IN THE INTEREST OF S.F.B., Minor Child, T.W., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-996 / 09-1618
Filed December 30, 2009
IN THE INTEREST OF S.F.B.,
Minor Child,
T.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, Steven J. Oeth,
District Associate Judge.
A mother appeals a juvenile court order establishing permanency for her
daughter with a relative caregiver. AFFIRMED.
Steven Nalean, Boone, for appellant mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Jim Robbins, County Attorney, and Daniel Gonnerman, Assistant
County Attorney, for appellee State.
Judd Kruse, Boone, for minor child.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
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MANSFIELD, J.
Traci, the mother, appeals from a permanency order continuing
guardianship and custody of her daughter, S.F.B. (born 2002), with the child’s
maternal grandmother pursuant to Iowa Code section 232.104(2)(d)(1) (2009).
On appeal, Traci argues that the juvenile court erred: (1) in not returning S.F.B.
to her care, (2) in not granting an additional six-month continuance to allow the
mother and child to work further towards reunification, (3) in finding that the
reunification services provided to her were reasonable, and (4) in ordering
visitation be at the discretion of the child’s guardian. We affirm.
I. Background Facts and Proceedings
In September 2007, Traci voluntarily placed S.F.B. in the care of Barbara
and Michael, Traci’s mother and stepfather. Traci has had her parental rights
terminated to three other children. At the time, Traci was in a volatile relationship
with S.F.B.’s father resulting in S.F.B. being exposed to domestic altercations. In
addition, there were concerns S.F.B. had serious dental problems while in the
care of Traci. When S.F.B. was younger, she had severe decay to her four front
upper teeth requiring the teeth to be extracted surgically. Traci acknowledges
she failed to attend to S.F.B.’s teeth, but blames S.F.B.’s father, stating, “I didn’t
have the access to the health insurance, that was something [he] had to do.”
In May 2008, Barbara filed for a petition for involuntary guardianship of
S.F.B. In June 2008, Barbara was appointed as S.F.B.’s guardian. At this time,
the Iowa Department of Human Services (DHS) was directed by the court to
perform a child-in-need-of-assistance (CINA) assessment so that reunification
services between S.F.B. and Traci could be pursued. On September 29, 2008,
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the parties stipulated that S.F.B. should be adjudicated a CINA under Iowa Code
section 232.2(6)(c)(2) (2007).
DHS initiated services that included supervised visitations, parenting skills
classes, weekly phone calls, gas cards, and individual counseling and therapy for
both S.F.B. and Traci.
Initially, Traci was inconsistent with her attendance at visitations and in
making her weekly phone calls. As a result, S.F.B. became extremely frustrated
and very upset with her mother.
However, around January 2009, Traci’s
consistency began to improve, and visits were changed to partially supervised.
These visits soon returned to fully supervised after S.F.B. reported to her
therapist that some conversations between her and Traci made her feel
uncomfortable. Although visitations were going well, DHS continued to have
concerns about Traci’s lack of structure and consistency in her housing,
employment, and relationships.
In June 2008, Traci had moved out of the home of S.F.B.’s father and was
living with a man in Huxley. Although the relationship lasted for approximately
two months, they were briefly engaged. In August 2008, Traci moved in with
another man (Josh), whom she married in July 2009. Currently, Traci and her
husband reside in the house of her husband’s aunt and uncle.
After their marriage, Traci requested DHS to perform an in-home study on
Josh’s aunt and uncle’s home, where Josh and Traci continued to live.
According to the DHS social worker, prior to performing the in-home study, DHS
performed a background check on Traci and Josh. As a result of the background
check, it was discovered that Josh had a “criminal record check hit” for an OWI.
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Therefore, DHS sent Traci and Josh a form to give an explanation for the hit.
However, DHS never received the form back; therefore, DHS never completed
the home study.
Throughout this case, S.F.B. has received individual counseling. During
these counseling sessions, S.F.B. expressed fear about returning to Traci’s care,
and stated that she wanted to remain in her grandmother’s care.
She has
specifically expressed fear of being spanked again by her mother.
She has
expressed concern about past occasions when she had to share a room with her
mother and whatever man her mother was seeing at the time. In July 2009, Traci
requested joint counseling between herself and S.F.B. DHS denied the request
based on the recommendation of S.F.B.’s therapist, who believed that S.F.B.’s
fear and anxiety toward her mother required individual counseling.
On October 6, 2009, a permanency hearing was held. At this time, the
DHS social worker testified that S.F.B. continued to have fear and anxiety about
visitations with Traci and the possibility of returning to Traci’s care. Barbara also
testified that S.F.B. had a lot of anxiety and fear before visitations. According to
Barbara, S.F.B.’s fear caused her to become physically ill and throw up the night
before visits. However, Barbara did admit on cross-examination that she had
never informed DHS or S.F.B.’s counselors of these physical manifestations.
Traci also testified and stated that she and S.F.B. had a lot of fun together
and argued that S.F.B. had never acted scared around her. Traci further testified
that she had continued to be consistent in her visitation, and that she had
completed an online parenting class. Traci also argued that she had gained
stability with her marriage to Josh, and had found consistent and suitable
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housing with Josh’s aunt and uncle. However, Traci also stated that she and
Josh were trying to save money so that they could move into a place of their
own.
