Opinion
No. 4-817 / 04-1524
Filed December 22, 2004
Appeal from the Iowa District Court for Sioux County, Brian L. Michaelson, Associate Juvenile Judge.
A mother appeals from the juvenile court order finding her daughter to be a child in need of assistance. AFFIRMED.
James Pickner, Hawarden, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner and Bruce Kempkes, Assistant Attorneys General, and Coleman McAllister, County Attorney, for appellee-State.
Patricia Vogel, Orange City, guardian ad litem for minor child.
David Stuart of Stewart Peterson, Beressord, South Dakota, for father.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
Angela, the mother of Sadrian, born in December 2003, appeals from the juvenile court order finding Sadrian to be a child in need of assistance under Iowa Code sections 232.2(6)(b), (c)(2), and (n) (2003). She contends the State did not present clear and convincing evidence to support the juvenile court's decision. On de novo review, we affirm.
Angela was an IV methamphetamine user and has criminal convictions for forgery and drug possession. She acknowledges testing positive for methamphetamine during the first trimester of her pregnancy with Sadrian, but claims it was due to taking pseudoephedrine. Angela's two older children, born in 1993 and 1998, were found to be in need of assistance in February 2001 under Iowa Code sections 232.2(6)(b), (c), and (n) (2001). Her parental rights to the older children were terminated in December 2001 under sections 232.116(1)(c), (d), (h), and (k).
In February 2004 she placed Sadrian in the guardianship of a friend, Linda, in Sioux County in anticipation of her forgery probation being revoked for failure to appear at court hearings. In March her probation was revoked and she was sentenced to five years incarceration. On June 8 Linda contacted the Department of Human Services (DHS) requesting Sadrian's removal and placement in foster care. She claimed Angela had not kept in contact with her about Sadrian and had not given her any money for Sadrian's care. Sadrian's biological father, who is in prison in Nebraska, wrote DHS to approve foster placement for Sadrian. Angela first requested that DHS place Sadrian with her mother in Sioux City. DHS determined she was not an appropriate caretaker. Angela then consented to Sadrian's placement in foster care in Sioux County because she intended to return there after her release. Sadrian entered foster care on June 21. On July 12 Angela was released from prison and she entered a shelter in Sioux City. A substance abuse evaluation concluded that, "based on Angela's history, her continue to use potential is high at this time." Angela was directed to enter a relapse prevention program.
Sadrian was seen by a nurse on June 22 and she expressed concern about apparent developmental delays. Other assessments yielded conflicting results on the extent of the delays, if any. A six-month "ages and stages" questionnaire ranked Sadrian as "doing well" in all areas.
In August Angela moved to a different women's and children's shelter in Sioux City where she can stay for up to two years and which allows children under age six. Angela had two-hour weekly visitation with Sadrian in Le Mars and also received parent skill development services. She later requested bi-weekly visitation instead of weekly because of transportation difficulties, as she has to rely on others for transportation. Angela missed a contempt hearing in the ongoing criminal proceedings in August and the hearing was continued. The record does not reflect the outcome of the hearing on Angela's parole. The adjudicatory hearing was held on September 3.
After the adjudicatory hearing the juvenile court found:
While Angela has begun to make some progress toward reunification, Sadrian . . . would suffer the harmful effects of a Child In Need of Assistance if she were returned to Angela's care at this time inasmuch as there is an imminent likelihood, based upon past history, that Angela will relapse, fail to properly supervise, and/or neglect Sadrian. Angela will need to demonstrate a longer period of stability before Sadrian could safely be returned to her care.
The court noted Sadrian was making progress in overcoming her cognitive and developmental delays through services offered her. It also found she "is in need of a safe, stable, and nurturing environment and needs to be kept away from criminal activity, illegal substances, and unsafe care givers." The court found clear and convincing evidence Sadrian was a child in need of assistance under Iowa Code sections 232.2(6)(b), (c)(2), and (n) (2003).
On appeal, Angela contends the State failed to produce clear and convincing evidence to support the juvenile court's finding Sadrian is a child in need of assistance. She argues she is living in a supportive environment with ample services to assist her in parenting Sadrian. She is actively involved in therapy with a local recovery center. She claims she has not used drugs for over a year. She has developed a network of support from family, service providers, and other professionals in Sioux City. She submitted exhibits showing her mother had frequent contact with Linda and Sadrian during the time Linda was caring for Sadrian and that her mother brought diapers and other supplies to Linda for Sadrian's care.
The DHS caseworker for Sadrian testified the women's and children's shelter where Angela is living provides assistance to residents and that such assistance would help Angela in nurturing Sadrian. He testified Angela had a part-time job at an apartment complex for elderly persons. The court then questioned the caseworker about Angela's choice to live in Sioux City instead of a similar shelter in Sioux Center, which would be closer to Sadrian. It also questioned him about potential problems in reunification because of a lack of bonding and attachment. The caseworker testified he would not support returning Sadrian to Angela until she completed the case plan he developed, which might take a year. The report from the worker supervising visitation noted:
Angela has been able to meet with this worker on three occasions. Angela has been willing to talk to this worker at visits and appeared to be excited to see Sadrian. Sadrian appeared not to know her mother but did well overall during visits. Angela was able to care for Sadrian and meet her needs during visits even when she was difficult. . . . Angela and her mother have brought Sadrian clothes and toys at visits and have been curious about her welfare at the foster home and about her development.
From our de novo review of the record, although this is a close case, considering Angela's past we find clear and convincing evidence supports the finding Sadrian is a child in need of assistance. We therefore affirm the juvenile court's order finding Sadrian to be a child in need of assistance.
Angela also filed a notice of appeal from the juvenile court's order after the combined dispositional and aggravated circumstances hearing on September 24. The district court continued Sadrian's placement in foster care but did not find aggravated circumstances to warrant eliminating the requirement that the State make reasonable efforts to reunify the family. Angela, at the time of the hearing, was in a women's and children's shelter where Sadrian could be placed with her. We trust the State will make reasonable efforts to reunify Sadrian with her mother while Angela is in the shelter where she has services available to help her parent Sadrian and to monitor the relationship.