Upon the Petition of Latravius Fenn, and Concerning Kimberly Baldwin

IN THE COURT OF APPEALS OF IOWA
No. 14-0139
Filed October 15, 2014
Upon the Petition of
LATRAVIUS FENN,
Petitioner-Appellant,
And Concerning
KIMBERLY BALDWIN,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, John D. Telleen,
Judge.
A father appeals the district court order placing two of the parties’ children
in the physical care of the mother with the understanding the children would
reside with the maternal grandparents. AFFIRMED AS MODIFIED AND
REMANDED.
Adrienne C. Williamson and David M. Pillers of Pillers & Richmond,
Clinton, for appellant.
Eric D. Puryear, Davenport, until his withdrawal, then Kimberly Baldwin,
Clinton, appellee pro se.
Clayton E. Grueb, Davenport, guardian ad litem for children.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
2
MULLINS, J.
A father appeals the district court order placing two of the parties’ children
in the physical care of the mother with the understanding the children would
reside with the maternal grandparents. We remand to the district court for an
order gradually transitioning the twins into the physical care of the father. We
also remand for a modification of child support, medical support, and visitation in
light of the modification of physical care for the twins. We affirm the provision
requiring the father to pay $2000 for the mother’s trial attorney fees.
I. Background Facts & Proceedings
Latravius Fenn and Kimberly Baldwin are the parents of a girl, who was
born in May 2003, and twin boys, who were born in May 2004. Latravius
currently lives in the Chicago, Illinois area. Kimberly lives in Clinton, Iowa. The
parents were never married to each other, but lived together in Iowa from the
time the oldest child was born until the summer of 2006, when Latravius moved
to Georgia. During the time the parties lived together they jointly parented the
children. The twin boys have been diagnosed with autism. They have spent
much of their lives in the care of the maternal grandparents, Raymond and
Barbara Baldwin, also in Clinton.
After Latravius moved to Georgia he regularly exercised visitation with the
children, especially with the oldest child. As time went on, he had difficulty
contacting the maternal grandparents and making arrangements with them for
visitation with the twins. Latravius paid money for the support of the children to
Kimberly and the maternal grandparents, although there was no court order in
3
place requiring him to pay support.1 Through the Child Support Recovery Unit
Latravius was ordered to pay cash medical support of $169 per month, and he
was current on this obligation.
On August 9, 2012, Latravius filed a petition seeking to establish custody,
physical care, and child support for the oldest child. The district court entered an
order on temporary matters on August 30, 2012, placing the oldest child in the
physical care of Latravius. The court found Kimberly had failed to support the
relationship between Latravius and the child. Kimberly was granted visitation on
alternating weekends and holidays. The court found Kimberly was unemployed
and did not require her to pay child support.
On September 11, 2013, Latravius amended his petition to additionally
request physical care of the twin boys. A guardian ad litem (GAL) was appointed
for the children. The GAL recommended the oldest child remain in the physical
care of Latravius. He recommended the twin boys remain in the physical care of
Kimberly, but stated that after Latravius was reintroduced to them and his
visitation increased, Latravius could possibly petition the court for modification of
the physical care provision of the paternity decree.
A hearing was held beginning on November 19, 2013. Latravius testified
he was thirty-four years old and lived in Carroll Stream, Illinois, a suburb of
Chicago. He has a college degree, is employed as a hosting engineer for Huron
Consulting, and earns about $65,000 per year. Latravius is married to Britta,
1
He paid a total of about $17,000 to Kimberly and about $3100 to the maternal
grandparents. Latravius also testified he had purchased items for the children, such as
shoes, jackets, and diapers.
4
who had two children from a previous relationship who live with them. He
testified the oldest child was doing very well in his care. She is enrolled in private
school with Britta’s two children and is active in extracurricular activities, such as
church, basketball, and Girl Scouts. He stated Kimberly was not willing to accept
responsibility for the twin boys and wanted the maternal grandparents to take
care of them, but he was willing to accept the responsibility for them. He was
also concerned Kimberly and the maternal grandparents did not seek enough
outside services for the twins’ autism.
