In the Interest of M.P. and C.P., Minor Children, K.P., Father

IN THE COURT OF APPEALS OF IOWA

No. 14-1672
Filed November 26, 2014

IN THE INTEREST OF M.P. and C.P.,
Minor Children,

K.P., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Susan Flaherty,

Associate Juvenile Judge.

A father appeals from the permanency order concerning his two children.

AFFIRMED.

Ellen R. Ramsey-Kacena, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, Jerry Vander Sanden, County Attorney, and Lance Heeren, Assistant

County Attorney, for appellee.

Ryan P. Tang of Law Office of Ryan P. Tang, P.C., Cedar Rapids, for

mother.

Julie Trachta of Linn County Advocate, Inc., Cedar Rapids, attorney and

guardian ad litem for minor children.

Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, J.

Kenneth, the father of C.P. and M.P., appeals from the permanency order

continuing C.P. and M.P.’s placement in foster care with a goal of returning them

to the custody of their mother, Patricia. He contends the State failed to make

reasonable efforts to reunify him with his children, the court erred in continuing

the children in foster care instead of placing them with him as the least-restrictive

placement, and the court erred in refusing to modify the permanency goal to

placement with him.

I.

C.P. and M.P. were removed from Kenneth and Patricia in February 2012

after Kenneth and Patricia left the children home with the children’s two older

half-siblings effectively unsupervised. At the time, the two older half-siblings,

who have a different father than C.P. and M.P., were six and three years old. At

the time, C.P. was two years old, and M.P. was seven months old. The two older

half-siblings were placed with their biological father. C.P. and M.P. were

adjudicated in need of assistance and placed in the custody of the Iowa

Department of Human Services (IDHS) for placement in foster care. After a

review hearing in August, there was an incident of domestic violence between

Kenneth and Patricia, and they separated. A no-contact order was entered.

In December 2012, following a permanency hearing, the court approved

IDHS’s plan to reunify the children with a parent. Following a hearing, the court

granted IDHS’s request for a trial placement of the children with Patricia, with

daily drop-in supervision for the first sixty days. The day following the hearing,
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the service provider discovered Kenneth and another man hiding in a closet at

Patricia’s home. Patricia was not to have contact with Kenneth at that time. The

children were again removed and placed in foster care. The State filed a petition

to terminate Patricia and Kenneth’s parental rights.

Despite the filing of the petition to terminate parental rights, Patricia

continued to work toward reunification. Kenneth stopped attending visitation and

did not keep in regular contact with IDHS for a period of several months. By the

time of the termination hearing in August 2013, IDHS no longer supported

termination but asked the court to approve a trial placement with Patricia.

Kenneth had moved approximately 120 miles away and was living with his

married paramour and her children despite remaining married to Patricia.

Kenneth’s paramour and her children were receiving services from IDHS arising

from two founded child abuse assessments.

The trial placement with Patricia was not without incident, but IDHS

continued to recommend extending the placement. In January 2014, the

children’s custody was returned to Patricia. But that would prove to be short-

lived. In March 2014, while C.P. and M.P.’s two older half-siblings were visiting

Patricia, the youngest child put a fork in a space heater and burned the other

children by touching them with the hot fork. Patricia was not effectively

supervising the children—she was asleep when this incident occurred. Because

of this incident, C.P. and M.P. were again removed from Patricia’s care and

placed in foster care.
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During the time of the trial placement with Patricia, Kenneth had resumed

contact with IDHS and with the children. Kenneth regularly exercised visitation

until January 2014. At that time, he again ceased regular contact with IDHS and

with the children, exercising only one visitation until April 2014. Once visitation

regularly resumed, it progressed from supervised visitation in May, to

unsupervised visitation in July, to weekend visitation from Friday noon to Monday

morning. The trial testimony showed Kenneth cares for his children and is

strongly bonded with them. The trial testimony also showed the children care for

and are bonded with Kenneth.

Following a permanency hearing in July and August, the court continued

the children in foster care “while the plan to place them in their mother’s primary

care continues to move forward.” The court expressed “concern regarding the

ability of either [parent] to separately provide permanent, consistent, safe care

and supervision for these children throughout the rest of their childhoods,” but

noted IDHS, the guardian ad litem, and Patricia all supported IDHS’s

recommendations for returning the children to Patricia’s primary care. The court

concluded:

In determining the permanent option which is in [the
children’s] best interest, the Court has considered each parent as a
potential primary placement. Tricia has shown more consistency
and a clearer commitment to providing the stability and consistency
[the children] require. While Ken has made some progress, his
progress has been less consistent than Tricia’s and comes with
heavy reliance on others to actually meet the children’s needs.
Ken’s mental health, impaired decision making and cognitive
limitations make it extremely unlikely that he could maintain these
children in his sole care on a full-time permanent basis without the
children continuing to be adjudicated children in need of assistance
and without ongoing services and supervision through the child
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welfare system. While the Court continues to have significant
concerns regarding Tricia’s ability to maintain her focus on her
children and their needs, there has been sufficient progress on
Tricia’s part to support continued efforts to place the children in her
primary care. The children have developed a strong bond with their
mother. Additionally, placement with Tricia allows the [children] a
better opportunity to maintain strong bonds with their brothers. It
allows them to maintain relationships with their current therapists
and other supports and community connections.
Therefore, in assessing the primary placement and
permanency goal in [the children’s] best interest, the Court
concludes that a plan for primary placement with their mother best
meets the children’s need for safety, security and stability, in
addition to providing them with a nurturing, loving environment.

