In the Interest of L.H., J.H., C.H., and D.H., Minor Children ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0690
Filed September 25, 2019
IN THE INTEREST OF L.H., J.H., C.H., and D.H.,
Minor Children,
D.H., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Emily Dean,
District Associate Judge.
The mother of children adjudicated in need of assistance appeals from a
permanency review order. AFFIRMED.
Joshua P. Schier of Cray Law Firm, Burlington, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Heidi D. Van Winkle of Van Winkle Law Office, Burlington, attorney and
guardian ad litem for minor children.
Considered by Potterfield, P.J., Greer, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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MAHAN, Senior Judge.
The mother of four children adjudicated in need of assistance appeals from
a permanency review order, claiming the juvenile court erred in ordering a six-
month extension and continued removal of the children. Upon our review, we
affirm.
I. Background Facts and Proceedings
This family moved from Tennessee to Iowa in February 2018. In April, the
children came to the attention of the Iowa Department of Human Services (DHS)
due to concerns of physical abuse, neglect, and drug use by the parents. A DHS
caseworker reported the children were in need of medical and dental treatment,
had never attended school, were not being fed properly, and had not received any
immunizations. The children were removed from the parents’ custody. In June,
the juvenile court entered an order adjudicating the children in need of assistance
(CINA) and numerous services were offered to the parents for reunification with
the children.
At the time of the permanency hearing in April 2019, DHS recommended
the parents be given a six-month extension “to allow them to progress to
reunification.” DHS also recommended the children remain in family foster care.
Following the hearing, the juvenile court entered its permanency order, granting
the parents an additional six months to achieve reunification. The mother
appealed from that order.
Following the mother’s appeal, the State filed a motion for limited remand
to address the question of subject matter jurisdiction under the Uniform Child
Custody Jurisdiction Enforcement Act (UCCJEA). The supreme court granted the
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State’s motion and remanded to the juvenile court “to determine whether Iowa has
the proper jurisdiction for hearing these [CINA] cases or whether Iowa is limited to
temporary emergency jurisdiction.” On remand, the juvenile court entered an order
determining Iowa has temporary emergency jurisdiction under Iowa Code section
598B.204(1) (2018). The supreme court then transferred the case to our court for
disposition.
II. Standard of Review
We review permanency orders de novo, sorting through both the facts and
law and adjudicating rights anew on the issues properly presented on appeal. In
re A.T., 799 N.W.2d 148, 150–51 (Iowa Ct. App. 2011). We give weight to the
factual findings of the juvenile court but are not bound by them. Id. We review
jurisdictional issues under the UCCJEA de novo. In re J.M., 832 N.W.2d 713, 719
(Iowa Ct. App. 2013).
III. Subject Matter Jurisdiction
We turn first to the issue of jurisdiction. “The parties, or the court, may raise
a question of subject matter jurisdiction at any time.” Id. “If the juvenile court lacks
subject matter jurisdiction, we must dismiss.” Id. Section 598B.201(1) of the
UCCJEA provides “the exclusive jurisdictional basis for making a child-custody
determination.” Iowa Code § 598B.201(2). Section 598B.201(1) provides:
1. Except as otherwise provided in section 598B.204, a court
of this state has jurisdiction to make an initial child-custody
determination only if any of the following applies:
a. This state is the home state of the child on the date
of the commencement of the proceeding, or was the home
state of the child within six months before the commencement
of the proceeding and the child is absent from this state but a
parent or person acting as a parent continues to live in this
state.
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b. A court of another state does not have jurisdiction
under paragraph “a”, or a court of the home state of the child
has declined to exercise jurisdiction on the ground that this
state is the more appropriate forum under section 598B.207
or 598B.208 and both of the following apply:
(1) The child and the child’s parents, or the child
and at least one parent or a person acting as a parent,
have a significant connection with this state other than
mere physical presence.
(2) Substantial evidence is available in this state
concerning the child’s care, protection, training, and
personal relationships.
c. All courts having jurisdiction under paragraph “a” or
“b” have declined to exercise jurisdiction on the ground that a
court of this state is the more appropriate forum to determine
the custody of the child under section 598B.207 or 598B.208.
d. No court of any other state would have jurisdiction
under the criteria specified in paragraph “a”, “b”, or “c”.
The juvenile court found it had temporary emergency jurisdiction. See id.
