Opinion
No. 5-900 / 05-1062
Filed January 19, 2006
Appeal from the Iowa District Court for Monona County, Michael S. Walsh, Judge.
A father appeals a district court order granting the mother physical care of the parties' child. REVERSED AND REMANDED.
Scott L. Bixenman of Murphy, Collins Bixenman, P.L.C., Le Mars, for appellant.
Cassandra Lane, pro se.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
A father appeals a district court order granting the mother physical care of the parties' child. We reverse and remand.
I. Background Facts and Proceedings
Michael Mitchell and Cassandra Lane are the unmarried parents of Zachary Mitchell, born in 2002. Zachary was born with cocaine in his system. Following his birth, Cassandra underwent inpatient drug addiction treatment. On completing the treatment, she returned to Michael's home.
Cassandra did not get along with Michael's daughter from a previous relationship. The two fought regularly, with the fights escalating into physical confrontations. On one occasion, Cassandra bit her step-daughter Brittany. On another, she hit her on her head. On a third occasion, she threw a vase at her. Two of the confrontations resulted in confirmed child abuse reports against Cassandra.
When Zachary was twenty months old, Cassandra took him and left the State in one of Michael's vehicles. She did not inform Michael. A week later, Michael received his car keys in the mail, together with a note indicating his vehicle was in Colorado Springs.
Michael immediately filed a petition seeking custody of Zachary. At the time, he believed Cassandra was living in Colorado Springs, but three months later he discovered she had, in fact, moved to Oregon.
Cassandra returned for the custody hearing, bringing Zachary with her. On her way home, she asked Michael for beer and marijuana.
Following the hearing, the district court reopened the record to consider evidence that Cassandra missed her return flight to Oregon. Although she was on probation in Oregon for a 1998 drug crime, she testified she had informed her probation officer of her circumstances and intended to remain in the State.
The court granted Cassandra physical care of Zachary. Michael appealed. II. Physical Care
Cassandra did not file a responsive brief.
In awarding Cassandra physical care of Zachary, the district court reasoned that Cassandra had always been Zachary's primary caregiver and there was no evidence that she was incapable of caring for him or had not properly cared for him. The court stated, "Based on the evidence presented, it appears that Cassandra has the superior ability to minister to the best interests of Zachary on a daily basis even though both parents are capable of looking after Zachary's best interests." The court also cited Cassandra's ability to care for him continuously:
If Cassandra had primary physical care, Zachary would at least have the direct and actual care of the parent he has always lived with. If Michael has primary physical care, strangers such as day care providers would for the most part care for Zachary.
The district court finally noted that Cassandra's drug and alcohol use did not affect her ability to parent Zachary. The court stated:
Obviously, Cassandra has not completely committed to refrain from the use of illegal drugs or alcohol. In spite of this, there is no evidence at all that she has not properly cared for Zachary, and there is no indication that Zachary's best interest[s] have been adversely affected by her use or alleged use of illegal drugs after she had completed the treatment at the Women and Children's Treatment Center.
On our de novo review of the record, we are not persuaded by these reasons.
We consider first the district court's reliance on Cassandra's role as primary caretaker of Zachary. This fact does not assure that a parent will be awarded physical care of the child. See In re Marriage of Wilhelm, 491 N.W.2d 171, 172 (Iowa Ct.App. 1992). While Cassandra was undeniably Zachary's primary caretaker when the parties lived together, she remained his primary caretaker after that point only because she absconded with him. We conclude her decision to conceal her whereabouts from Michael and to deprive him of access to the child for several months overrides any preference she should receive in the physical care determination based on her role as primary caretaker.
Second, we are not persuaded that Cassandra's unemployment and consequent availability to provide uninterrupted care for Zachary militates in favor of awarding her physical care. Based on Cassandra's testimony, this situation would likely not last, as she was looking for employment and for daycare providers. And, while Michael often worked twelve-hour days as a construction manager, he testified he had made arrangements to have Zachary cared for by his original licensed daycare provider. He also testified his fiancée and teenagedaughter would assist in caring for the child.
Finally, the record reflects Cassandra lacked a commitment to maintaining sobriety. Michael testified that when he picked up Cassandra and Zachary on their return from Oregon, Cassandra asked him to get some beer and marijuana for the ride home. Cassandra admitted she asked for beer and further admitted she had relapsed earlier. These requests alone, with Zachary in the car, raise serious questions about Cassandra's judgment regarding the welfare of her child. In addition, we note the incidents of physical abuse involving her step-daughter.
There is also testimony in the record from one of Michael's co-workers. He stated he came home with Michael one evening to find Cassandra sleeping on the couch with Zachary dirty and "beet red." This testimony adds little to the analysis, as the co-worker could not pinpoint when he made the visit or how long he observed Cassandra.
