In the Interest of J.H., Minor Child ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0878
Filed September 23, 2020
IN THE INTEREST OF J.H.,
Minor Child,
W.S., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Charles D.
Fagan, District Associate Judge.
A father appeals the juvenile court order transferring jurisdiction to the
probate court. AFFIRMED.
Eric A. Checketts, Glenwood, for appellant father.
Thomas J. Miller, Attorney General, and Toby J. Gordon, Assistant Attorney
General, for appellee State.
Roberta J. Megel of the State Public Defender’s Office, Council Bluffs,
attorney for guardian C.M.
Marti D. Nerenstone, Council Bluffs, attorney and guardian ad litem for
minor child.
Considered by Bower, C.J., Doyle, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
2
VOGEL, Senior Judge.
The father of J.H., born in 2009, appeals the child-in-need-of-assistance
(CINA) review order, which terminated the juvenile court’s jurisdiction and
transferred jurisdiction to the probate court for the establishment of a guardianship
for J.H. Because the father withdrew his participation in the proceedings and J.H.
is thriving in the home of C.M.1 with her two half-siblings, we affirm.
J.H. came to the attention of the Iowa Department of Human Services
(DHS) in November 2019 on the report of violence in the home between her mother
and C.M., and again ten days later after her mother abandoned J.H. and her two
younger half-siblings. All three children were removed and soon placed with the
half-siblings’ aunt and uncle, where they remained for several months. In April
2020, after C.M. successfully participated in reunification services, he was granted
custody of his two children along with J.H. All three children remained in his care
for the remainder of these proceedings. A telephonic hearing was held on June 8,
after which the juvenile court ordered the custody of J.H. “remain with [C.M.]
pursuant to” the guardianship established in the probate case. The court further
ordered the termination of the juvenile court’s jurisdiction. The father appeals.
We review CINA proceedings de novo. In re K.B., 753 N.W.2d 14, 15 (Iowa
2008). In reviewing the proceedings, we are not bound by the juvenile court’s fact
findings; however, we do give them weight. In re K.N., 625 N.W.2d 731, 733 (Iowa
2001). Our primary concern is the child’s best interests. In re J.S., 846 N.W.2d
1C.M. is the biological father of the two half-siblings. All three children have the
same biological mother.
3
36, 40 (Iowa 2014). CINA determinations must be based upon clear and
convincing evidence. Iowa Code § 232.96(2) (2020).
At the time of removal, the father’s whereabouts were unknown. He was
soon located in the state of Virginia where he had been living for several years.
He participated telephonically in the January 8, 2020 CINA adjudicatory hearing.
Although he had not seen or had contact with J.H. since she was two months old,
he requested a home study be conducted on his home in Virginia pursuant to the
Interstate Compact on the Placement of Children (ICPC), which the court then
ordered. A caseworker with the Virginia Department of Social Services (DSS)
worked on the ICPC process from Virginia. After an initial home visit with the
father, the Virginia caseworker attempted to contact the father several times by
phone, leaving a voicemail and several text messages. Finally on March 19, the
father contacted the worker and stated he no longer wished to move forward with
the home study. In response, on March 24 the worker sent the father a letter
memorializing the situation and informing him his case was closed with the DSS.
The worker included his full name, office address, email address, and phone
number should the father need additional information. The ICPC status was
relayed back to the Iowa DHS worker.
On April 23, C.M. requested a “Bridge Order and Guardianship” hearing be
set. The juvenile court then set the requested hearing for June 8 to coincide with
a previously set CINA review hearing. On April 30, all parties—including the
father—agreed to a “Waiver of Notice of Hearing, Waiver of Hearing, Consent to
Entry of Order.” With the waivers on file, the juvenile court then ordered J.H. (and
the other children) be placed with C.M.
4
But on May 9, the father sought to reengage in the case by moving to have
the June 8 hearing on the proposed guardianship continued, claiming a
“misunderstanding and miscommunication with the Virginia [caseworker].” After
reviewing the motion and the resistances filed by the State and by C.M., the
juvenile court denied the motion.
The father asserts the State failed to present clear and convincing evidence
that reasonable reunification efforts were employed and, therefore, transferring
jurisdiction to probate court was unwarranted. The father acknowledged he had
no contact with J.H. since she was two months old but blamed others for keeping
him out of J.H.’s life for the past ten years.
At the June 8 hearing, the father testified he “didn’t even know [J.H.] was
placed with [C.M.] until after [C.M.] told [him]. No letters, no e-mails, no nothing.”
However, on cross-examination he was read some correspondence from his
attorney to the other attorneys in the case that stated, “I just spoke with my client.
We are in agreement with” signing the April 30 waiver. After the close of the
evidence, the father’s attorney made a professional statement that he explained
the situation to the father and had his consent to proceed with the April 30 waiver.
The juvenile court accepted the attorney’s statement and found, “After hearing the
testimony and looking over the documents, I think that there was a valid waiver of
these children into [C.M.’s] care, custody, and control.”
In addition, the correspondence from the Virginia caseworker to the Iowa
caseworker detailing his interaction with the father was admitted into evidence.
Also admitted was the letter from the Virginia caseworker to the father that stated
in part:
5
On Friday, March 19, 2020, you made contact with [this] case worker
and stated that you no longer wanted to move forward with the home
study process due to not being able to keep taking time off from work.
Today, this letter is to notify you that your case has been
closed with [the DSS] at this time.
Please contact me if additional information is needed at
[phone number and email address].
The father made no attempt to contact this worker to follow up with “additional
information.” During direct examination at the hearing, the father was asked if he
told the Virginia caseworker he wanted to cancel the home study, and the father
answered, “Yes because I couldn’t afford to keep missing work if he wasn’t going
to show up.” Yet the Virginia caseworker provided no indication of any scheduling
difficulty or missed appointment time, instead mentioning only noncompliance by
the father after multiple attempts by the worker to contact him. The juvenile court
found:
As of March, [the father] was more than well aware this matter was—
had been canceled, and he should have sought at that time to
reinitiate an ICPC but waited until shortly before this hearing.
I think that he put himself in the position that he’s in and that
ICPC not getting completed. I do not think that it is appropriate to
wait further at this time. I believe the [Virginia caseworker’s] letter
written out in March was ample opportunity. A new one should have
been started, but he didn’t do that.
Moreover, it was not just the father’s halting the home study that shed doubt
on his commitment to establishing a relationship and parenting J.H. but also his
inconsistent efforts to maintain phone contact with J.H. DHS was assisting J.H.
with weekly phone calls, but the father began missing calls around January 2020
and completely stopped the calls in March. Ultimately, the juvenile court concurred
with DHS’s conclusion that the father was simply too inconsistent in his attempts
to rebuild his relationship with J.H. and concluded, “I’m going to grant the
6
guardianship of [J.H.] with [C.M.]. [The father’s] recourse will be in [probate] court
under the court’s jurisdiction of that guardianship.” Such authority is a proper
resolution under Iowa Code section 232.104(2)(d)(1) (authorizing the juvenile court
to “[t]ransfer guardianship and custody of the child to a suitable person” after a
permanency hearing).
Next, the father briefly mentions that it is not in J.H.’s best interests to have
jurisdiction transferred to the probate court. As DHS reported, J.H. “thinks of [C.M.]
as her dad.” Further, the DHS worker testified J.H. is bonded to her half-siblings,
wants to stay with them and with C.M., and is thriving in C.M.’s home. Upon our
de novo review, we agree with the juvenile court’s transfer of jurisdiction to allow
the probate court to handle this case under its jurisdiction.
AFFIRMED.