Opinion
No. 3-443 / 02-1829
Filed August 13, 2003
Appeal from the Iowa District Court forScott County, Michael W. Liebbe, Associate Juvenile Judge.
V.R. appeals the transfer of the permanent legal custody of her child, B.M., to B.M.'s father. AFFIRMED.
Benjamin Yeggy of Gomez, May, Cartee Schutte, Davenport, for appellant-mother.
Marsha Arnold, Davenport, for father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, William Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee.
Jay Sommers, Davenport, for minor child.
Considered by Habhab, Snell, and Brown, S.J.
Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
The mother, Virginia, appeals the juvenile court's ruling in the child in need of assistance proceeding that permanently transferred her seven-year-old daughter, B.M.'s, custody to her father, Garland. Virginia had asked the juvenile court to delay its permanency decision for an additional six months. That request was denied. Virginia claims on appeal that "[t]he State failed to provide reasonable efforts to return the child to the mother, therefore the court erred in transferring sole custody from one parent to another" and that the juvenile court should have granted her request for a six-month extension. We affirm.
Virginia had legal custody of B.M.
Virginia lived with Garland for almost a year in the 1990's. She gave birth to B.M. in June of 1995. At the time of B.M.'s birth she had separated from Garland, and he did not know of his daughter's birth until she had turned five years of age.
Virginia has two other children living with her: Jennifer, born August 1979, and Jaimee, born October 1986. Jennifer did not finish high school but looks after Jaimee. Jaimee is sexually active, is defiant, abuses alcohol and drugs, shoplifts, and does poorly in school. These children are not involved in this proceeding.
The Department of Human Services (DHS) history with Virginia dates back to 1987. An investigator confirmed that Jennifer, then seven or eight years of age, had been sexually abused. Since then, Virginia's children have been the subject of nine founded reports of abuse. Virginia states that those reports are all lies.
Virginia and her present husband were over-the-road truckers. In 1996 Virginia started leaving B.M. in the care of then-fifteen-year-old Jennifer. Virginia returned home occasionally. She had limited contact with her children by phone.
In 1999, four-year-old B.M. was behind in her development. There are reports that B.M. was running the streets unsupervised and placed in situations of risk. She narrowly escaped being struck by a car while walking down the street alone at nine in the evening. Also in 1999, Virginia's husband was arrested for striking B.M. at four in the morning. Virginia opposed any domestic violence counseling.
Virginia was offered services by the DHS in March of 2001. She returned home from her trucking job for one or two days out of the month. For the most part, Jennifer had the parenting responsibilities for B.M. In May of that same year, the State filed child in need of assistance proceedings as to B.M. Virginia was still trucking. B.M. was of school age, but did not regularly attend. Later that year, B.M. was adjudicated a child in need of assistance. The basis of that adjudication was the chronic inability, failure, or refusal of the parent to provide B.M. with "appropriate care, supervision, structure, discipline, nurturance and emotional support." Although the juvenile court left B.M. in Virginia's home, it cautioned as to the consequences of failure to participate in services offered by the DHS.
When Virginia found out at the review hearing in June 2002 that the possibility existed she would not see her daughter, B.M., again, she decided to quit her trucking job and focus on the case plan.
In October of 2001, Virginia voluntarily transferred B.M.'s physical custody to B.M.'s father, Garland. The juvenile court subsequently approved this transfer and again noted the family's lack of cooperation with the DHS.
The record reveals that in June of 2002, the juvenile court found that B.M. was doing well in Garland's care; that Virginia "has done nothing under the case permanency plan"; that she "does not maintain contact with" the DHS; that she "resists contact and involvement"; and that she "[refuses] to participate in services." With that background and more, the juvenile court permanently transferred B.M.'s legal custody to Garland, subject to DHS supervision. That ruling prompts this appeal.
Virginia argues on appeal the DHS "failed to provide reasonable efforts to return the child to [her] therefore the [juvenile court] erred in transferring sole custody from one parent to another." It is well established that our review as to this issue is de novo. As to her claim that the court erred in refusing to extend its permanency decision for another six months, our review is under an abuse-of-discretion standard. Cf. In re J.L.L., 414 N.W.2d 133, 135 (Iowa 1987).
The DHS has a duty in CINA proceedings to make reasonable efforts to reunify families when children's best interests require their absence from home. In re C.B., 611 N.W.2d 489, 493 (Iowa 2000); Iowa Code § 232.102(7). But a parent, if in need of new or different services, cannot sit idly by for months and, at the eleventh hour, demand those services. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). Nonetheless, the State still has the burden to show reasonable efforts of family reunification were made as a part of its ultimate proof that a child cannot be safely returned to parental custody. In re C.B., 611 N.W.2d at 493.
From our review of the record, we conclude that the State has met its burden and the DHS has made reasonable efforts to reunite Virginia with B.M. The conditions of Iowa Code section 232.104(3) have been met. That section provides:
3. Prior to entering a permanency order pursuant to subsection 2, paragraph "d", convincing evidence must exist showing that all of the following apply:
a.A termination of the parent-child relationship would not be in the best interest of the child.
b.Services were offered to the child's family to correct the situation which led to the child's removal from the home.c.The child cannot be returned to the child's home.
Once those three conditions were met, the court, following the provisions of section 232.104(d), "transferred sole custody of the child from one parent to another." We agree with this decision of the juvenile court. It would add little to this opinion to set forth each and every circumstance that brings us to this conclusion. We affirm on this issue.
The case permanency plan dated June 4, 2002, and authored by Russel Furne of the DHS reveals that Virginia and her husband had not met with the department or the provider agency since the inception of the case in March of 2001.
Virginia argues that the court abused its discretion when it refused her request that she be given an additional six months to work on reunification. We agree with the trial court's reasoning as to this issue. There is no abuse of discretion. We accordingly affirm.
In conclusion, we agree with the following findings made by the trial court in its ruling:
A parent has a responsibility to supervise and meet the needs of the child and make decisions that have a permanent, positive affect on the life and development of the child and to promote the general welfare of the child. The mother in this case clearly knew what her responsibilities were for reunification, but rather chose to ignore her responsibilities. The Court specifically finds that there has been reasonable efforts to reunify the child in the custody of her mother. That reasonable and appropriate services were provided and the parent had the opportunity to address any issues of the appropriateness or reasonable nature of the services, but elected not to participate in the services. . ..
By all accounts, the child is doing well with the father and the child's best interests are paramount in this case.
The mother asked for an additional six months. If one reviews the record as the Court has done here and finds that these issues of neglect and failure to supervise or take an active role in the child's well-being go back as far as March 1999, we have a pattern of three and a half years. Coming forth now in the thirty days before this hearing and requesting reunification services for opportunity only shows the mother's attitude about her children. Only when her needs, i.e. the potential loss of association with the child, come forward does she decide to do anything. The Court concurs with the assessment of the author of Petitioner's Exhibit 2 that the pattern of parenting provided by Virginia to [B.M.] would remain the same as the parenting level provided in the past.
The credible evidence in this case establishes that it would be absolutely contrary to the welfare of the child to continue the option of reunification with the mother. Prior to the placement with the father, we had a child who was not attending school and was not being supervised. For all practical purposes, from review of the file, she wasn't even getting adequate nutrition.
Six months from now, the child will have been with her father for approximately eighteen months. This child is now seven years old and doing well for the first time in her life.