From Casetext: Smarter Legal Research

In the Interest of A.B., 02-0587

Court of Appeals of Iowa
Dec 30, 2002
No. 2-870 / 02-0587 (Iowa Ct. App. Dec. 30, 2002)

Opinion

No. 2-870 / 02-0587.

Filed December 30, 2002.

Appeal from the Iowa District Court for Pottawattamie County, KATHLEEN KILNOSKI, District Associate Judge.

Mother appeals from the juvenile court's permanency order placing her three youngest children in the care of their aunt. AFFIRMED.

Drew Kouris, Council Bluffs, for appellant-mother.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and J. Joseph Narmi, Assistant County Attorney, for appellee-State.

John Heithoff, Council Bluffs, for father D.B., Sr.

Steve Broghammer, Council Bluffs, for intervenors C.D. and R.D.

Roberta Megal, Council Bluffs, guardian ad litem for minor children.

Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.


Mother appeals the juvenile court's permanency order placing her three youngest children in the care of their aunt. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS. In October 1999, the juvenile court adjudicated Lavone's six minor children, Amber, Donald, Gary, Angie, Amanda and Wade, as Child in Need of Assistance (CINA) due to unsafe and unsanitary living conditions in their home. All children were removed from Lavone's custody. In August 2000, after Lavone had obtained suitable housing, the three oldest children were returned to Lavone's care, but the three youngest remained with their maternal aunt and her husband. In August 2001, the three youngest children were also returned to Lavone's custody after a permanency hearing. A permanency review hearing was held on March 13, 2002, and the district court ordered the three youngest children to be removed from Lavone's custody and returned to the custody of their maternal aunt and her husband. Lavone appeals, alleging the district court erred by removing the children from her custody and that it is in the best interests of the children to remain with her.

II. STANDARD OF REVIEW. We review a permanency order de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). We give weight to the juvenile court's findings of fact, but are not bound by them. Id. The best interests of the children govern our decision. Id. There is a rebuttable presumption that the children's best interests are served by parental custody. Id. In a permanency hearing, a child may be transferred only upon convincing evidence that (1) a termination of the parent/child relationship would not be in the best interests of the child, (2) services are offered to the child's family to correct the situation that led to the child's removal, and (3) the child cannot be returned to the child's home. Id.; Iowa Code § 232.104(3) (2001).

III. DISCUSSION. Lavone takes issue with the district court's findings in its CINA permanency review order. She argues that the findings are not supported by substantial evidence and that they do not support the decision to remove the children from her custody.

Based on our de novo review of the record, we find the juvenile court's findings and conclusions to be thorough and well reasoned, and we accept them as our own. We find the evidence clear and convincing that unless Angie, Amanda, and Wade are transferred from Lavone's custody, they will not be protected from some harm that would justify the adjudication of the children as CINA.

The record shows that since the children were returned to Lavone's care in August 2001, Wade's speech skills have greatly deteriorated. His speech was described as "nearly impossible to understand." At five years of age, Wade had reverted to "baby talk" after having made significant progress while living with his aunt and uncle.

At the hearing, Lavone's caseworker recommended that custody of the three youngest children be transferred for three reasons. She testified that Lavone poorly supervises the children, she exercises poor judgment regarding the children, and she is unable to protect them from sexual abuse at the hands of her older three children. We, like the juvenile court, find this testimony credible and supported by clear and convincing evidence.

The record also shows that the children have all missed an extraordinary amount of school. They are frequently tardy and are often not fed breakfast. The caseworker reported that the children were so often tardy because Amber, the oldest daughter, is responsible for getting Lavone and her boyfriend up in the morning to get everyone ready for school. The record also shows that the children are frequently sick. The caseworker related an episode in which Lavone thought it appropriate for Angie, who had been home sick with a sore throat, to spend the night with a friend. We agree with the caseworker's contention that Lavone exercises poor judgment regarding the children and poorly supervises them.

The issue, however, which raises the greatest concern is the high risk of sexual abuse the children are subject to while in Lavone's care. Lavone's three oldest children were previously abused by their father and maternal uncle. The family has participated extensively in services to cope with the effects of the abuse. The oldest two children have been sexually active with each other. Since the youngest children have been back in the care of Lavone, they have made two separate allegations of sexual abuse at the hands of their older siblings. Wade told his aunt that his brother bit his penis. Amanda told her aunt that her brother had grabbed her between her legs. While neither of these allegations were confirmed, both Wade and Amanda have exhibited behavior consistent with sexual victimization. Wade has been exposing himself to others, fondling himself, licking others, and putting his tongue in other people's mouths. Amanda has been discovered stimulating herself with a back vibrator while she watched television. In an attempt to protect the younger children, the family installed an alarm system to warn them if Donald, the oldest son, leaves his bedroom at night. However, when asked by the caseworker, Lavone was unable to activate the alarm.

We agree with the juvenile court that the elements of section 232.104(3) have been proved by clear and convincing evidence. Accordingly, we affirm.

AFFIRMED.


Summaries of

In the Interest of A.B., 02-0587

Court of Appeals of Iowa
Dec 30, 2002
No. 2-870 / 02-0587 (Iowa Ct. App. Dec. 30, 2002)
Case details for

In the Interest of A.B., 02-0587

Case Details

Full title:IN THE INTEREST OF A.B., D.B., G.B., A.B., A.B., and W.B., Minor Children…

Court:Court of Appeals of Iowa

Date published: Dec 30, 2002

Citations

No. 2-870 / 02-0587 (Iowa Ct. App. Dec. 30, 2002)