IN THE INTEREST OF H.F., Minor Child, C.H., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-736 / 07-1519
Filed October 24, 2007
IN THE INTEREST OF H.F.,
Minor Child,
C.H., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Delaware County, Thomas Straka,
Associate Juvenile Judge.
A father appeals from the permanency order that removed custody of the
child from him and placed it with the mother. AFFIRMED.
Stephanie C. Rattenborg of the Rattenborg Law Office, Manchester, for
appellant father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, John Bernau, County Attorney, and William Werger, Assistant County
Attorney for appellee State.
Steven Carr of Carr & Carr, Manchester, for appellee mother.
Daniel Swift of Swift & Swift, Manchester, for appellee M.W.
David Baumgartner, Strawberry Point, and Shawn Harden, Independence,
for minor child.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
2
VOGEL, P.J.
Krissa and Chris, who were never married and do not live together, are
the parents of Hunter, born in 2001. Krissa’s five children, including Hunter, were
removed in February 2006 due to her uninhabitable home and drug use. At the
time of removal there was no district court order regarding Hunter’s custody.
Chris requested Hunter be placed with him, but Krissa resisted until paternity was
established. Eventually, Hunter’s placement was ordered temporarily transferred
to Chris.
After Hunter’s adjudication as a child in need of assistance (CINA), Chris
filed a motion seeking concurrent jurisdiction in order for the district court to
determine Hunter’s custody. He then filed a petition seeking custody and support
in the district court. On September 21, 2006, the district court filed an order on
Chris’s petition in which it recognized that the juvenile court was still entertaining
Hunter’s custody and thus found “no reason to disturb its placement order.”
Somewhat ambiguously, the order then purported to “grant” Chris’s request for
temporary custody application, but also added: “Custody and visitations shall be
as set out in the Delaware County juvenile case.”
Hunter remained in Chris’s custody for almost one-and-a-half years.
Following an August 28, 2007 permanency hearing, despite the State and Iowa
Department of Human Services’s (DHS) recommendations to the contrary, the
juvenile court removed Hunter’s custody from Chris and ordered he be placed in
Krissa’s care.
It found that while both Krissa and Chris were “appropriate
placement options,” the fact that Hunter’s four half-siblings had been returned to
Krissa’s care tipped the scales in favor of reuniting him with them and their
3
mother. 1 Chris appeals from this order, asking this court to reverse the juvenile
court and return Hunter’s custody to him.2
Our scope of review in juvenile court proceedings is de novo. In re K.N.,
625 N.W.2d 731, 733 (Iowa 2001).
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).
On appeal, Chris first asserts the juvenile court erroneously felt itself
constrained by Iowa Code section 232.102(7) either to return the child to the
mother’s home, extend the “foster care,” or terminate the CINA proceedings. Our
review of the juvenile court’s order does not bear this out and reveals that the
court believed it had the ability to leave Hunter in Chris’s care. By weighing the
relative advantages and abilities of both parents, the court clearly expressed its
consideration of Chris’s home as a continuing placement option. Regardless, In
re S.V., 395 N.W.2d 666, 669 (Iowa Ct. App. 1986) establishes that Hunter
indeed had two “homes” to which he could have been returned—his mother’s
and his father’s. The court’s ruling does not reflect a misapprehension as to this
fact.
Chris next urges that the juvenile court improperly determined Hunter’s
interests are best served by returning his custody to his mother.
Hunter’s
guardian ad litem prepared an extensive and insightful report that the court
appeared to have relied on. That report recommended that custody of Hunter be
returned to Krissa under the protective supervision of DHS. It noted that Krissa
1
At the time of the permanency hearing, it was expected that the district court’s custody
hearing would take place in either October or November.
2
The State took no position on appeal.
4
had been “compliant and successful with substance abuse treatment” and that
she had been substance-free since July of 2006. 3 The report also observed
Krissa’s drive to better her and her children’s lives, her dedication to her
employment, and her “positive” approach to discipline.
Based on Krissa’s
progress, the assessment of her parenting, her success in remaining free of
drugs, and bonding with Hunter, we agree that Krissa would be an appropriate
custodian for Hunter.
Next, the guardian ad litem’s report did find Chris’s home to be
appropriate and reveals that Hunter has done very well in the care of his father
and step-mother.
However, it did note certain concerns about Hunter’s and
Chris’s relationship.
During in-home visits, the guardian ad litem observed
Hunter interacting more with Chris’s wife than with Chris. Hunter related that
when Chris gets home from work, he watches television or is on the computer,
rather than spending time with Hunter. Hunter is very close to and affectionate
with Krissa and his half-siblings that reside with her. They existed as a family
unit from Hunter’s birth through his removal in early 2006. Conversely, Chris was
not a part of Hunter’s life until 2004.
Considering the totality of the circumstances, we find the juvenile court
order serves Hunter’s best interests. Hunter’s close relationship with Krissa and
his half-siblings in her house is an important factor in this determination. Krissa
continues to receive services from DHS as well as drug monitoring.
Her
progress in treatment and serious commitment to regaining custody of her
3
Although Krissa did have an apparent positive sweat patch test in June 2007,
subsequent hair-stat and fingernail tests appear to have proved the sweat patch result a
false positive.
5
children speaks well of her ability to care for Hunter and keep him in a safe
environment. In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring
specially) (stating children’s safety and their need for a permanent home are the
defining elements in a child’s best interests). Pursuant to the permanency order,
Chris will enjoy “regular and consistent unsupervised visitation with Hunter.” We
therefore affirm the juvenile court’s custody determination.
AFFIRMED.
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