Kimberly was thirty-three years old at the time of the hearing. She lives in
Clinton, Iowa. In addition to the three children at issue in this proceeding,
Kimberly has two other children. There was no evidence about her educational
background. Kimberly has primarily been employed as an exotic dancer, but was
unemployed at the time of the hearing. She has been diagnosed with obsessive
compulsive disorder, body dysmorphic disorder, panic attacks, bipolar disorder,
and migraines. There is a founded child abuse report against Kimberly for failure
to provide supervision to the parties’ oldest child.2 Kimberly receives $1100 each
month in social security disability payments for the twins and she has paid some
amount of it to her parents.
2
The parties’ oldest child received an injury to her eye. Kimberly kept the child out of
school and did not obtain medical services because she was worried the matter would
be reported to the Iowa Department of Human Services (IDHS). Eventually, the matter
was reported to IDHS and a founded report was issued against Kimberly for failure to
provide supervision. When a social worker contacted Kimberly to investigate the
incident, Kimberly stated a man in her company was Latravius. This was untrue and the
man was actually the father of another of her children who had an active arrest warrant
against him. Kimberly also lied to the social worker about whether she had a doctor’s
appointment set up for the oldest child’s injury.
5
The district court issued a paternity decree on December 30, 2013. The
court found, “Latravius impressed the Court as a calm, credible, and responsible
man of good character who was a positive role model for his children.” The court
determined Kimberly was not a credible witness, taking into consideration her
facial expressions and voice inflections, and noting she was directly impeached
on a number of issues. All three of the parties’ children were placed in their joint
legal custody.
The court determined the parties’ oldest child should remain in the
physical care of Latravius.3 The court noted that when the child had been in
Kimberly’s care she was absent from or tardy to school an excessive number of
times. There were also occasions when Kimberly would deny visitation, even
after Latravius had traveled a distance in order to see the child.4 The court was
further troubled by the fact, “Kimberly allows several young people who are not
related to her [whom] are in trouble with the law to use her house as an address
and frequently to stay overnight.” On the other hand, the evidence showed
Latravius has maintained a stable, happy, and wholesome household for the
parties’ oldest child after she was placed in his care by the temporary order of
August 30, 2012.
3
Kimberly did not appeal the district court's decision placing the parties’ oldest child in
the physical care of Latravius. While there is no issue in this appeal concerning the
placement of the oldest child, we review the factors the court considered in placing her in
the care of Latravius because these factors are also relevant to the issue of which parent
should have physical care of the twins.
4
There was one particularly troubling occasion when Kimberly agreed to allow
Latravius to take the oldest child to Georgia for a family reunion. After about four days,
Kimberly showed up in Georgia with several police officers and claimed Latravius had
attempted to kidnap the child, which was not true.
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The court concluded the twin boys should be placed in the physical care of
Kimberly, “based entirely on the Court’s understanding that Kimberly allow [the
twins] to continue to reside with her parents as they have in the past.” The court
stated:
The Court fully understands that a parent’s right to raise their
child is generally to be preferred over grandparents. However,
under the unique facts of this case, the boys seem to be doing
relatively well where they are and Latravius has absolutely no
experience in dealing with autistic children. The twins have
essentially been in the primary care of Mr. and Mrs. Baldwin for
most of their lives and to upset this arrangement would undoubtedly
be traumatic.
The court set out a visitation schedule for the parties. Latravius was ordered to
pay $940 per month in child support and $279 per month for insurance.
Latravius appeals the decision of the district court.
II. Standard of Review
Issues ancillary to a determination of paternity are tried in equity. Markey
v. Carney, 705 N.W.2d 13, 20 (Iowa 2005). We review equitable actions de
novo. Iowa R. App. P. 6.907. When we consider the credibility of witnesses in
equitable actions, we give weight to the findings of the district court, but are not
bound by them. Iowa R. App. P. 6.904(3)(g).
