IN THE INTEREST OF C.N., Minor Child, STATE OF IOWA, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-669 / 09-0947
Filed August 20, 2009
IN THE INTEREST OF C.N.,
Minor Child,
STATE OF IOWA,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Crawford County, Donovan D.
Schaefer, District Associate Judge.
The State appeals from the juvenile court permanency review order
denying its request to waive reasonable efforts and begin termination
proceedings. AFFIRMED.
Thomas J. Miller, Attorney General, Bruce Kempkes and Charles K.
Phillips, Assistant Attorneys General, for appellant.
Reed H. Reitz of Reimer, Lohman & Reitz, Denison, for appellee mother.
Daniel A. Dlouhy of Brink & Sextro, P.C., Denison, for appellee father.
Thomas Gustafson, Denison, attorney for minor child.
Phyllis Harms, Storm Lake, guardian ad litem and CASA for minor child.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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SACKETT, C.J.
The State appeals from the juvenile court permanency review order that
denied the State’s request to waive reasonable efforts and begin termination
proceedings and that directed the State to continue reasonable efforts and
increase visitation in order to achieve reunification. We affirm.
I. Background.
The child was removed from the mother’s care in January of 2007 based
on her substance abuse. The child was found to be in need of assistance in
February. In May the court entered a dispositional order continuing the child’s
placement in foster care and ordering the parents to participate in substance
abuse treatment. In June, the father began nearly a year of imprisonment. In
November, following a review hearing, the court continued the child’s placement
until the child could be placed with the mother in a women and children’s
program.
It further ordered the mother to participate in inpatient substance
abuse treatment.
Following a permanency hearing in January of 2008, the court adopted the
State’s permanency plan, with a goal of transferring guardianship and custody of
the child to a suitable person. The court waived reasonable efforts. In April, the
paternal grandmother requested that the court grant concurrent jurisdiction for
her to seek permanent guardianship of the child. She also moved to intervene.
In May the court granted the request to intervene.
Following a permanency
review hearing, the court continued the child’s placement in foster care and
ordered supervised visitation for the parents and both grandmothers. In August,
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the mother gave birth to another child who is not at issue in these proceedings
and who has remained in her custody and care. She also completed substance
abuse treatment and entered continuing care. In September, the mother moved
to modify the disposition, seeking the child’s return to her custody, based on her
successful completion of substance abuse treatment. The court considered the
motion at a permanency review/modification hearing in October.
At the hearing, the court heard testimony from several witnesses for the
State, then recessed the hearing to another available date. Prior to reconvening
the hearing a week later,
the court called counsel, [the case manager], and the CASA
representatives into chambers and advised them that, given the
testimony and evidence of the State’s witnesses, the court, upon
consideration of that testimony, has determined that the present
circumstances require reinstatement of reasonable efforts and
modification of the dispositional order to allow increased visitation
and possibility of reunification with one of the parents. The court
advised participants that additional testimony on behalf of the
parents was not necessary due to the court’s consideration of the
State’s evidence.
During the hearing, the court requested that the case manager make new
recommendations based on the court’s decision announced in chambers.
Following her new recommendations and ensuing discussion, “all parties
stipulated to the verbal recommendations and amendments discussed in open
court.”
The court then ordered the reinstatement of reasonable efforts, a
minimum of three hours per week of visitation for each parent, with “the duration
and frequency of visits to increase to possibly include unsupervised or overnight
visits,” and the “focus and purpose” of the visitation to be bonding in the parentchild relationship and parenting abilities of the parents.
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A November bench review order, to address reasonable efforts, found
“reasonable efforts have been made to achieve the permanency goal for the
children in interest.”
On February 25, 2009, “due to new developments requiring withdrawal of
[the assistant county attorney] as special prosecutor,”1 the review hearing was
continued “to allow the Iowa Attorney General’s Office to provide a new special
prosecutor.” The review hearing was continued twice more, and finally began in
late April. At the end of the first day of the hearing, “[d]ue to time constraints and
additional conflicting obligations, it was determined that the hearing would have
to be recessed and reconvened on another date” at the end of May.
