In the Interest of P.S., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 21-1191
Filed January 12, 2022
IN THE INTEREST OF P.S.,
Minor Child,
N.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clayton County, Linnea M.N. Nicol,
District Associate Judge.
A mother appeals a permanency order placing sole custody of her child with
the father. AFFIRMED.
Kevin Stinn of Swartz Law Firm, PLLC, Waukon, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Justin M. Vorwald of Ehrhardt, Gnagy, McCorkindale & Vorwald, Elkader,
attorney and guardian ad litem for minor child.
Considered by Bower, C.J., Badding, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
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CARR, Senior Judge.
A mother appeals a permanency order placing sole custody of her child with
the father. We find there is clear and convincing evidence to show the child cannot
be safely returned to the mother’s care. Also, an extension of six months is not
appropriate because it is unlikely the need for removal would no longer exist at the
end of the six-month period. We affirm the decision of the juvenile court.
I. Background Facts & Proceedings
The mother, N.S., and father, W.S., of P.S., born in 2015, had joint physical
care of the child. In June 2019, concerns arose because the child had bruises
following parenting time with the father. The Iowa Department of Human Services
(DHS) issued a founded report finding the father physically abused the child. The
father faced criminal charges relating to the incident. He agreed to not have
unsupervised contact with the child. The child was placed in the custody of the
mother. The child was adjudicated to be in need of assistance (CINA), pursuant
to Iowa Code section 232.2(6)(c)(2) (2019).
Subsequently, the mother’s conduct caused concern to the juvenile court.
The mother was reluctant to permit the child’s attendance at supervised visitation.
Services were offered to the mother and the father. The father cooperated with all
services provided to him. The mother was less receptive and stated she did not
understand why she needed to participate in Family Safety, Risk, and Permanency
(FSRP) services.1
1 On November 22, 2019, the mother filed an application for concurrent jurisdiction
in the district court to determine the issue of physical care of the child. The father
resisted the application. The request was denied by the juvenile court.
3
The child was removed from the mother’s care on January 24, 2020,
because she choked her paramour’s son, G.B., who was two years old, causing
bruising. The application for removal stated the mother “has shown her fluctuating
from calm collected demeanor to fits of rage and anger.” The child was placed in
the care of the father under the supervision of DHS. The juvenile court found,
“[t]he mother’s anger management issues and the evidence of physical abuse of
[G.B.] . . . amount[ed] to imminent danger.” DHS amended its previous report
finding the father physically abused P.S. and determined the perpetrator was
unknown. The criminal charges against the father were dismissed.
P.S. had adverse reactions to contact with her mother. The juvenile court’s
August 31 review order stated:
At the time of the hearing, a [DHS] case manager reports that
[the child] continues to have adverse reactions to calls, video chats,
and in-person interactions with her mother . . . . The adverse
reactions of the child include physical aggression towards siblings,
defiance, peeing her pants prior to and following visits, pooping her
pants prior to and following visits, and even throwing up in
anticipation of a visit. On June 10, 2020, [the child] told . . . her
father’s girlfriend, on that date that she did not want to have a visit or
a phone call with her mother. [The child] reported to the FSRP
provider that she did not want to have visits “alone” with her mother,
including video chats.
The court noted the mother’s resentment toward the father was greater than her
concern for the child.2
The mother made some progress with services. She and the child began
participating in play therapy. The mother began individual therapy. The child also
2 On October 2, 2020, the father filed a motion for concurrent jurisdiction with the
district court. The mother resisted the father’s motion. The juvenile court granted
the motion for concurrent jurisdiction.
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participated in art therapy. The mother’s visits were changed to monitored rather
than fully supervised. In November, the mother made an audio recording of a
conversation with the child in which she kept pressing the child to say the child
was unsafe in the father’s home. The mother told the child she would not be safe
unless she told social workers the same thing. DHS changed the mother’s visits
back to fully supervised. The mother continued to participate in services and in
January 2021 monitored visits resumed. The child exhibited behavioral problems,
including fecal incontinence, following visits with the mother.
A permanency hearing was held on April 29. At the end of the hearing, the
court held the record open until June 1 to permit evidence of co-parenting therapy,
which began just before the hearing. A June 1 report by DHS stated, “Since the
last court hearing, [the mother] continues to behave in a manner that is
manipulative and disregards recommendations by [DHS] and other professionals
involved.” Following one visit, the child stated the mother yelled at her and this
made her nervous and sad.