We conclude Zachary's best interests would be served if he were in Michael's physical care. See Yarolem v. Ledford, 529 N.W.2d 297, 298 (Iowa Ct.App. 1994) (affirming award of physical care to father because he maintained steady employment and lived in same area, where mother was unemployed, continually moved, and failed to show an ability to be stable and self-supporting); In re Marriage of Wessel, 520 N.W.2d 308, 310 (Iowa Ct.App. 1994) (reversing award of physical care to mother where father had good work record and earned good income and where mother was unemployed and demonstrated instability regarding living arrangements). Cassandra had a history of substance and child abuse, left the State with Zachary and without informing Michael, asked for alcohol and drugs on her return, had only temporary housing on her return, and had no job or family support in the area. Michael, in contrast, had a minimal history of substance abuse, had experience caring for his daughter without incident, and had housing, employment, and family support.
Cassandra testified he consumed alcohol and marijuana when she lived with him. Michael testified he no longer consumed alcohol and never had a drug or alcohol problem.
We acknowledge and are troubled by Cassandra's testimony that Michael was physically abusive toward her shortly before she left the State. However, when asked if she left because of the abuse, Cassandra responded, "The main reason I left was Brittany and the things that were going on with her and I, I couldn't deal with it anymore, and Mike wasn't doing anything about it." Given the limited evidence on this issue and the extensive evidence of Cassandra's failings, we believe this factor does not mandate a different result.
We reverse the custody determination and remand for entry of an order consistent with this opinion.
REVERSED AND REMANDED.
Zimmer, P.J., concurs; Miller, J., dissents.
I respectfully dissent.
The trial court noted at some length certain inappropriate acts by Cassandra and shortcomings and failings on her part. It nevertheless concluded she had the superior ability to minister to the best interests of Zachary, apparently finding it unnecessary to make additional findings regarding facts that explain, if not justify, certain of Cassandra's acts, and facts regarding Michael's own shortcomings and failings.
The majority has also described Cassandra's shortcomings and failings at length, but has largely ignored the evidence concerning Michael. In determining whether the trial court's judgment should be affirmed I believe that upon our de novo review we should and must consider both sides of the picture.
The trial court found that during the time the parties lived together there were some arguments and physical contact between Cassandra and Michael's fifteen-year-old daughter, Brittany, who lived with Michael and Cassandra. Cassandra did at times use inappropriate physical force against Brittany. However, the evidence shows that a significant portion of the arguments and physical encounters between Brittany and Cassandra were initiated by Brittany.
The evidence shows that Michael engaged in assaultive behavior against Cassandra, and did so not only at times when Cassandra and Brittany had physical encounters or arguments. It further shows that Cassandra took Zachary and left the parties' home at least in part as a result of such an assault by Michael and Cassandra's resulting fear of yet more such behavior on his part.
Cassandra has had a substance abuse problem, with which she at times continues to struggle. The evidence shows, however, that Michael also at least formerly drank and used marijuana. As part of a juvenile court proceeding regarding Zachary it was recommended or required that Michael seek and secure a substance abuse evaluation and treatment. He did so, but stopped treatment as soon as the juvenile case was resolved.
Cassandra presented substantial evidence that Michael was confrontational and at times violent, particularly when drinking. Portions of the trial transcript fully support her testimony concerning his argumentative and confrontational tendencies. On direct examination by his own attorney Michael had no difficulty appropriately and responsively answering questions. However on cross-examination his behavior, and no doubt his demeanor, were at times remarkably different. Michael's responses to questions on cross-examination were at various times argumentative, confrontational, or simply non-responsive. He frequently did not answer the questions asked, but instead belittled the question, asked a question, or made some demand.
This case is very close on the physical care issue. The trial court had the parties before it as witnesses and was thus able to observe their demeanor and judge their sincerity and credibility. It found as fact that there was no evidence Zachary had been adversely affected by Cassandra's use or alleged use of drugs after successful completion of a treatment program. It found Cassandra had been Zachary's primary caretaker throughout his life and there was no evidence indicating she was not capable of caring for him. These findings are supported by the record and we should give them substantial weight. I also note the record contains expert testimony indicating that because Zachary has been with Cassandra as his primary caretaker for his entire life separating him from her runs a significant risk of causing him to develop an attachment disorder, which in turn may lead to later antisocial behaviors. This further supports the court's determination that it is in Zachary's best interests to place his physical care with Cassandra.
The trial court concluded Cassandra had the superior parenting ability, and placed responsibility for Zachary's physical care with her. I cannot find that a preponderance of the evidence favors Michael's request that responsibility for Zachary's physical care be placed with him. I would find that the conflicting evidence at best leaves the operative facts in equipoise. Under such circumstances we should affirm the conclusion and resulting judgment of the trial court concerning Zachary's physical care. I therefore respectfully dissent.