No. 5-594 / 05-0825Court of Appeals of Iowa.
Filed August 31, 2005
Appeal from the Iowa District Court for Appanoose County, William S. Owens, Associate Juvenile Judge.
A grandmother appeals the placement of the minor child by the juvenile court. AFFIRMED.
Debra George, Centerville, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, and Robert Bozwell, County Attorney, for appellee.
Kenneth Duker of Breckenridge Duker, P.C., Ottumwa, for mother.
Kevin Maughan, Albia, guardian ad litem for minor child.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
SACKETT, C.J.
The primary question in this appeal is whether Shalayla, born in September 2003, should be placed in the care of her maternal grandmother Kathy and Kathy’s current husband Frank. The juvenile court found the placement was not in Shalaya’s best interests. Kathy has filed a petition on appeal challenging the denied placement. She contends that (1) the best interests of the child require placement with her, (2) the juvenile court failed to give sufficient weight to the preference for the least restrictive placement with a relative, and (3) the juvenile court failed to give sufficient weight to Shalaya’s preference for her grandmother. The record is sufficient for us to address the issues raised, consequently, we need not remand for full briefing. We affirm.
Our review is de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). We review both the facts and the law and adjudicate rights anew. In re H.G., 601 N.W.2d 84, 85 (Iowa 1999).
Shalayla was found to be a child in need of assistance in August of 2004 and was last in the care of her mother, Patience, when Patience agreed to Shalaya’s placement on May 12, 2004 with relatives.[1] Shalayla was with relatives until March 21, 2005, at which time she was placed in foster care. During the time Shalayla was in the care of relatives, Kathy and Frank had substantial unsupervised involvement in Shalayla’s life. It is undisputed that Shalayla and Kathy have developed a substantial bond. Yet, after the March 21, 2005 placement, Kathy’s visits were suspended. The only evidence was that Kathy, at all times prior to March 21, 2005, had taken good care of Shalayla and was bonded with her. There were no complaints about Kathy’s care of Shalayla. The reason given for the termination of Kathy’s visitation was that Shalayla, who had been in three homes since her removal, needed to find a sense of security and stability. The worker noted that when one of Shalayla’s relatives who had cared for her dropped her off at the foster home, Shalayla showed no real separation anxiety, and the worker was concerned about her bonding and attachment with a primary caregiver. Apparently, the theory was that if Shalayla was removed from Kathy’s care, the only person to whom Shalayla was bonded, then she could bond with someone else.[2]
Kathy, as she had throughout the child in need of assistance proceedings, requested Shalayla be placed in her care and that she be named Shalaya’s guardian, or that she care for Shalayla under a long-term custody arrangement. The juvenile court denied Kathy’s request, finding it was not in Shalaya’s best interests. The court found the legal custody of Shalayla should remain with the Iowa Department of Human Services.
Kathy and Frank have been in other marriages and both had problems in their youth, including substance abuse issues. Frank was about forty-three years old at the time of the hearing. We were unable to determine Kathy’s exact age. Two male children live in Kathy and Frank’s home. Kathy and Frank struggle to resolve problems with older children and to maintain financial security. Frank was working for twelve dollars an hour and Kathy was employed at night at a local nursing home at the time of the hearing. They both obviously love Shalayla and are bonded to her, Kathy probably more so than Frank. While Kathy and Frank each had unfortunate experiences with drugs and alcohol in the past, the only evidence is that they have each been free from substance abuse problems for a substantial period of time. Kathy is credited in encouraging Frank to give up alcohol and supporting him in conquering his addiction.
A primary concern of the juvenile court and the professionals involved in the case was the fact that Kathy apparently participated with a former husband in sexually abusing one of their daughters in the State of Missouri, some fifteen years earlier. Kathy admitted she was a heavy drug user at that time. No criminal charges were filed against her. The specific nature of the abuse is not apparent from this record and, while there is an indication Kathy admitted some involvement, her statement indicated that she was threatened to participate and may have done so at gunpoint.
There also was concern Kathy might let Patience pressure her to be involved with Shalayla and that another of Kathy’s daughters was found to have abused her child by locking her in a closet, and that daughter would have contact with Shalayla.
While the above concerns were voiced as reasons why Shalayla could not be placed with Kathy, they apparently were not major enough concerns to deny Kathy substantial unsupervised involvement with Shalayla during the time that Shalayla was a child in need of assistance and under the supervision of the Iowa Department of Human Services before the child was placed in a foster care home.
There was specific testimony from an experienced social worker with Child and Families of Iowa, who spent six and one-half hours in direct services to Kathy and four hours of supervised visits between the family and Shalayla, that Kathy presented no risk of sexual or physical abuse or neglect of Shalayla, and that grandmother and granddaughter were bonded, and Shalayla looked to her grandmother as her primary caregiver. The worker specifically noted that Kathy is committed to raising Shalayla. The worker however expressed concern with Kathy assuming long-term care of Shalayla because of Frank’s history of alcoholism, Kathy’s sexual abuse history, and their responsibility to two young boys with behavior problems.
There was also concern that Kathy was working nights at a nursing home and would sleep during the day and Kathy indicated she would not consider child care but would rely on her family. Furthermore, there was concern Kathy tries to fix things with her children and grandchildren, and an evaluator felt Kathy needed to establish healthy boundaries for herself and her family and she needed to prioritize her spouse and children currently in her care and address their educational, social, and emotional needs.
On appeal the State focuses in a large part on Kathy’s history and Shalayla’s long-term care and argues that termination of parental rights is preferable to a permanency order. Kathy has a history of problems with her own children; however, the critical problems happened fifteen years ago and the record reflects Kathy has made substantial progress in her life, and while her history is troublesome we give her credit for her progress. We consider the fact that Shalayla has been safe in her care. Furthermore, though Shalayla is a young child we cannot assume she will not suffer from being deprived of the companionship of Kathy, the person with whom she is most closely bonded and a person who is her biological grandmother. We also recognize that Shalayla is currently in what is referred to as a pre-adoptive home. At the time of the permanency hearing she had been there for about six weeks. However, the record gives us little information concerning that home. We can hope it is an excellent home and the foster parents will proceed with an adoption if Shalayla’s parental rights are terminated, but we can offer Shalayla no assurance that will happen.
Giving the required deference to the juvenile court, we affirm. In doing so we trust that the State will move forward to quickly assist Shalayla’s mother in assuming her care or terminate parental rights and assure Shalayla a home with a promise of permanency.
AFFIRMED.