IN THE INTEREST OF Z.S., Minor Child, L.A.B., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-804 / 07-1544
Filed November 29, 2007
IN THE INTEREST OF Z.S., Minor Child,
L.A.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Thomas J.
Straka, Associate Juvenile Judge.
A mother appeals from a permanency order concerning her son.
AFFIRMED.
Patricia M. Reisen-Ottavi of Kintzinger Law Firm, P.L.C., Dubuque, for
appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Ralph Potter, County Attorney, and Jean Becker, Assistant County
Attorney, for appellee.
Jamie Splinter of Hughes & Trannel, P.C., Dubuque, for father.
Mary C. Kelley, Assistant Public Defender, Dubuque, guardian ad litem for
minor child.
Considered by Sackett, C.J., and Vaitheswaran and Baker, JJ.
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SACKETT, C.J.
Lori, the mother of Zachary and Emily 1 , appeals from the permanency
order for another planned living arrangement for her fifteen-year-old son. The
court allowed that the son may be placed with his father, Ed, after successful
completion of a residential treatment program. She contends the court erred (1)
in failing to order reasonable services for her, (2) in finding she was a risk of
emotional harm to Zachary, (3) in failing to hold review hearings and allowing
suspension of her visitation without a hearing, and (4) in placing Zachary with his
father after treatment. We affirm.
I. Scope of Review
Our review of permanency orders is de novo. We review both the
facts and the law and adjudicate rights anew on the issues properly
presented. We give weight to the juvenile court's findings, but are
not bound by them.
In re A.A.G., 708 N.W.2d 85, 90 (Iowa Ct. App. 2005) (citations omitted).
II. Background
Zachary, born in 1992 and Emily, born in 1997, were removed from their
mother’s care in May of 2005 because of safety issues for the children. Both
were returned to Lori’s care a few days later with a safety plan and services to be
provided. Formal adjudication was suspended and services continued pending
sufficient progress by Lori that the case could be closed.
Over the ensuing
months, Lori’s mental health problems worsened and Zachary’s behavior
problems increased. The State sought and obtained an order in February of
2006 authorizing shelter care for Zachary. Following a hearing, in late February
1
The appeal from the order terminating her parental rights to Emily, No. 07-1612, is
addressed in a separate decision, In re E.S., filed on ________________.
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the court found Zachary was in need of assistance and ordered continued
services.
Lori was diagnosed with depressive disorder and paranoid personality
disorder with dependent, borderline, and obsessive compulsive features. She
tested positive for cocaine and refused to submit to follow-up drug testing.
Zachary was diagnosed with oppositional defiant disorder, attachment issues,
post-traumatic stress disorder, and attention deficit hyperactivity disorder. He
initially made some progress while in foster care.
Between February and May of 2006, circumstances continued to
deteriorate to the point visitation with both parents was suspended. Lori filed a
request for a different therapist, which the court granted. Hearings set for June
and July in Emily’s case were continued to October. In October, Lori’s attorney
moved to withdraw and to continue the hearing.
The court granted the
withdrawal, appointed new counsel for Lori, and scheduled a permanency
hearing in April of 2007. It also discontinued reunification services for Lori in
Emily’s case “due to mother’s lack of progress and not being considered a
placement option for Emily.” Reunification services continued to be provided to
Lori in Zachary’s case.
In March of 2007, Lori made an ex parte request for additional services,
substitution of counsel, and a continuance. The court denied Lori’s requests
following a hearing in early April.
It also denied Lori’s counsel’s motion to
withdraw, Ed’s counsel’s motion to withdraw, and his counsel’s motion to
bifurcate hearings. The court noted the children’s cases had been pending for
two years, they had been removed from Lori’s care for more than a year, and
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“the time for permanency [was] long overdue.” It also noted services had not
been successful and Lori had “not made any progress on her mental health
issues despite two years’ worth of efforts.”
On the date of the April permanency hearing, the assistant county attorney
had a medical emergency. The hearing was rescheduled for May 23. The State
petitioned to terminate Lori’s parental rights to Emily. Evidence was received on
May 23, June 6, June 15, and August 21 in combined permanency-termination
proceedings in both cases. Lori failed to return for the afternoon session on June
6. On June 9 she was injured in a fight with her current boyfriend despite a
domestic abuse no-contact order in effect.
At the August 21 hearing, Lori
testified she had a pending OWI charge.
As time passed in his case, Zachary realized he probably was not going to
be returned to Lori’s care.
His inappropriate behavior escalated, including
running away eleven times over a six-week period, destroying property in the
foster home, losing control at school, and fighting with police officers, leading to
several criminal charges. Initially, he was placed in detention, then transferred to
the local youth shelter.
In the time between the June and August hearings,
Zachary was moved to the Four Oaks South program. His contact with Lori was
restricted but his contact with Ed was increased.
The court found termination of Lori’s parental rights to Zachary was not in
his best interest, compelling reasons existed not to enter a permanency order as
set forth in Iowa Code sections 232.104(2)(d)(1)-(3) (2007), Zachary could not be
returned to Lori’s care, and an order for another permanent planned living
arrangement as set forth in section 232.104(2)(d)(4) was proper. It ordered that
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Zachary remain in a residential treatment facility until successfully discharged,
then be placed with his father, Ed. Lori appeals.
III. Analysis
A.
Reasonable Efforts.
