IN THE COURT OF APPEALS OF IOWA
No. 15-0300
Filed August 5, 2015
IN THE INTEREST OF Y.P. and A.P.,
Minor Children,
T.D., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachel E. Seymour,
District Associate Judge.
A mother appeals from a juvenile court order denying her request for an
additional six months of services, changing the permanency goal to long-term
transfer of custody to the father, and transferring custody to the children’s father.
AFFIRMED.
Aaron H.R. Ginkens of Ginkins Law Firm, P.L.C., West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, John P. Sarcone, County Attorney, and Christina Gonzalez, Assistant
County Attorney, for appellee.
Agnes G. Warutere of Warutere Law Office, Ankeny, for father.
ConGarry Williams of State Public Defender Office, Des Moines, attorney
and guardian ad litem for minor children.
Considered by Doyle, P.J., and Tabor and Mullins, JJ.
2
MULLINS, J.
A mother appeals from a juvenile court order denying her request for an
additional six months of services, changing the permanency goal of reunification
with her, and transferring custody to the children’s father. She contends the
juvenile court should have given her another six months to utilize services and
argues transferring custody and changing the permanency goal is not in the best
interest of the children. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
The mother’s two children, Y.P., born in 2009, and A.P., born in 2011,
were removed from the mother’s care on January 27, 2014. The children were
adjudicated children in need of assistance (CINA) under Iowa Code section
232.2(6)(c)(2) and (n) (2013) for concerns regarding the mother’s substance
abuse issues and mental health issues. The mother was encouraged to take
advantage of a variety of services for mental health and substance abuse,
including the House of Mercy residential program. The children were returned to
the mother in June 2014 on the contingency she reside at House of Mercy and
continue services there. The children were removed again in July 2014 because
the mother discontinued substance abuse treatments and failed to appear for a
hearing. At that time she requested placement of the children with the father.
The children were placed in foster care, as the father resides in California
and his home study had not yet been approved. Family reunification services
continued, but the mother did not consistently participate. The mother started to
take services more seriously in October 2014, and completed a substance abuse
3
treatment program. At the time of the adjudication hearing, the mother still did
not have a suitable place for the children to live and was involved in an intimate
relationship with Cornelius Moore, a man with a significant criminal history
including assaults, willful injury, probation violations, and domestic assault
charges, as well as a founded child protective assessment for sexual abuse.
The father has developed a relationship with his children since the start of
this case. The father has engaged in regular video calls with the children, has
always participated in services, and has continually requested custody of the
children. Subsequent to the adjudication determination, the father was approved
through the Interstate Compact on the Placement of Children (ICPC) as a
suitable placement option for the children.
II. STANDARD OF REVIEW.
Juvenile court permanency orders are reviewed de novo. In re N.M., 528
N.W.2d 94, 96 (Iowa 1995). “We have a duty to examine the entire record and
adjudicate anew rights on the issues properly presented.” In re A.S.T., 508
N.W.2d 735, 737 (Iowa Ct. App. 1993). “We give weight to the fact findings of
the trial court, especially when considering the credibility of witnesses, but are
not bound by them.” Id.
III. ANALYSIS.
On appeal, the mother contends permanency should have been delayed
an additional six months and argues transferring custody to the father is not in
the best interest of the children.
4
At a permanency hearing, the court has authority to continue placement of
the child for an additional six months. Section 232.104(2)(b) requires the court to
find the need for removal of the child from the child’s home will no longer exist at
the end of the additional six-month period in order to grant the parent more time.
The mother has not consistently engaged in services required of her throughout
the time her children were removed but resumed services in October, three
months after the second removal of her children and ten months from when her
children were first removed.
The most concerning factor for the juvenile court in returning the children
to the mother’s care is mother’s relationship with Moore. The mother had lived
with Moore’s mother and, at the time of the permanency order, was engaged and
planned to marry Moore when he got out of prison. Moore’s criminal history,
especially his assaults and founded child protective assessment for sexual
abuse, were troubling to the juvenile court and are troubling to us. The mother
has been made aware her relationship with Moore poses a threat to her children
and is a barrier to having her children returned to her care but has continued to
engage in this relationship despite the risks.1 The mother’s lack of progress in
services and her plans to marry Moore demonstrated the need for removal will
still exist six months from the date of the permanency hearing. The juvenile court
properly denied the mother’s request for additional time.
1
Our courts have recognized a parent’s relationship with a dangerous partner can be
grounds for removal and termination. See, e.g., In re A.H., No. 10-0656, 2010 WL
2757371, at *3 (Iowa Ct. App. July 14, 2010); In re D.R., No. 06-1931, 2007 WL 754262,
at *1 (Iowa Ct. App. Mar. 14, 2007).
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The mother next argues the transfer of custody to the father and the
change in permanency goal is not in the best interest of the children. In
assessing the best interest of the child, “[t]he primary considerations are ‘the
child’s safety,’ ‘the best placement for furthering the long-term nurturing and
growth of the child,’ and ‘the physical, mental, and emotional condition and needs
of the child.’” In re P.L., 778 N.W.2d 33, 37 (Iowa 2010) (quoting Iowa Code
§ 232.116(2)). We consider that the mother has only recently engaged in
services required of her, the mother does not have a place for the children to live
with her, and the mother continues to engage in a relationship that is potentially
harmful to the children, with plans to make the relationship permanent. The
father has consistently requested custody, has fulfilled all requirements to get
custody, and has shown he can provide a loving and stable environment for the
children. Placing the children with the father furthers their safety, their long-term
nurturing and growth, and their physical, mental, and emotional needs. The court
found convincing evidence of all of the elements of section 232.104(3),2 and had
the authority to transfer sole custody from one parent to the other parent under
section 232.104(2)(d)(2). Section 232.99(4) requires the court to make the least
restrictive disposition appropriate. Section 232.102 lists transfer of legal custody
2
Under 232.104, the juvenile court may, after a permanency hearing transfer custody of
a child from one parent to the other. Iowa Code § 232.104(2)(d)(2). In order to do so,
the court must make the following three findings:
a. A termination of the parent-child relationship would not be in the best
interest of the child.
b. Services were offered to the child’s family to correct the situation
which led to the child’s removal from the home.
c. The child cannot be returned to the child’s home.
Id. § 232.104(3)(a)-(c)
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to a parent who does not have physical care of the child as the least restrictive
option. The juvenile court’s decision to grant the father custody and to change
the permanency goal is affirmed.
IV. CONCLUSION.
We affirm the juvenile court’s decision to deny the mother an additional six
months, to grant custody to the father, and to modify the permanency goal.
AFFIRMED.
In the Interest of Y.P. and A.P., Minor Children, T.D., Mother
Combined Opinion