II.

We review a permanency order de novo. See In re K.C., 660 N.W.2d 29,

32 (Iowa 2003). We review both the facts and the law and adjudicate rights

anew. See In re H.G., 601 N.W.2d 84, 85 (Iowa 1999). Although we give weight

to the juvenile court’s findings of fact, we are not bound by them. See In re N.M.,

528 N.W.2d 94, 96 (Iowa 1995). There is a rebuttable presumption that the

children’s best interests are served by parental custody. Id. The best interests of

the children are paramount to our decision. Id.

III.

A.

Kenneth contends IDHS failed to make reasonable efforts to prevent

removal by failing to place the children with him to proceed to a trial home

placement “despite several months of successful extended overnight visits.” He

argues the reasonable efforts mandate is “to return the child to the child’s home

as quickly as possible consistent with the best interests of the child.” Iowa Code

§ 232.102(7) (2011). He asserts he has been “stymied at extended overnight
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visitation for multiple months, despite no issues or safety concerns.” He believes

the children should have been placed with him upon their removal from Patricia’s

home in April.

The permanency-plan goal was to return the children to Patricia’s care.

The reasonable efforts to return the children home were directed toward

Patricia’s home. To place the children full-time with Kenneth would have forced

them to break relationships with their therapists and other community supports.

It would have made keeping a strong bond with their brothers much more

difficult. The efforts made to foster the children’s relationship with Kenneth were

reasonable under the circumstances.

B.

Kenneth contends the court erred in continuing the children temporarily in

foster care instead of placing them with him as the least-restrictive placement.

When IDHS removed the children from Patricia’s care in April 2014, it sought

modification of the dispositional order. The court set that issue for hearing in July

with the permanency hearing. At the time of removal, Kenneth had only one visit

with the children in a three-month period. His circumstances were largely

unknown. Under these circumstances, the least-restrictive placement available

to the court was placement that did not require relocating the children a great

distance, breaking their relationships with their therapists, damaging their strong

bond with their brothers, or straining the strong bond they had with Patricia. See

Iowa Code § 232.99(4) (“[T]he court shall make the least restrictive disposition

appropriate considering all the circumstances of the case.” (emphasis added)).
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C.

Kenneth also contends the court erred in failing to modify the permanency

goal to placement with him. The party seeking modification of a permanency

order must show a substantial and material change in circumstances such that

modification is in the best interest of the child. In re D.S., 563 N.W.2d 12, 15

(Iowa Ct. App. 1997); In re T.C., No. 14-1048, 2014 WL 4930652, at *1 (Iowa Ct.

App. Oct. 1, 2014). We conclude the court did not err.

The limited visits with Kenneth went well, but, as the juvenile court found,

Kenneth’s health, mental health, impaired decision making, and cognitive

limitations make it extremely unlikely he could maintain these children in his sole

care on a full-time permanent basis. Kenneth suffers from epilepsy, ADHD,

depressive disorder, personality disorder, and bipolar disorder. Kenneth

commented he was exhausted after having the children for a weekend and

needed to sleep for three days after having visits with the children. Kenneth has

no long-term plan to provide for the children. He is unemployed and not

searching for work. He depends entirely on others for transportation for himself

and the children. He is dependent upon FIP payments, food assistance, and

donations to provide for the children. He is also dependent upon his paramour

for housing and support. While poverty, alone, is not grounds for determining

permanency, the best interests of the children require a determination of whether

the parent can meet the children’s basic needs. See In re P.L., 778 N.W.2d 33,

39 (Iowa 2010) (noting the court looks at placement that best meets the physical,

mental, and emotional needs of the child). Further, as set forth above, Kenneth
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failed to provide support for the children or have consistent contact with them.

On at least two occasions during the pendency of this proceeding, Kenneth

disappeared for months at a time, ceasing contact with IDHS and the children.

Over the course of this proceeding, Patricia has made more consistent

progress than Kenneth. Patricia has demonstrated a greater commitment to the

children and a greater ability to provide them with safety, stability, and

consistency. Placement with Patricia also would allow the children to maintain

their current therapeutic relationships, their relationship with their brothers, and

C.P.’s individualized education plan. On our review of the record, we agree with

the juvenile court’s conclusion the permanency goal should remain returning the

children to Patricia’s physical care. See, e.g., In re C.E., No. 11-0897, 2011 WL

4953000, at *3 (Iowa Ct. App. Oct. 19, 2011) (affirming permanency review order

continuing placement with one parent where change would require school

change, daycare change, and less contact with friends and family).

IV.

The record demonstrates that both parents care for these children and

that the children care for both parents. As the juvenile court noted, upon return

of the children to this family and, hopefully, the closure of this case, there may be

ongoing custody litigation in the district court. On the limited questions presented

in this appeal, for the foregoing reasons, we affirm the juvenile court’s

permanency order.

AFFIRMED.