In the Interest of J.S., J.S., and J.S., Minor Children, B.S., Father ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0475
Filed July 9, 2015
IN THE INTEREST OF J.S., J.S.,
and J.S.,
Minor Children,
B.S., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Fowler,
District Associate Judge.
The father appeals from an order placing his child with the child’s paternal
grandmother. AFFIRMED.
Steven W. Stickle of Stickle Law Firm, P.L.C., Davenport, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Michael Walton, County Attorney, and Julie Walton, Assistant County
Attorney, for appellee.
Martha L. Cox, Bettendorf, for mother.
Dana L. Copell of Law Office of Dana L. Copell, Davenport, for child.
Timothy Tupper of Tupper Law Firm, Davenport, guardian ad litem for
child.
Considered by Tabor, P.J., McDonald, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MCDONALD, J.
This is the second time this family and this proceeding has come before
this court. In the prior case, the father appealed an order adjudicating his
children, Je.S., Ja.S., and Ju.S., in need of assistance pursuant to Iowa Code
section 232.2(6)(c)(1) and (c)(2) (2013) and the dispositional order placing Je.S.
in foster care. See In re J.S., No. 14-1014, 2014 WL 4938012, at *2 (Iowa Ct.
App. Oct. 1, 2014). This court affirmed the adjudication and disposition orders.
See id. at *3-4. The evidence supporting the adjudication and disposition orders
is set forth in the prior decision and need not be repeated here. In short, the
children suffered from severe emotional distress, including suicidal ideation,
caused by the parents’ volatile, contentious, and argumentative relationship.
After the appeal in the first case was concluded, the State filed a motion to
modify disposition and visitation with respect to child Je.S. Independent of the
State’s motion to modify disposition, review of the disposition order was
necessary because Je.S.’s placement with the foster care family was set to end.
The foster family reported to the Iowa Department of Human Services (“IDHS”)
that they were “worn out” by the father’s harassing emails and vague threats and
no longer wished to provide foster care for the child. The foster family’s report
regarding the father’s conduct was consistent with other reports received.
Specifically, evidence adduced during the disposition review hearing showed the
father continually harassed IDHS employees and Je.S.’s therapist regarding
minutiae related to this proceeding without focusing on his own behaviors. At
hearing on the matter, the State recommended the child be placed with her
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paternal grandmother rather than returned home. The child also requested she
be placed with her paternal grandmother rather than returned home. The child
did not wish to have any further contact with her father because of his past
behaviors. The juvenile court concluded the permanency goal for Je.S. should
remain reunification with the family. The juvenile court also concluded the best
way to achieve the permanency goal was to place the child with the paternal
grandmother, require continued therapy and other services for the family, and
require the father and Je.S. reinitiate communication, progressing from electronic
communication to, hopefully, in-person visitation.
The father filed an application for interlocutory appeal, which the State
resisted. The supreme court determined the order appealed from was a final
order for the purposes of this appeal and transferred the matter to this court. The
mother also sought appellate review of the same order. The supreme court
dismissed the mother’s appeal for failure to file a petition on appeal within fifteen
days of filing her notice of appeal. On appeal, the father contends the juvenile
court should have continued placement of Je.S. in foster care rather than with his
own mother. The basis for his argument is that he does not like his mother and
believes that placement with her will interfere with reunification efforts. Indeed,
there is a no-contact order prohibiting the father and his mother from having
contact with each other.
We review the juvenile court’s order de novo. In re J.S., 846 N.W.2d 36,
40 (Iowa 2014). Our primary concern is the child’s best interests. See id. The
requested change of placement here constituted a request for modification of the
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disposition order. See In re Leehey, 317 N.W.2d 513, 515 (Iowa Ct. App. 1982).
“[The] party seeking a modification of the custody provisions of a prior
dispositional order must show the circumstances have so materially and
substantially changed that the best interest of the child requires such a change in
custody.” In re C.D., 509 N.W.2d 509, 511 (Iowa Ct. App. 1993). The father
does not contest the evidence establishing a material and substantial change in
circumstances. The child’s current placement cannot continue because of the
father’s behavior toward the foster family.
In determining disposition, the juvenile court is required to reach the “least
restrictive disposition appropriate considering all the circumstance of the case.”
Iowa Code § 232.99. The code sets forth possible dispositions in sections
232.100 through 232.102, from least restrictive to most restrictive. Suspending
judgment is the least restrictive alternative. See Iowa Code § 232.100. Transfer
of legal custody and placement away from the parent is the most restrictive. See
Iowa Code § 232.102. Within section 232.102 several alternatives are provided,
including placement with another parent, relative, or suitable person; placement
with a child-placing agency, facility or institution; or placement with IDHS. See
Iowa Code § 232.102(1)(a)(1)-(3). Our supreme court has interpreted these
sections to favor placement with a relative over placement with a non-relative.
See In re N.M., 528 N.W.2d 94, 97 (Iowa 1995). However, because the best
interests of the child must be the primary concern, the district court is not
required to order placement with relatives over other alternatives. See, e.g., In re
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T.H., No. 02–1844, 2003 WL 21543837, at *2 (Iowa Ct. App. July 10, 2003)
(affirming placement in foster care over placement with grandmother).
The father makes no claim that Je.S. can be returned to his care. He
instead argues “Je.S. should have been placed in a local foster home so that
regular visits can be facilitated between the father and daughter.” As the juvenile
court noted, although placement with a foster family may allow Je.S. to reside
locally, there is no guarantee that she would be placed with a foster family in the
same area. Furthermore, the issue giving rise to the modification—namely, the
father’s conduct toward the foster family—would be likely to reoccur if Je.S. was
placed with another foster family in the area. See In re D.C., 436 N.W.2d 644,
645 (Iowa Ct. App. 1988) (noting a parent’s past conduct is a good indication of
how the parent will behave in the future). The record is rife with evidence of the
father’s harassing behavior toward the foster family, the child’s therapist, and
IDHS employees. Finally, the father concedes he has not had visitation with
Je.S. since November 2013 because the father rejected the visitation
arrangement suggested by Je.S.’s therapist.
We conclude Je.S.’s placement with her paternal grandmother is in the
child’s best interest, and we affirm the juvenile court’s order. The child requested
to be placed with her paternal grandmother. While the father and his mother
appear to have no relationship, there is no evidence she would interfere with
reunification efforts. The juvenile court’s order specifically instructed that the
father and daughter are to resume supervised communication via telephone and
digital conferencing, progressing to in-person visitation. The juvenile court also
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specifically instructed the family to continue with services to facilitate
communication and reunification. We are confident IDHS will monitor this family
and provide the appropriate services.
The “goals of chapter 232 [are] to provide for the child’s welfare and
promote placement with parents or relatives.” N.M., 528 N.W.2d at 97. Thus,
the home of a relative is considered less restrictive than placement in a private
agency, facility, or institution or placement with IDHS. See id. This interpretation
is in harmony with federal regulations, which require states to consider “giving
preference to an adult relative over a non-related caregiver when determining a
placement for a child.” 42 U.S.C. § 671(a)(19). Given the foregoing, we affirm
the order of the juvenile court.
AFFIRMED.