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In the Interest of J.M.

March 27, 2013

IN THE INTEREST OF J.M., MINOR CHILD, J.M., MINOR CHILD, APPELLANT.


Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.

The opinion of the court was delivered by: Mullins, J.

A child's guardian ad litem appeals from a modification and permanency review order changing the child's level of care from foster family care in Iowa to relative care in Mexico. We find the juvenile court did not have subject matter jurisdiction to enter orders beyond temporary emergency jurisdiction.

VACATED IN PART, REVERSED IN PART, AND REMANDED.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

The child's guardian ad litem (GAL) appeals from a modification and permanency review order changing the child's level of care from foster family care in Iowa to relative care in Mexico. The GAL contends the juvenile court erred in (1) refusing to grant a continuance, (2) refusing to grant a motion for a child therapist to examine the child, (3) refusing to grant a request for a neutral translator, (4) refusing to hold a hearing on whether the Department of Human Services (DHS) prevented the GAL from performing her duties, (5) modifying the level of care in the absence of any substantial and material change in circumstances, (6) admitting a home study performed in Mexico into evidence, and (7) modifying the level of care in the absence of any showing it would further the child's best interests. We find the juvenile court was without subject matter jurisdiction to adjudicate the child as a child in need of assistance. Accordingly, we vacate in part, reverse in part, and remand.

I. Background Facts & Proceedings

J.M. was born in Texas on August 3, 2010. J.M.'s mother is a citizen of Mexico who came to the United States at the age of sixteen. J.M.'s father lives in Texas and is married to another woman. The father was aware of J.M.'s birth, but until these proceedings, his wife was not. J.M.'s mother and father did not maintain a relationship after J.M.'s birth but did communicate about issues relating to J.M. The mother has three other children from a previous relationship who are not at issue in the present appeal.

From August 3, 2010, through an unspecified date in February 2011, J.M. lived in Texas with the mother and three siblings. In February 2011, the mother returned to Mexico because, as she later explained, her grandmother was ill. In May 2011, the mother returned to Texas.

At some point between May 2011 and July 2011, the mother asked J.M.'s paternal aunt in Texas to watch her three older children. The mother indicated she was leaving with J.M. and another woman to look for employment. Although J.M.'s paternal aunt was not related to the three children, she agreed to watch them. The mother, J.M., and the other woman then boarded a bus for Iowa.

On July 26, 2011, police officers executed a search warrant at a hotel room in eastern Iowa where the mother and J.M. were staying. Police officers found the mother in possession of over six ounces of methamphetamine. Officers arrested the mother, removed J.M. from her care, and placed J.M. into foster family care. The mother remained in custody on state and federal charges with a hold from the U.S. Immigration and Customs Enforcement for the remainder of these proceedings because of her illegal immigration status.*fn1

The next day the juvenile court entered an ex parte removal order and temporarily placed J.M. with DHS for foster family care placement. After outlining the circumstances leading to J.M.'s removal, the court found "The father is also a known drug dealer and may not be appropriate to assume care of the child."

Later that day a DHS worker interviewed the mother at the Scott County jail with the assistance of an interpreter. According to the DHS report, the mother stated she "did not have a current residence when she left for Iowa." The mother explained that before coming to Iowa she "was staying at hotels with [J.M.] and her other children." She also indicated she "was unemployed when she came to Iowa", and had "been supporting herself by receiving food and medical assistance, and receiving child support from [J.M.'s father]." The mother asserted that the father was a good father, was involved with J.M., and financially assisted her in caring for J.M. After the interview, DHS was able to obtain the father's date of birth and last known address in Texas. An initial criminal history search for the father revealed no criminal history in Iowa or Illinois.

On July 28, 2011, the State petitioned to adjudicate J.M. as a child in need of assistance (CINA). The petition asserted the juvenile court had jurisdiction to make a child custody determination because Iowa was "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." In the alternative, the State asserted the juvenile court had jurisdiction because "[t]he 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 . . . is subjected to or threatened with mistreatment or abuse."

To support a jurisdictional basis for the CINA petition, the State attached a standard jurisdictional affidavit from the DHS worker who interviewed the mother at the Scott County jail. Although the child had never lived with the father, the affiant listed the child's address as the father's last known address in Texas. In response to the jurisdictional form's request to list "[t]he places where the child has lived within the last five years and the names and present addresses of person who have lived with the child during this period", the affiant listed the mother's name and did not include an address. In response to an inquiry about whether DHS had "information of any custody proceedings concerning the child pending in an Iowa state court or any other state court", the affiant stated "No". The affiant further indicated DHS knew of no other "persons (sic) not a party to the proceeding who has physical custody of the child or claims to have custody or visitation with the child."

Soon after petitioning for adjudication, a DHS worker made contact with J.M.'s paternal aunt. The aunt expressed a desire to be considered as a placement option for J.M. She indicated that the father's wife did not know he had fathered J.M. She denied that the mother or the father had any history using or selling drugs. DHS then made contact with J.M.'s father. The father expressed a desire to have J.M. placed in his care. He denied any history of illegal drug use.

In August 2011, the juvenile court held an uncontested removal hearing. The court asserted that it had jurisdiction over the parties and the subject matter. The court then ordered J.M. to continue to be placed with DHS for foster family placement.

In September 2011, the juvenile court held an uncontested adjudication hearing. The court found it "has jurisdiction of the parties and of the subject matter. The mother appeared, submitting to the jurisdiction of the Court . . . . The father has submitted to jurisdiction of the Court by submission of an Application for Appointment of Counsel." The court then adjudicated J.M. as a child in need of assistance. Afterwards, DHS initiated procedures to request an Interstate Compact on the Placement of Children (ICPC) home study for the purpose of placing J.M. with relatives in Texas.

In October 2011, the juvenile court held an uncontested dispositional hearing. The court asserted that it "has jurisdiction of the parties and of the subject matter."

Later that month the Texas Department of Family and Protective Services (Texas FPS) closed Iowa's home study request. The father used his sister's address in Texas for the home study. The Texas FPS explained that they closed the home study because the father failed to return identification and social security cards for his sister and her husband. The father indicated he would attempt a home study at his address. If he did not pass this home study, he listed his mother and father in Mexico as an alternate placement option.

In November 2011, the mother was indicted on federal charges. She was transported to a jail in Illinois pending the outcome of her case. After learning that the father's home study had been denied, the mother requested home studies on her brother and her cousin, Sandra, in Mexico. Sandra contacted DHS about J.M. and provided sufficient information for DHS to contact the Mexican Consulate to request a home study.

In February 2012, the court held an uncontested review hearing. The court found it "has jurisdiction of the parties and of the subject matter." The court noted that a second ICPC request had been made in an attempt to place J.M. with the father. At that time, the Mexican Consulate had not responded to many calls to facilitate placement with relatives in Mexico. The court noted that DHS "is going to change the child's foster home to a foster-to-adoption home in the near future as a concurrent plan. Meanwhile [DHS] shall diligently pursue possible placement of [J.M.] with his father or relatives in Mexico." The court found that it was "disconcerting that the child's father has not followed through with ICPC and has not even visited his young son since his placement. No explanation for his lack of contact, other than distance, was given."

In late February 2012, DHS made contact with the Mexican Consulate. The Mexican Consulate approved home studies for J.M.'s paternal grandmother and the mother's cousin, Sandra. After considering the wishes of both parents and J.M.'s best interests, DHS decided to request the ...


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