IN THE INTEREST OF K.B., K.B., and K.B., Minor Children, H.J., f/k/a H.B., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-099 / 07-1901
Filed February 13, 2008
IN THE INTEREST OF K.B., K.B., and K.B.,
Minor Children,
H.J., f/k/a H.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Tama County, Casey D. Jones,
District Associate Judge.
A mother appeals from the dispositional order transferring custody of her
children out of her care. REVERSED.
Darrell G. Meyer, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, and Brent D. Heeren, County Attorney, for appellee.
Nancy L. Burke, Toledo, for D.H., father.
Norma J. Meade of Moore, McKibben, Goodman, Lorenz & Ellefson,
L.L.P., Marshalltown, for J.R., father.
Jennifer Steffens of Bennett, Steffens & Grife, P.C., Marshalltown,
guardian ad litem for minor children.
Considered by Mahan, P.J., and Eisenhauer and Baker, JJ.
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EISENHAUER, J.
A mother appeals from the juvenile court’s dispositional order in a child in
need of assistance (CINA) action. She contends the court erred in transferring
custody of her children out of her care. We review this claim de novo. In re C.H.,
652 N.W.2d 144, 147 (Iowa 2002).
The mother has three children, now thirteen, nine, and eight years old.
Douglas is the father of the oldest child and Jason is the father of the younger
two. All three children were in the physical and legal care of their mother before
these proceedings commenced. The oldest child was removed from his mother’s
care on July 20, 2007, and returned after a removal hearing on July 26. He was
adjudicated a child in need of assistance pursuant to Iowa Code section
232.2(6)(n) (2007) at the removal hearing.
The other two children were
adjudicated CINA pursuant to section 232.2(6)(n) on September 6, 2007. The
mother has been married to Neil since June 2007.
The adjudication order
prevents any unsupervised contact between the children and Neil.
At an October 22, 2007 dispositional hearing, the court transferred
custody of the oldest child to his paternal grandparents while custody of the two
younger children was transferred to their father.
The Department of Human
Services recommended the change because of concerns over the mother’s “lack
of stability.” The court acknowledged that “stability concerns were present at the
time of adjudication,” but found there had been no improvement despite the fact
the mother has done “almost everything that is expected of her.” The elementary
school counselor for the two younger children described them as getting along
well with their peers and as polite and respectful. They are in special education
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and have good grades. She suggested they were struggling emotionally at the
beginning of the 07-08 school year but by the time of the dispositional hearing in
October were doing better. The court concluded the transfer of custody was in
the children’s best interest.
Iowa Code section 232.102(1) (2007) allows the court to transfer custody
of the children at a dispositional hearing to a parent or other relative who does
not have physical care of the child. Custody should not be transferred unless the
court finds clear and convincing evidence that:
(1) The child cannot be protected from physical abuse without
transfer of custody; or
(2) The child cannot be protected from some harm which would
justify the adjudication of the child as a child in need of assistance
and an adequate placement is available.
Iowa Code § 232.102(5)(a). The court made no such findings and on our de
novo review we find none. We are aware the juvenile court has scheduled a
hearing on February 6 to consider a request by the mother for return of the
children.
We also note the grant of concurrent jurisdiction so the ultimate
custody decision may be made by the district court.
We conclude the evidence fails to establish the grounds to warrant
transfer of custody from the mother.
custody.
REVERSED.
Therefore we reverse the transfer of
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