Opinion
No. 2-286 / 02-0178.
Filed June 19, 2002.
Appeal from the Iowa District Court for Dickinson County, DAVID C. LARSON, District Associate Judge.
A father appeals the termination of his parental rights to Kyle. The maternal grandparents seek custody and guardianship of Kyle and his half-brother Zachary. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Pamela Wingert, Spirit Lake, attorney for appellant-father.
Blake Parker, Fort Dodge, attorney for appellant-grandparents.
Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, and John B. Bjornstad, Assistant County Attorney for appellee-State.
Shannon Sandy, Spirit Lake, guardian ad litem for minor child.
James Hastings, Milford, for appellant minor child.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
A father appeals the termination of his parental rights to his son Kyle. The maternal grandparents of Kyle and his half-brother, Zachary, appeal the juvenile court's refusal to place the children with them. We affirm the termination of the father's rights, reverse the court's denial of the maternal grandparents' request for custody and guardianship of both Kyle and Zachary, and remand.
I. Background Facts and Proceedings and Scope of Review
Monte is the father of Kyle, born in 1995. Monte lived with Melanie on and off. Melanie was the mother of Kyle and Zachary, born in 1992. Zachary's father is not a subject of this appeal.
Monte has two confirmed child abuse reports to his name, based on physical punishment of Zachary and the manufacture and use of methamphetamine in the children's presence. The record also contains evidence that he abused Melanie.
Kyle and Zachary were removed from Melanie's care due to her failure to keep the children away from Monte. Shortly after their removal, Melanie died. Zachary and Melanie's parents blamed the death on Monte, but he was never charged with a crime in connection with her death. He was, however, arrested on drug charges and was in jail at the time of the termination hearing.
The children initially were placed with their maternal grandparents, Bruce and Lois. Both children expressed a desire to remain with them, but the Department of Human Services (Department) transferred the children to a single-parent foster home. After about four months, the foster parent notified the Department that she no longer wished to care for the children. Zachary was placed in another foster home for about two months, then was transferred to the home of a family with several other foster children. Professionals diagnosed him with attention deficit hyperactivity disorder and placed him on Ritalin. Kyle was separately placed in therapeutic foster care to address his developing aggression.
Meanwhile, the juvenile court allowed Bruce and Lois as well as Monte's parents to intervene in the child in need of assistance proceedings. Both sets of grandparents agreed to undergo evaluations and submit to in-home studies. Both also exercised visitation with their grandchildren, with a view to obtaining custody.
A little over a year after the children were removed from their mother, the State initiated proceedings to terminate the fathers' parental rights. The juvenile court terminated both fathers' rights. As to Monte, the court relied on Iowa Code section 232.116(1)(c) (1999) (physical or sexual abuse or neglect and the circumstances continue to exist despite the receipt of services). The court further found it would not be in either child's best interests to have them transferred to the care of either set of grandparents.
Monte and the maternal grandparents appeal. Our review is de novo. Iowa R. App. P. 6.4.
II. Kyle's Father
Monte contends (1) the State failed to make reasonable efforts to reunite him with Kyle, and (2) the court should have placed Kyle with his parents.
A. Reasonable Efforts . The State is obligated to make reasonable efforts toward reunification of a parent with a child. See Iowa Code § 232.102(7) and (10)(a). In re C.B., 611 N.W.2d 489, 492-93 (Iowa 2000). Monte contends this mandate was not satisfied. We disagree. As the juvenile court stated:
Although only limited services were offered or provided to Monte by the Iowa Department of Human Services in this case, the State has shown that even if more extensive services had been provided, the adjudication and removal of Kyle would have continued. Monte has a long history of criminal charges, domestic violence and substance abuse. Kyle was exposed to domestic violence between Monte and Melanie, and he has suffered psychological and emotional harm as a result of his exposure to domestic violence. Kyle is in need of extensive and ongoing therapy to deal with behavioral issues, and he is in need of a highly structured home to provide stability for him. Given [Monte's] history, the offer and receipt of more extensive services to Monte would not result in reunification within a reasonable time. Further, Monte never requested services, and it is questionable whether he would be cooperative with services.
(last names omitted). On our de novo review of the record, we find support for these findings and adopt them as our own. The Department denied Monte visitation with Kyle because Kyle feared his father. Under these circumstances, we conclude the Department satisfied its reasonable efforts mandate notwithstanding its failure to furnish visitation and other services.
B. Placement with Paternal Grandparents . Iowa Code section 232.117(3)(c) allows a court to transfer guardianship and custody of a child to a relative. Monte contends Kyle should have been placed with his parents.
