In re H.S.

Decision Date02 September 2011
Docket NumberNo. 11–0305.,11–0305.
Citation805 N.W.2d 737
PartiesIn the Interest of H.S. and S.N., Minor Children,V.R., Mother, Appellant.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Katherine A. Daman of The Powell Law Firm, P.C., Norwalk, for appellant mother.

Michael J. Bandstra of Bandstra Law Office, Des Moines, for appellee father of H.S.

William E. Sales III of Sales Law Firm, P.C., Des Moines, for appellee father of S.N.Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Brown and Andrea Vitzthum, Assistant County Attorneys, for appellee State.John P. Jellineck, Des Moines, attorney and guardian ad litem for minor children.MANSFIELD, Justice.

We granted further review in this case to address the extent to which the elimination of the potential availability of child support is relevant in an Iowa Code section 232.116 (2009) termination of parental rights proceeding. We conclude the elimination of possible child support should not affect termination if it is otherwise in the child's best interests as defined by section 232.116(2).

In this case, the juvenile court terminated the noncustodial mother's parental rights to two children under section 232.116, but the court of appeals reversed after giving weight to the fact that termination would end the mother's child support payments. On our review, we disagree with the court of appeals and find the juvenile court's analysis of the facts and the law persuasive. Therefore, we vacate the opinion of the court of appeals and affirm the judgment of the juvenile court as to the child whose father filed a timely application for further review.

I. Background Facts and Proceedings.

Valarie is the mother to two daughters, S.N. (born November 2003) and H.S. (born May 2007). Steven is the biological father of S.N., and Charles is the biological father of H.S. Before October 2009, Valarie served as the primary custodian and caregiver to the two children, while Charles and Steven exercised visitation through informal agreements.

During a visit in late October 2009, Charles discovered several red marks and bruises to H.S.'s buttocks, lower back, and upper legs while changing her diaper. Charles immediately contacted the police and took H.S. to the hospital. Charles testified that H.S. told him at the hospital that Valarie's husband, Tony, caused the injuries by spanking H.S. for wetting herself. The records reflect that H.S. told both the treating emergency room physician and police investigators that “Tony did it.”

The abuse was reported to the Iowa Department of Human Services (DHS), which initiated a child protective assessment. During the assessment, Valarie denied causing the injuries or having any knowledge as to their origin. Valarie also expressed certainty that Tony was not responsible and instead suggested that Tony's thirteen-year-old daughter might have caused H.S.'s injuries. DHS subsequently determined the physical abuse report was founded, identifying Tony as the perpetrator.

On November 3, 2009, the juvenile court entered a temporary removal order placing H.S. in Charles' custody and S.N. in Steven's custody. The next day, the State filed a petition seeking to have H.S. and S.N. adjudicated children in need of assistance (CINA) under Iowa Code sections 232.2(6)( b) and .2(6)( c) (2). Removal was confirmed by stipulation of the parties at an uncontested hearing on November 10. The children remained in the custody of their fathers, and services were initiated including family team meetings, family safety risk and permanency services, and supervised visitation. Valarie also attended therapy and parenting classes.

Contested CINA adjudication hearings were held on December 16, 2009, and January 29, 2010. At the first hearing, Valarie remained adamant that Tony had not caused H.S.'s injuries. However, by January 29, Valarie had changed her position and accepted that Tony had physically abused H.S. Accordingly, Valarie stipulated to the children being adjudicated CINA and further testified that she planned to divorce Tony and move into a separate residence.

Valarie moved into a new residence in February 2010 and filed for a divorce from Tony. However, at disposition proceedings held in March and May 2010, Charles testified that he continued to see Valarie and Tony together in the community. He presented photographs showing Tony's car parked outside of Valarie's new home. Valarie disputed Charles' testimony; she testified that she had no further contact with Tony after January 29 and that her sister had been the one using Tony's car. Based on continued concerns over Tony's possible presence, the children remained in the custody of their fathers, and Valarie's visits remained supervised.

