In the Interest of M.F. and A.A., Minor Children, S.F., Mother

• Court: Court of Appeals of Iowa
• Decided: October 1, 2014
• Docket: 14-1016
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1016 Filed October 1, 2014

IN THE INTEREST OF M.F. and A.A., Minor Children,

S.F., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Susan Flaherty,

Associate Juvenile Judge.

A mother appeals from the juvenile court’s modification of a permanency

order. AFFIRMED.

Robin Miller, Marion, for appellant.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, Jerry Vander Sanden, County Attorney, and William Croghan, Assistant

County Attorney, for appellee.

Zachary Crowdes, for father.

Julie Trachta of Linn County Advocate, Cedar Rapids, attorney and

guardian ad litem for minor children.

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

MULLINS, J.

The mother appeals from a juvenile court order maintaining the child, A.A.,

in out-of-home placement and modifying the permanency goal. The mother

contends the juvenile court erred in transferring custody and guardianship of A.A.

to a foster parent and changing the permanency goal of the case from

reunification with the parent to reunification with another suitable adult. She

contends there was not clear and convincing evidence the child could not be

returned to her home. We affirm.1

A.A. was removed by temporary order from the mother’s custody in

December 2012 due to allegations the mother abused methamphetamine in the

home. The mother has a prior founded child abuse assessment for denial of

critical care when she used methamphetamine in the home on a prior occasion.

The mother has a history of substance abuse and associating with drug users.

She has prior convictions for child endangerment and possession of a controlled

substance and has served time in jail and prison. A.A. has also been the subject

of a prior child in need of assistance (CINA) adjudication. A.A. has lived with the

mother only sporadically over her lifetime between the mother’s incarcerations

and time spent living with other family and friends. Following the removal, the

court ordered the mother to undergo drug testing, obtain a psychological

1 The mother has a second child, M.F., who also was a subject of the permanency order. The juvenile court made factual and legal findings regarding M.F. and maintained her placement with her biological father, who is different from A.A.’s biological father. The mother does not appeal the juvenile court’s orders as to M.F. A.A.’s father does not join in the appeal regarding A.A. 3

evaluation and follow its recommendations, and obtain a substance abuse

evaluation and follow its recommendations.

At the time of the December 2012 removal, A.A. was eleven years old.

Although the original permanency goal was to reunite A.A. with her father, who

resided Nebraska, during the pendency of this case, he was sentenced to serve

several years in federal prison on drug charges. The court subsequently

modified the permanency goal to reunification with either parent, anticipating the

mother would meet the reunification goals set for her. The court placed A.A. with

a suitable adult in a home where she has resided throughout this case.

In January 2013, the mother stipulated to a child in need of assistance

adjudication pursuant to Iowa Code section 232.2(6)(n) (2013).2 The court

found, “continuation of the child in the parental home would be contrary to the

welfare of the child[ ] because the mother’s use of illegal substances impairs her

ability to provide the child[ ] with adequate care and supervision as well as a

safe, stable home.”

In September 2013, eleven months after removal, the juvenile court found

the mother had taken steps to address her mental health and substance abuse

issues, and there were compelling reasons not to proceed to termination of her

parental rights. DHS also believed the mother might be able to resume custody.

DHS reported the mother had been complying with drug testing and had tested

clean since August 2013. She attended substance abuse treatment on an out-

2 Iowa Code section 232.2(6)(n) provides a “child in need of assistance” includes a child “[w]hose parent’s or guardian’s mental capacity or condition, imprisonment, or drug or alcohol abuse results in the child not having adequate care.” 4

patient basis as well as individual and weekly group treatment. She completed a

mental health evaluation, was diagnosed with several mental health disorders,

and began attending therapy. Therefore, with DHS’s recommendation, the court

extended the reunification goal for a further six months, pursuant to Iowa Code

section 232.104(2)(b). However, by May 2014, the mother’s progress had

slowed enough that DHS no longer recommended reunification with the mother.

The State applied to modify A.A.’s permanency goal from reunification with a

parent to living with another suitable adult. A.A. had been out of the parental

home around eighteen months.3 The court set a hearing on the application for

modification for June 2014.

At the hearing, DHS reported the mother’s mental health therapist

recommended that the mother continue to find support to maintain her sobriety

as her sobriety still appeared to be fragile. The mother had declined to

participate in a twelve-step program or take medication because she felt they

would not be helpful to her. DHS also was concerned that the mother still

appeared to be spending time in bars and with people who were drinking,

increasing her risk of relapse.

