IN THE INTEREST OF P.S., Minor Child, P.H. and R.H., Intervenors, Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 7-926 / 07-0219
Filed December 12, 2007
IN THE INTEREST OF P.S.,
Minor Child,
P.H. and R.H., Intervenors,
Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Cass County, Kathleen A. Kilnoski,
District Associate Judge.
Foster parents appeal a juvenile court order returning child to the physical
custody of his mother. AFFIRMED.
Kimberly Haddox of Haddox Law Firm, Indianola, for appellant intervenor.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, and Daniel Feistner, Assistant County Attorney, for appellee State.
William Early, Harlan, for appellee mother.
Andrew Knuth of Rutherford, Trewet & Knuth, Atlantic, for appellee father.
Karen Mailander of Mailander Law Office, Anita, for minor child.
Considered by Sackett, C.J., and Vaitheswaran and Baker, JJ.
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BAKER, J.
Foster parents appeal a juvenile court order returning a child to the
physical custody of his mother. Because the foster parents failed to establish the
mother is not a suitable parent and the child’s best interests require he be
removed from her care, we affirm the juvenile court order.
I. Background and Facts
Misty is the mother and Joseph is the father of two daughters, C.S., born in
December 1999, and L.S., born in March 2001. They are also the parents of a
son, P.S., born in July 2002. The children were removed from their parents’
home in September 2003 due to their father’s failure to supervise them while the
mother was at work and the dirty and inappropriate condition of the home. In
October 2003 they were adjudicated children in need of assistance (CINA)
pursuant to Iowa Code sections 232.2(6)(c)(2) and (g) (2003). At that time, the
parents were married and living together. They are currently separated and plan
to divorce.
The children were initially placed in family foster care. In November 2003,
the two girls were placed with their maternal grandmother, and P.S. was placed
with maternal relatives, Pansie and Richard, in foster care. In June 2004, C.S.
returned to her mother’s custody, and in February 2005, L.S. returned to her
mother’s custody. Both have remained continuously in their mother’s care. They
continue to be adjudicated CINA and continue to receive services through the
Iowa Department of Human Services (DHS).
P.S. remained at the home of his foster parents. When he was first placed
with them, he had some developmental delays. Under their care, he made good
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progress. He has been diagnosed with attention deficit hyperactivity disorder
and oppositional defiant disorder. He also has a congenital medical condition,
osteochondroma, which requires regular medical attention and attention to his
diet.
In March 2006, the juvenile court dismissed the State’s petition to terminate
Misty and Joseph’s parental rights to P.S., finding there was not clear and
convincing evidence that P.S. could not be returned to the custody of his parents
or that continued services would not correct the conditions within a reasonable
time.
Although it was anticipated he would have difficulty returning to his
mother’s home due to the significant bond he had developed with his foster
parents, DHS developed a permanency plan to reunify P.S. with his mother. He
was placed with his mother in April 2006 and remains with her. He continues to
be adjudicated CINA and to participate in services through DHS.
On December 20, 2006, a contested CINA permanency review hearing was
held. The court ordered P.S. remain CINA and continue in his mother’s custody,
subject to DHS supervision. Having intervened in the proceedings, the foster
parents now appeal that portion of the juvenile court’s permanency review order
that keeps the custody of P.S. with his mother. The foster parents did not appeal
the March 2006 order dismissing the State’s petition to terminate parental rights.
II. Merits
Our scope of review in juvenile proceedings is de novo. In re K.N., 625
N.W.2d 731, 733 (Iowa 2001). We give weight to the court’s findings of fact, but
are not bound by them. Id. “As in all juvenile proceedings, our fundamental
concern is the best interests of the child.” Id.
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The foster parents contend the juvenile court erred in placing P.S. with his
mother “merely because she is his mother.” The parents of a minor child, if
suitable and qualified, are preferred over all others as the child’s guardian and
custodian. See Iowa Code § 633.559 (2005); In re Guardianship of Stodden, 569
N.W.2d 621, 623 (Iowa Ct. App. 1997). This presumption of parental preference
is rebuttable.
Stodden, 569 N.W.2d at 623.
The party advocating against
parental custody bears the burden of proof to rebut the presumption by
establishing the parent is not a suitable parent and the child’s best interests
require him to remain out of the parent’s care. Id.
The foster parents cite In re T.G., No. 03-0454 (Iowa Ct. App. Aug. 13,
2003) for the proposition that the parent is to be given no preference over other
family members for placement.
There are a number of problems with the
applicability or suitability of citing this case.
First, it is unpublished and not
binding on us (and the court notes that a copy of the case was not attached to
the brief as required by Iowa Rule of Appellate Procedure 6.14(5)(b)). Second, it
does not stand for the proposition claimed by the foster parents. To the extent it
has any precedential value, the abrogation of a preference for a parent was
limited only to a parent who did not have physical care of the child at the time of
removal. That case involved a parent who did not have physical care at the time
of the removal whereas the mother here did have physical care at the time of
removal.
