In Interest of D.N.
| Decision Date | 24 September 2003 |
| Docket Number | No. 3-247 / 02-1410.,3-247 / 02-1410. |
| Parties | IN THE INTEREST OF D.N., a/k/a S.N., Minor Child, P.L.N., Mother, Appellant. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge.
Adoptive mother appeals from the dispositional order in a child in need of assistance proceeding. AFFIRMED.
Lora McCollom of Gonzalez, Saggio & Harlan, L.L.P., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Brett Lucas, Assistant County Attorney, for appellee-State.
Charles Fuson of the Youth Law Center, Des Moines, for minor child.
Heard by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Patricia N., an Iowa resident, adopted eight-year-old Dung N. in Vietnam. She renamed the child Sarah and brought her to Iowa in December of 2001. Several months after Sarah came to live in Iowa, Patricia concluded she could no longer care for the child she had adopted. As a result, a petition was filed seeking to have Sarah adjudicated as a child in need of assistance. The juvenile court granted the petition. Patricia does not contest the adjudication of Sarah as a child in need of assistance, but argues that, following a dispositional hearing, the juvenile court erred in vacating a portion of the prior adjudicatory order that found Sarah had "no parent." We affirm the juvenile court.
Background Facts and Proceedings: Sarah was born in Vietnam in 1993. She was diagnosed with severe medical and behavioral problems soon after her birth. In 1995 Sarah's biological mother placed Sarah in a medical orphanage because she could no longer care for her daughter.
Patricia became acquainted with Sarah during visits to Vietnam in the spring and summer of 2001. She adopted Sarah in Vietnam on July 31, 2001, with the consent of the child's biological parents. Patricia returned to Iowa without Sarah, but returned to Vietnam in December 2001 and brought the child back to Iowa. At the time Sarah came to live with Patricia, Iowa law required a parent who adopted a child in the child's country of origin to undergo further adoption in the parent's state of residence. Iowa Code § 600.15(2) (2001). As a result, Patricia began the process of readopting Sarah in Iowa.
Patricia held herself out as Sarah's parent after she brought Sarah to Iowa. Sarah resided with Patricia at her home in Warren County. Patricia placed Sarah on her medical and dental insurance policies. She also arranged for and consented to non-emergency medical procedures for Sarah.
Patricia hospitalized Sarah on March 1, 2002, for behavioral and medical problems. However, when it was time for Sarah to be discharged, Patricia informed social workers she could no longer maintain Sarah in her home. As a result Sarah was placed in shelter care.
On March 15, 2002, the Youth Law Center filed a petition on Sarah's behalf seeking to have her adjudicated as a child in need of assistance (CINA). The petition alleged Sarah was in need of assistance because 1) she was without a "parent, guardian or other custodian" pursuant to Iowa Code section 232.2(6)(j), and 2) her "parent, guardian or other custodian for good cause desires to be relieved of [her] care and custody," pursuant to section 232.2(6)(k). Sarah's Iowa adoption had not yet been completed, and the adoption petition was dismissed shortly before the March 28, 2002 pretrial conference.
The March 28 hearing was presided over by the Honorable Constance Cohen. At that hearing all involved were aware the legislature had recently passed H.F. 2190, which amended section 600.15 to recognize all adoptions "issued pursuant to due process of law by a . . . court of any other jurisdiction within or outside the United States . . . ." 2002 Iowa Acts ch. 1040, § 4 (codified at Iowa Code § 600.15 (2003)). However, the juvenile court and the parties were not certain of the effective date of the amendment to section 600.15. Following the hearing, Patricia signed a consent to Sarah's temporary removal and the court placed the child in the temporary legal custody of the Department of Human Services. The court also scheduled an adjudicatory hearing for May 14, 2002.
The record reveals an expedited hearing was held before Judge Cohen the day after the pretrial conference. The record suggests the hearing was held so that an adjudication order could be entered before the governor signed H.F. 2190. Based on the parties' stipulation, the court adjudicated Sarah as a child in need of assistance on both grounds in the petition. Explaining the need for out-of-home placement, the court found that Sarah had "no parent," as her biological parents' rights had been terminated in Vietnam, and the international adoption was "not valid in Iowa." Later that same day, March 29, 2002, the governor signed H.F. 2190. The bill went into effect immediately.
