Best Interest of the Child

A case originating in Hamilton County Iowa was recently reviewed and decided by the Iowa Court of Appeals.  In their decision, the court affirmed the decision of the district court to deny the petitioner’s request to modify their dissolution decree.

Case Background

The original divorce decree involved in this case was entered in March of 1999.  The parties, Kevin Arndt and Shanon Green had two children during the course of their marriage, a son and a daughter.  In the decree, the couple agreed to joint legal custody with Shanon retaining physical care of the children.  However, the couple ended up alternating care of the children every two weeks.  Kevin was ordered to pay $300 in support every month in child support.

Modifications of the Dissolution Decree

There were several modifications made to the decree including one increase and one decrease to the amount of support Kevin was ordered to pay.  The modifications were made in 2001 and 2003.  There was also a modification to the custody arrangement of the children.  A second modification in 2003 ordered the couple to alternate care of the children on a weekly basis and neither was required to pay child support.

Shanon petitioned the court again in 2009 to modify the decree so that the physical care of the children be placed with her.  In order to modify the decree, Shanon was required to show a “substantial and material change in circumstances” had occurred.  She alleged that her ex-husband  was not exercising his weeks of childcare, that he had stopped communicating with her, and that he was failing to “properly guide” their son who was involved in delinquency proceedings at the time.

District Court’s Decision Regarding the Modification Petition

By the time the case actually came to trial, the parties had come to the agreement that their son should be placed in the physical care of Kevin, however, could not stipulate to the placement of their 15 year old daughter.  Because of the daughter’s age, her opinion was taken into consideration.  She liked being with her mother during the week because it accommodated her scheduled activities, however, was clear that she preferred being with her father when it did not interfere with her activities.

The District Court ruled that Shanon had not met her burden to establish material and substantial change in circumstances.  Shanon appealed to the Iowa Court of Appeals.

Iowa Child Custody Modification Law

 

“Once a physical care arrangement is established, the party seeking to modify it bears a heightened burden, and we will modify the arrangement only for most cogent reasons.”  Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).

There is a high burden to meet if a party wants to modify a decree of the court.  The petitioner must establish, by a preponderance of the evidence, that the circumstances since the decree was entered have changed to substantially and materially that the children’s best interests necessitate a change to the decree.  The circumstances necessitating the change to the decree must not have already been considered by the court when the decree was entered and must not be temporary.

If the court decides that this first burden has been met, they will then decide if the petitioning party is able to care more effectively for the child.

Factors to be considered in modifying custody include:

  1. Best interests of the children
  2. Child’s preference (but less weight in modification than in initial custody proceedings)
  3. Siblings should not be separated
  4. Conduct of the custodial parent (including whether the parent encourages and facilitates the child’s relationship with the other parent),including denial of visitation or contact.
  5. Stability for the Child

 

IA Court of Appeals Decision

The court did not find the evidence supported a change in the share care arrangement of the parties.  Shanon failed to show a substantial and material change in circumstances to necessitate a modification to the dissolution decree.  The court did find evidence to support a modification to Kevin’s ordered amount of child support.  Kevin is now ordered to pay $173.13 in support of the two children.

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Clint Nass has appealed the decision of the Iowa District Court for Bremer County (in In Re the Marriage of Noel Ann Nass and Clint Lewis Nass) in regards to the physical care provision of the dissolution decree.  It is clear, from the Iowa Court of Appeal’s comments, that this divorce was filled with a fair amount of animosity.

The couple originally met when Noel was a senior in high school and Clint was 26 years old.  They shared a common bond of enjoying horseback riding.  After marrying in 2005, the couple opened a pet store.

Unfortunately, Clint and Noel experienced some troubling times in the next few years.  They suffered from the loss of their infant son shortly after his birth, as well as the birth of another premature baby.  Both the pet store the couple opened and their home were destroyed by a flood of the Cedar River in 2008.  They were forced to live in a garage with their 9 month old son.

Joint Legal Custody and Sole Physical Custody Awarded

Eventually, by working side and part time jobs, the couple was able to move to an acreage and have a home once again.  By the fall of 2009 however, the couple had separated.  Noel took primary care of the children because of the work schedule Clint chose at his employer, John Deere, 3rd shift (10:30pm to 7:00am).  He did, apparently, have a choice in the hours he worked.

The divorce trial lasted three days and resulted in the parties having joint legal custody of the children and Noel having physical care, with liberal visitation for Clint.  This decision is in keeping with Iowa child custody law.

