IN THE INTEREST OF D.J.W., Minor Child, P.C., Grandmother, Intervener-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-735 / 07-1501
Filed October 24, 2007
IN THE INTEREST OF D.J.W.,
Minor Child,
P.C., Grandmother,
Intervener-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Audubon County, Mark J. Eveloff,
District Associate Judge.
Maternal grandmother appeals from the juvenile court’s ex parte
temporary removal and dispositional orders placing D.J.W. with his paternal
grandparents. AFFIRMED.
Eric Borseth of Borseth Law Offices, Altoona, for appellant maternal
grandmother.
Christine Sand, Guthrie Center, for mother.
Karen Mailander, Anita, for father.
Joseph Bertogli, Des Moines, for intervener paternal grandmother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, and Francine Andersen, County Attorney, for appellee State.
James Tinker, Audubon, for minor child.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
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HUITINK, P.J.
Maternal grandmother appeals from the juvenile court’s ex parte
temporary removal and dispositional orders placing D.J.W. with his paternal
grandparents. We affirm.
I. Background Facts and Proceedings
Pursuant to an ex parte order, D.J.W. was removed from his mother’s care
on March 7, 2007, because of domestic violence, parental substance abuse, and
his need for medical treatment,.
Custody was transferred to the Iowa
Department of Human Services (DHS) for foster care placement.
After a
temporary removal hearing, the juvenile court determined D.J.W. should continue
to be placed out of the home and transferred custody to his maternal
grandmother subject to DHS supervision. On March 14, 2007, the State filed a
child in need of assistance (CINA) petition under Iowa Code sections 232.2(6)(b),
(c)(2), (l), and (n) (2007).
On June 18, 2007, the juvenile court adjudicated
D.J.W. CINA under sections 232.2(6)(b), (c)(2), and (n) and ordered his
placement remain with his maternal grandmother.
On June 29, 2007, DHS filed an application for an ex parte removal order,
citing the maternal grandmother’s interference with reunification efforts. DHS
also cited the maternal grandmother’s attempt to place D.J.W. with an adoptive
family, as well as her refusal to allow D.J.W.’s father visitation on Father’s Day.
The juvenile court granted DHS’s application and transferred custody to DHS for
foster care placement.
On August 15, 2007, the juvenile court issued a dispositional order. In
that order, the juvenile court concluded D.J.W. could not be returned to his
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parents, custody with the maternal grandmother was not appropriate, and D.J.W.
should be placed with his paternal grandmother and her husband. The juvenile
court transferred custody to the paternal grandmother and her husband subject
to DHS supervision.
On appeal the maternal grandmother argues the juvenile court erred in
(1) granting the ex parte removal order and failing to return D.J.W. to her custody
and (2) placing custody of D.J.W. with the paternal grandmother and her
husband. She requests D.J.W. be returned to her care, or in the alternative, be
placed in foster care.
II. Scope of Review
Our scope of review in CINA proceedings is de novo. In re K.N., 625
N.W.2d 731, 733 (Iowa 2001).
We review both the facts and the law and
adjudicate the parties’ rights anew. Id. Although we give weight to the juvenile
court’s factual findings, we are not bound by them. Id. Our primary concern is
the best interests of the child. In re E.H., 578 N.W.2d 243, 248 (Iowa 1998).
III. Ex Parte Removal Order
Initially, we address the State’s argument that any issues concerning the
validity of the June 29, 2007 ex parte removal order are moot. We agree. “Any
error committed in granting the temporary ex parte order cannot now be
remedied.” In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994). “We cannot go back
in time and restore custody based on alleged errors in the initial removal order.”
Id.
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IV. Dispositional Order
The maternal grandmother also argues custody should not have been
transferred to the paternal grandmother and her husband upon disposition.
Rather, D.J.W. should have been placed in foster care. “When the dispositional
hearing is concluded the court shall make the least restrictive disposition
appropriate considering all the circumstances of the case.”
Iowa Code
§ 232.99(4).
[T]he court may enter an order transferring the legal custody of the
child to one of the following for purposes of placement:
a. A parent who does not have physical care of the child,
other relative, or other suitable person.
b. A child-placing agency or other suitable private agency,
facility, or institution which is licensed or otherwise authorized by
law to receive and provide care for the child.
c. The department of human services.
Id. § 232.102(1). According to our supreme court, “chapter 232 favors relative
placements over nonrelative placements.” In re N.M., 528 N.W.2d 94, 97 (Iowa
1995).
The juvenile court made the following findings of fact:
[The father’s counsel] stated her client’s first choice of
placement for [D.J.W.] was with his parents. Both parents either
testified or stated they did not have any concern with reunification
efforts being made available to them if the child was placed with the
[paternal grandmother and her husband]. Although the Court is
concerned with [the maternal aunt’s] testimony [regarding the
paternal grandmother’s alleged use of marijuana], the Court finds
the home study of the [paternal grandmother and her husband] is
extremely favorable and therefore finds the child should be placed
in the care custody and control of [the paternal grandmother and
her husband] so long as [the father] does not reside in the home.
This is due to the pending criminal charges [the father] has, which
includes felony drug charges.
The record includes abundant evidence supporting these findings of fact, and we
adopt them as our own. Like the juvenile court, we conclude placing D.J.W. with
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his paternal grandmother and her husband was appropriate under the
circumstances.
We therefore affirm the juvenile court’s ex parte temporary removal and
dispositional orders.
AFFIRMED.
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