III. Physical Care
Latravius claims the district court should have placed the twins in his
physical care. He asserts Kimberly does not have the capacity or interest to
provide adequate care for them. He states that while the transition may be
difficult for the twins, physical care should be based on their long-term best
interests, and he is the parent who can give them the necessary care and
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attention they need. Latravius additionally claims the district court should not
have placed the children in the physical care of the mother with the
understanding they would actually be cared for by the maternal grandparents.
He points out the maternal grandparents are not parties to the district court’s
order and are not bound by the terms of the order. In the past, the maternal
grandparents were reluctant to grant him visitation, and he asserts that under the
court’s order he has no recourse if the grandparents continue to deny him
visitation. Latravius claims the district court’s order was tantamount to granting
the grandparents a guardianship over the children, without the necessity of
finding the parents were unfit to care for them.
In determining physical care for children, our first and governing
consideration is the best interests of the children. Iowa R. App. P. 6.904(3)(o).
When physical care is an issue in a paternity action, we apply the criteria found in
Iowa Code section 598.41 (2013). Iowa Code § 600B.40. Our analysis is the
same whether the parents have been married, or remain unwed. Lambert v.
Everist, 418 N.W.2d 40, 42 (Iowa 1988); Yarolem v. Ledford, 529 N.W.2d 297,
298 (Iowa Ct. App. 1994). Our objective is to place the children in an
environment likely to promote a healthy physical, mental, and social maturity. In
re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).
We first consider the issue of whether the court could properly grant
physical care of the twins to Kimberly, “based entirely on the Court’s
understanding that Kimberly allow [the twins] to continue to reside with her
parents as they have in the past.” “Ordinarily a dissolution court should award
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custody to a natural parent of the children at issue.” In re Marriage of Corbin,
320 N.W.2d 539, 545 (Iowa 1982). There is a presumptive preference for
parental custody, and it is only when neither parent is a suitable custodian that
the court should consider an alternative. In re Mann, 293 N.W.2d 185, 190 (Iowa
1980). “Courts are not free to take children from parents simply by deciding
another home offers more advantages.” Id.A court has “authority to award custody of a minor child to a stranger to a
dissolution action when both parents are found to be unfit.” In re Marriage of
Mitchell, 531 N.W.2d 132, 133 (Iowa 1995). “[T]he right of grandparents to
custody of a child under a divorce decree is no different from that of any third
person or stranger to the marriage.” Id. at 133-34. Grandparents may intervene
in a custody proceeding and receive physical care if they have met their burden
to prove the unsuitability of the parents. See In re Marriage of Hunnell, 398
N.W.2d 877, 878 (Iowa 1987); In re Marriage of Reschly, 334 N.W.2d 720, 721
(Iowa 1983).
The availability of grandparents to assist a parent in caring for children is a
factor a court may consider in determining which parent should receive physical
care. Melchiori v. Kooi, 644 N.W.2d 365, 369 (Iowa Ct. App. 2002) (noting
grandparents may be better childcare providers than strangers). See also In re
Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982) (affirming grant of
physical care of child to father, who had “assumed the responsibility of caring for
her with the assistance of his parents”); In re Petition of Purscell, 544 N.W.2d
466, 469 (Iowa Ct. App. 1995) (placing physical care of child with father who
9
lived with his parents and who would receive assistance from them in caring for
the child). The order of the district court, however, did not involve placing the
children with a parent who would care for the children with the assistance of
grandparents, but instead involved a determination the children should reside
with the maternal grandparents.
This case presents unfortunate circumstances. The evidence shows the
twins have been living with the maternal grandparents for several years, and
inevitably, are bonded with them. It is the maternal grandmother who has taken
the children to medical appointments and who has attended their school
conferences, with Kimberly also sometimes attending. It was the maternal
grandmother who provided most of the testimony in this case concerning the
children’s autism. She testified that although both the children were nine years
old, they were just now almost potty trained and could partially dress themselves.
