Opinion
No. 3-701 / 03-1317
Filed October 15, 2003
Appeal from the Iowa District Court for Scott County, Michael W. Liebbe, Associate Juvenile Judge.
Mother appeals the removal of her two children from her custody. AFFIRMED.
Robert J. Phelps, Davenport, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, William E. Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee-State.
Stephen Newport of Newport Newport, P.L.C., Davenport, for minor children.
Katherine Teel, Davenport, for father of Z.F.
Patricia Zamora of Zamora Taylor Clark Alexander Woods, Davenport, for father of J.P.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Rebecca is the mother of Joshua, born November 18, 2000, and Zachary, born October 11, 2001. Her husband, Michael, is Zachary's father. Due to various incidents of domestic abuse, two founded child abuse reports were entered against Michael in August and October 2002. After the October incident, both boys were removed from the care of Rebecca and Michael and placed in foster care. In November, the boys were moved from foster care to the home of Joshua's paternal grandmother.
Rebecca received supervised visits with her children. She did not always interact with the boys and even fell asleep during some of the visits. Providers reported several concerns about Rebecca, including the domestic violence between her and Michael witnessed by the children, her mental health issues, her failure to care for the children during visits, and her inability to maintain a residence and pay household expenses. After hearings in January and February, the juvenile court ordered that the children remain with Joshua's grandmother, noting that the conditions that led to the children's removal had not been corrected.
In March, Joshua's grandmother requested Zachary be removed from her care. In April, to avoid separating the brothers, the juvenile court entered a modification order placing both boys back in the custody of their mother. This order was considered temporary pending a full hearing scheduled for June 2, 2003, which was later rescheduled for July 16, 2003.
On July 6, 2003, a domestic dispute between Rebecca and Michael ended in both a founded child abuse report and Michael's arrest for child endangerment without injury. At this time, Rebecca acknowledged that she knew Michael had not been cooperating with services for months and posed a threat to her and the children.
A psychological evaluation of Rebecca resulted in a diagnosis of major depressive disorder, posttraumatic stress syndrome, relationship problems, and features of dependent personality disorder. The psychologist reported that Rebecca "seemed consistently non-reactive to subject matter" and that she "was not in visible distress as a result of the story she related about losing her children to foster care."
At the modification hearing held July 16, the Department of Human Services (DHS) caseworker testified that she had noticed substantial regression since the children had returned home. The worker noted that during her visits, Rebecca was not utilizing the parenting techniques taught in her parenting skills classes, did not provide a daily routine for the children, did not keep the house appropriately clean, and did not supervise the children. At the time of the hearing, Rebecca was again unemployed. The caseworker and guardian ad litem recommended removal of the children. The juvenile court agreed and placed the children in the custody of DHS for placement in foster care. Rebecca appeals.
Our review in actions arising from child in need of assistance proceedings and termination of parental rights cases is de novo. In re B.B., 598 N.W.2d 312, 315 (Iowa Ct.App. 1997). Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. Iowa R.App.P. 6.14(6)( g); In re B.B., 598 N.W.2d at 315.
Rebecca contends there was not clear and convincing evidence that the children needed to be removed from her care to protect them from physical abuse or some harm which would justify their adjudication as children in need of assistance, as required by Iowa Code section 232.102(5) (2003).
After our de novo review of the record, and giving due weight to the credibility determinations made by the juvenile court, we conclude the need for removal of Zachary and Joshua was proven by clear and convincing evidence. Although Rebecca obtained a no-contact order against Michael shortly before the hearing, she failed to protect her children only ten days earlier from domestic violence at his hands. Her providers testified that, although Rebecca had signed up for multiple services, she was not taking the services seriously, but instead engaged in what they described as "triangulating" providers, or avoiding services by playing the providers against one another. The record demonstrates that Rebecca has serious issues of her own that need to be addressed before she can appropriately parent two boys who engage in defiant and hyperactive behavior. It is unclear whether Rebecca's lack of participation in services after the boys were returned to her home was due to the stress of raising the two children or whether she no longer saw the value in cooperating with DHS once the boys were in her care. We are convinced the removal of the children was necessary to protect the children from physical abuse or some harm which would justify their adjudication as children in need of assistance. Accordingly, we affirm the removal of Joshua and Zachary from Rebecca's care and placement with DHS.