In re D.M.

965 N.W.2d 475

In the INTEREST OF D.M., Minor Child,

D.M., Father, Appellee.

No. 21-0314

Supreme Court of Iowa.

Submitted September 15, 2021

Filed October 15, 2021

Frank Steinbach III of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman, P.C., West Des Moines, for appellee father.

Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant mother.

Magdalena Reese of Juvenile Public Defender, Des Moines, attorney and guardian ad litem for appellant minor child.

Christensen, C.J., delivered the opinion of the court, in which all justices joined.

CHRISTENSEN, Chief Justice.

This case requires us to determine whether the juvenile court was correct in issuing a permanency order transferring sole legal custody of an eight-year-old child to Dad when Mom has substantially complied with court-ordered services and the child could be returned to her care with a short transition. The State initiated a child-in-need-of-assistance (CINA) proceeding after the parents’ inability to coparent led to numerous reports to the Iowa Department of Human Services (DHS). At the time, Mom was the primary custodial parent under a shared parenting schedule between the parents, but she struggled with mental health issues, housing instability, and ensuring the child made it to school. Additionally, both parents had difficulty coparenting. Mom participated in services to reunify with the child and showed great progress. At the permanency hearing, professionals in the case recommended a brief transition plan to reunify the child with Mom over the course of a four- to six-week transition. Nevertheless, the juvenile court determined it was not safe to return the child to Mom's home and entered a permanency order transferring sole legal custody of the child to Dad. Mom and the guardian ad litem (GAL) appealed, and the court of appeals reversed.

We granted Dad's further review application. On our de novo review, we conclude there was convincing evidence to show the child could safely be transitioned to Mom's care at the time of the permanency hearing. Therefore, we affirm the decision of the court of appeals and reverse the juvenile court's permanency order transferring sole legal custody of the child to Dad.

I. Background Facts and Proceedings.

Mom and Dad are the divorced parents of eight-year-old D.M. This case has been ongoing since the State initiated CINA proceedings in February 2019, following the completion of several child-protective assessments. Some of these assessments were founded or confirmed, but most were unfounded. One of the confirmed assessments named Dad as the perpetrator and one of the founded assessments named Mom as the perpetrator. The most recent incident occurred on December 26, 2018, and involved a physical altercation between the parents that resulted in Mom's arrest. At the time, the parents had a shared parenting schedule with Mom as the designated primary custodial parent,¹ but the parents struggled to appropriately coparent D.M.

The parents stipulated to the CINA adjudication, and the juvenile court placed D.M. in the temporary legal custody of Dad under DHS supervision with fully-supervised visitation for Mom. In its order, the juvenile court noted a myriad of concerns. These concerns involved Mom's inability to understand D.M.’s medication, use of corporal punishment, mental health issues, criminal history, and imminent eviction. There were also concerns about D.M.’s anxiety and fear of being in Mom's care. Moreover, there were concerns about both parents’ ability to coparent and how their poor coparenting skills were negatively impacting D.M.

Although Mom had some setbacks, she gradually participated in services to improve her mental health issues and parenting skills. Progress was evident to the juvenile court at a June permanency hearing when the court granted her an additional six months to work toward reunification. The court reasoned the need for removal would no longer exist in six months so long as Mom could "demonstrate the ability to provide a safe and stable home environment for [D.M.] to live" and "effective co-parenting with [Dad]." The court subsequently scheduled a permanency hearing for January 2021. Before that hearing, Mom filed a motion to modify disposition and placement claiming Dad was undermining her reunification efforts by discouraging D.M.’s relationship with Mom. Mom also maintained she had engaged in the recommended services and no safety concerns remained. The juvenile court modified the dispositional order to grant Mom visitation with D.M. at the discretion of the GAL in consultation with DHS and declared it would consider the remainder of the motion at the permanency review.

