IN THE INTEREST OF M.R. and A.R., Minor Children, I.R., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-955 / 09-1537
Filed December 17, 2009
IN THE INTEREST OF M.R. and A.R.,
Minor Children,
I.R., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Wapello County, William S. Owens,
Associate Juvenile Judge.
A mother appeals a juvenile court permanency order establishing
guardianship and custody of her children with their childcare provider.
AFFIRMED.
Sarah Wenke, Ottumwa, for appellant mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Mark Tremmel, County Attorney, and Allen Cook, Assistant County
Attorney, for appellee State.
Kenneth Duker of Breckenridge & Duker, P.C., Ottumwa, for minor
children.
Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.
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DANILSON, J.
The mother appeals a juvenile court permanency order establishing
guardianship and custody of her eleven-year-old son, M.R., and her twelve-yearold daughter, A.R., with their childcare provider. We affirm.
I. Background Facts and Proceedings.
Sometime after the children’s father died,1 the mother entered into a
relationship with S.S. According to a prior founded Iowa Department of Human
Services (DHS) investigation, S.S. had sexually abused his daughter. He also
had a lengthy criminal history, which included time in prison for armed robbery.
S.S. moved in with the mother and the children in 2007, and began to physically
abuse M.R., which included hitting M.R., twisting M.R.’s ears until they burned,
placing a pillow over M.R.’s face to inhibit his breathing, and smacking M.R.
around. He also emotionally abused M.R. by making fun of him and teasing him
when he wet the bed. S.S. smoked marijuana in front of the children, and once
forced M.R. to drink beer. When M.R. told the mother about the abuse, she
responded that she would speak to S.S. about it.
The abuse continued, and DHS was alerted to one of M.R.’s injuries in
early September 2007. The mother agreed to the children’s placement with their
childcare provider, T.M., to give S.S. time to move out of her home. Several
months passed, but S.S. had still not moved out of the mother’s home.
In
December 2007, the children were adjudicated children in need of assistance
(CINA) pursuant to Iowa Code sections 232.2(6)(b) and (c)(2). The adjudication
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The father was serving time in prison prior to the time of his death, but was
released for medical reasons and died in the hospital.
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was based on the mother’s failure to provide adequate care and supervision for
the children due to the risk for physical harm to the children while in the mother’s
home.
Although at times the mother and S.S. each individually reported to
service providers that they were discontinuing their relationship, S.S. continued
to be at the mother’s home.
Even when the mother reported that S.S. had
moved out, service providers spotted his car near her apartment. Furthermore,
S.S. attended therapy and counseling sessions with the mother after service
providers advised that she should attend the sessions alone.
Although the
mother contended S.S. no longer lived with her, she failed to report S.S.’s visits
to her apartment to DHS. The mother claimed that S.S. had moved out of her
apartment and into a place of his own across the street, but the record does not
fully support her claim.
The mother’s visits with the children did not progress. The mother failed
to take full advantage of visitation. She was having visits with the children for
several hours on two to three different mornings a week, but in December 2008,
visits were changed to supervised only, due to DHS concern that the mother was
instructing the children not to share information about S.S. with DHS.
Subsequently, the mother did not ask for increased visitation.
Service providers also learned the mother was having conversations with
the children about the juvenile case that were best left to the adults in the case,
and that she was inappropriately bribing the children. The mother continued to
display anger and resentment toward service providers, and to blame others for
the removal of her children. Further, S.S. called a service provider and left a
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message stating that it was illegal for DHS to keep the mother’s children from
her, essentially supporting the mother’s resentment toward DHS.
The mother asked the children how they would feel when they moved
back home and S.S. was there. The record indicates that mother lacked an
understanding that her relationship with S.S. adversely affected the children. At
the time of the permanency hearing, the children remained frightened to return
home if S.S. was there. M.R. reported he was certain that even if the mother
kicked S.S. out of the apartment, she would allow him back.
The children
expressed that they do not feel safe around S.S. and do not feel the mother can
protect them from him. The children’s care provider, T.M., stated she has seen
S.S. driving around her house on several occasions.
