In the Interest of M.W., Minor Child

• Court: Court of Appeals of Iowa
• Decided: August 1, 2018
• Docket: 18-1000
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1000 Filed August 1, 2018

IN THE INTEREST OF M.W., Minor Child,

S.S., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda,

District Associate Judge.

A father appeals a permanency order transferring guardianship and custody

of his child to her maternal aunt. AFFIRMED.

Christopher A. Clausen of Clausen Law Office, Ames, for appellant father.

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

General, for appellee State.

Jane K. Odland of Odland Law Firm, PLLC, Newton, guardian ad litem for

minor child.

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

VAITHESWARAN, Presiding Judge.

A father appeals a permanency order transferring guardianship and custody

of his child to her maternal aunt. He contends (1) the child should have been

placed with him during the child-in-need-of-assistance proceedings and (2) the

district court erred in ordering a guardianship with the aunt. We will address the

interrelated contentions together.

Our de novo review of the record reveals the following facts. The child was

born in 2004. Prior to the initiation of these proceedings, the mother had custody

and physical care of the child and the father exercised visitation on alternating

weekends.

When the child was eleven years old, the State filed a child-in-need-of-

assistance petition alleging the mother was “using methamphetamine and selling

methamphetamine in the home where the [child] reside[s].” The mother stipulated

to having the child adjudicated in need of assistance. The district court adjudicated

the child and granted the mother temporary legal custody, subject to the

supervision of the department of human services. The father continued to exercise

alternating-weekend visitation with the child.

In time, the mother tested positive for methamphetamine. The State applied

to have the child removed from her care. The district court granted the application,

and the child was placed with her maternal aunt. Following a hearing, the court

confirmed the out-of-home placement.

Two months later, the department recommended the child’s return to the

mother, under its protective supervision. At the same time, the father requested

custody of the child. The district court found that the father never had custody of 3

the child, the mother had always been the child’s primary caregiver, the mother

was undergoing inpatient substance-abuse treatment, and the mother was “now in

a position where the child [could] be returned to her care . . . safely.” The court

ordered temporary custody transferred to the mother, under the department’s

protective supervision.

Less than a month later, the mother was unsuccessfully discharged from

the substance-abuse treatment center due to aggressive behaviors. The

department again applied to have the child removed from her care. The district

court granted the application and the child was returned to the home of her

maternal aunt.

Meanwhile, the father continued to exercise visitation with the child. The

department agreed to a plan that would transition her to her father’s care and

custody. Under the plan, the father’s visits were to increase to a Thursday through

Monday alternating-week schedule and, after approximately a month, the father

would have a week-long visit with the child.

According to the department social worker assigned to the case, the father

“did not follow that visitation plan.” On the first day of the week-long visit, he

informed the department he would be unable to have the child for the entire week

because he had to help his grandmother. He saw the child for twenty minutes,

then returned her to her aunt. He acknowledged that cutting the week-long visit

down to twenty minutes probably “shook” up his daughter “a little bit.”

Despite this significant setback, the department continued to schedule visits

for the father. The father declined all but one of them. He also did not telephone 4

the child at the maternal aunt’s home, even though she had the same phone

number for twelve or thirteen years.

The father was also expected to engage in family therapy with the child.

The father kept three appointments. He ended his participation two weeks before

his scheduled one-week visit with the child.

The final straw was the father’s refusal to take a drug test following the

scheduled one-week visit. He acknowledged arriving at the testing site 1 but said

he refused the test after learning the center planned to sample a hair follicle rather

than his urine. He did not explain why the use of this type of test whould affect his

compliance. The father declined to change his mind about undergoing the drug

test after being informed the department would reduce his visits to two supervised

hours per week if he failed to comply.

The department social worker recommended against placing the child with

her father “because [the father] has not followed through with the different plans

that we have made to work on reunification with him.” She testified, “[I]f he had

followed through with visitation and with drug testing and with therapy with him and

[the child,] the recommendation would be different.” She agreed the father was

“very close” to having the child placed in his care and custody, but he “blew it.”

She recommended permanent placement with the child’s maternal aunt.

1 The father complained about the distance to the testing site and his lack of transportation. The department caseworker noted he received transportation assistance to make the trips. 5

Iowa Code chapter 232 (2017) “favors relative placements over nonrelative

placements” during child-in-need-of-assistance proceedings. In re N.M., 528

N.W.2d 94, 97 (Iowa 1995); see also In re R.B., 832 N.W.2d 375, 381 (Iowa Ct.

App. 2013). The chapter identifies a spectrum of least restrictive to most restrictive

placements. See Iowa Code § 232.99(4). Iowa Code section 232.102(1)(a)(1)

authorizes the transfer of a child’s custody to “[a] parent who does not have

physical care of the child, other relative, or other suitable person.”

In denying the father’s request for custody of the child, the district court

reasoned:

The Court does not know the real reason for the father’s non- compliance. But, whatever the cause and whatever the reason, when given the opportunity to have the child transitioned into his care, the father has not shown the effort or the ability or the willingness to do what it takes to have the child in his care. He has shown a complete and utter lack of effort, lack of compliance, and lack of cooperation with the transition plan. The plan was simple: take drug test when requested, exercise visits, participate in Family Therapy. He has done none of those and, at the Permanency Hearing, showed no remorse for his non-compliance, only defiance and seeming indifference.

We concur in this reasoning. The district court approved a plan to effectuate a

transfer of custody to the child’s father. Through no fault of anyone but the father,

the plan did not succeed. We affirm the district court’s refusal to transfer the child

to the father’s custody during the proceedings as well as the court’s transfer of

guardianship and custody to the maternal aunt following the permanency hearing.

AFFIRMED.