S.V., In Interest of, 85-65

• Citation: 395 N.W.2d 666
• Decision Date: 27 August 1986
• Docket Number: No. 85-65,85-65
• Parties: In the Interest of S.V., A Child, E.V.P., Mother, Appellant.
• Court: Court of Appeals of Iowa

Page 666

395 N.W.2d 666

In the Interest of S.V., A Child, E.V.P., Mother, Appellant.

No. 85-65.

Court of Appeals of Iowa.

Aug. 27, 1986.

Susan Nagl, of Bergan, Nagl & Weyer, Iowa City, for the appellant mother.

Thomas J. Miller, Atty. Gen., Charles K. Phillips, Asst. Atty. Gen., and Brent D. Heeren, Tama Co. Atty., for the appellee State.

Kenneth R. Martens, Marengo, for the natural father.

Considered by OXBERGER, C.J., and SNELL, and SACKETT, JJ.

SACKETT, Judge.

E.V.P., the natural mother of a six-year-old child, appeals from a juvenile court order placing the child with her natural father, J.V., and her paternal grandparents. The mother contends the evidence does not support the juvenile court's conclusion the home of the father and his parents is more conducive to S.V.'s welfare than the mother's home. She also asserts the juvenile court disregarded evidence her parenting skills had improved and did not fully consider substantiated reports that the father had sexually abused his stepchildren. The mother further contends S.V.'s placement with the father is actually placement with the paternal grandparents because they will have primary caretaking responsibility for S.V. and therefore amounts to an impermissible modification of the dispositional order.

This case involves the difficult question of the appropriate placement of S.V., who was born in July, 1980. At the age of five months S.V. was placed in foster care and was adjudicated a Child in Need of Assistance pursuant to Iowa Code § 232.2(6)(c)(2) (1985) on April 8, 1981. At the time the child neglect petition was filed, S.V. was living in the home of her natural parents, together with the mother's three other children, B.C., Ka.C. and Ke.C. All four children were placed in foster care at that time.

The father and mother exercised visitation rights with the children while they were in foster care, however, neither parent had a consistent visitation record throughout that time. S.V.'s paternal grandmother, who was permitted visitation, had the best record of keeping weekly visitation schedules.

On January 20, 1982, the juvenile court entered an order restricting the parents' visitation rights. The order restricted the mother to supervised visitation at the foster home. The court ordered the father's visitation rights cease unless he made further application for review of visitation because of allegations made by his stepchildren, B.C. and Ka.C., that he had sexually abused them.

The allegations were investigated by a department socialworker who interviewed the two children and the mother. The socialworker's report concerned an incident involving both children during an unsupervised visit when the mother left the children with the stepfather while she was at work. The prohibition on the father's visitation was later modified to permit the father to have supervised visitation including supervised visitation with S.V. in his mother's home.

In spring, 1982, the mother and father separated permanently and this marriage was later dissolved. After the dissolution, the father moved into the home of his parents, G.V. and A.V. The mother resided with T.H. and later with R.P., to whom she is currently married.

By August, 1983, the department determined the mother's parenting skills had improved sufficiently and she had responded to a department case plan to the extent that B.C. and Ka.C. were returned to her home for trial placement. Ke.C. was placed into custody of her natural father.

Following the children's return to the mother's home, all three began family therapy sessions. The children currently live in their mother's home together with R.P., who has worked toward coparenting with the mother.

In a progress report dated May 2, 1984, Brenda Tesar, a department social-worker, recommended S.V. be placed in the mother's home and the mother be given permanent custody. On May 20, 1984, a review hearing was held. The juvenile court determined S.V. should remain in foster care subject to increased visitations in the mother's and father's homes.

In a progress report dated September 30, 1984, Tesar recommended S.V. be placed in custody of either the mother's or father's family as soon as possible. Tesar stated the following in the progress report:

Both family units have demonstrated the ability to effectively parent this child and provide a home environment which will meet [S.V.'s] critical care needs.

On October 3, 1984, the juvenile court ordered the department to recommend whether S.V. should be placed in her mother's or father's home. Pursuant to the order Tesar recommended S.V. be placed in her father's and grandparents' home. At a review hearing in November, 1984, Tesar again recommended placement with S.V.'s father and grandparents. Family therapist Cynthia Willis, foster parent Ladonna Zhorne and guardian ad litem Don Juhl also recommended S.V. be placed with her father and grandparents.