Iowa law requires that the court, “insofar as is reasonable and in the best interests of the child,” shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for maximum continuing physical and emotional contact with both parents after the parents have separated and dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

Affirmation of Lower Court’s Child Custody Decision

In its analysis, the Court of Appeals dispenses quickly with any question of the lower court’s placement of physical care of the children, saying “she, quite simply, can minister more effectively to the long-range best interests of the children.”  In stating this however, the court of course considered the relevant factors from In re Marriage of Winter, 223 N.W.2d 165, 166-67.  The court made clear that it was “abundantly clear” that Noel had been the primary caregiver, even after the devastating loss of her first child, their business, and their home.  Clint’s time with the children was very limited even when they were in his care.  His mother, the children’s paternal grandmother, often cared for the children as a result of the work schedule Clint chose to maintain.

Throughout the divorce, Clint has refused to converse directly with Noel.  Despite this, Noel has continued to attempt to provide the children with quality time with their father.  This is important to the court, as they must consider  which parent will encourage the most contact by the noncustodial parent with the children in Iowa.  The court notes that Noel has cooperated with Clint under very trying circumstances and that Clint’s interest in the children did not arise until after the couple’s separation and “even then was continually diluted by his other, selfish interests.”

The court affirms, and wholeheartedly at that it seems, the decision of the lower court to have physical care of the children remain with Noel despite Clint’s arguments.  Noel was also awarded appellate attorney fees of $1500.

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The Best Interests of the Child

Recently, the Huffington Post featured an editorial posing the question, “Child Custody:  In Whose Best Interest?”  The title of this article is referencing the guideline judges use to make decisions in cases involving children.  The best interests of the child, along with statutory requirements, are certainly the central concern in Iowa cases  involving children such as CINA (Child(ren) in Need of Assistance) cases and child custody cases.  The factors taken into consideration when deciding what is in the best interest of children are explained in several different Iowa Code Sections such as:  Child Custody and Termination of Parental Rights.

The Problem of Voiceless Children in Today’s Child Custody Plans

In her article, Dr. Ruth Bettelheim, Ph.D., points out the ways in which our current child custody plans and our current court system fail to take a child’s best interest into full consideration.  Dr. Bettelheim argues that our current system actually caters more to parents than children.  She points out that children’s needs change as they grow older, however, at this point, their schedules are dictated by the needs and conveniences of their parents.  Unless the custody plan is changed at some point, which can be a difficult and costly process for parents, it will remain the same until the child reaches the age of 18.

Because children are not routinely or officially put in charge of deciding where they would like to live and how much time they would like to spend at each parent’s residence, many children feel as if they have no power over their own lives.  Dr. Bettelheim believes that we should be concerned about this because it takes away children’s voices and creates burdens on their relationships not only with their parents but also their friendships that are so important as they grow.  She believes this can be detrimental to children and may also lead to provocative or damaging behavior by the child.

Some may be surprised to learn that, generally, children have reached the “age of reason” (according to most in the judicial system) by age 7.  Although we recognize this young age as a time when a child is able to make reasoned decisions about their lives, it is not reflected in how we create and maintain child custody plans in our courts.

Increased Reviews of Child Custody Plans as a Solution to Powerless Children

Dr. Bettelheim believes that there should be a mandatory, regular review of all child custody plans as children grow older.  She also believes that children should be given much more power in deciding their own fates when it comes to where they live and who they live with.  She believes there should be a formal outlet for them to voice their wishes concerning their custody.  Dr. Bettelheim does qualify this suggestion by stating that the child’s decisions need to be taken into account along with how they are performing in school, how they are functioning at home, and what their inter-personal relationships are like.

Consequences of Increased Reviews of Child Custody Plans

Dr. Bettelheim’s plan would certainly increase children’s decision-making power, but it would also cause confusion and inconsistency in child custody plans.  It raises questions as to what happens when siblings within the same family wish to have very different living arrangements, or what if a child is functioning well in school, but not at home?  Do they have the same ability to make decisions as a child who is falling short at school?  Having more and regular reviews of child custody plans would also cause more delay and backup in an already overloaded court system.  Is having more court hearing s even logistically possible?

