Opinion
No. 5-684 / 05-1238
Filed October 12, 2005
Appeal from the Iowa District Court for Dubuque County, Jane Mylrea, Associate Juvenile Judge.
A legally established father appeals a juvenile court order modifying a dispositional order. AFFIRMED.
Jennifer A. Clemens-Conlon of Clemens, Walters, Conlon Meyer, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Fred H. McCaw, County Attorney, and Jean A. Becker, Assistant County Attorney, for appellee-State.
Christopher M. Soppe of Blair Fitzsimmons, P.C., Dubuque, for mother.
Jamie A. Splinter of Hughes Trannel, P.C., Dubuque, guardian ad litem for minor child.
Kimberly Roddick, of Reynolds Kenline, L.L.P., Dubuque, for intervenors.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
Trisha is the mother, and Kenneth the legally established father, of Madelyn, born in December 2002. Kenneth appeals a July 2005 juvenile court order that modifies the court's prior dispositional order and transfers legal custody of Madelyn from him to the Iowa Department of Human Services (DHS) for suitable relative placement. Upon our de novo review, we affirm.
Kenneth is not Madelyn's biological father.
The date of Madelyn's birth is somewhat unclear. Although the day of the month is consistent throughout the record, at some places the record shows the month of her birth to be December 2002, while at other places it shows the month of birth to be February 2002.
Trisha and Kenneth married in October 2003, some one or one and one-half years after Madelyn's birth. Kenneth had been legally established as Madelyn's father by being listed as such on her birth certificate.
Madelyn was removed from the physical custody of Trisha in January 2005 and placed in the temporary custody of the DHS. Precipitating reasons were Trisha's use of methamphetamine and Kenneth's use of marijuana. An investigation led to a confirmed and founded report of abuse, based on failure to provide proper supervision as a result of Trisha's methamphetamine use, Kenneth's use of marijuana on a regular basis, and Kenneth having left Madelyn alone in an apartment for a period of time.
The State filed a petition seeking to have Madelyn adjudicated a child in need of assistance (CINA). Following a temporary removal hearing, based on a stipulation of the parties, the juvenile court ordered Madelyn's temporary custody placed with Kenneth. In late March 2005 the court adjudicated Madelyn a CINA pursuant to Iowa Code section 232.2(6)(n) (2005) (child whose parent's drug use results in the child not receiving adequate care). It continued Madelyn in Kenneth's custody.
In May 2005 DNA paternity testing revealed that Kenneth was in fact not Madelyn's biological father. Following motions by the State and Trisha, and a resistance by Kenneth, the juvenile court held a hearing to consider modification of its dispositional order. The State, Trisha, Madelyn's guardian ad litem, and Trisha's mother and stepfather as intervenors, all requested and recommended that Madelyn's legal custody be placed with the DHS for suitable relative placement with Trisha's mother and stepfather. Kenneth resisted, urging that Madelyn's custody should remain with him. Following hearing the court modified its dispositional order and placed custody with the DHS for the requested relative placement. Kenneth appeals.
Subsequent testing of others indicated a 99.99 percent probability that Rickey is Madelyn's biological father.
Our review of an action arising from CINA proceedings is de novo. Iowa R. App. P. 6.4; In re C.D., 509 N.W.2d 509, 511 (Iowa Ct.App. 1993). We give weight to the fact findings of the juvenile court, especially when considering the credibility of the witnesses, but are not bound by those findings. Iowa R. App. P. 6.14(6)( g); C.D., 509 N.W.2d at 511. As in any juvenile proceeding, our fundamental concern is the best interests of the child. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001).
Our review is somewhat handicapped by the fact we have not been provided a transcript of the hearing which resulted in modification of the dispositional order. However, as it appears the facts are essentially undisputed, and the contentions are over the conclusions to be drawn from the facts, we find it possible to proceed.
Modification of a dispositional order is provided for in Iowa Code section 232.103. A party seeking modification of a custody provision of a prior dispositional order must prove the circumstances have so materially and substantially changed that the best interest of the child requires such a change in custody. C.D., 509 N.W.2d at 511.
Kenneth claims the juvenile court order violates his rights and responsibilities as Madelyn's legally established father by removing her from his custody based on an assumption his paternity will be disestablished pursuant to Iowa Code section 600B.41A. He further claims clear and convincing evidence does not show that Madelyn's continued placement with him would place her in harm or be contrary to her welfare, or that she needs to be protected from him.