The mother had moved several times during the CINA case. In July 2013,

she moved in with a friend, however, in January 2014, they got in a fight, and the

3 DHS and the court deemed adoption inappropriate, given A.A.’s age. A.A. is not interested in adoption and would be required to give her consent. She also has expressed a desire to maintain contact with her mother and father. Prior to the modification hearing, A.A.’s foster parent informed DHS she was not willing to care for A.A. permanently. DHS continued to recommend placement with another suitable adult, not reunification with the mother. DHS began investigating other options for A.A.’s placement. At the modification hearing, however, the foster parent changed her mind and stated she did want to keep A.A. in her home permanently. 5

mother moved out. She moved in with the maternal grandmother, who has an

ongoing alcohol abuse problem. In February, the mother started a temporary

job. Around that time, the mother represented to DHS that she would be able to

move into a home of her own soon, but she still lived with the maternal

grandmother at the time of the modification hearing. She also acknowledged that

living with an active drinker was not good for her sobriety. She testified she

could not yet afford to move out on her own. She further testified if she were

hired permanently at her temporary position, she would make more money and

be able to find an apartment.

Also in February, DHS had discovered that the mother had been having

unauthorized overnight visitations at the maternal grandmother’s home for the

preceding six weeks. The mother stated she felt pressured to take the child

overnight by the foster parent.4 These visits occurred six times before DHS

became aware of them. Despite multiple opportunities, the mother had never

disclosed these visits to DHS. Prior to this, the mother had semi-supervised

visitation but, when DHS learned of the unauthorized visits, they reinstated fully-

supervised visitation. During one of these unauthorized visits, the mother left the

child at the maternal grandmother’s home overnight, went out with a friend, and

did not return. DHS was concerned about the mother’s dishonesty and the

safety of the child on these visits. DHS also reported the maternal grandmother’s

4 Although the mother testified she felt A.A.’s foster parent pressured her to take A.A. overnight, the mother herself called M.F.’s foster parent and asked if M.F. could join A.A. with the mother at the maternal grandmother’s home for an overnight visit. The mother also testified she knew she was not authorized to visit either child overnight. The foster parent testified she was aware of the overnight visits and thought they were a step toward reunification, but she did not place pressure on the mother to take A.A. 6

home is not a safe place for the child to be, even for visits, due to the maternal

grandmother’s ongoing alcohol abuse problem. The child has reported the

maternal grandmother has been drunk in her presence, has yelled at her and

called her names, and has driven her around in a car while drunk.

Following the modification petition and hearing, the juvenile court entered

a permanency order modifying A.A.’s permanency plan from reunification with a

parent to placement with a suitable adult, pursuant to Iowa Code section

232.104(2)(d)(1), and maintaining A.A.’s placement with the foster parent. The

juvenile court found, pursuant to Iowa Code section 232.104(3)(c), A.A. could not

be returned to the mother’s care at the time of the hearing. The mother appeals

from the permanency order.

We review CINA proceedings de novo. In re J.S., 846 N.W.2d 36, 40

(Iowa 2014). We give weight to the factual findings of the juvenile court,

especially regarding the credibility of witnesses, but we are not bound by those

findings. Id. Our primary concern is the best interest of the child. Id.

Following a permanency determination continuing out-of-home placement

of a child for an additional six months, the juvenile court may modify the

permanency order by transferring guardianship and custody of the child to a

suitable person. See Iowa Code § 232.104(2)(d)(1). Prior to entering a

permanency modification order, the State must show by clear and convincing

evidence that (a) termination of the parent-child relationship would not be in the

child’s best interest; (b) services were offered to correct the situation which led to

the child’s removal; and (c) the child cannot be returned to the child’s home. See 7

Iowa Code § 232.104(3). The juvenile court found that due to her “inability to

establish a safe, stable residence for herself and her child,” her “dishonesty in

dealing with” DHS, and her lack of compliance with court orders, A.A. could not

be returned to the mother’s care. The mother contends there was not clear and

convincing evidence that A.A. could not be returned to her home.

The mother submits she has been complying with drug testing and has

tested clean since August 2013. She asserts there is no credible evidence she

has actually been using alcohol, despite DHS’s concerns about her activities and

her living situation. She insists substance abuse is no longer an issue in the

case. Rather, she claims housing was the main issue at the modification

hearing. She insists she has stable housing with her mother, and will soon have

housing of her own that will be appropriate for A.A.

We are not convinced that substance abuse is no longer an issue for the

mother, because her lifestyle involves living with an active alcoholic and meeting

with people in bars. We also find the mother’s insistence that the maternal

grandmother’s home is safe and stable housing troubling. It is clear from her

own testimony and from A.A.’s experiences that the maternal grandmother’s

home is not safe and stable housing for either the mother or A.A. The mother

has acknowledged the maternal grandmother has an alcohol abuse problem, and

that this is not a safe environment for someone working to maintain sobriety. It is

also unsafe to expose A.A. to a person who regularly abuses alcohol, drives her

around while drunk, and verbally abuses her. The mother testified and insisted

she soon would be able to move out and find her own housing; however, she had 8

been employed since February 2014 and could not yet afford housing. She

testified she might be able to in the near future, but this is the same statement

she has been making since February. The mother also has already had one six-

month extension to achieve reunification.

Although the mother has made progress in seeking substance abuse and

mental health treatment, at the time of the modification hearing, the evidence

was clear and convincing that A.A. could not be returned to her care. Thus, we

affirm the juvenile court’s modification of the permanency order.

AFFIRMED.