In the Interest of C.W. and L.W., Minor Children, E.W., Mother

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-0506 Filed June 21, 2017

IN THE INTEREST OF C.W. and L.W., Minor Children,

E.W., Mother, Appellant, ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,

District Associate Judge.

A mother appeals a child-in-need-of-assistance permanency review order.

AFFIRMED.

Annie K. von Gillern of von Gillern Law Firm, P.L.C., Des Moines, for

appellant mother.

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

General, for appellee State.

Colin R. McCormack of Van Cleaf and McCormack, Des Moines, for

appellee father.

Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem

for minor children.

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

VAITHESWARAN, Presiding Judge.

A mother appeals a child-in-need-of-assistance permanency review order

concluding her two children should remain with their father pending district court

resolution of a divorce and custody action.1 She contends (1) the order failed to

meet statutory requirements, (2) the record lacks clear and convincing evidence

to support a finding that the children needed to remain outside her home, and (3)

the juvenile court’s decision to grant the district court concurrent jurisdiction to

litigate custody was not in the children’s best interests. We will address all three

issues together.

The children’s mother and father were married but separated throughout

the proceedings. Their children were born in 2009 and 2011. In 2015, the

department of human services was contacted after the mother failed to pick the

children up from a care provider. Upon investigation, the department learned

that the mother used illegal drugs, physically abused the children, and allowed

them to fend for themselves. The father agreed to keep the children in his home,

and the department concurred.

The children were adjudicated in need of assistance. They remained in

the father’s home throughout the proceedings. The juvenile court subsequently

granted the district court concurrent jurisdiction to litigate divorce and custody

matters. At the time of the permanency review order that is the subject of this

appeal, these issues had yet to be resolved.

Meanwhile, the State charged the mother with three counts of child

endangerment. The district court issued a criminal no contact order, which was

1 The mother's third child with a different father is not a subject of this appeal. 3

later modified to permit supervised visits with the children. The mother pled

guilty to the child endangerment counts. She admitted to “using heroin” and

“spank[ing]” her daughters with a belt. She was sentenced to a suspended

prison term, and the no contact order was eventually cancelled.

The mother continued her interactions with the children and made

significant progress in addressing her drug abuse. She moved to have the

children returned to her care. At the permanency review hearing, a department

supervisor testified there were no longer any safety concerns. Following the

hearing, the juvenile court reaffirmed its “grant [of] concurrent jurisdiction” for the

custody issue “to be addressed in district court” and filed an order memorializing

this conclusion.

The mother contends the statutory requirements for issuance of the

permanency review order were not satisfied. She cites Iowa Code section

232.104(2) (2015), which prescribes certain dispositions following a permanency

hearing. She also argues, assuming there was evidence to support an “out-of-

home placement” with the father, the record lacked clear and convincing

evidence to continue that placement. The problem with these arguments is that

they presume the children had a single home. In fact, there was no out-of-home

placement because, as the juvenile court stated, the father “already had custodial

rights to the children.” He was on an equal footing with the mother in providing a

home for the children. Because the children were “home” with their father and

the challenged order simply required that they remain there, the order complied

with Iowa Code section 232.104(2)(a). 4

The juvenile court recognized that this two-home scenario was the status

quo until the divorce action was finalized. The divorce action could not be

finalized unless and until the juvenile court granted the district court concurrent

jurisdiction to litigate the issue. See Iowa Code § 232.3(2).

This court addressed a virtually identical situation in In re A.T., in which we

noted that the scenario in which a child is placed with a parent who has full

custodial rights differs from a situation where the court “transfer[s] custody of a

child from a custodial parent to a noncustodial parent.” 799 N.W.2d 148, 153

(Iowa Ct. App. 2011). In the first scenario, “the child ha[s] two homes.” A.T., 799

N.W.2d at 153. Under these circumstances, we stated, “Concurrent jurisdiction

permits the parents to determine their rights inter se, or among themselves.” Id.

In this case, custody rights had yet to be determined. Given the evidence

adduced at the permanency review hearing, it made sense to resolve custody

before finally resolving the juvenile court matter. First, the record disclosed two

essentially fit parents. As noted, the department expressed no safety concerns

with the mother and the allegations of emotional abuse of the children by the

father were investigated by the department and were not confirmed. Second, the

department supervisor testified that if the juvenile court ordered the children

returned to their mother before a district court resolved the custody issue, there

was a potential for disruption of the children’s lives in the event the district court

granted the father physical care. For these reasons, we conclude the juvenile

court’s grant of concurrent jurisdiction to the district court to resolve the custody

issue was the appropriate course of action and served the children’s best 5

interests. We affirm the permanency review order entered by the juvenile

court.