In The Interest Of K.B., Minor Child, E.A.B., Grandmother , 2008 Iowa Sup. LEXIS 94 ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 93 / 08–0395
Filed July 18, 2008
IN THE INTEREST OF K.B.,
Minor Child,
E.A.B., Grandmother,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Nancy S.
Tabor, Judge.
A guardian appeals a juvenile court order changing custody of her
grandchild at a review hearing in a child-in-need-of-assistance
proceeding. DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT DECISION REVERSED AND CASE REMANDED WITH
INSTRUCTIONS.
Cheryl Fullenkamp, Davenport, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant
Attorney General, Michael J. Walton, County Attorney, and Jay
Sommers, Assistant County Attorney, for appellee State.
Patricia Rolfstad, Davenport, for mother.
Stephen Newport of Newport & Newport, P.L.C., for minor child.
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WIGGINS, Justice.
The issue we must decide is whether the juvenile court had the
authority to change custody of K.B. from her maternal grandmother,
E.A.B., to her paternal grandparents at a scheduled review hearing of a
dispositional order in a child-in-need-of-assistance proceeding. E.A.B.
appealed the change of custody. We transferred the case to the court of
appeals, which affirmed the district court. In its decision the court of
appeals found E.A.B. consented to a modification hearing on a change of
custody under Iowa Code section 232.93 (2007), based on its belief that
the record supported the conclusion that all of the parties knew of the
proposed change of custody in advance of the hearing.
E.A.B. requested, and we granted further review of the court of
appeals decision. In CINA proceedings, we review the evidence de novo.
In re J.R.H., 358 N.W.2d 311, 317 (Iowa 1984). Based on our de novo
review of the record, we find E.A.B. did not consent to a modification
hearing on a change of custody. Therefore, we vacate the court of
appeals decision and remand the case back to the juvenile court for
further proceedings.
I. Facts.
On our de novo review we find the facts as follows. E.A.B. was the
legal guardian of K.B. On May 23, 2007, the State filed a petition
alleging K.B. was a child in need of assistance because she was being
sexually abused by her maternal grandfather. When the State filed the
petition, K.B.’s mother was incarcerated. Her father is deceased. On
May 24 the court appointed a guardian ad litem for K.B. and issued an
order setting a prehearing conference for June 6.
On May 29 attorney Kyle Williamson entered an appearance on
behalf of E.A.B. On the same day, E.A.B. filed a consent form in which
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she expressed her wish to stipulate K.B. as a child in need of assistance.
On July 17 the court adjudicated K.B. as a child in need of assistance
pursuant to section 232.2(6), subsections (c)(2) and (d), and set a
dispositional hearing for August 27. The court ordered K.B. to remain in
the custody of E.A.B. pending the dispositional hearing.
Subsequent to the dispositional hearing, the court entered an
order placing K.B. with E.A.B. subject to the supervision of the
department of human services. The court, in its dispositional order, set
a review hearing for February 20, 2008. The court ordered the
department to “submit a written report to the court on the progress of
said child and placement goals and an updated case plan, both of which
[were to] be filed with the court at least ten days prior to hearing.”
In the fall of 2007 Williamson was appointed to a district associate
judgeship. Williamson never filed a formal withdrawal as E.A.B.’s
attorney. No other attorney appeared on E.A.B.’s behalf.
The department’s written report, required by the court for the
February 20, 2008, hearing, is dated February 17. It recommended
K.B.’s custody be transferred to her paternal grandparents. A “cc” at the
bottom of the report indicates the department sent a copy of the report to
E.A.B. There is no certificate of service indicating how the department
served E.A.B. with a copy of the report. The department did not send
Williamson a copy of the report, indicating the court records must have
reflected Williamson no longer represented E.A.B., despite his failure to
withdraw from the case. The department filed the report with the court
on February 20, the day of the review hearing.
At the hearing E.A.B. was not represented by counsel. The county
attorney moved to admit the State’s exhibits and the court asked each
attorney individually whether he or she had an objection to the exhibits.
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The court failed to ask E.A.B. if she had any objections. The court
admitted the exhibits. Next the county attorney acknowledged the
hearing was noticed as a review hearing, but asked the court to consider
changing the custody of K.B. to her paternal grandparents. When the
court asked E.A.B. about this request, she replied, “I don’t agree, and I
think K.B.’s been through enough, and she needs to stay home with me.”