In May, Valarie, Charles, and Steven stipulated to a case permanency plan and agreed to pursue a shared parenting plan in district court. Accordingly, the juvenile court authorized concurrent jurisdiction to allow for the litigation of custody and visitation. See Iowa Code § 232.3(2). Valarie also signed a release and satisfaction of Child Support Recovery and agreed to pay $100 per month to Charles and $50 per month to Steven.

In June 2010, the parties agreed to a visitation schedule for Valarie which included unsupervised weekend and overnight visits. However, following H.S.'s first overnight stay, it was revealed that Valarie had taken H.S. to visit Tony's mother.1 At this time, DHS made it clear that only persons preapproved by DHS were allowed around the children. Despite these concerns, the unsupervised and overnight visits continued, and by August, the parties were actively working to craft a shared custody plan that could be presented to the district court.

Implementation of a long-term custodial arrangement stalled in August when it was suggested at a family team meeting that Valarie might be pregnant. Valarie vigorously denied the allegation, but several weeks later she informed DHS that she was in fact pregnant and that Tony was one of two possible fathers. 2 Based upon the expected delivery date, Valarie admitted that conception likely took place in early March, even though she had previously testified she had had no contact with Tony since January 29. Valarie and Tony's divorce was finalized on August 27.

Following a contested permanency hearing on September 15, the juvenile court entered an order transferring sole legal custody of H.S. and S.N. to Charles and Steven, respectively. See id. § 232.104(2)( d)(2). However, the juvenile court initially found compelling reasons not to terminate the parental rights of Valarie due to the children's placement with a parent and ongoing financial support from Valarie.

Charles and Steven disagreed with the permanency order and subsequently filed petitions to terminate Valarie's parental rights invoking chapter 232. 3 Charles filed his petition on September 17, while Steven filed his on October 15. Shortly after Charles filed, Valarie contacted DHS and initiated a child protective assessment against him alleging physical abuse. DHS determined the assessment was unsubstantiated. The juvenile court later found the allegations to be “without merit” and “motivated by [Valarie's] own ill-conceived agenda rather than the welfare of her children.”

In early October, DHS reduced Valarie's visitation to two semi-supervised visits per week after it was discovered that Valarie had allowed an unknown individual to be present during a visit.

By the end of October, continued efforts to formulate a long-term visitation plan were abandoned when Valarie announced at a family team meeting that she had hired a private investigator who had evidence that Charles was dealing drugs out of his home. In light of the allegation, Charles sought to depose the private investigator. The juvenile court granted the request. Although the deposition transcript was entered into evidence, it was not made a part of the record. Nonetheless, the parties do not dispute that, during his deposition, the private investigator stated he was never hired by Valarie and denied investigating or having any knowledge of Charles or his activities.

A five-day trial on the petitions to terminate Valarie's parental rights was held in November and December 2010. Counsel appeared for each father, for the mother, and for the children. The county attorney's office also participated in the hearing.

Charles testified that although he never initiated a DHS referral, his concerns over Valarie's parenting had emerged early in H.S.'s life. Charles indicated that H.S. had a rash “that was worse than a blister ... all the way around her neck” caused by Valarie's propping a bottle and allowing formula to drip down and collect in a ring around H.S.'s neck. Charles also testified that Valarie never arranged for dental care for H.S. and that H.S. had three untreated cavities when custody was transferred to him. In addition, Charles testified that Valarie often sent dirty bottles and clothes to Charles' house, provided an inadequate car seat for transporting H.S., and gave H.S. lip gloss that was inappropriate for a young child.

Charles' wife Amanda testified that she was prepared to adopt H.S. if Valarie's parental rights were terminated. Assuming that H.S.'s safety needs were being met, both Charles and Amanda confirmed that Valarie would continue to have a role in H.S.'s life. Charles also committed to maintaining contact between H.S. and her older sister, S.N.

Steven, the father of S.N., also testified. Steven explained that he was living with a paramour and that he, his paramour, and his paramour's mother were responsible for S.N.'s care. Steven said that Charles' and Amanda's testimony was accurate as far as he was concerned, although he added, “I don't have a problem with Valarie when it comes to my kid ever....” Steven testified that after DHS became involved, he and Charles got to know each other and began talking to each other about...

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