Traci also admitted that she was currently unemployed and had only
worked briefly at two jobs during the pendency of this action. Traci attributed
some of her difficulties in finding and maintaining work to back surgery she
underwent in November 2008.1
On October 15, 2009, the juvenile court entered a written permanency
order determining that S.F.B.’s long-term best interests required guardianship
and custody to remain with Barbara. Traci appeals.
II. Standard of Review
We review permanency orders de novo. In re N.M., 528 N.W.2d 94, 96
(Iowa 1995). Although we give weight to the juvenile court’s factual findings, we
are not bound by them. Id. Our paramount consideration is the best interests of
the child. In re K.C., 660 N.W.2d 29, 32 (Iowa 2003).
III. Analysis
Traci first contends the juvenile court erred in not returning S.F.B. to her
care at the time of the permanency hearing. Traci argues that she has made
substantial progress in her parenting skills and has gained stability in her life
such that she can now provide for S.F.B.’s needs.
The State must prove by convincing evidence that the child cannot be
returned to the parent’s care. Iowa Code § 232.104(3) (2009). While in Traci’s
care, S.F.B. was exposed to domestic unrest and severe neglect in her dental
1
There was evidence, however, that Traci had recently given S.F.B., who weighs
sixty pounds, a lengthy piggyback ride during one of the supervised visits.
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care. See In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981) (stating insight for
what the future likely holds for children “can be gained from evidence of the
parent’s past performance, for that performance may be indicative of the quality
of the future care that parent is capable of providing”). As a result, S.F.B. has
developed a sense of deep fear, distrust, and anxiety about being returned to her
mother’s care. In addition, although Traci has made progress in improving her
life, the record still shows significant concerns as to the stability of Traci’s
employment and housing. At the time of the permanency hearing, Traci was still
unemployed. Further, Traci admitted that she and Josh had no home of their
own and were looking to move into new housing in the mid to long-term.
Accordingly, we believe there is convincing evidence that S.F.B. could not
presently be returned to Traci’s care.
Traci also argues that she should have at least been granted an additional
six months to work towards reunification with S.F.B.
In order to continue
placement for six months, the court must make a determination that the need for
removal will no longer exist at the end of the extension.
See Iowa Code
§ 232.104(2)(b); see also In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005).
In this regard, the juvenile court determined that there was no evidence that
S.F.B.’s “trauma and fear of her mother will be lessened in any significant degree
by continuing the permanency decision for another six months.”
Again, while we note that Traci has made improvements in her life, the
past emotional damage sustained by S.F.B. has not been lessened. Despite
intensive counseling over the last year, S.F.B. continues to fear returning to
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Traci’s care. Therefore, we agree with the juvenile court that this trauma and
fear will still be present in six months, thereby preventing reunification.
Traci next contends that DHS failed to provide reasonable reunification
services. Traci asserts that DHS should have provided the in-home study and
the joint counseling sessions that she requested in July 2009. The evidence
shows that the in-home study was denied because Traci never returned the form
providing an explanation for Josh’s OWI. As the DHS social worker testified, the
form was a part of DHS protocol, and “if they would have returned the form, then
we would have continued with the home study, but we didn’t get it back.”
Therefore, fault for the home study lies with Traci, not DHS. See In re C.B., 611
N.W.2d 489, 495 (Iowa 2000) (stating when DHS provides services, the parents
must respond). Furthermore, DHS denied joint counseling sessions due to the
recommendation of S.F.B.’s individual therapist.
According to the therapist,
S.F.B. needed her own counselor due to her continued fear and anxiety about
being around her mother. Based upon our de novo review of the record, we
conclude the State’s efforts toward reunification were reasonable.
Traci’s final contention is that the juvenile court erred in ordering visitation
to be at the discretion of Barbara. According to Iowa Code section 232.104(4),
“[a]ny permanency order may provide restrictions upon the contact between the
child and the child’s parent or parents, consistent with the best interest of the
child.”
The permanency order placed S.F.B. into the custody of Barbara.
Therefore, Barbara, as the primary caregiver, would have the best understanding
of S.F.B.’s schedule and the times when visitation can be arranged. Although
concerns have been raised about some animosity that may exist between Traci
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and Barbara, Barbara did testify that she would not stop Traci from having any
visitation with S.F.B. as long as they were supervised by a third-party. Further,
Barbara stated that she does “think it’s important for Traci and [S.F.B.] to have a
relationship.” Accordingly, we find that placing visitation in Barbara’s discretion
was in the child’s best interest.
Additionally, the undisputed evidence shows that S.F.B. is a bright and
energetic second-grader who has thrived while in the care of Barbara. S.F.B.
has also gained safety, stability, and permanency in Barbara’s home. See In re
J.E., 723 N.W.2d 793, 801 (Iowa 2006) (Cady, J., concurring specially) (stating a
child’s safety and need for a permanent home are the defining elements in
determining a child’s best interests). Therefore, we find the permanency order to
be in S.F.B.’s best interests.
For the foregoing reasons, we affirm the permanency order of the juvenile
court.
AFFIRMED.
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