Here, the court found the following:
[T]he in-home worker and DHS social worker testified that [P.S.]
made a better adjustment to his mother’s home during the past
eight months than they anticipated. [P.S.] and his mother have a
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positive relationship. [P.S.] also has developed sibling relationships
with his sisters.
....
Misty has kept all appointments with the in-home service
provider. All three of the children attend daycare, preschool, or
school and have good attendance. Her home is clean and safe for
the children. She has maintained a job. She does not have drug
problems. Misty’s parenting skills have improved, and she has
been receptive to suggestions from the service provider. At the
time of this review hearing, neither the DHS social worker nor the
in-home service provider believed that [P.S.] should be removed
from his mother’s care.
Cleary the juvenile court considered more than Misty’s status as P.S.’s
mother in determining it was in his best interests to remain in her custody.
Further, the foster parents have not presented sufficient evidence to rebut
the presumption in favor of parental custody. They have alleged P.S. suffered
physical abuse, i.e., bruises and scrapes, and has regressed in other areas, e.g.,
speech and toileting, since his return to his mother’s care. The foster parents
allegedly did not report the injuries because they were concerned the mother
would not let them continue to have visitation with P.S. if they reported suspected
abuse.
In spite of these allegations, the juvenile court concluded the evidence did
not support a change in custody.
“[W]e give weight to the juvenile court’s
findings of fact because the juvenile court has had the unique opportunity to hear
and observe the witnesses firsthand.” In re S.V., 395 N.W.2d 666, 668 (Iowa Ct.
App. 1986). Further, it has been well established that “‘the status of children
should be fixed as quickly as possible, be thereafter disturbed as little as
possible, and then only for the most cogent reasons.’” In re Leehey, 317 N.W.2d
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513, 516 (Iowa Ct. App. 1982) (citations omitted). Upon our de novo review, we
conclude there is no merit to the argument that the juvenile court erred by placing
P.S. with his mother “merely because she is his mother” or that such placement
was against his best interests.
The foster parents also argue the juvenile court erred (1) by not fully
weighing the evidence of P.S.’s sexual acting out and the possible reasons for
his behavior and (2) in failing to remove P.S.’s guardian ad litem (GAL) from the
case. They cite no legal authority, however, to support these arguments, leaving
us to wonder what legal authority they believe supports these arguments. See
Iowa R. App. P. 6.14(1)(c) (“Failure in the brief to state, to argue, or to cite
authority in support of an issue may be deemed waiver of that issue.”).
Notwithstanding their failure to cite legal authority to support their arguments,
upon our de novo review, we find no merit to these arguments.
The juvenile court did not address these issues in its ruling, and the foster
parents failed to move the court to enlarge its findings. The State argues error
was not preserved on these issues because the foster parents failed to file a
motion to enlarge the court’s findings pursuant to Iowa Rule of Civil Procedure
1.904(2).
Under our rules of civil procedure, an issue which is not raised at
the trial court may not be raised for the first time on appeal. In
district court, when a ruling fails to address an issue properly
submitted, the method to preserve such error is to file a [1.904(2)]
motion. Because juvenile proceedings are to be conducted in an
informal manner, not all of the rules of civil procedure are
applicable in juvenile cases. However, Rule [1.904(2)] has been
held to apply to juvenile court . . . CINA proceedings.
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In re. N.W.E., 564 N.W.2d 451, 455-56 (Iowa Ct. App. 1997) (citations omitted).
Notwithstanding their failure to preserve error on these issues, we find the foster
parents have not established that the mother is not a suitable parent and that
P.S.’s best interests require he be removed from her care. Stodden, 569 N.W.2d
at 623.
At the December 20, 2006 permanency review hearing, Pansie testified
that P.S. had sexually acted out, e.g., talking about the things Misty’s boyfriend,
Charlie, did to Misty. The foster parents contend it is unlikely P.S. “could have
gathered that sort of information from anywhere except witnessing it,” and, if P.S.
witnessed sex acts, he should be removed from his mother’s care.
They
presented no additional evidence at the hearing, however, that P.S. witnessed
any sex acts while in Misty’s care. Mere speculation that he witnessed sex acts
is insufficient to overcome the presumption in favor of parental custody.
We also find no merit to the argument that the juvenile court erred in
failing to remove P.S.’s GAL from the case. The foster parents first raised the
issue at the December 20, 2006 permanency review hearing. They contend that,
because the GAL did not visit P.S. prior to the time they retained counsel,
another GAL should be appointed. They have not specified, however, how the
appointment of another GAL would have produced any different outcome or how
the GAL’s failure to visit P.S. in their home resulted in his failure to receive “the
representation he very much deserves.” In fact, according to their own brief to
this court, at the time of the March 2006 termination hearing, the GAL was
supportive of P.S. remaining with the foster parents. We find no error in the
juvenile court’s failure to remove the GAL.
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Upon our de novo review, we conclude the juvenile court did not err by
continuing placement of P.S. with his mother.
The foster parents failed to
establish that the mother is not a suitable parent and that P.S.’s best interests
require he be removed from her care.
AFFIRMED.
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