The State responds that the record clearly shows Madelyn's best interests will be served by her placement with Trisha's mother and stepfather. Trisha seeks affirmance of the juvenile court's order, urging in part that the court's action is in Madelyn's best interest. Madelyn's guardian ad litem argues that the court's order serves Madelyn's best interest and provides concurrent planning pursuant to Iowa Code section 232.102(11), that a legally established parent does not qualify as a parent under Iowa Code chapter 232, and that clear and convincing evidence shows Madelyn's continued placement with Kenneth places her at risk of harm and is contrary to her welfare. The State joins in the guardian ad litem's arguments.
Based on our affirmance of the juvenile court for the reasons discussed below, we need not and do not reach this issue.
When Madelyn was removed in January 2005 and placed in the temporary custody of the DHS she had been in Trisha's custody pursuant to an order in an Iowa Code chapter 236 proceeding, apparently based on domestic abuse by Kenneth. When Madelyn was subsequently placed in Kenneth's custody he had had a long-standing and serious substance abuse problem. He had criminal convictions for disorderly conduct, attempted burglary, burglary, public intoxication, domestic assault with injury, and sexual abuse. Kenneth had spent time in prison, and was registered on the state's sex offender registry. (The record indicates that Kenneth's sexual abuse conviction would probably prevent him from adopting Madelyn if his paternity were to be disestablished or his rights as Madelyn's legally established father were to be terminated.) Trisha's mother and stepfather had established a close relationship with Madelyn, and had been involved in her care. However, although the foregoing facts about Kenneth raised serious questions concerning whether Madelyn's custody should be placed with him, they were apparently known by the juvenile court when it did so in late March 2005. The question is what subsequent developments, if any, show that Madelyn's best interest requires a change in her custody pending permanency.
In May 2005 the results of DNA testing showed that Kenneth is not in fact Madelyn's biological father. At a later hearing Trisha stated an intent to seek disestablishment of his paternity of Madelyn. On the same date that the juvenile court filed its modification ruling the State sought concurrent jurisdiction to allow her to seek disestablishment.
The juvenile court had ordered a psychological assessment of Kenneth. Although he was evaluated shortly before the March 2005 juvenile court hearing and order, the resulting report was apparently not available to the court until later. Kenneth was diagnosed as suffering from: Bipolar I Disorder, Most Recent Episode Hypomanic; Impulse Control Disorder NOS; Cannabis Abuse, In Recent Remission; and Alcohol Abuse. The evaluator further stated, in part:
[Kenneth] has shown a history of physical violence towards others when the circumstances suggest to him that he is justified in being angry. That is, he feels provoked and can defend his anger as warranted. He does not fully recognize that socially acceptable and lawful alternatives can accomplish his ends.
The evaluator recommended Kenneth be referred for psychiatric evaluation for the possibility of mood stabilizing medication to assist with his symptoms of mania and hypomania. He further suggested Kenneth could benefit from individual psychotherapy to discover and treat the underlying psychological issues which were contributing to his improper behavior and problems. Although Kenneth had previously participated in an anger management course, the evaluator suggested he could benefit from additional anger management theory. Shortly before the modification of disposition hearing Kenneth was participating in anger management sessions. However, although he had been scheduled to earlier begin seeing a psychiatrist there was no indication he had done so or was taking medication.
Between the late March dispositional order and the July modification hearing Trisha's mother and stepfather had provided a large amount of Madelyn's care.
Finally, shortly before the modification of disposition hearing Kenneth's home situation had changed substantially, and would soon be changing even more. In March 2005 he met Bianca. By June 2005 Bianca had moved in with him. She was expecting her first child by the time of the July 2005 modification of disposition hearing.
Upon our de novo review we conclude there have been material and substantial changes since the juvenile court's March 2005 dispositional order. We further conclude those changes, particularly when viewed in the light of facts known at the time of the March order which raised serious questions concerning Kenneth's suitability as a custodial parent for Madelyn, demonstrate Madelyn is at risk of harm in Kenneth's custody and that her best interest requires she be placed in the custody of the DHS for suitable relative care, as ordered by the juvenile court. We accordingly affirm the order of the juvenile court.