Their ability to communicate is limited. They need an established routine.
While it is difficult to remove the twins from the care of the maternal
grandparents, they obviously are not parents to the children, are not parties to
this paternity action, and are not subject to the jurisdiction of the court. In effect,
the court placed the twins in the physical care of the maternal grandparents
without meeting the requirement of finding the parents were not fit to care for the
children. See Mitchell, 531 N.W.2d at 133. The district court did not find the
parents were unfit to care for the children, and in fact, determined that Latravius
should have physical care of the oldest child. No one has suggested the parents
are unfit to care for the children. Therefore, the children should not be placed in
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the care of a third-party, such as the maternal grandparents, but should be
placed in the physical care of one of the parents. See Mann, 293 N.W.2d at 190.
On our de novo review, we determine the twins should not be placed in
the physical care of Kimberly for the same reasons the oldest child was not
placed in her physical care. We give considerable deference to the district
court’s credibility determinations because the court has a firsthand opportunity to
hear the evidence and view the witnesses. In re Marriage of Brown, 487 N.W.2d
331, 332 (Iowa 1992). The evidence showed Kimberly often had problems with
truthfulness, was not diligent in sending her children to school, denied Latravius
visitation with the children, allowed young people with legal problems to stay in
her home, and did not always provide adequate supervision. Furthermore, the
evidence showed Kimberly had not accepted the responsibility for caring for the
twins for much of their lives.
On the other hand, the district court found Latravius was “a calm, credible
and responsible man of good character who was a positive role model for his
children.” The evidence showed Latravius had done very well taking care of the
parties’ oldest child. Latravius testified he had done research on autism and how
to help children with this condition. He expressed a willingness to work with
experts in caring for the children. We determine the twin boys should be placed
in the physical care of Latravius. This change, however, should be effected over
a period of time to lessen the stress to the twins in changing their residence. We
note that in his brief filed in this appeal Latravius suggests that the proposed
parenting plan that he submitted to the district court, which included a graduated
11
visitation schedule, could be used for purposes of such a transition. We
determine the case should be remanded to the district court to create a schedule
for increasing the time Latravius spends with the twins. As Latravius spends
more time with the twins, an increased amount of this time should be spent at his
home in Illinois. Because of the unique needs of these children, we are hesitant
to dictate a rigid time frame in order to complete the transition, but urge that it
take place as expeditiously as the circumstances and needs of the twins will
allow. With that said, we determine that the twins should be fully transitioned to
living with Latravius not later than twelve months from the filing of this ruling, and
they will live with him thereafter.
We also remand to the district court for a modification of the child support,
medical support, and visitation provisions of the paternity decree, consistent with
this ruling.
IV. Attorney Fees
Latravius contends the district court should not have ordered him to pay
$2000 towards Kimberly’s attorney fees because she was not the prevailing party
below. Section 600B.25 provides, “The court may award the prevailing party the
reasonable costs of suit, including but not limited to reasonable attorney fees.”
Thus, in paternity actions, an award of attorney fees may only be made to the
prevailing party. Iowa Code § 600B.25.
Before the district court, while Kimberly did not prevail on the issue of
whether the parties’ oldest child should be placed in her physical care, the court
placed physical care of the twins with her, albeit with the understanding the
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children would actually live with the maternal grandparents. Because she
prevailed on this issue before the district court, we conclude the court did not
abuse its discretion in ordering Latravius to pay $2000 for her trial attorney fees.
We affirm the parties’ paternity decree, as modified in this opinion. We
remand to the district court for an order gradually transitioning the twins into
physical care with Latravius to be completed not more than twelve months from
the filing of this ruling. We also remand for a modification of child support,
medical support, and visitation in light of the modification of physical care for the
twins. Costs of this appeal are assessed to Kimberly.
AFFIRMED AS MODIFIED AND REMANDED.