The permanency hearing took place over two days in January and February 2021. By this point, Mom's visits with D.M. had increased to incorporate overnight visits, Mom had demonstrated progress with her therapist in regulating her emotions and learning to coparent, and both parents had started to participate in family therapy with D.M. At the hearing, DHS recommended a short period of additional time for Mom and D.M. to work toward reunification because they had only started family therapy in October. Mom sought immediate return of D.M. under the parents’ custody arrangement that designated her as the primary custodial parent or, alternatively, more time to transition D.M. back to her care over the course of a few weeks. The GAL recommended the implementation of a brief plan to transition D.M. back to the parents’ custody arrangement of shared parenting with Mom as the designated primary custodial parent. Dad asked the juvenile court to enter a permanency order leaving D.M. with him and to grant concurrent jurisdiction for him to obtain a custodial order in district court in conformance with the juvenile court order.

At the hearing, the GAL reported D.M. initially expressed fear of residing with Mom but that fear minimized over time. Similarly, D.M.’s therapist testified that D.M. had some resistance to Mom but that D.M. was "unable to give any responses" explaining her resistance "outside of, I don't feel safe, or [s]he hurts my feelings" when asked why she did not want to live with Mom. The therapist noted that Mom "has worked very hard to follow through on the recommendations by [the] Court" and that Mom "has built skills surrounding taking accountability for the things that she has done that has maybe strained the relationship with [D.M.] or even others in the family system." She also "believe[d] that [Mom] has done the work in individual therapy to work on building that connection with [D.M.] again" and testified that reunification with Mom was in D.M.’s best interest. While D.M. had also told a clinical social worker that she did not feel safe in Mom's care, the clinical social worker testified that D.M.’s actions demonstrated the contrary. The clinical social worker and D.M.’s therapist both expressed concerns that Dad and his wife were coaching D.M. to make these statements.

The DHS case manager explained that although Mom was asking for reunification, DHS was asking for a gradual transition back to her to help D.M. with the adjustment because an immediate return "would be overwhelming for [D.M.] ... and that anxiety would make that very challenging for her." She noted the professionals involved in the case were all of the opinion that the barriers initially causing Mom's instability no longer existed and described a transition plan that would involve increasing the frequency of D.M.’s overnight visits with Mom over the course of four to six weeks until D.M. was back in the parents’ shared parenting schedule under the custody agreement.

By the second day of the hearing in February, the transition plan had already been initiated, and D.M. was attending overnight visits with Mom twice per week, which would increase to three overnight visits the following week. On the second day, the court appointed special advocate (CASA) and the family centered services (FCS) worker both testified that they did not have any concerns about returning D.M. to Mom's care. Two of D.M.’s teachers testified about concerns they had based on their interactions with Mom during D.M.’s virtual schooling, with one explaining Mom "appeared" and "sounded angry" during the one time they met in December 2020 and another teacher expressing concern that Mom did not have the necessary materials to facilitate D.M.’s virtual learning. The DHS case manager testified that she did not have the same concerns as the educators. Finally, Mom's two estranged sisters testified on Dad's behalf over Mom's objection about their concerns with Mom, but they both acknowledged they had not had contact with Mom for years and had only minimal contact with D.M. through Dad.

The juvenile court issued its permanency order a few weeks after the permanency hearing, concluding it was in D.M.’s best interest to be placed in the sole custody of Dad with some visitation for Mom. The juvenile court noted D.M.’s and Mom's progress in therapy as well as Mom's progress on other fronts, including her progression to unsupervised visitation, which went well for D.M. and which D.M. enjoyed. Yet, the juvenile court concluded that returning D.M. to her parents’ shared care "would have harmful effects on [the child's] mental and emotional health." It highlighted Mom's alleged negative interactions with the two teachers who testified and indicators from D.M. of trauma while at school and asserted its belief that Mom was manipulating the professionals in her case to believe reunification was imminent based on her progress. Further, the juvenile court reasoned the coparenting issues still remained and would continue in the future.

Mom and the GAL appealed. The State did not appeal, but it filed a statement on appeal with our court asserting it "fully agreed with the GAL and recommended return of the child to the mother's home" and "d[id] not inten[d] to file a response defending the...