At the reconvened hearing, the State presented testimony from the CASA
volunteer and a therapist/counselor, then rested its case. The court asked the
foster parents if they had any statements to make. The foster father made a brief
statement about their feelings for the child, their desire that the court make a
decision in the child’s best interest, and their support for the decision the court
would make.
The court then stated it had heard enough testimony and evidence to
make a decision.2
1
Counsel’s motion to withdraw stated “it has become apparent that the Department of
Human Services is unsatisfied with the undersigned’s representation in this matter.”
2
This was the second permanency review hearing in a row in which the court ended the
hearing after the State’s evidence. The transcript of the latest hearing shows the State
expressed concern to the court that this case likely would be appealed and that by
ending the record after the State’s evidence, appellate courts would not have a complete
record for review on appeal. The court responded:
I guess that responsibility would fall on my shoulders. I cut this off
because I didn’t feel the State’s evidence was sufficient to adopt the
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At the time that [the child] was removed from [the mother’s]
home, there clearly was grounds for removal. . . .[B]ut we also have
to consider what the situation is today. We cannot punish [the
parents] for what they—what has happened in the past unless there
is evidence that it is still happening.
....
. . . There has been a showing that [the parents] are both making
progress in improving their lives and addressing the problems that
led to the original removal and placement of [the child] in foster
care. There is no doubt but that there is and should be extreme
concern about adjustment issues for [the child], but I think those
adjustment issues can be addressed. . . .
There may have been points in time in the past in this case
where perhaps we would have been going the other way, and I
think that we all are guilty of making an assumption at some point in
this case that this was going to go to termination, and so everything
has been focused in that direction and we have not been willing to
accept the efforts of [the parents] in turning things around, and it
seems to me that much of the information in the reports and
testimony of witnesses tends to emphasize the negatives and
minimize the positives.
....
Now, we have testimony of some concerns, but all of them
are based on conjecture or what might happen or what we’re afraid
will happen, and, frankly, [neither parent has] really been given the
opportunity to demonstrate their ability to care for [the child.]
They’ve had limited visitation, and I understand that, again, we
have to address the concern about the attachment issues and the
recommendations as set forth. I didn’t think I needed any further
testimony from the other parties, and if I made a mistake on that, I guess
that will be determined.
The mother’s attorney then stated:
For purposes of clarification, I think that myself and [the father’s
attorney] would move the court for a directed verdict at the close of the
State’s evidence, that they haven’t established their case. If you would
want to note that and, whether you are ruling on that or not, that would be
the—I would be—would be my next thing to do, so. . . .
The court replied:
I guess it was a sua sponte ruling, directed verdict ruling, but I just
felt that we’d gone long enough and that I didn’t need to hear any more
evidence based upon what I’d already heard.
We are affirming the decision in this case and are not in need of the evidence,
however, we strongly suggest the better approach would be to take all the evidence,
both to provide us with a complete record on appeal, and, more importantly, to give the
juvenile court all the evidence and options from which to craft the best solution for the
critical needs of children who are in need of the court’s assistance.
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potential trauma for changing custody and returning [the child] to
his parents, and . . . we’re not going to make an abrupt change, . . .
I don’t think the State has demonstrated to me that at the present
time, other than the concern about the adjustment and transition,
which can be addressed by counseling and will be ordered by the
court, that [the child] will suffer any imminent risk or harm by
extending visitations and moving towards the reunification of [the
child] with his parents.
....
. . . Both [parents] shall continue to have visitation, and I feel
that it is the point in time where overnight visitations should begin
and that the arrangements will have to be made.
In its June order following the review hearing, the court ordered continued
efforts toward reunification, “mental health therapy to address reunification and
transition issues” for the child, and overnight visitation for both parents “to begin
immediately.” A review hearing was set for late August. The State appealed.
II. Scope and Standards of Review.
We review permanency proceedings de novo. In re K.C., 660 N.W.2d 29,
32 (Iowa 2003). We review both the facts and the law and adjudicate rights
anew on the issues properly presented. In re H.G., 601 N.W.2d 84, 85 (Iowa
1999). Although we give weight to the juvenile court's findings of fact, especially
its credibility determinations, we are not bound by them.
6.904(3)(g) (2009).
Iowa R. App. P
The parent-child relationship is constitutionally protected.
Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511, 519
(1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S. Ct. 1526, 1542, 32 L. Ed.
