'In the best interest of the child'
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- Investigators: Grandparents passed over in favor of foster care
Do grandparents have rights in child-custody cases? That is a matter of much interpretation, and that's when things get murky.
By M.D. Kittle
August 9, 2009 / thonline.com
They worked a puzzle, that last day. They read stories. They sang songs. "Twinkle, Twinkle Little Star." "The Wheels on the Bus." Two young granddaughters alternating time on their grandma's lap. Like they had done countless times before.
But this time, an agent on behalf of the state was waiting. The clock was ticking.
Carol Schute had 30 minutes to say goodbye to her grandchildren, knowing the supervised visit was meant to be the last goodbye. Without being told, Schute said, her 5-year-old granddaughter knew as much, and she didn't want to let go.
"My youngest grabbed ahold of me saying, 'Grandma, you take me home with you, you take me home with you,'" Schute recalled of that day last month.
"I said, 'Not today, sweetheart. Not today," Schute said, her voice breaking as tears welled in her eyes. "But I couldn't cry in front of those girls because I didn't want to upset them."
The 5-year-old and her 9-year-old sister were taken back to separate foster homes, days after a Dubuque juvenile-court judge ruled to terminate the parental rights of the children's mother and father.
While the merits of the case are not up for debate here (the records are not open to public scrutiny), one point was made quite clear to Schute throughout the monthslong process: When parental rights are severed, so go the rights of remaining relatives. "I was told grandparents in the state of Iowa have no rights," she said.
That's not quite right, according to legal experts, grandparents-rights advocates and a DHS official. But under Iowa law, grandparents rights are open to interpretation, bound by one guiding question: What is "in the best interest of the child?" Noble as that might sound, that concept is, as one DHS official put it, where the rights matter becomes murky.
Carol Schute asserts she has been a stable, loving force in her grandchildren's lives since they were born. That connection became all the more important through the turmoil of the past five years, when the DHS Dubuque office stepped in and removed the children from their home on a number of occasions, according to Schute.
Roger Munns, spokesman for the department, said he cannot speak to the case since such matters are confidential. TH calls to Dubuque DHS agents were forwarded to Munns. Attorneys for the parents either declined comment or did not return calls.
Schute said she assumed temporary custody of her youngest granddaughter when the girl was removed from her home as a baby for what was deemed medical neglect by the parents. Schute, 56, of East Dubuque, Ill., disputes the charge in particular and the removal of the children from their home and parents in general.
The child suffered with a serious medical condition, unable to keep formula down and requiring the placement of a feeding tube, Schute said.
Over the years, Schute said she has cared for the girls and their parents, providing financial assistance and emotional support. She recalls vividly her oldest granddaughter's first elementary school assembly and the last Christmas they all made cut-out cookies.
In a perfect world, Schute said, she would adopt the girls. But her husband had made it clear that he does not want to raise the kids. So, unless she leaves her husband and finds her own place, something she said she couldn't and wouldn't do, Schute said she has no hope of winning custody.
Still, based on the apparent attachment, it would seem Schute meets a critical requirement under Iowa code concerning visitation rights for grandparents: that there be a "substantial relationship with the grandchild." The petitioner must clearly prove the bond, however, and that, again, is subject to court interpretation.
Schute asserts she never was afforded the opportunity to petition the court for visitation or to present her side of the story. She said Dubuque County Juvenile Court Judge Tom Straka told her she would need a lawyer if she wanted to be heard. She answered she couldn't afford an attorney.
Straka confirmed he does know of the case, but because it presently is in the appeals process he could not discuss it.
"In a very general sense, grandparents do have a right to intervene in a case and the (Iowa) Court of Appeals has upheld that," Straka said.
Richard Victor has presided over scores of grandparental rights cases over the past 35 years, and he said the biggest problem remains ignorance of the laws -- among clients, attorneys and judges.
Victor, who 25 years ago founded the Michigan-based Grandparents Rights Organization, a national advocacy group, said despite assertions to the contrary, grandparents rights don't end with divorce, the death of the grandchild's parent or the termination of parental rights.