The psychological and in-home assessments of Monte's parents were uniformly positive. The grandparents had a stable marriage, secure jobs, and a suitable home, and were appropriately caring for an older son of Monte. In the Department's view, the sole impediment to placement of Kyle in their home was their willingness to permit contact with Monte. Given the severe trauma that Kyle suffered in his early years, we agree with the Department's determination that regular contact with Monte would not have been in his best interests. While the record reflects Monte did not physically abuse Kyle, he physically abused others in front of Kyle. As a result, Kyle's social worker noted he "is a child who openly expresses a great deal of fear and concern about his birth father Monte. . . ." She concluded ongoing contact with Monte "would be very detrimental to his healing process as well as his ability to grow up to be a happy, healthy individual." In light of this evidence, we affirm the juvenile court's decision not to place Kyle with his paternal grandparents.
III. Maternal Grandparents
The maternal grandparents contend (1) there is a statutory preference for placement with family and (2) the juvenile court's finding that they could not care for Zachary and Kyle is unsupported by the record.
A. Statutory Preference . The maternal grandparents argue there is a statutory preference for placement of children with family. They maintain this statutory preference evolved from a common law preference and creates a rebuttable presumption that the best interests of children are served by placing custody with the grandparents. We disagree.
While Iowa Code chapter 232 affords grandparents a right to seek custody and guardianship of grandchildren both before and after parental rights are terminated, it does not afford them preferential status. See Iowa Code §§ 232.102(1)(a), 104(2)(d), 117(3)(c); In re J.R., 315 N.W.2d 750, 753 (Iowa 1982) (overruled on other grounds by In re B.B.M., 514 N.W.2d 425, 428 n. 1 (Iowa 1994)). Cf. In re A.G., 558 N.W.2d 400, 403-04 (Iowa 1997) (giving grandparents legal right to intervene in child in need of assistance proceedings). Cases holding otherwise are distinguishable because they involve children with no parents. See, e.g., In re Reed, 468 N.W.2d 819, 824 (Iowa 1991) (stating grandparents to be preferred over ministrations of strangers where both parents died); Holmes v. Derrig, 127 Iowa 625, 626, 103 N.W. 973, 974-75 (1905); In re Benton, 92 Iowa 202, 203, 60 N.W. 614, 615 (1894).
The juvenile court afforded the maternal grandparents their statutory right to intervene. Having done so, the court was not obligated to also afford them preferential status over the Department in making its custody determination. Iowa Code § 232.117(c)(3) (listing parties to whom custody and guardianship may be transferred following termination of parental rights). The question of who should assume custody and guardianship of the children turns on what is in the best interest of the children. In re J.M.W., 492 N.W.2d 686, 690 (Iowa 1992); In re L.S., 483 N.W.2d 836, 839-40 (Iowa 1992). We will address this best interests issue after examining the sufficiency of the evidence supporting the juvenile court's and Department's reasons for denying the maternal grandparents custody.
B. Sufficiency of Evidence . The juvenile court determined Bruce and Lois were not suitable caretakers for the children. The court reasoned that they would be unable to address the children's special needs or assist them with their "psychological and emotional issues." This determination was based on the Department's recommendation. A Department case manager testified that the maternal grandparents' home was not considered a viable placement option because they "would not be able to give the children the structure and safety and parenting that they need" and there might be contact with their father if they were placed in this home. The case manager also cited other reasons for not recommending placement with the grandparents, including suspected alcohol abuse, inability to ensure regular school attendance, and negative psychosocial and home study reports.
1. Structured Environment . The juvenile court determined that Bruce and Lois would be unable to provide the children structure. On our review of the record, we disagree. Kyle, by all accounts a sweet and lovable child initially, only began displaying aggressive tendencies after he was placed in foster care. Although Zachary had already begun to display hyperactive tendencies before his removal, he also was well-adjusted while at his maternal grandparents' home. Following an in-home visit at Bruce and Lois's house shortly after their daughter's death a visitation superviser stated Zachary "appeared happy and busy, playing with his brother and cousins." In contrast, Zachary's first foster mother reported he was wild, rough, and boisterous in her home. She expressed similar negative comments about Kyle's behavior, as did the therapeutic foster parents who took over his care.