§ 598B.204(1) (providing an Iowa court with temporary emergency jurisdiction “if
the child is present in this state and the child has been abandoned or it is necessary
in an emergency to protect the child because the child, or a sibling or parent of the
child, is subjected to or threatened with mistreatment or abuse”). But “[a] custody
determination made under the court’s temporary emergency jurisdiction is a
temporary order,” and “[a] court cannot premise a subsequent child in need of
assistance adjudication and dispositional order on section 598B.204(1) alone.”
J.M., 832 N.W.2d at 720.
Here, neither Tennessee nor Iowa has home state jurisdiction under section
598.201(1)(a) because the children and both parents lived in Tennessee for the
first part of the six months preceding the initiation of the CINA case and in Iowa for
the second part of the six months preceding the initiation of the CINA case. See
Iowa Code § 598B.102(7) (“‘Home state’ means the state in which a child lived
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with a parent or a person acting as a parent for at least six consecutive months
immediately before the commencement of a child-custody proceeding.” (emphasis
added)). In this regard, the portion of the juvenile court’s order finding Tennessee
to be the children’s home state was in error.
In this situation, where “[a] court of another state does not have jurisdiction,”
Iowa may exercise jurisdiction if (1) “[t]he child[ren] and the child[ren]’s parents, or
the child[ren] and at least one parent or a person acting as a parent, have a
significant connection with this state other than mere physical presence” and
(2) “[s]ubstantial evidence is available in this state concerning the child[ren]’s care,
protection, training, and personal relationships.” Id. § 598.201(1)(b)(1)–(2). On
this record, these factors are met. The mother is originally from Iowa, the entire
family voluntarily relocated to Iowa, and the family moved in with members of the
mother’s family upon moving before making efforts to establish their own
residence. The father reported having full-time employment in Iowa. The evidence
relating to the neglect and parenting of the children—upon which removal was
based—was collected in Iowa. And when the children were initially removed from
the parents’ care, they were placed separately with different maternal relatives.
Under these circumstances, we conclude Iowa has jurisdiction under section
598.201(1)(b). But see J.M., 832 N.W.2d at 722 (“[A]t the time these proceedings
commenced, the father lived in Texas. The mother had lived in Texas for the past
four years and was only temporarily in Iowa for the apparent purpose of distributing
narcotics. The mother’s three other children, J.M.’s half-siblings, continued to live
in Texas. J.M. was born in Texas and for the majority of his life had lived in
Texas—notwithstanding the absence from February through May of 2011. Upon
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our de novo review, we find J.M., the mother, and the father all had a significant
connection with Texas. Substantial evidence of J.M.’s care, protection, training,
and personal relationships was also available in Texas. Thus, we find Texas, and
not Iowa, had jurisdiction under section 598B.201(1)(b).” (citations omitted)).
Accordingly, we proceed to the merits of the mother’s appeal.
IV. Permanency Order
Following a permanency hearing, the juvenile court has four options:
a. Enter an order pursuant to section 232.102 to return the
child[ren] to the child[ren]’s home.
b. Enter an order pursuant to section 232.102 to continue
placement of the child[ren] for an additional six months at which time
the court shall hold a hearing to consider modification of its
permanency order. . . .
c. Direct the county attorney or the attorney for the child[ren]
to institute proceedings to terminate the parent-child relationship.
d. Enter an order . . . to [transfer custody of the children].
Iowa Code § 232.104(2).
Here, the juvenile court went with subsection (b)—providing the parents an
additional six months to work toward reunification. The mother contends the
juvenile court “erred in finding that a six-month extension was necessary and that
the children could not be returned to their parents at the time of the permanency
hearing.” For the following reasons, we conclude the order entered by the juvenile
court served the children’s best interests. See In re K.C., 660 N.W.2d 29, 32 (Iowa
2003) (observing our primary concern is the children’s best interests).
At the time of the permanency hearing, the father had not completed a
substance-abuse evaluation or drug testing. He admitted to marijuana use
throughout the proceedings and as recently as one month prior to the permanency
hearing. The father was not present at the hearing. The mother had not completed
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a mental-health evaluation, as ordered by the court. DHS was not allowed regular
access to the home in which the parents were living, 1 although the parents were
making efforts to obtain different housing. The parents had not progressed beyond
semi-supervised visitation with the children. DHS recommended the children
remain in family foster care “due to the need for the parents to obtain/maintain
safe, sober housing while demonstrating the [ability] to meet the daily needs of the
children, including medical.” Upon our de novo review, we conclude immediate
reunification is not in the children’s best interests. We affirm the permanency order
entered by the juvenile court.
AFFIRMED.
1
The parents were living in the home of the mother’s grandfather.