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In the Interest of N.L., 02-1121

Court of Appeals of Iowa
Dec 30, 2002
No. 2-970 / 02-1121 (Iowa Ct. App. Dec. 30, 2002)

Opinion

No. 2-970 / 02-1121.

Filed December 30, 2002.

Appeal from the Iowa District Court for Fayette County, ALAN D. ALLBEE, Associate Juvenile Judge.

Mother appeals a juvenile court permanency order placing her child following the child's adjudication as a child in need of assistance. AFFIRMED.

T. David Katsumes of Katsumes Law Office, Elgin, for appellant-mother.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, W. Wayne Saur, County Attorney, and Nathan Lein, Assistant County Attorney, for appellee.

Larry Woods, Oelwein, for minor child.

Richard Buffington, Oelwein, for father of N.L.

Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.


Lisa, the mother of J.S., appeals from that part of a juvenile court permanency order in a child in need of assistance (CINA) proceeding which ordered that J.S. remain in the custody of the Iowa Department of Human Services (DHS) for a permanent planned living arrangement for placement in family foster care. Upon our de novo review we affirm.

Lisa is the mother of J.S., a fifteen-year-old daughter, and N.L., an eleven-year-old son. Tony is Lisa's twenty-eight-year-old paramour, who has lived with Lisa and her children at times directly relevant to this proceeding.

J.S. and N.L. were adjudicated CINA in October 2000. The adjudication was pursuant to Iowa Code section 232.2(6)(f) (1999) (children in need of treatment to cure or alleviate serious mental illness or disorder, or emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior and whose parent is unable to provide such treatment). Lisa and the children had been provided with voluntary and court-ordered family centered services and counseling from May 1995 to May 1999, services which then resumed in December 1999 when the children's behavior deteriorated with Tony's return to their household.

J.S. and N.L. were removed from Lisa's home in January 2001 following a December 2000 suicide threat by Tony and a January 2001 domestic abuse incident between Tony and Lisa. They have thereafter remained in foster care. Services provided or offered to Lisa, the children, Tony, or some combination thereof have included family centered services including family therapy, parent skill training, and individual counseling, psychological and psychiatric evaluations, mental health counseling, couples counseling, anger management for Tony, batterer's education for Tony, sexual offender evaluation and treatment for Tony, supervised visitation, family foster care, transportation, homemaker services, and home health care services.

A permanency hearing was held January 4, 2002. The juvenile court continued a previous dispositional order in effect for another six months and scheduled a final permanency hearing for June 28, 2002. Following a hearing held on June 28 and July 2, 2002, the juvenile court ordered that custody of J.S. remain with the DHS for a permanent planned living arrangement with placement in foster care subject to continued visitation with Lisa and N.L.; custody of N.L. remain with the DHS for placement in family foster care subject to visitation with Lisa and J.S.; and the State file a petition for termination of parental rights of the parents of N.L. Lisa appeals that part of the order concerning J.S.

We review a permanency order de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). We give weight to the fact findings of the juvenile court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 6.14(6)(g). Our paramount concern is the best interest of the child. Iowa R.App.P. 6.14(6)(o); In re L.G., 532 N.W.2d 478, 481 (Iowa Ct.App. 1995).

Lisa claims the juvenile court erred in ordering that J.S. be placed in a planned permanent living arrangement. She first asserts such a placement was improper because there was a "lack of reasonable efforts to provide services to eliminate the need for removal pursuant to Iowa Code section 232.102(10)(a)."

Lisa complains the DHS did not timely provide funding for court-ordered sexual offender testing, and counseling if necessary, for Tony. We disagree.

As a nineteen year old Tony was charged with sexual abuse of a thirteen-year-old female, pled guilty to indecent contact with a child, was convicted and placed on probation, and was ordered to participate in sexual offender treatment. He made minimal progress, was terminated from the initial treatment program, was unable to complete a program while on probation for two years, showed no remorse, minimized his conduct, and blamed the victim. In this case a variety of orders and permanency plans beginning in February 2001 required him to participate in sex offender evaluation and any recommended treatment. He resisted until January 2002, stating he had completed such programming (apparently the program when he was on probation years earlier) and did not intend to participate again. Finally, in January 2002 Lisa or he sought and secured an order for funds for a psychosexual evaluation. The DHS thereafter gave him the information necessary to make arrangements for testing, he did little or nothing, and the DHS arranged testing. The physiological part of the testing could not occur as scheduled because a machine had broken. The DHS tried to arrange alternative testing, but was unable to do so and asked Tony to make a new appointment for testing. He did little or nothing, and the DHS then arranged for the written part of the testing for June 11, 2002, and the machine (plethysmograph) part of the testing for July 24, 2002, the earliest dates available. July 24 was, unfortunately, after the June 28 and July 2, 2002 continued permanency hearing.