While there is no question that both children needed a structured setting to manage their behaviors, we find virtually no evidence that Bruce and Lois were unable or unwilling to provide such an environment. They were 51 and 47 years old respectively, had been married for thirty years, and lived on a six-acre farmstead with a clean and spacious home. Lois had given up her factory job to care for one of her sons and two grand-nephews. These grand-nephews, like Zachary and Kyle, had been subjected to abuse. Bruce and Lois offered to assume their care and, notably, the Department approved them. Lois was able to assist one of the children in overcoming his extreme fear of women. There was no indication in the record that either was anything other than happy and healthy while in their care.
As for the grandparents' daily routine, Bruce testified that the boys assisted with chores around the farm, did their homework, watched television while Lois prepared the evening meal, and went to bed around 8:30. Lois was available twenty-four hours a day to attend to the chidren's needs and, by all accounts, was actively involved with their schooling. While Bruce worked approximately fifty-six hours per week at his factory job, he testified that he was also available for the children when he was not working.
The Department reached a contrary conclusion about the structure provided by the grandparents based primarily on its workers' assessments of visitation. Summarizing these assessments, the case manager stated the grandparents "do not provide rules or any expectations during visits but rather let the children run wild." After a careful review of the visitation reports, we cannot agree with this view.
The visitation reports reveal that Bruce and Lois almost always came prepared for visitation with food, games, and planned activities such as fishing. Several months before the termination hearing, a Department worker who supervised visits noted Bruce and Lois "showed good supervision skills during both visits" in the month. She specifically noted "Kyle listened to Lois and Bruce's directives." Although in a subsequent visit she opined that they had "some difficulty getting Kyle to listen and follow directives", she concluded they seem to be working on that issue. In short, we discern little in the visitation reports that would suggest Bruce and Lois were unable to maintain the structure needed to manage severely abused children.
2. Contact with Father . The Department suggested that there was a greater likelihood Monte would reenter and disrupt the children's lives if they were placed at their maternal grandparents' home as opposed to a foster home whose location was unknown to Monte. We find no merit to this contention. Lois testified she strongly believed Monte had something to do with her daughter's death. A social worker conceded that, in light of Lois' opinion, it was unlikely she would facilitate contact between Kyle and Monte. Bruce also testified he would protect the children from Monte.
As for the Department's contention that a non-relative placement would furnish more anonymity, the Department's case manager conceded Monte would be able to find the children at their present foster placements. Additionally, our highest court rejected this argument in a case with similar facts, stating:
[w]hile there is concededly a risk in providing an opportunity for future neglect by their parents, the quality of the proposed home in this case and the desirability of maintaining an identity with the children's natural family outweigh the benefits of an anonymous adoption.In re J.R., 315 N.W.2d at 753. We also reject the argument.
3. Alcohol Abuse . The Department's case manager noted "there was an extremely strong odor of alcohol about Bruce and Lois" when they came to the Department on one occasion shortly after the death of their daughter. Both Bruce and Lois willingly submitted to a chemical dependency evaluation to address this suspicion of alcohol abuse. The evaluator determined that neither had a substance abuse problem. With respect to Lois, the evaluator stated, "[t]he testing tools used did not show any chemical dependency problem and I do not believe there is any substance abuse problems (sic) with this individual." With respect to Bruce, the evaluator stated,
[Bruce] seemed to be open to answering all the questions presented to him. He said he has had previous treatment but has completed it and has had a number of years of sobriety and has been involved in a 12 step program. He does not meet any of the criteria for diagnostic impression. The testing tools used did not indicate any chemical dependency. He should continue his involvement with his 12 step program.
Evaluators who performed a psychosocial assessment of Bruce and Lois did not make contrary findings, noting only that, if the Department's suspicions of alcohol abuse proved to be true, they would have grave concerns about placing the children with the maternal grandparents. As for the truth of those suspicions, a victim advocate who was with Bruce and Lois after their daughter's death expressly refuted the Department's assertion that the two had been drinking. He said he told a worker who made this assertion, "I just rode from Fort Dodge with them. I have been with them all morning. I never seen (sic) them have anything to do with alcohol. I never smelled it." He adamantly stated he never told the Department otherwise. School personnel, including the principal of the school that Bruce and Lois' son and wards attend, stated they had interacted with Lois and had no indications she was under the influence of alcohol.
It is true there is evidence of alcohol use by both grandparents. Both testified that they drank occasionally and both stated they drank some beer after being informed of their daughter's death. However, on this record there is only speculative evidence of alcohol abuse. A home-study evaluator's concern about alcohol abuse was based on two school employees' comments and the comments of the Department case manager, all of which were refuted by witnesses for the maternal grandparents. Finally, we note that Bruce indicated a willingness to abstain from the use of alcohol, if that became a condition for obtaining custody of his grandchildren. He also agreed to undergo random alcohol testing. Similarly, Lois testified she would follow Department directives. We accordingly find insufficient evidence to support this ground for denial of custody.