The court scheduled a CINA dispositional hearing, which was held on July 10, 2002 before the Honorable William Price. At the hearing, the State moved to vacate the portion of the prior adjudication order that found Sarah to be in need of assistance under section 232.2(6)(j), as a child having no parent, guardian or custodian. The State argued Patricia was Sarah's parent pursuant to a valid adoption, and that public policy precluded Patricia from relying on the prior version of section 600.15 as "an escape hatch" to challenge her parental status. The State argued a parental assessment for the costs of Sarah's foster care should be made against Patricia. Patricia resisted the motion, arguing that, absent an Iowa adoption, she was not Sarah's parent.
The juvenile court reaffirmed Sarah's adjudication under section 232.2(6)(k), but found the adjudication under section 232.2(6)(j) should be vacated. It rendered its decision under the 2001 version of section 600.15 and determined that, despite the statutory language requiring a subsequent Iowa adoption, "[p]ublic policy and the best interests of the child require that comity should be accorded to the Viet Nam adoption." The court also based its decision on the fact that the two grounds of adjudication were inconsistent, one requiring that Patricia be Sarah's parent, guardian or custodian, and the other requiring that she not have such status. The court vacated the adjudication under section 232.2(6)(j), as well as the underlying findings that Sarah had no parent, and that the Vietnamese adoption was not valid in Iowa.
Patricia appeals, but only from the portion of the dispositional order that vacated the adjudication under section 232.2(6)(j), and the corresponding factual findings. She does not appeal from the adjudication under section 232.2(6)(k).
Scope of Review. We conduct a de novo review of CINA proceedings. In re H.G., 601 N.W.2d 84, 85 (Iowa 1999). We give weight to the fact findings of the juvenile court, but are not bound by them. Iowa R. App. P. 6.14(6)(g). Our overriding concern in such cases is always the best interests of the children. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001).
Procedural Defects. Patricia first argues the juvenile court was precluded from vacating a portion of the adjudicatory order because the State's request was procedurally defective. She contends that vacation was not authorized by Iowa Rules of Civil Procedure 1.1012 and 1.1013. She further argues that, to the extent the State was requesting reconsideration or amendment of the adjudicatory ruling, such request was untimely, as the State filed no post-adjudication motion under Iowa Rule of Civil Procedure 1.904(2). We find these claims to be without merit.
Initially, we note that neither claim was preserved for our review. Patricia's argument regarding rules 1.1012 and 1.1013 was neither raised before nor ruled upon by the juvenile court at the dispositional hearing. We do not consider for the first time on appeal an issue that was not passed on by the trial court. In re C.D., 508 N.W.2d 97, 100 (Iowa Ct. App. 1993). While Patricia's rule 1.904(2) argument was raised before the juvenile court, it was never ruled upon by the court, and Patricia did not alert the court to this omission via a post-ruling motion. See In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) ().
Moreover, rules 1.1012 and 1.1013 govern the vacation or modification of a final judgment or order. Patricia herself admits that an adjudicatory order, without a disposition, is not a final order. See In re Long, 313 N.W.2d 473, 475-76 (Iowa 1981).
Finally, even if the State failed to make appropriate and timely filings, modification of an adjudicatory order, prior to disposition, is something within the juvenile court's authority. See McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998) ().
Statutory Preclusion. Patricia next argues the court erred in vacating the adjudication under section 232.2(6)(j), because Iowa Code section 600.15 (2001) precluded recognition of the Vietnamese adoption. In essence, Patricia is arguing that Sarah should have been adjudicated under section 232.2(6)(j), because clear and convincing evidence established that Sarah had no parent, guardian, or other custodian. For a number of reasons, we cannot agree.
Even if the facts underlying an adjudicatory ground are established by clear and convincing evidence, the entry of a CINA adjudication is within the juvenile court's discretion. See Iowa Code § 232.96(9). Here, the ground vacated by the juvenile court was clearly inconsistent with the second ground upon which Sarah was adjudicated, a ground that Patricia stipulated to during the hearing and from which she does not appeal. Compare Iowa Code § 232.2(6)(j) (...
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