Following DHS’s reasonable efforts to reunify the children with the mother,
the permanency hearing was held in August 2009. The court determined that
reunification with the mother was not feasible or safely possible. The court noted
that the children continued to do well in the care of T.M., and were participating in
medical and mental health services. The court acknowledged that three different
service providers expressed concerns about the children returning to the
mother’s home. DHS recommended, and the guardian ad litem agreed, that the
permanency order be modified so that a guardianship order could be entered.
In making its decision, the court stated:
The Court entered order in February 2009 pursuant to Iowa Code
section 232.104(2)(b), and provided [the mother] with up to six
additional months for the children to be returned. That time has
expired, and the evidence is both clear and convincing the children
cannot now return to the custody of their mother. There continue to
be concerns about mother’s relationship with [S.S.], and [the
mother’s] ambivalence in expanding visits with the children. In
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addition, the in-home provider, the social case manager, the
remedial worker, and the guardian ad litem all concur the children
cannot now return to mother’s home. [M.R.] is still working on
issues related to his past abuse, and his on-going fear of [S.S.],
and [A.M.] continues to have difficulty expressing her feelings about
her mother.
The court therefore determined it was in the best interests of both children that
they be placed in the guardianship and custody of their childcare provider, T.M.
The mother appeals.
II. Scope and Standard of Review.
Our review of permanency orders is de novo. In re A.A.G., 708 N.W.2d
85, 90 (Iowa Ct. App. 2005).
We review both the facts and the law and
adjudicate rights anew on the issues properly presented. In re K.C., 660 N.W.2d
29, 32 (Iowa 2003). We give weight to the juvenile court’s findings, but are not
bound by them. Id. Our primary concern is the children’s best interests. Id.
III. Merits.
The mother argues the juvenile court erred in placing the children in a
guardianship with their childcare provider. She contends clear and convincing
evidence does not support the establishment of a guardianship, and requests
that the children be placed in her custody.
The juvenile court determined that reunification with the mother is not
possible. While the record shows that the mother loves the children and the
children are bonded to her, our primary concern is the children’s best interests.
Although the mother has made some recent improvements, we are unable to find
that the children could likely be returned to the mother’s home without further
harm. The children have been through several years of turmoil and uncertainty.
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The children need and deserve stability and consistency, which they cannot find
with their mother, and it is unlikely they will be able to find it with her in the
immediate future.
Using the mother’s past performance as a predictor of future performance,
there is convincing evidence that she is unable to provide a safe and nurturing
environment for the children. See In re T.T., 541 N.W.2d 552, 556 (Iowa Ct. App.
1995) (“A parent’s past performance may be indicative of the quality of future
care the parent is capable of providing.”).
The mother has a long history of
dangerous and unhealthy relationships with men, and she exposes her children
to these relationships.
She has been married twice before, and both men
threatened her with violence: the first using a gun, the second using a knife. For
the past several years she has been involved with S.S., who has a lengthy
criminal record (including violent crimes), a history of substance abuse, and a
founded sexual abuse report against his daughter. Most importantly, S.S. has
been physically and emotionally abusive toward M.R. The mother has not shown
that she understands the significance of the children’s fear and lack of safety
around S.S. Instead, she has tried to hide her relationship with S.S., attempted
to bribe the children to come back home, and blamed DHS for her inability to
receive placement of the children. The children continue to be scared of S.S.
and feel that the mother cannot and will not protect them from him.
DHS has made reasonable efforts, including parent skill services,
individual and family therapy, supervised visitation, and other services listed in
the case plans to prevent removal of the children from the home, and to make it
possible for the children to be returned.
The services have not resulted in
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significant improvement. The children need permanency. As has been noted
often in the past, “[p]atience with parents can soon translate into intolerable
hardship for their children.” In re C.K., 558 N.W.2d 170, 175 (Iowa 1997). It is
not in the children’s best interests to have the permanency order reversed. The
juvenile court did not err in establishing guardianship of the children with T.M.
AFFIRMED.
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