In the Interest of R.J. and X.W., Minor Children, R.J., Father

IN THE COURT OF APPEALS OF IOWA

No. 17-0826
Filed July 19, 2017

IN THE INTEREST OF R.J. and X.W.,
Minor Children,

R.J., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Cheryl E. Traum,

District Associate Judge.

A father appeals a permanency review order transitioning two children

from his temporary custody to the custody and care of their mother. AFFIRMED.

Joshua T. Cobie of Brubaker, Flynn & Darland, P.C., Davenport, for

appellant father.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Steven W. Stickle of Stickle Law Firm, P.L.C., Davenport, guardian ad

litem for minor children.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
 2

VAITHESWARAN, Presiding Judge.

A mother’s two children were removed from her care and placed with the

father of one of the children. This father appeals a permanency review order

transitioning both children from his temporary custody to the custody and care of

their mother.

I. Background Facts and Proceedings

The department of human services became involved with the family in

mid-2015 based on the mother’s heroin and cocaine use. The district court

removed the children from the mother’s care and placed them in the temporary

custody of the younger child’s father.1 Except for a few days, the children

remained in his temporary custody through the permanency review hearing.

Meanwhile, the mother progressed with substance abuse treatment and,

in mid-2016, the district court ruled that the children could likely be returned to

her custody within six months. Given her continued progress, the court later filed

a permanency order authorizing the children’s transition to her care and custody

in the ensuing two months.

During this transition period, the department discovered that the mother

had been dishonest with the agency on several fronts. A month before the

permanency review hearing, the department curtailed overnight visits and moved

to fully supervised visits. At the permanency review hearing, the professionals

involved with the case, including the guardian ad litem, recommended against

returning the children to her care.

1
Although the older child’s father sought and obtained telephone contact with his eight-
year-old child and testified he wished to parent the child, he lived out of state and never
served as the child’s caretaker.
 3

The district court characterized their concerns as “valid” but found “no

evidence that the mother has relapsed or that the children have been harmed

while in her care since this case opened.” The court determined, “The

adjudicatory harm has lessened to the point that the mother is a viable

placement” and “returning the children to the custody of the mother is in the

children’s best interest.” The court ordered the department “to transition the

children back into the mother’s care within 30 days,” with continued services.

The younger child’s father appealed.

II. Analysis

The younger child’s father contends the record lacks sufficient evidence to

support the district court’s conclusion that the children “can safely be returned to

the custody of their mother.” In his view, the mother’s dishonesty and “the large

weight of credible evidence” militate in favor of granting him custody of the

younger child and guardianship of the older child.

Iowa Code section 232.104(7) (2017) states:

Subsequent to the entry of a permanency order pursuant to this
section, the child shall not be returned to the care, custody, or
control of the child’s parent or parents, over a formal objection filed
by the child’s attorney or guardian ad litem, unless the court finds
by a preponderance of the evidence, that returning the child to such
custody would be in the best interest of the child.

As noted, the district court found that transitioning the children to the mother’s

care would serve their best interests. On our de novo review of the record, we

agree.

The department case manager testified the mother was homeless and

actively using drugs when the department first became involved. She admitted
 4

the mother made huge progress in the intervening eighteen months; she

obtained housing at a residential facility, “maintained employment,” attended

therapy “[m]ost of the time,” met the children’s basic needs, and remained sober.

The case manager also agreed the boys had “a really strong bond” with her, an

opinion that was seconded by a service provider. Indeed, by the end of 2016

and into 2017, the children were spending four to five nights with the mother at

the residential facility.

As noted, the sticking point was the mother’s lack of honesty. The case

manager asserted that the mother failed to disclose an ongoing romantic

relationship with a man previously imprisoned for a drug crime or her resulting

pregnancy, visited relatives with a known drug history in contravention of

department expectations, and encouraged her children not to talk about these

developments. She insisted the mother was simply “going through the motions”

and “not internalizing the changes that she need[ed] to make.” Although, at first

blush, the case manager’s testimony would appear to undermine, if not destroy,

the mother’s reunification prospects, the record contains mitigating evidence.

First, the case manager acknowledged the boyfriend’s parole officer had

no concerns about his sobriety. The boyfriend testified he regularly took drug

tests which were negative, he owned his own landscaping company that serviced

schools and other businesses, he owned several homes, one of which he had

readied for the mother and children, and he was willing to cooperate with the

department to facilitate reunification of the children with their mother.2

2
Notably, the younger child’s father also had a criminal history and admitted to recent
and regular marijuana use.
 5

Second, the mother informed the department of her relationship with this

boyfriend during the summer of 2016 and advised the department of her

pregnancy at the twelve-week mark, well before the permanency review hearing.

At that juncture, the department expressed an intent to seek adjudication of the

unborn child as a child in need of assistance. While the mother could have been

more forthcoming about her continued relationship with the boyfriend, there is no

question the agency was aware of the boyfriend and pregnancy.

As for the mother’s contact with her relatives, she denied the department’s

suggestion that the children were at the home of relatives when police raided the

home and seized drugs. She testified she took them to see her brother who just

had a child and she thought herself “responsible enough to take [the children] to

visit their newborn cousin and make sure that they were not exposed to anything

that they shouldn’t have been.”

We are left with the case manager’s assertion that the mother told her

children not to disclose details about their contacts with her boyfriend and family.

The mother acknowledged the truth of this troubling assertion and agreed there

was “more work” to be done with her therapist.

Significantly, the therapist opined that the mother could be successful if

she had more time. Although she stated the mother was not as “transparent” as

she could be with the department, she acknowledged her focus on the

importance of transparency had only begun in the previous four weeks. She

testified nothing made her question the mother’s sobriety and the mother “ha[d] a

definite bond with her children.”
 6

As the district court found, the mother was not “100% honest” with the

department. But given her progress in other realms, we conclude transition of

the children to their mother’s care—with continued services to address honesty

issues—was in the children’s best interests.

In reaching this conclusion, we have considered the commendable efforts

of the younger child’s father to parent both children. This opinion does not

address other avenues he may have for obtaining custody of the children. See

Iowa Code § 232.3(2) (authorizing juvenile court to grant concurrent jurisdiction

to another court to litigate “a specific issue relating to the custody, guardianship

or placement of the child”).

We affirm the district court’s permanency review order.

AFFIRMED.