Use of Mediation in Child Custody Plan Reviews

One possible solution to this problem of ignoring children’s decision-making power may be to utilize mediation services more regularly.  Participation in mediation would allow children a voice in their futures as well as provide a much less confrontational and much less intimidating environment to express their wishes than a courtroom.  Mediation would also allow many of these reviews of custody plans to stay out of the court system.  Use of alternative dispute resolution services, especially mediation, would also be much less costly for families than having several court hearings to decide custody arrangements.

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The decrease in the amount of marriages and the change in what a family unit looks like in the United States has prompted lawmakers in CA to propose a bill that would allow a child to have more than two parents.  The New York Times reported last week on a bill that has passed the California Senate with Democrats voting for and Republicans against.

Increasing Number of States Recognizing Third Parents

This may seem like a revolutionary idea – for a child to have more than two parents, however, there are several states that have recognized similar situations in recent years.  As the NY Times reports, Delaware and the District of Columbia have passed laws that allow for third “de facto” parents.  Other states such as Oregon

“Non-Traditional” families may gain increased legal recognition if recently introduced California legislation becomes law.

and Massachusetts have had their courts recognize third parents throughout the last decade.

The CA bill would allow judges to acknowledge that a child has more than two legal parents.  This recognition would allow families that include same-sex couples to have legal relationships where they may not have been able to previously.  There are many possibilities for today’s varied family structures to have more security – insurance, schools, hospitals, etc. would all be more accessible to people acting as parents because they would now be able to be legally recognized as parents.

The bill would not only benefit families that include a same-sex couple.  For example, if a husband and wife divorce, this bill would allow the new spouse of either biological parent to be able to adopt any children from the previous marriage without having to terminate the parental rights of the biological parent.

Opponents of Recognizing Third Parents

Opponents of the law have concerns however.  They believe that this bill would “open the door” to same sex marriage, which they believe is wrong.  Critics also point out the confusion this could cause when it comes to child support payments.  It isn’t clear at this point what the effects would be on child support, however, it seems that it could only be beneficial to the child to have more sources of child support available.  The recognition of additional parents may also reduce the incredible stress on many state foster care systems because there would be more relatives available for placement when children are removed from their homes.

Opponents are also wary of slippery slope situations where a child could have a dozen parents, or more.  However, the bill does not seem to allow a free for all – it allows a judge to recognize an additional legal parental relationship between an adult and a child in addition to the child’s biological mother and father.  The judge would have to find that the recognition of this additional parent is in the child’s best interest.

Recognizing a Third Parent in Iowa

Currently, Iowa is not one of the states that recognizes a third parent relationship.  When child custody is an issue in Iowa,

Iowa law requires that the court, “insofar as is reasonable and in the best interests of the child,” shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for maximum continuing physical and emotional contact with both parents after the parents have separated and dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

As in other states, it is unclear how the recognition of a third parent would change child custody practices in Iowa.  A bill similar to the CA bill has not yet been introduced in Iowa, however, if the CA bill is successful, it may open the door for such legislation in other states, including Iowa.

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The Iowa Supreme Court recently entered a ruling affirming the judgment of a Polk County Juvenile Court and vacating a Court of Appeals Ruling.  In the Interest of A.B. & S.B. is a case involving a termination of a father’s parental rights to two children pursuant to Iowa Code section 232.116(1)d), (g), (h), and (l) (2011).

Father’s History of Drug Abuse

The father of the two children, Silverio, has a chronic substance abuse problem.  He also has been the subject of six founded reports of child abuse and has a lengthy criminal conviction history involving assault and possession of controlled substances.  Silverio has also previously had his parental rights terminated as to another child.  Nelda is the mother of the children.  She and Silverio were never married and are no longer together, their relationship filled with drugs and domestic violence.

The children involved S.B., A.B. (as well as their younger half brother, D.G.) came to the attention of DHS in November of 2010.  There were concerns about their medical care, or more accurately the lack thereof, as well as housing instability, illegal drug use in the home and truancy issues.  DHS offered services to Nelda, who the children were living with.

Eventually, the children were removed from Nelda’s care and were living with Silverio, who then was arrested on drug charges.  On the day of his arrest, the juvenile court removed the children and placed them in foster care.  Nelda was subsequently arrested for identity theft.  The children were determined to be Children in Need of Assistance (CINA) pursuant to Iowa Code Sections 232.2(6)(c)(2) and (n) (2011).  After hair stat testing, unfortunately Nelda and all three children tested positive for methamphetamine.  Silverio shaved his head and was unable to provide a sample for the test.

