No. 5-976 / 05-1859Court of Appeals of Iowa.
Filed January 19, 2006
Appeal from the Iowa District Court for Des Moines County, Michael G. Dieterich, District Associate Judge.
A mother and grandmother appeal a permanency order in a child in need of assistance proceeding. AFFIRMED.
Alan N. Waples, Burlington, for mother.
Marlis J. Robberts, Burlington, for grandmother.
Thomas J. Miller, Attorney General, Bruce Kempes, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Pamela Dettman, Assistant County Attorney, for appellee State.
Susan A. Diehl, Burlington, guardian ad litem for minor children.
Considered en banc.
PER CURIAM.
I. Background Facts Proceedings
Lisa and Todd are the parents of Heidi, born in August 1992, and Tammy, born in December 1997. The parents were unable to provide medical assistance for Tammy, and in May 1998 she was adjudicated to be a child in need of assistance (CINA) under Iowa Code section 232.2(6)(c) (1997) (child is likely to suffer harm due to parent’s failure to supervise). Tammy was placed in the care of the maternal grandmother, Dianna. Heidi also began living with Dianna. In November 2000, a permanency order was entered placing Tammy in the long-term care of Dianna.
In 2004, service providers told Dianna not to permit the children to have unsupervised contact with Bruce, Lisa’s current paramour, due to his past inappropriate behavior. Dianna did not take steps to protect the children, and in July 2004, an allegation arose that Heidi had been sexually abused by Bruce. When confronted with this allegation, Dianna stated “it happens all the time and she cannot stop it.” Both children began to demonstrate highly sexualized behavior. The children were removed from Dianna’s care and placed in foster care. In November 2004, Heidi was adjudicated CINA under section 232.2(6)(c)(2) (2003).
A psychological report showed Dianna had low intellectual functioning. Dianna was not able to comprehend the safety concerns for the children. Also, she was very passive and did not take steps to keep the children from inappropriate social situations. Dianna is very reliant on others to meet her own needs, such as transportation. During supervised visitation Dianna tended to sit back and did not demonstrate appropriate parenting skills.
In November 2005, the juvenile court entered a permanency order of another planned permanent living arrangement under section 232.104(2)(d)(4) (2005). The court found:
The child[ren]’s maternal grandmother requests the child[ren] be returned to her care. The Court finds that although there is a great amount of love between the grandmother and the child[ren], said placement is inappropriate due to the lack of appropriate supervision of the child[ren] and the grandmother’s inability to parent the child[ren] on a day-to-day basis. However, the Court does acknowledge that contact between the grandmother and the child[ren] in interest is of great importance and trusts such contact will continue on a regular and consistent basis. It is in the best interest of the child[ren] that the goal in this matter be changed to long-term family foster care.
Lisa and Dianna appeal this permanency order.
II. Standard of Review
Our scope of review in juvenile court proceedings is de novo In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). Although we give weight to the juvenile court’s factual findings, we are not bound by them. Id. Our primary concern is the best interests of the children. In re E.H., 578 N.W.2d 243, 248 (Iowa 1998).
III. Merits A.
Lisa and Dianna claim it would be in the children’s best interests to be returned to Dianna’s care. They point out that Dianna successfully cared for the children for many years. Dianna contends that given appropriate support services, she would be able to care for the children. She asserts that there was insufficient evidence of sexual abuse.
The evidence clearly shows that Dianna did not take steps to protect the children from sexual abuse. Although she had been warned not to let Bruce have unsupervised contact with the children, she permitted this to happen. Dianna failed to take responsibility for her actions and stated she could not stop it. As a result of her inaction, both of the children began exhibiting highly sexualized conduct. We conclude it would not be in the children’s best interests to be returned to Dianna’s care.
B.
Lisa claims the juvenile court improperly applied section 232.104(5) because that section only relates to a request to return children to their parents, and not their grandparents. Lisa did not raise this issue before the juvenile court, and we conclude it has not been preserved for our review. See In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994) (noting that an issue not presented in the juvenile court may not be raised for the first time on appeal). Even if this issue had been presented, we find the court applied the correct code sections in entering the permanency order in this case. Furthermore, our review is de novo and we find the permanency order was appropriate.
C.
Lisa and Dianna claim the juvenile court failed to address a report by the guardian ad litem recommending that the children be transitioned back into Dianna’s care. When the juvenile court fails to address an issue, a party should preserve error by filing a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), in order to draw the matter to the court’s attention See In re N.W.E., 564 N.W.2d 451, 455-56 (Iowa Ct.App. 1997). Because a post-trial motion was not filed in this case, we conclude the issue has not been preserved. See id. at 455.
We affirm the decision of the juvenile court.
AFFIRMED.
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