Opinion
No. 3-056 / 02-1090
Filed March 26, 2003
Appeal from the Iowa District Court for Scott County, John G. Mullen, District Associate Judge.
Foster parents appeal from dispositional order that returned custody of minor child to her natural parents. AFFIRMED.
Dennis Bjorklund of Bjorklund Law Firm, L.L.C., Coralville, for appellants.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, William E. Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee State.
Lawrence J. Lammers of McCarthy, Lammers Hines, Davenport, for appellee father.
Robert J. Phelps of Phelps Phelps, Davenport, for appellee mother.
Stephen W. Newport of Newport Newport, Davenport, for minor child.
Heard by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Foster parents appeal from a dispositional order that returned a child who had been placed in their temporary care to the physical custody of her biological parents. They also appeal the imposition of sanctions on their trial counsel. Upon a review of the record, we affirm the juvenile court's orders.
I. Background Facts and Proceedings .
Cheyann was born to Roberta and Steven, an unmarried but cohabitating couple, on December 24, 2001. Cheyann was Roberta's ninth child. At the time of Cheyann's birth, two of Roberta's eight oldest children were in alternative placement, and her parental rights to the other six had been terminated. Based on Roberta's poor track record as a parent, the Department of Human Services (DHS) sought and obtained a temporary removal order. Cheyann was removed from her parents' care two days after her birth. The parents began having scheduled visits with their daughter a few days later.
The State filed a petition alleging Cheyann was a child in need of assistance. Following a shelter hearing held January 3, 2002, the juvenile court confirmed its order for temporary removal. On February 28, 2002, all parties stipulated Cheyann was a child in need of assistance, based on Roberta's "chronic inability or failure . . . to provide appropriate care and supervision for her children notwithstanding services." See Iowa Code § 232.2(6)(c)(2) (2001). As a result, the court adjudicated Cheyann in need of assistance, scheduled a dispositional hearing, and continued the out-of-home placement.
After entry of the adjudicatory order, Steven and Roberta continued to receive and benefit from services. By the time of the April 30, 2002, dispositional hearing, the parents had not only met but exceeded case plan expectations. DHS and the service providers recommended that Cheyann be retuned to her parents' care. The recommendation was resisted by Cheyann's foster parents, Christopher and Kelly, who had been allowed to intervene in the action. After a contested hearing, the juvenile court concluded Cheyann could be returned to her parents, as there was not clear and convincing evidence she could not be protected from adjudicatory harm while in their care. Iowa Code § 232.102(5).
The foster parents filed a motion to reconsider or enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2). Shortly thereafter, they subpoenaed documents from various non-party service providers, the father's attorney, and the mother's attorney. Motions to quash the subpoenas were soon filed by those affected.
Following a contested hearing the juvenile court quashed the subpoenas. Under authority of Iowa Rule of Civil Procedure 1.413(1), it also imposed sanctions against the foster parents' attorney, Linda Messer, for issuing subpoenas in conjunction with a rule 1.904(2) motion. Attorney Messer was required to pay a total of $250 in attorney fees to counsel for the parents and providers. The court then conducted a hearing on the rule 1.904(2) motion. It denied the foster parents' request, and affirmed its decision to return Cheyann to her parents' care. The foster parents appeal.
II. Clear and Convincing Evidence .
In challenging the dispositional order, the foster parents allege the juvenile court issued the order without properly considering all their documentary evidence. Appellees respond the juvenile court corrected any error by reviewing the evidence prior to ruling on the foster parents' reconsideration request. We are not convinced the court failed to give the evidence appropriate consideration. However, we need not decide this particular issue, because our review of the dispositional determination is de novo. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). Although we typically give deference to the juvenile court's findings, we are not bound to do so. In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993). We review both the law and the facts, and adjudicate rights anew. Id.
Kelly and Christopher submitted both individual and joint affidavits, as well as supplementing evidence. The primary emphasis of the evidence was Cheyann and Roberta's medical histories, Roberta's prior parenting failures, the foster care review board's recommendation to delay return of the child, discrepancies with the case permanency plan, and the fact Steven's adult son was a sexual abuse perpetrator.
After a full review of the record in this matter, giving due consideration to the foster parents' evidence, we conclude the record supports the juvenile court's decision. It is important to note this is not a custody dispute between the parents and the foster parents. Under our statutory scheme, children are to remain in their parents' home unless clear and convincing evidence establishes they cannot be protected from physical abuse or other adjudicatory harm while in their parents' care. Iowa Code § 232.102(5).
Here, the record discloses Roberta and Steven's agreement to very intrusive supervision by DHS and the service providers. Prior to the dispositional hearing, the DHS case manager and other providers made multiple announced and unannounced visits to the parents' home on the occasions when they were allowed to care for their daughter. The parents also cooperated fully with various workers, agencies, and the child's pediatrician. According to the caseworker, in her twelve years of experience, she had seen the level of cooperation exhibited by Roberta and Steven on "maybe a handful" of occasions.
The record reveals Roberta has demonstrated an ability, with the newfound support of Steven and his family, to adequately parent this child. Under the circumstances, we find the juvenile court's decision to return Cheyann to her parents' care, under DHS supervision, to be appropriate. In reaching this conclusion, we recognize the foster parents have provided excellent care for Cheyann, and acknowledge that their concerns for her well-being are genuine.
III. Sanctions .
The foster parents' appellate counsel also argues the juvenile court erred when it imposed sanctions against Attorney Messer. We reverse such a decision only for a demonstrated abuse of discretion. Mathias v. Glandon, 448 N.W.2d 443, 445 (Iowa 1989). We conclude no abuse has been shown.
Although the foster parents attempt to justify the subpoenaed information as mere verification of facts already in evidence, the subpoenas were an attempt to "reopen the record for additional evidence to correct omissions made in the trial of an issue." Appeal of Elliott, 319 N.W.2d 244, 247 (Iowa 1982). Such actions are inappropriate in conjunction with a reconsideration or enlargement request under rule 1.904(2). Id; accord In re Marriage of Bolick, 539 N.W.2d 357, 361 (Iowa 1995). On appeal, the foster parents have provided no authority indicating the subpoenas served any legitimate purpose in the context of a rule 1.904(2) motion. Because the subpoenas were not "warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law," Iowa R.Civ.P. 1.413(1), a proportional sanction was appropriate.