DHS Provides Services to Facilitate Reunification

As in other Termination of Parental Rights cases, DHS provided services for the children and Nelda to facilitate reunification.  Silverio continued to exhibit destructive behavior, getting arrested for domestic abuse assault and testing positive for meth in a urine test.  However, after this arrest Silverio began to make progress by attending classes, family team meetings, and testing negative for illegal drugs.  He completed drug treatment and a mental health evaluation.  Unfortunately, Nelda did not show such progress and remained in jail.

Silverio obtained employment, resumed regular visitation with the children, attended therapy sessions, and communicated with the daycare center.  DHS remained concerned, however, stating that Silverio had problems with lying and a lack of insight into his domestic abuse, anger and drug issues.   The State recommended termination of Silverio’s parental rights.  After testifying and requesting more time to obtain custody, Silverio tested positive for methamphetamine.  The juvenile court terminated Silverio’s (and Nelda’s) parental rights.  Silverio’s parental rights were terminated pursuant to Iowa Code section 232.116(1)(d), (g), (h), and (l):

232.116  GROUNDS FOR TERMINATION.

    • 1.  Except as provided in subsection 3, the court may order the termination of both the parental rights with respect to a child and the relationship between the parent and the child on any of the following grounds:
      • d.  The court finds that both of the following have occurred:
        • (1)  The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as the result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding.
        • (2)  Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.
    • g.  The court finds that all of the following have occurred:
      • (1)  The child has been adjudicated a child in need of assistance pursuant to section 232.96.
      •  (2)  The court has terminated parental rights pursuant to section 232.117 with respect to another child who is a member of the same family or a court of competent jurisdiction in another state has entered an order involuntarily terminating parental rights with respect to another child who is a member of the same family.
      • (3)  There is clear and convincing evidence that the parent continues to lack the ability or willingness to respond to services which would correct the situation.
      • (4)  There is clear and convincing evidence that an additional period of rehabilitation would not correct the situation.
    •  h.  The court finds that all of the following have occurred:
      • (1)  The child is three years of age or younger.
      • (2)  The child has been adjudicated a child in need of assistance pursuant to section 232.96.
      • (3)  The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days.
      • (4)  There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.
    • l.  The court finds that all of the following have occurred:
      • (1)  The child has been adjudicated a child in need of assistance pursuant to section 232.96 and custody has been transferred from the child’s parents for placement pursuant to section 232.102.
      • (2)  The parent has a severe, chronic substance abuse problem, and presents a danger to self or others as evidenced by prior acts.
      •  (3)  There is clear and convincing evidence that the parent’s prognosis indicates that the child will not be able to be returned to the custody of the parent within a reasonable period of time considering the child’s age and need for a permanent home.

 Appeal of Termination of Parental Rights

Silverio appealed this decision, arguing the juvenile court violated his due process rights when it ordered a drug test at the end of the termination trial and then relied on those results, that the State had failed to establish a statutory ground for termination by clear and convincing evidence, and that termination of Silverio’s parental rights was not in the children’s best interest.  The court of appeals reversed because, although they ruled that Silverio had not preserve error on his objection to the drug test, they were “bothered” by the results and the accuracy of the test.  They also felt that termination was not in the children’s best interests.

Iowa Supreme Court Analysis of Termination of Parental Rights Proceedings

The court reviews proceedings to terminate parental rights de novo, meaning they give weight to the juvenile court’s findings of fact, but are not bound by them.

The Iowa Supreme Court disagreed with the court of appeal’s finding  that the record lacked clear and convincing evidence to warrant termination of Silverio’s parental rights.  The Court listed several points that led to their conclusion:

  • Fingernail Drug Test
    • The general rule that appellate argument must first be raised in the trial court applies to CINA and termination of parental rights cases.  In re Interest of K.C., 660 N.W.2d 29, 38 (Iowa 2003).
    •  Silverio was not ordered to take the fingernail drug test, he stated that he was perfectly willing to take the test and then reported voluntarily to do so.
    •  The test report has no indication of unreliability on its face.  Iowa R. Evid. 5.901(a).
    • The evidence was admitted without objection.
  • Grounds for Termination
    • The Court can base affirmation of the juvenile court’s order on any one ground they find is supported by the record.  In re Interest of D.W., 791 N.W.2d 703, 707 (Iowa 2010).
    • The Court finds that termination is proper under Iowa Code Section 232.116(1)(d).
    • The juvenile court’s finding is based on clear and convincing evidence.
      •  The juvenile court found that Silverio denied his drug use in the face of credible evidence to the contrary.  His drug problem was not resolved and therefore was not in any state to provide a safe and stable home for the children.
  • Best Interests of the Children
    • After statutory grounds for termination are established, the Court must still determine whether termination is in the children’s best interests.  Iowa Code section 232.116(2).
      •  The Court gives “primary consideration” to the child’s safety, long term nurturing and growth of the child, and physical, mental and emotional needs of the child.  Iowa Code section 232.116(2).
      • The children were excelling in foster care and they repeatedly told their care providers they were happy living there.  Truancy problems were no longer an issue, the children were doing well in school  and the foster parents had indicated a desire to adopt them.
      • Although Silverio had taken advantage of DHS services, he was still involved in drug and domestic violence related arrests.  Also, he refused to acknowledge any illegal drug use despite several positive drug tests.

