Opinion
No. 3-798 / 03-1353
Filed November 17, 2003
Appeal from the Iowa District Court for Winneshiek County, Alan D. Allbee, Associate Juvenile Judge.
A father appeals from the juvenile court's order denying his motion for modification of disposition and continuing his children's placement in foster care. REVERSED AND REMANDED WITH DIRECTIONS.
Kevin Schoeberl of Story, Schoeberl, Kowalke Law Firm, Cresco, for appellant-father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Andrew VanDerMaaten, County Attorney, and Stephen Belay, Assistant County Attorney, for appellee-State.
Karl Knudson, Decorah, for minor children.
Christopher Riker, Decorah, for appellee-mother.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
A father appeals from the juvenile court's order denying his motion for modification of disposition and continuing his children's placement in foster care. The father contends conditions have materially and substantially changed since the last custody determination, and convincing evidence does not support the children's placement in another permanent planned living arrangement. Our review of a permanency order is de novo. In Interest of N.M. 528 N.W.2d 94, 96 (Iowa 1995).
I. Background Facts and Proceedings. These children were removed from the custody of their mother after they were discovered living in a campground. Their mentally unstable mother was not taking her prescribed psychotropic medication or receiving any outpatient treatment. She had no income and no residence. The children's parents were divorced in Texas in February 1995 and the father was awarded custody of the children. In June 1998, while on a regularly scheduled visit, the mother moved with the children to Iowa. From 1998 until November 2002 the father did not see the children, although he spoke with them occasionally on the telephone. He had unsupervised week-long visits with them when he attended court hearings in November 2002 and June 2003. A home study was done of the father's home in Texas. The study recommends placement with the father and identifies no concerns for the safety or care of the children. He has adequate parenting skills and a positive relationship with the children.
The mother has schizophrenia and depression. She has a history of psychiatric hospitalizations. Most recently, she was in the State Mental Hospital in Austin, Texas from June 19 to July 9, 2003. She was discharged with a diagnosis of schizophrenia, undifferentiated, continuous. She left Texas and is again residing in Iowa. The trial court noted that her actions and statements in court on July 28, 2003 indicated she is again mentally unstable and not taking her medication.
The children are thriving in and wish to remain in their foster home.
The children were adjudicated children in need of assistance on November 18, 2002. They have been in foster care since August 9, 2002. Disposition was held on January 13, 2003. The children expressed a wish to finish the school year before a decision on returning to their father. On July 28, 2003 at a combined hearing on the father's motion to modify and a permanency hearing, the court ordered "another permanent planned living arrangement" pursuant to Iowa Code section 232.104(2)(d)(4) (2003) with continued family foster care. The court concluded the mother was not able to properly provide for the children and restricted her contact with the children until she is medication compliant, in mental health treatment, and emotionally stable. The court also concluded the father should not have custody because his prior actions in allowing the children to be taken by their mother had led to a chaotic and emotionally draining experience for the children. The court found it likely the father would permit the mother to take the children again.
II. Analysis. In order to enter a permanency order, the court must find convincing evidence that:
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.
Iowa Code § 232.104(3). The father agrees the first condition has been met. Although the father contends additional services could have been offered to him to correct the situation that led to adjudication, the father has not formally requested such services. See In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994) (holding a challenge to the sufficiency of such services should be raised when the services are offered).
We then turn to the final element of section 232.104(3). Can the children be returned to their father's home? The Iowa Code envisions removing children from their parents only if they are in imminent danger to their life or health. See, e.g., Iowa Code §§ 232.78(b); 232.95(2)(a). It envisions keeping them from their parents only if they will suffer some harm included in the definitions of a "child in need of assistance." SeeIowa Code § 232.2(6). The only harm alleged to threaten the children if returned to their father is they may be allowed by the father to return to their mentally unstable mother's custody. The father denies he will allow this to happen. The last time the father left the children with the mother was for a regularly scheduled visit during a period when the mother had her mental illness under control. Without the father's knowledge or consent, she brought the children to Iowa and apparently did well for some time, providing the children with a home and an education. The father may be faulted for not seeking assistance in having the children returned to him, however there is no evidence he knew the children were in jeopardy until they were placed in foster care by the Iowa court.
The Texas divorce decree awarded the father custody of the children. The children were in their father's custody until the mother illegally removed the children to Iowa. Although the children had little contact with their father from 1998 until removed from their mother's care, they have had weekly telephone contact and two weeks unsupervised visitation with their father since entering foster care. The children express a wish to remain in foster care and are doing well. However, we are bound to place children with a parent unless the placement will result in their abuse or neglect. In re M.W., 458 N.W.2d 847 (Iowa 1990). A home study indicates no concerns regarding the father and recommends the children be placed with him. The possibility of mom being permitted to take the children is too remote to warrant denial of the father's right to custody of his children. Sufficient safeguards and assistance should be available to the father to prevent such an outcome.
We conclude no adjudicatory harm awaits these children in Texas. Accordingly, the children should be placed in their father's care. The children are only thirteen and fourteen years of age. They should not remain in foster care for the next four or five years. We reverse the district court's permanency order and remand for an order placing the children with their father.