4. School Attendance . The Department's case manager stated the maternal grandparents would be unable to ensure that their grandchildren would attend school. The record suggests otherwise. Zachary and Kyle lived in their maternal grandparents' home for two years. During that time, Zachary attended school in the grandparents' district. Zachary was absent only 1.5 days out of 178.5 in first grade and six days out of 174 in second grade. School personnel attested to Lois' active interest in the education and development of her seventeen-year old son and the two younger boys for whom she acted as guardian. A school counselor wrote, " [s]he has supported the school in helping the boys with any learning problems they have had and has encouraged us to get them as much help as they needed." Indeed, the record reflects that such help for special needs children may have been more forthcoming at the school in the maternal grandparents' district than at the school Kyle was attending during the termination hearing. Therefore, we find insufficient evidence to support denial of the maternal grandparents' request for custody on this basis.
5. Negative Professional Evaluations . Finally, the Department points to professional evaluations purportedly recommending against placement of the children with their maternal grandparents. In fact, the psychosocial evaluators only expressed concern about the grandparents' reference to their grandchildren as "typical" boys. They suggested Bruce and Lois would "need assistance in understanding the psychological, academic, and behavioral needs of their grandchildren." The maternal grandparents provided extensive evidence that they had attended to the special needs of the other children in their care and would attend to the needs of Zachary and Kyle. The superintendent of their school district, who had seen Lois interact with school personnel, stated he had no reason to believe that the maternal grandparents could not take care of two additional children. He further stated his opinion would not change if he knew the two additional children were special needs children. Lois herself testified that, while she viewed her grandchildren as normal kids, they would require special therapy to address the loss of their mother and the abuse they experienced or witnessed. She further stated that although she did not see the need for medication for Zachary, she would be supportive of medical and professional opinions to the contrary. Throughout the proceedings, Lois complied with Department and court directives, whether she agreed with them or not. When the Department indicated it lacked funding to pay for counseling for Bruce and Lois, Lois obtained grief counseling through another source. She continued to attend these sessions even after insurance stopped paying for them. Therefore, there is insufficient evidence to support the Department's opinion that the maternal grandparents would not attend to their grandchildren's special needs.
Notably, Kyle's social worker also referred to some of his acting out behaviors as "normal" but expressed concern over the frequency and intensity of those behaviors.
As for the home study report, the evaluator concluded Kyle's needs could not be met in the home due to concerns about alcohol abuse. We have already addressed the evidence supporting those concerns and the chemical dependency evaluator's opinion to the contrary. Therefore, we are not convinced the home-study evaluation mitigates against placement of the grandchildren with their maternal grandparents.
C. Best Interests
As noted, the primary consideration in placement of children is the best interests of the child. Iowa Code § 232.117(c)(3). On our de novo review of the record, we conclude it is in the children's best interests to have them returned to the care of their maternal grandparents, who assisted in raising them for two years and who remained committed to them throughout these proceedings. Zachary had been in three foster homes within a year, Kyle in two. Although the Department's case manager testified this was a relatively small number of placements, the fact remains that a single placement, the home of the maternal grandparents, was available from the inception.
Zachary's foster father testified that Zachary looked forward to visits with his maternal grandparents and asked about having unsupervised overnight visits with them. He stated, "I can't say I've observed anything negative from the visit come out of that." He also denied seeing any anxious or fearful behavior before visits. There was also evidence that Zachary appeared conflicted about his future. Although he expressed a desire to be adopted by his foster parents, he also stated he wished to return to his grandparents' home. He further became troubled when another foster child in the foster home was adopted before him. One social worker stated that he required permanency more than anything else. The grandparents can provide this permanency.
Kyle also expressed happiness at seeing his grandparents during visits. Although his foster parents stated that his behavior deteriorated after these visits, they also noted that his behavior was problematic at other times. Given Kyle's sweet disposition before his removal and the maternal grandparents' willingness to work with his subsequent destructive behaviors, we believe it is also in his best interests to have him returned to their care.
IV. Disposition
We affirm the juvenile court's termination of Monte's parental rights and its decision not to place Kyle with his parents. We reverse the court's decision denying the maternal grandparent's request for custody and guardianship of Zachary and Kyle and remand for entry of an order transferring custody to them.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.