Because of these reasons, the Iowa Supreme Court reversed the court of appeals and affirmed the juvenile court ruling terminating Silverio’s parental rights.

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In the Interest of V.A.H.

On June 13th, 2012, the Iowa Court of Appeals  entered a ruling in the case In The Interest of V.A.H., a termination of parental rights appeal from the Iowa District Court for Lee (North) County.  Thomas, the father/appellant, had his parental rights terminated after discontinuing his relationship with his child, V.A.H., born in March of 2008.  Thomas and the mother of the child, Jennifer were never married but lived together when the child was born until April 2009.  After ending their cohabitation, Thomas rarely visited the child and when he did, it was as a result of Jennifer’s planning.  Thomas did not pay child support, however did give the child a present of five dollars on his/her second birthday.

Approximately one year ago in June of 2011, Jennifer filed a petition  to terminate Thomas’s parental rights under Iowa Code chapter 600A (2011).  She claimed Thomas had abandoned the child.  This grounds for termination is codified in Iowa Code 600A.8(3)(b):

 

b.  If the child is six months of age or older when the

termination hearing is held, a parent is deemed to have abandoned the

child unless the parent maintains substantial and continuous or

repeated contact with the child as demonstrated by contribution

toward support of the child of a reasonable amount, according to the

parent’s means, and as demonstrated by any of the following:

(1)  Visiting the child at least monthly when physically and

financially able to do so and when not prevented from doing so by the

person having lawful custody of the child.

(2)  Regular communication with the child or with the person

having the care or custody of the child, when physically and

financially unable to visit the child or when prevented from visiting

the child by the person having lawful custody of the child.

(3)  Openly living with the child for a period of six months

within the one-year period immediately preceding the termination of

parental rights hearing and during that period openly holding himself

or herself out to be the parent of the child.

 

During depositions, Thomas claimed to desire a relationship with the child, but that it was impossible because he did not know where Jennifer lived and that Jennifer was not interested in allowing him visitation.  Thomas also testified however that he was aware that Jennifer worked at the same employer.

In November of 2011, the juvenile court terminating Thomas’s parental rights on the grounds of abandonment.

Termination of Parental Right’s Review by Iowa Court of Appeals

The Appeals Court of Iowa reviews termination proceedings under Iowa Code section 600A de novo.  A termination must be established by clear and convincing proof.  Once grounds for determination have been established, the court must also find that it is in the best interest of the child to proceed with the termination.

In this case, first abandonment must be shown.  The two elements  necessary to show abandonment are:

  • The giving up of parental rights and responsibilities
    • Requires affirmative parenting to the extent it is practical and feasible in the circumstances.  In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981)
    • A petitioner is not required to show total desertion in order to prove abandonment.  In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993)
  • An intent to forego these rights

Here, the juvenile court found that Jennifer was not an impediment to Thomas seeing the child.  In fact when he had seen the child, it had been because of her arranging the visit.  The court found that she had never denied him access to the child.

Best Interests of the Child

“Once the court has found a statutory ground for termination under a chapter 600A termination, the court must further determine whether the termination is in the best interest of the child.” In re A.H.B., 791 N.W.2d 687, 690 (Iowa 2010)

The court will consider, as detailed in Iowa Code section 232.116(2):

  • The child’s emotional and physical health
  • The physical, mental, and emotion condition and needs of the child
  • The closeness of the parent-child bond

The court explains that Thomas has not maintained contact with the child, has not supported the child financially, and has not affirmatively maintained a place of importance in the child’s life.  Therefore, the court affirms the juvenile court’s termination of Thomas’ parental rights.

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