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In re A.B.

Court of Appeals of Iowa

November 6, 2019

IN THE INTEREST OF A.B. and A.B., Minor Children, A.B., Mother, Appellant.

          Appeal from the Iowa District Court for Appanoose County, William Owens, Associate Juvenile Judge.

         A mother of two children appeals a permanency review order placing legal custody of the children with their father.

          Debra A. George of Griffing & George Law Firm, PLC, Centerville, for appellant mother.

          Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee State.

          Julie De Vries of De Vries Law Office, PLC, Centerville, attorney and guardian ad litem for minor children.

          Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.

          VAITHESWARAN, JUDGE.

         A mother of two children born in 2004 and 2007 appeals a permanency review order placing legal custody of the children with their father.

         I. Background Facts and Proceedings

         The department of human services first encountered the family in 2015, when the mother tested positive for methamphetamine. The department referred the mother to a provider of community care services.

         In 2017, the mother sought and obtained a domestic abuse protective order against the father. The order, entered after a hearing at which the father and his attorney appeared, stated the father "committed a domestic abuse assault against [the mother]." The district court granted the mother exclusive possession of the family residence and temporary custody of the children, subject to visitation with the father.[1]

         A week after the domestic abuse protective order was filed, the department intervened for the second time based on concerns that the mother "had started using again," as well as concerns that she assaulted the children's father in the children's presence. The mother admitted to methamphetamine use. She agreed to a safety plan under which the children would stay with their adult sister.

         The State filed a child-in-need-of-assistance petition. The parents stipulated to the adjudication of the children as in need of assistance. The juvenile court "removed" the children from their home and placed them in the "legal custody . . . [of] their father." In a subsequent dispositional order, the court again "removed" the children from the mother's home and reiterated that legal custody was placed with the father. Following a review hearing, the court retained the earlier disposition. The court also noted that the mother was incarcerated "on charges of stalking and violating a no-contact order."

         Meanwhile, the father moved for concurrent jurisdiction to litigate custody in the district court. The juvenile court denied the motion after finding that the mother "seem[ed] to be making some progress." In a later review order, the court declined to address the father's renewed motion for concurrent jurisdiction. The court also noted that "[a] question arose regarding the appropriate permanency goal for the children," given that the domestic abuse protective order granted the mother "temporary legal custody of the children." The court concluded, "We are not yet at a permanency hearing." The court left legal custody of the children with the father.

         Following a permanency hearing, the court again noted that the district court's protective order placed temporary custody of the children with the mother. The court explained that the order had expired and "[p]rior to that order being entered the children resided with the parents together in the same home."[2] The juvenile court elected to grant the father's motion for concurrent jurisdiction to litigate custody and visitation in the district court but barred the district court from entering "temporary orders on affidavits." Again, the court ordered legal custody of the children to remain with the father. The court granted the mother six additional months to work toward reunification.

         The juvenile court filed a permanency review order before the six months expired. The court articulated the following framework for reviewing permanency:

Iowa law requires the juvenile court to first consider whether returning a child to the custody of a parent is appropriate. If immediate return is not appropriate the juvenile court is then to consider whether granting additional time for a parent to work toward reunification is appropriate. If those options are not available the court must then consider whether it is in the best interests of ...

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