In the Interest of M.W., Minor Child ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1000
Filed August 1, 2018
IN THE INTEREST OF M.W.,
Minor Child,
S.S., Father,
Appellant.
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Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda,
District Associate Judge.
A father appeals a permanency order transferring guardianship and custody
of his child to her maternal aunt. AFFIRMED.
Christopher A. Clausen of Clausen Law Office, Ames, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Jane K. Odland of Odland Law Firm, PLLC, Newton, guardian ad litem for
minor child.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
VAITHESWARAN, Presiding Judge.
A father appeals a permanency order transferring guardianship and custody
of his child to her maternal aunt. He contends (1) the child should have been
placed with him during the child-in-need-of-assistance proceedings and (2) the
district court erred in ordering a guardianship with the aunt. We will address the
interrelated contentions together.
Our de novo review of the record reveals the following facts. The child was
born in 2004. Prior to the initiation of these proceedings, the mother had custody
and physical care of the child and the father exercised visitation on alternating
weekends.
When the child was eleven years old, the State filed a child-in-need-of-
assistance petition alleging the mother was “using methamphetamine and selling
methamphetamine in the home where the [child] reside[s].” The mother stipulated
to having the child adjudicated in need of assistance. The district court adjudicated
the child and granted the mother temporary legal custody, subject to the
supervision of the department of human services. The father continued to exercise
alternating-weekend visitation with the child.
In time, the mother tested positive for methamphetamine. The State applied
to have the child removed from her care. The district court granted the application,
and the child was placed with her maternal aunt. Following a hearing, the court
confirmed the out-of-home placement.
Two months later, the department recommended the child’s return to the
mother, under its protective supervision. At the same time, the father requested
custody of the child. The district court found that the father never had custody of
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the child, the mother had always been the child’s primary caregiver, the mother
was undergoing inpatient substance-abuse treatment, and the mother was “now in
a position where the child [could] be returned to her care . . . safely.” The court
ordered temporary custody transferred to the mother, under the department’s
protective supervision.
Less than a month later, the mother was unsuccessfully discharged from
the substance-abuse treatment center due to aggressive behaviors. The
department again applied to have the child removed from her care. The district
court granted the application and the child was returned to the home of her
maternal aunt.
Meanwhile, the father continued to exercise visitation with the child. The
department agreed to a plan that would transition her to her father’s care and
custody. Under the plan, the father’s visits were to increase to a Thursday through
Monday alternating-week schedule and, after approximately a month, the father
would have a week-long visit with the child.
According to the department social worker assigned to the case, the father
“did not follow that visitation plan.” On the first day of the week-long visit, he
informed the department he would be unable to have the child for the entire week
because he had to help his grandmother. He saw the child for twenty minutes,
then returned her to her aunt. He acknowledged that cutting the week-long visit
down to twenty minutes probably “shook” up his daughter “a little bit.”
Despite this significant setback, the department continued to schedule visits
for the father. The father declined all but one of them. He also did not telephone
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the child at the maternal aunt’s home, even though she had the same phone
number for twelve or thirteen years.
The father was also expected to engage in family therapy with the child.
The father kept three appointments. He ended his participation two weeks before
his scheduled one-week visit with the child.
The final straw was the father’s refusal to take a drug test following the
scheduled one-week visit. He acknowledged arriving at the testing site 1 but said
he refused the test after learning the center planned to sample a hair follicle rather
than his urine. He did not explain why the use of this type of test whould affect his
compliance. The father declined to change his mind about undergoing the drug
test after being informed the department would reduce his visits to two supervised
hours per week if he failed to comply.
The department social worker recommended against placing the child with
her father “because [the father] has not followed through with the different plans
that we have made to work on reunification with him.” She testified, “[I]f he had
followed through with visitation and with drug testing and with therapy with him and
[the child,] the recommendation would be different.” She agreed the father was
“very close” to having the child placed in his care and custody, but he “blew it.”
She recommended permanent placement with the child’s maternal aunt.
1
The father complained about the distance to the testing site and his lack of transportation.
The department caseworker noted he received transportation assistance to make the trips.
5
Iowa Code chapter 232 (2017) “favors relative placements over nonrelative
placements” during child-in-need-of-assistance proceedings. In re N.M., 528
N.W.2d 94, 97 (Iowa 1995); see also In re R.B., 832 N.W.2d 375, 381 (Iowa Ct.
App. 2013). The chapter identifies a spectrum of least restrictive to most restrictive
placements. See Iowa Code § 232.99(4). Iowa Code section 232.102(1)(a)(1)
authorizes the transfer of a child’s custody to “[a] parent who does not have
physical care of the child, other relative, or other suitable person.”
In denying the father’s request for custody of the child, the district court
reasoned:
The Court does not know the real reason for the father’s non-
compliance. But, whatever the cause and whatever the reason,
when given the opportunity to have the child transitioned into his
care, the father has not shown the effort or the ability or the
willingness to do what it takes to have the child in his care. He has
shown a complete and utter lack of effort, lack of compliance, and
lack of cooperation with the transition plan. The plan was simple:
take drug test when requested, exercise visits, participate in Family
Therapy. He has done none of those and, at the Permanency
Hearing, showed no remorse for his non-compliance, only defiance
and seeming indifference.
We concur in this reasoning. The district court approved a plan to effectuate a
transfer of custody to the child’s father. Through no fault of anyone but the father,
the plan did not succeed. We affirm the district court’s refusal to transfer the child
to the father’s custody during the proceedings as well as the court’s transfer of
guardianship and custody to the maternal aunt following the permanency hearing.
AFFIRMED.