Without responding to E.A.B.’s statement or allowing further evidence,
the court changed custody of K.B. from E.A.B. to the paternal
grandparents.
II. Analysis.
The February 20 hearing was a review hearing held pursuant to
section 232.102(9). The language of this section relevant to this appeal
states:
The court shall hold a periodic dispositional review hearing
for each child in placement pursuant to this section in order
to determine whether the child should be returned home, an
extension of the placement should be made, a permanency
hearing should be held, or a termination of the parent-child
relationship proceeding should be instituted.
Iowa Code § 232.102(9). We have previously interpreted this language to
give the juvenile court three alternative dispositions at a review hearing.
See In re Blackledge, 304 N.W.2d 209, 213 (Iowa 1981) (interpreting
section 232.102(6) (1979), a predecessor to section 232.102(9) that
stated, “[T]he 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”). We have
construed this provision of the Code narrowly as authorizing only three
specific actions for the juvenile court to take at a review hearing: return
the child to her home, extend the current placement, or commence
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termination proceedings. Id. A juvenile court is not authorized to
change custody at a review hearing. In re Leehey, 317 N.W.2d 513, 515
(Iowa Ct. App. 1982).
The Code does, however, allow a person to give the court his or her
consent to proceed to hear and determine issues not contained in an
application or pleading. Iowa Code § 232.93. Thus, if the court wanted
to change custody of K.B. at the review hearing, E.A.B. needed to have
given her consent to allow the court to consider a change in custody.
The court of appeals based its decision that E.A.B. consented to
the modification hearing by finding E.A.B. received the department’s
report recommending a change of custody before the hearing; therefore,
she knew the hearing would involve a proposed change of K.B.’s custody.
E.A.B. claims she did not see this report before she attended the review
hearing.
There is no evidence the report was hand delivered to E.A.B. at any
time prior to the hearing. Therefore, we assume the department mailed
the report to E.A.B. The report is dated Sunday, February 17. The
earliest the department could have mailed the report was on Tuesday,
February 19, because Monday, February 18, was Washington’s Birthday
(President’s Day), a postal holiday. See 2008 Postal Holiday,
http://www.usps.com/communications/newsroom/calendar/federalholi
days.htm (last visited July 17, 2008). Under these circumstances we
disagree with the court of appeals finding that E.A.B. saw the report
before the hearing. Had the department complied with the court order
requiring it to file the report ten days prior to the hearing, we would have
more confidence that E.A.B. received the report prior to the hearing.
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We do not believe E.A.B. received the report prior to the hearing.
Thus, she was unaware of the State’s position that the court was going to
consider a change of K.B.’s custody at the hearing. When the county
attorney moved to admit the exhibits, including the department’s report,
the court asked all the other participants individually whether they had
any objection to the exhibits. For some unknown reason the court did
not inquire whether E.A.B. had any objections. When the county
attorney asked the court to conduct a modification of custody, the court
did ask E.A.B her position. E.A.B. replied, “I don’t agree, and I think
K.B.’s been through enough, and she needs to stay home with me.” The
“I don’t agree” part of her statement indicates E.A.B. did not want to
proceed on that day with a hearing on the proposed change of custody.
Without asking whether E.A.B. had any evidence to present, the court
changed custody.
Our de novo review of the record finds no support for a finding that
E.A.B. gave her consent to an adjudication of the proposed change of
custody of K.B. E.A.B.’s lack of knowledge of the purpose of the hearing,
her minimal participation in the proceeding, and her statement at the
hearing leads us to conclude she did not consent to change the review
hearing to a modification hearing. Accordingly, the juvenile court lacked
the authority to change custody of K.B. to her paternal grandparents.
III. Disposition.
Because the juvenile court lacked the authority to proceed with a
modification of custody at the review hearing, we reverse the order
changing K.B.’s custody and remand this case to the juvenile court for
further proceedings. Before proceeding further, the juvenile court should
ensure that E.A.B.’s right to counsel, as set forth in section 232.89, is
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not violated. See Loeffelholz v. State, 162 N.W.2d 415, 426–27 (Iowa
1968) (discussing a person’s statutory right to counsel).
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT DECISION REVERSED AND CASE REMANDED WITH
INSTRUCTIONS.
All justices concur except Baker, J., who takes no part.