IN THE COURT OF APPEALS OF IOWA
No. 3-056 / 02-1090
Filed March 26, 2003
IN THE INTEREST OF C.U., Minor Child,
K.S. and C.S.,
Intervenors-Appellants.
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.
ZIMMER, J.
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.[1] 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.
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.
AFFIRMED.
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[1] 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.