On December 19, 1984, the juvenile court ordered that custody of S.V. remain with the department. The juvenile court also granted trial home placement with S.V.'s father and grandparents, including provisions for visitation with S.V.'s mother. The mother appeals this dispositional order.

I.

Appellate review of an order entered after a review hearing in a CHINA proceeding is de novo. In the Interest of Blackledge, 304 N.W.2d 209, 210 (Iowa 1981). While we give weight to the juvenile court's findings of fact because the juvenile court has had the unique opportunity to hear and observe the witnesses firsthand, we are not bound by them. Iowa R.App.P. 14(f)(7); In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). Precedent is of little value in deciding this issue and each case must ultimately turn on its own particular facts. In the Interest of Leehey, 317 N.W.2d 513, 516 (Iowa App.1982).

II.

In child custody cases the first and governing concern of the courts is the best interests of the child. Iowa R.App.P. 14(f)(15); In the Interest of J.R.H., 358 N.W.2d 311, 317 (Iowa 1984). "One rule which does especially bear on the determination ... in child custody cases recognizes a child needs a stable and continuing environment." In the Interest of Leehey, 317 N.W.2d at 516 (quoting In re Marriage of Carrico, 284 N.W.2d 251, 254 (Iowa 1979)). The best interests of the child are presumed served by placement with a natural parent whenever possible. In the Interest of J.R.H., 358 N.W.2d at 320; In the Interest of Chad, 318 N.W.2d 213, 218 (Iowa 1982).

A. The mother first contends S.V.'s placement with her father and grandparents amounts to modification of the dispositional order which is not permitted under Iowa Code § 232.102(7) (1985). Section 232.102(7) provides:

The duration of any placement made after an order pursuant to this section shall be for an initial period of six months. At the expiration of that period and every six months thereafter, the court shall hold a hearing and review the placement in order to determine whether the child should be returned home, an extension of the placement should be made, or a termination of the parent-child relationship proceeding should be instituted. The placement shall be terminated and the child returned to the child's home if the court finds by a preponderance of the evidence that the child will not suffer harm in the manner specified in section 232.2, subsection 6. If the placement is extended, the court shall determine whether additional services are necessary to facilitate the return of the child to the child's home, and if the court determines such services are needed, the court shall order the provision of such services. When the child is not returned to the child's home and if the child has been previously placed in a licensed foster care facility, the department or agency responsible for the placement of the child shall consider placing the child in the same licensed foster care facility. (emphasis added).

The mother argues the juvenile court had only three alternatives after the November, 1984 review rehearing:

1. Return S.V. home;

2. Extend S.V.'s current foster care placement; or

3. Initiate a termination of the parent-child relationship.

See In the Interest of Blackledge, 304 N.W.2d 209, 213 (Iowa 1981). However, since grandmother G.V. testified she would assume primary care if S.V. was placed with her father and grandparents, the mother argues that in actuality S.V. is being placed with G.V. rather than the father. The mother argues placement with grandparents is not an alternative available to the juvenile court under § 232.102(7). In addition, the mother asserts S.V.'s placement with G.V. violates the "rebuttable presumption that the best interests of the child are served by custody of the natural parents." In the Interest of Chad, 318 N.W.2d 213, 218 (Iowa 1982).

The mother is correct that § 232.102(7) limits the juvenile court's alternatives to home placement, extension on foster care placement or termination proceedings. However, the mother is not correct in saying S.V.'s placement with her father and grandparents does not amount to returning the child home. The decree dissolving the natural parents' marriage did not award custody of S.V. to either parent because legal custody of S.V. had been transferred to the department prior to the dissolution. As a result, S.V. had two homes to which she could be returned after the review hearing.

The mother also contends the instant case comes within the holding of In the Interest of Blackledge, 304 N.W.2d 209 (Iowa 1981). We find the instant case is distinguishable.

In Blackledge, the court held the juvenile court had erred in comparing the natural mother's home to the natural father's home in determining the best interests of the children required transferring legal custody and placement to the father. Blackledge, 304 N.W.2d at 214-15. There, the parents had been divorced prior to the CHINA proceeding and the mother had been awarded custody of...