A permanency order was entered on July 6. The court found the mother
“refus[ed] to benefit from the family-centered services that have been provided to
her.” The court found the mother’s conduct was detrimental to the child, stating
“Rarely is a child’s immediate mental and physical response as understandable or
attributable to parental behavior as it is in this case.” The court determined the
parents’ previous joint physical care arrangement was not in the child’s best
interests. The court concluded the child should be placed in the sole custody of
the father, under section 232.104(2)(d)(2).
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The mother filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2).
The State resisted the motion. The motion was denied by the juvenile court. The
mother appeals the permanency order placing the child in the sole custody of the
father.
II. Standard of Review
The juvenile court’s decisions in CINA proceedings are reviewed de novo.
In re L.H., 904 N.W.2d 145, 149 (Iowa 2017). We are not bound by the factual
findings of the juvenile court, but we give weight to those findings. In re J.S., 846
N.W.2d 36, 40 (Iowa 2014). The court’s “determinations must be based upon clear
and convincing evidence.” Id. at 41. Our primary consideration is the best interests
of the child. In re D.S., 563 N.W.2d 12, 14 (Iowa Ct. App. 1997).
III. Discussion
Section 232.104(2) provides:
After a permanency hearing the court shall do one of the
following:
a. Enter an order pursuant to section 232.102 to return the
child to the child’s home.
b. Enter an order pursuant to section 232.102 to continue
placement of the child for an additional six months at which time the
court shall hold a hearing to consider modification of its permanency
order. An order entered under this paragraph shall enumerate the
specific factors, conditions, or expected behavioral changes which
comprise the basis for the determination that the need for removal of
the child from the child’s home will no longer exist at the end of the
additional six-month period.
c. Direct the county attorney or the attorney for the child to
institute proceedings to terminate the parent-child relationship.
d. Enter an order, pursuant to findings required by subsection
4, to do one of the following:
....
(2) Transfer sole custody of the child from one parent
to another parent.
....
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For the options in subsection 232.104(2)(d), the court must make findings as
provided in subsection 232.104(4), that convincing evidence exists showing:
a. A termination of the parent-child relationship would not be
in the best interest of the child.
b. Services were offered to the child’s family to correct the
situation which led to the child's removal from the home.
c. The child cannot be returned to the child’s home.
The mother first contends there is not sufficient evidence in the record to
show the child could not be safely returned to her care. She points out that she
has joint physical care of another child, C.P., who is not involved in this case. The
mother asserts there is insufficient evidence to show the child’s behavioral
problems were caused by contact with her.
The child cannot be safely returned to her mother’s home under an
arrangement for joint physical care as requested by the mother due to her
continued anger issues, her inappropriate behavior, and her inability or
unwillingness to see how her actions cause emotional stress and trauma to the
child. At the time of the permanency hearing, the mother continued to deny she
had issues with anger despite evidence to the contrary and she continued to
minimize her inappropriate behaviors. The mother’s anger management problems
became apparent when she choked her paramour’s son, G.B., causing bruising.
Furthermore, she made P.S. feel unsafe in the home of the father.
Although the mother may be able to parent a different child that does not
have the same behavioral problems as P.S., in this case we must consider the
unique characteristics of P.S. P.S. has documented behavioral problems
associated with contact with the mother. The child stated that when the mother
yelled at her, she became nervous and sad, and her emotional state resulted in
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physical problems. The effect of the mother’s behaviors on the child was clear, as
the child exhibited physical symptoms including stomach aches preceding
visitation and fecal incontinence. A physician reported, “Suspect that fecal
incontinence is behavioral given normal abdominal exam today.”
We conclude there is convincing evidence in the record to show the child
cannot be safely returned to the mother’s care.
The mother also claims the juvenile court should have given her additional
time to work on reunification with the child. Section 232.104(2)(b) permits the court
to grant a parent an additional six months to engage in services. An extension of
time may be granted based on a “determination that the need for removal of the
child from the child’s home will no longer exist at the end of the additional six-
month period.” Iowa Code § 232.104(2)(b).
The juvenile court stated, “The timeline prepared by [DHS] well documents
the mother’s refusal to benefit from family-centered services that have been
provided to her.” The court also stated the mother “refuses to learn from the
information being shared with her.” The evidence shows it is not likely the child
could be returned to the mother’s care within six months. See id.; In re L.H., 949
N.W.2d 268, 272 (Iowa Ct. App. 2020) (finding a six-month extension was not
warranted because the parent “made little to no progress during the course of the
CINA proceedings”). We find it would not be in the child’s best interests to give
the mother additional time to work on reunification.
We affirm the decision of the juvenile court.
AFFIRMED.