In too many cases, Victor said, courts forget about the rights of the children to maintain familial connections.
Denise Murphy said she watched her parents effectively lose their grandchildren when her brother divorced.
"My dad passed away before we got to see either one of the kids," said Murphy, who founded Iowa Grandparents Rights Organization, she said, to challenge the system. The Waterloo-based organization has about 100 members and strives to be an educational resource.
"The Department of Human Services is a very strong advocate of saying grandparents have no rights, but they are wrong," Murphy said. "Grandparents have rights to step in and say I am ready and able to take these children."
Court cases over the past decade have tested and restrained grandparental rights, however. In 2000, the U.S. Supreme Court in Troxel v. Granville determined that a Washington visitation statute violated the due process of parents to raise their children. What the court case effectively determined was a pecking order of sorts, Victor said, placing the burden on grandparents to prove that they are entitled to visitation. The attorney insists the court's decision preserved grandparental rights, setting up a state-by-state system that, for the most part, gives grandparents at least a petitioning voice.
The Iowa Supreme Court struck down as unconstitutional parts of the Iowa visitation statute. The Legislature responded by crafting a bill that would maintain rights while surviving a constitutional challenge. Such legislation was strongly opposed by parental rights groups, one asserting the bill gave a "dangerous amount of power to judges."
In cases like the one involving Schute's granddaughters, grandparents generally do not have visitation rights after a grandchild is adopted. In Iowa, there is a statute that gives DHS authority to allow visitation before a child removed from the home is adopted.
"Where it gets murky is the period between termination (of parental rights) and adoption," DHS' Munns said.
In 2007, the Legislature passed a statute that grants grandparents the right to petition the court for visitation, but it doesn't extend into juvenile court or cover the occasions when parental rights are severed.
"There is no absolute or presumed right for a grandparent to visit children after termination of parental rights," Munns said.
The laws give discretion to the court, which must weigh the testimony and evidence on both sides and determine what is in the best interest of the child. Courts have maintained that parents are afforded a general deference.
what is fair?
In cases of parental rights terminations, the stated goal of DHS is to swiftly find a permanent home for the child. Quick adoptions, Munns said, is one of the major benchmarks by which all state child welfare systems are judged.
"The idea is to reverse the problem of interminable foster care," the state official said. "A generation ago, kids sat in foster care for years while the adults got their act together." And Iowa, Munns said, is good at moving children on to permanent homes.
It's that expediency that grandparents like Schute find so heartless. She is convinced the department is keeping her away from her grandchildren so the adoption process is less complicated.
That's partly true. Even advocates like Victor agree once the matter moves into adoption, blood ties need to be severed for the good of the child and the new family.
While DHS takes its share of criticism about overstepping its authority and unfairly breaking up homes (Schute admittedly is one of those critics), Munns asserts the system is "tilted toward relatives," in keeping families together.
"When social workers must find out-of-home placements for children, they first try to find a safe and supportive relative placement," the DHS official said. "In nearly four out of 10 out-of-home placements in Iowa, the temporary home is a relative, and many of them are grandparents."
That's an apparent improvement for DHS, an agency that five years ago was knocked by the feds for failing to place sufficient numbers of displaced children with relatives in foster care.
A group of Iowa lawmakers has been leading the charge to strengthen the existing visitation statute. State Sen. Keith Kreiman, D-Bloomfield, shepherded the last bill involving grandparental rights through the Legislature, and now he vows to bring a stronger measure (that could survive constitutional review) to the next legislative session. He said the language would demand notification of grandparents in juvenile proceedings and include a specific right for grandparents to petition to intervene in visitation cases.
"If the grandparent is the only positive influence in the child's life, shouldn't that child have the right to continue that relationship?" the lawmaker said.
Schute will tell you she is in the best interest of her grandchildren. For now, she waits for the wheels of an appeals process to turn, missing her granddaughters and hoping somehow to be reunited.
"I don't think I will ever be the same," she said. "The only thing that will make me whole again is my grandchildren.