In summary, any delays in Tony's sexual offender evaluation and treatment are largely the result of his resistance and lack of cooperation. DHS promptly sought and secured funding when Lisa or Tony sought funding. Thereafter the DHS took steps reasonably calculated to get the testing done despite Tony's lack of effort to do so.

Lisa also complains that she "requested help on certain things from Kelly Weyant, outside service provider and counselor, and they were never followed through by Weyant." However, at the final permanency hearing Lisa was asked for examples of when she had asked Kelly for help and not received it. Her only example was that Kelly had told her they would work together on making and posting a chore chart and rules for the children and when Kelly did not bring poster board she, Lisa, did it herself. Nothing in the record supports Lisa's claim, implicit in her complaint, that any alleged failure by Kelly to timely assist in this one project adversely affected prospects for reunification. We find this complaint to be without merit.

The record shows that the State provided the numerous services listed earlier in this opinion, some with very little interruption since 1995. We have considered all of Lisa's claims and complaints concerning lack of timely services, whether or not specifically discussed herein, and find them to be without merit.

Lisa's second claim on appeal is that the juvenile court erred in finding clear and convincing evidence that J.S. could not be returned home. We again disagree.

J.S. had been the victim of sexual abuse on three occasions. She has serious emotional and behavioral problems. Lisa has been unable to deal with J.S.'s problems and has appropriately sought assistance and services at times. J.S. needs a great deal of both structure and nurture. However, Lisa is extremely permissive and Tony is very authoritarian and controlling. This contributes to and exacerbates J.S.'s emotional and behavioral problems. Despite years of services Lisa and Tony are unable to provide consistency and a much needed unified approach to parenting J.S. Further, as found by the juvenile court, Lisa fails to follow through with planned parenting strategies and consequences for misbehavior.

Prior to the final permanency hearing Lisa and Tony were provided with almost two years of uninterrupted services. However, the evaluation and testing necessary to show whether Tony was at risk to reoffend and thus constituted a threat to J.S., who was particularly vulnerable because of her age, prior victimization, and emotional and behavioral problems, had not been completed. Lisa, by her actions, continued to place greater importance on her relationship with Tony than on reunification with J.S. Upon our de novo review we agree with the juvenile court that clear and convincing evidence shows J.S. cannot be returned to Lisa's custody.

Lisa's final claim is that the juvenile court erred in not honoring J.S.'s desire to be returned to Lisa's home. There is a rebuttable presumption that the best interest of a child is served when custody is with the natural parents. Iowa Code § 232.1 (2001); In re S.J., 451 N.W.2d 827, 830 (Iowa 1990). Lisa and J.S. clearly love each other and are bonded. J.S. has recently expressed a willingness, even a desire, to return to Lisa's home. However, the same evidence that clearly and convincingly shows J.S. cannot be returned home rebuts the presumption in favor of J.S. being in Lisa's custody.

Contrary to Lisa's argument that J.S. has consistently expressed a desire to return to Lisa's home, the evidence rather clearly shows that until relatively recently she was opposed to doing so.

AFFIRMED.


Summaries of

In the Interest of N.L., 02-1121

Court of Appeals of Iowa
Dec 30, 2002
No. 2-970 / 02-1121 (Iowa Ct. App. Dec. 30, 2002)
Case details for

In the Interest of N.L., 02-1121

Case Details

Full title:IN THE INTEREST OF N.L. and J.S., Minor Children, J.L., Mother, Appellant

Court:Court of Appeals of Iowa

Date published: Dec 30, 2002

Citations

No. 2-970 / 02-1121 (Iowa Ct. App. Dec. 30, 2002)