mother and Joy routinely provided the children with junk food during their visits rather than regular meals. Deborah said that Joy bragged to her about lying to DHS about her living arrangements, and Joy described her apartment as a front. The recommendation given by Deborah was that Dean could be safely returned to his father. Kathy, Dean's current foster mother, also testified that his behavior deteriorates following visits with his mother, he returns from visits exhausted and wearing dirty diapers, and he swears and exhibits himself to other children. Kathy had no concerns regarding parenting by Dean's father.
Consuela, Nicole and Jenasis's current foster parent, testified that both children often returned from their visits with Joy wearing dirty diapers. After visits, both children act poorly, and Jenasis tended to hit other children and seemed exhausted. Consuela testified that Joy allowed the children to watch MTV, which she considers inappropriate for young children. She also testified that Joy inappropriately restrained Nicole while transporting her in a vehicle outfitted with an airbag that could injure a child. Even though Joy received instructions about how to safely transport the children, she did not follow those directions. Consuela concluded that she would not feel safe returning the children to Joy's care.
The juvenile court found that the witnesses for the State and for Dean's father were credible. The court reasonably accepted the testimony of those witnesses who expressed concern for the children's safety and well-being if they were returned to Joy's custody. We recognize that Joy may have a bond with her children; however, after considering the children's best interests and giving due deference to the juvenile court's assessments of the credibility of witnesses, we find that the juvenile court did not err in ordering Nicole and Jenasis to remain in foster care and placing Dean in the custody of his father.