2d 15, 35 (1972). The best interests of the child control our decision. In re J.E.,
723 N.W.2d 793, 798 (Iowa 2006). In evaluating the best interests of a child, we
consider both immediate and long-term interests. Id. We “afford a rebuttable
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presumption that the best interest of a child is served when custody is with the
natural parents.” In re N.M., 491 N.W.2d 153, 156 (Iowa 1992).
III. Merits.
The State contends the court erred in not waiving reasonable efforts in this
case. We reject this contention. The State argues the court erred in finding the
parents “have made substantial improvement in their situation and have
demonstrated both the ability and the desire to raise [the child] in their home and
provide for his needs.” From our review of the record, we agree with this finding.
The mother has successfully completed substance abuse treatment and all
aftercare. She has remained clean since before the October 2008 permanency
review. The case manager expressed concerns about the mother’s parenting
skills, but when asked for specifics, only could say the mother was not always
consistent with forms of discipline, but sometimes argued with the child instead of
redirecting or stopping the child’s behavior. She expressed a concern as to both
parents about a lack of attachment, but we, like the juvenile court, view that not
as a lack of parenting skills, but rather as a result of the lack of visitation allowed
the parents and the amount of time the child has been kept out of parental
custody. We find no cogent reason the child cannot be returned to a parent’s
care, with counseling to help the child adjust to the move.
The State asserts the court erred in finding the child’s best interests did
not require waiving reasonable efforts. The State makes this assertion without
any evidentiary support other than the conclusory statement that “[t]he witnesses
at the hearing and the supporting exhibits established just the opposite.” We
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have reviewed the testimony and the exhibits and agree with the court. Although
the exhibits and testimony emphasize the negatives, it is clear the proffered
negatives are either based on suspicion or conjecture or not the result of the
parents’ actions or inaction. Once the court reestablished the requirement for
making reasonable efforts toward reunification at the October 2008 permanency
review and set the goal as reunification instead of permanency through
termination of parental rights, it does not appear the State was able to adjust its
focus and to move expeditiously toward the stated goal.
significantly increased.
Visitation was not
No overnight visitation was allowed.
No trial home
placement was made. All that occurred was a continued deterioration of the
parent-child bond and attachment because of the separation. We cannot agree
that the child’s best interests are served by continuing the separation from the
parents and by waiving further efforts at reunification. In addition, none of the
statutory bases for waiving reasonable efforts exist.
See Iowa Code
§ 232.102(12) (2009).
The State contends the court erred in elevating the interests of the parents
above those of the child. We recognize the principles of limiting patience with
parents, following statutory timeframes, not suspending “the crucial days of
childhood” to wait for parents, and not letting a child languish in long-term foster
care. See In re C.B., 611 N.W.2d 489, 494 (Iowa 2000); In re A.C., 415 N.W.2d
609, 613 (Iowa 1987); In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997); In
re E.K., 568 N.W.2d 829, 831 (Iowa Ct. App. 1997); In re R.L., 541 N.W.2d 900,
903 (Iowa Ct. App. 1995). The case before us, however, is not one in which the
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parents did not act to overcome their problems or waited until the eleventh hour
to change. Rather, this child has been kept in foster care beyond the statutory
timeframe because the system was too slow to respond to changes ordered by
the court.
The result of the permanency hearing at issue clearly reflects the child’s
best interests, society’s concern for the child’s safety and need for a permanent
home, and society’s strong interest in preserving the natural parent-child
relationship.
See In re J.E., 723 N.W.2d 793, 801 (Cady, J., concurring
specially); see also Zvorak v. Beireis, 519 N.W.2d 87, 88 (Iowa 1994); Northland
v. Starr, 581 N.W.2d 210, 212 (Iowa Ct. App. 1998).
Even if this case has reached the point where “the rights and needs of the
child [have risen] above the rights and needs of the parents,” we find the child’s
rights and needs are best served in the circumstances before us by prompt
reunification with one or both of his parents. See E.K., 568 N.W.2d at 831. We
affirm the juvenile court’s decision and encourage the State to move quickly to
reunite this child with his parents and to soften the stress of the child’s transition
home through appropriate therapy.
AFFIRMED.
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