Lori contends the court erred “in failing to
appropriately order additional reasonable effort services” for her. She argues her
serious mental health diagnosis was not dealt with adequately because of
disjointed mental health treatment, a lack of opportunity for hands-on ongoing
therapy between Lori and Zachary, a lack of review hearings, and conflicts
between Lori and Tammy Welbes, the case worker from the State.
We find the State made reasonable efforts to reunify Lori with Zachary.
She did not take advantage of services and either was unable or unwilling to
benefit from them. When she asked for a different therapist, the court granted
her request. She exercised visitation with Zachary until his best interest required
suspension of visitation. See In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App.
1996). Lori did not comply with requests for drug testing after testing positive for
cocaine in January of 2006. She did not take medication as ordered to help with
her mental health problems. When services were suspended in Emily’s case,
they were continued in this case. We do not find specific requests for different or
additional services. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999).
We find no merit in this claim.
B. Harm to Zachary. Lori contends the court erred in finding she posed a
risk of emotional harm to Zachary.
The record confirms the court’s finding.
Zachary had a strong bond with Lori, but it also shows it was not an healthy
relationship. As he waited for her to address her own problems and saw no
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progress, he realized it was unlikely that he would be returned to her care. As a
consequence, his behavior deteriorated.
Once visitation with Lori was
suspended, Zachary made progress. He testified by telephone at the August
2007 hearing. Zachary discussed his relationship with Lori and with Ed and how
Lori had attempted to sabotage any relationship Zachary might have with Ed.
The court found:
Mother would like increased contact with Zachary and an eventual
return to her care. However, the court finds this would not be in the
best interest of Zachary.
Mother’s behavior at the August
permanency hearing clearly establishes she is still not dealing with
her mental health issues and, in fact, is deteriorating. During the
hearing mother was openly hostile, disruptive, and actively
attempted to sabotage her counsel’s efforts to establish a defense
by refusing to answer questions or answering them in such a way
as to intentionally put herself in a negative light. Given mother’s
diagnosis and extensive history of blaming and rejecting anyone
trying to assist her, the behaviors are understandable, but not
acceptable, and Zachary should not be subjected to her further
mental manipulation.
These findings are amply supported by the record. Case history records are
entitled to much probative force when a parent’s record is being examined. In re
S.N., 500 N.W.2d 32, 34 (Iowa 1993). The record shows Lori made little, if any,
progress in dealing with her mental health issues despite nearly two years of
services. We find Zachary would be at risk of emotional or psychological harm if
returned to Lori’s care. See Iowa Code § 232.2(6)(c)(1), (f).
C. Hearings and Visitation. Lori contends the court erred in failing to hold
review hearings and in suspending visitation without a hearing.
Iowa Code
section 232.102(9) provides for a dispositional review hearing within six months
of the original dispositional hearing and subsequent review hearings within a year
of the first review hearing. This provision is directory, not mandatory. In re
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A.E.O., III, 437 N.W.2d 238, 239-40 (Iowa 1989). Its aim is “to provide order and
promptness in the monitoring of dispositional orders.” Id. at 240. Lori argues
holding review hearings would have allowed the court to address the adequacy
of services and other concerns she raised in motions. The original disposition
occurred on February 28, 2006. Lori’s request for a different therapist was met in
May of 2006. One hearing in June was rescheduled. In October a hearing in
Emily’s case also addressed reunification services and progress in the instant
case and granted Lori’s counsel’s motion to withdraw.
Appointment of new
counsel required continuing proceedings to give new counsel time to become
familiar with the case. We conclude the court adequately addressed issues and
concerns as this case progressed even though it did not hold a specific
“dispositional review” hearing. We also question whether this issue is properly
before us because it does not appear to have been presented to and ruled on by
the district court. See In re N.W.E., 564 N.W.2d 451, 455 (Iowa Ct. App. 1997).
Concerning visitation, in May of 2006 the court expressly ordered that
visitation between Zachary and his parents be at the discretion of the Department
of Human Services.
Although visitation between a parent and child is an
important ingredient to the goal of reunification, In re S.W., 469 N.W.2d 278, 28081 (Iowa Ct. App. 1991), the nature and extent of visitation is always controlled
by the best interests of the child and may warrant limiting parental visitation. See
In re C.G., 444 N.W.2d 518, 520 (Iowa Ct. App. 1989). A change in visitation
could be made by the State without a hearing.
D. Zachary’s Placement. Lori contends the court erred in placing Zachary
with Ed after Zachary successfully completes residential treatment. She argues
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Ed did not comply with services, a home study questioned the placement, and
placement with Ed is not in Zachary’s best interest.
The court’s permanency order requires Zachary to complete residential
treatment successfully before any other placement. It does not order placement
with Ed, but allows it. The court determined termination of Lori’s parental rights
is not in Zachary’s interest, services have not corrected the circumstances
requiring removal, and Zachary cannot be returned to Lori.
It is clear Zachary cannot be returned to Lori’s care in the foreseeable
future because she has been unable to progress in resolving her mental health
issues sufficiently to be able to care for him.
She also apparently did not
promote his relationship with Ed. Zachary testified Ed offers the more positive
environment for him, which he needs. Zachary desires a continued relationship
with both parents. His relationship with Ed is improving. He recognizes Lori has
problems, but wants unrestricted contact with her.
We find the court acted in Zachary’s best interest in providing for his
safety while allowing a continued relationship with both parents. It is the least
restrictive alternative available under the circumstances.
We affirm the
permanency order providing for another permanent planned living arrangement
under Iowa Code section 232.104(2)(d)(4).
AFFIRMED.
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