B.L. v. Iowa District Court for Johnson County

470 N.W.2d 343
CourtSupreme Court of Iowa
DecidedMay 15, 1991
DocketNos. 90-679, 90-1530 and 91-393
StatusPublished
Cited by12 cases

This text of 470 N.W.2d 343 (B.L. v. Iowa District Court for Johnson County) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.L. v. Iowa District Court for Johnson County, 470 N.W.2d 343 (iowa 1991).

Opinion

SCHULTZ, Justice.

We have consolidated two appeals and a certiorari action that challenge the juvenile court orders in a child-in-need-of-assistance (CINA) proceeding involving B.L., a nine-year-old boy with behavior problems. In the first appeal, H.L., the mother, appealed orders that continued placement of B.L. with his father, D.B., but did not determine whether the child could be returned to her. Later, the child commenced an original cer-tiorari action in this court, maintaining that the juvenile court acted illegally by ruling that it did not have jurisdiction to order a report on the child’s status and to schedule this report for in-court review during the pendency of an appeal. A limited remand was ordered in the certiorari action, which led to the mother’s second and final appeal, challenging a ruling on remand which dismissed the case. On the first appeal, we affirm the court of appeals’ decision and reverse and remand to the juvenile court; we sustain the writ of certiorari; and we reverse and remand on the second appeal.

B.L. was born in 1982 to unwed parents. The mother raised the child from birth until age seven. The mother had very limited involvement with the father who was not even aware of B.L.’s birth until B.L. was about one-year old. Thereafter, the father had very little contact with the boy. The father did not pay support until B.L. was over six years of age, and he was forced to do so following a paternity action. The father never requested nor received any custodial or visitation rights, except for the rights received in this juvenile proceeding.

In 1988, the mother was experiencing problems with B.L. and B.L.’s older half-sister, a child also born out of wedlock. [345]*345The Department of Human Services (department) was assisting the family and filed a CINA petition in December 1988. B.L.’s father learned of these proceedings and appeared at the hearing. The children were found to be in need of assistance although they were allowed to remain with their mother under the protective supervision of the department. In June 1989, the sister was placed in a residential group home and, by an order modifying disposition, B.L. was placed in his father’s home.

In January 1990, the mother filed an application for modification of the prior dispositional order and requested that custody of B.L. be restored to her. The juvenile court denied her request and approved the department’s goal of keeping B.L. in his father’s home. This resulted in the first appeal. Later, we will discuss the proceedings that preceded the certiorari action and second appeal.

I. First appeal. The mother’s request for a modification of the dispositional order requires a determination of which statutory provision was utilized by the juvenile court in placing B.L. with his father. After a dispositional hearing, the court may enter an order either “permitting the child’s parent, guardian or custodian at the time of the filing of the petition to retain custody of the child ...,” Iowa Code § 232.101(1),1 or “transferring the legal custody of the child to ... [a] relative or other suitable person.” Iowa Code § 232.102(l)(a).

The goals of a child’s placement and the next step in juvenile proceedings vary with the type of placement. If a child is placed pursuant to section 232.101, the child remains at home with the parent and may be subject to the terms and conditions set by the court, such as special treatment for health concerns, for a period of no more than eighteen months. Iowa Code § 232.101. Conversely, placement of a child pursuant to section 232.102 takes the child out of his or her home. If a child is placed with a relative, the court may direct the department to provide services to the parent “in order to enable them to resume custody of the child.” Iowa Code § 232.102(6). Additionally, the court is required to hold periodic dispositional review hearings “in order to determine whether the child should be returned home” and whether “[t]he placement shall be terminated and the child returned to the child’s home if the court finds by a preponderance of the evidence that the child will not suffer harm in the manner specified in section 232.2, subsection 6.” Iowa Code § 232.102(7).

The goal of B.L.’s placement with the father and the appropriate steps to be taken next in the juvenile proceedings are central issues of this appeal. In its disposi-tional hearing the juvenile court did not specify which section it utilized in placing B.L. in his father’s home. The father claims that B.L.’s placement with him was made under section 232.101(1) pursuant to his status as a parent. The express words of subsection 1 state that the court may permit a parent “to retain custody.” The verb “retain” means “to continue to hold ... and to keep.” Black’s Law Dictionary 1479 (rev. 4th ed. 1968). Therefore, to qualify as a parent who may retain custody under section 232.101(1), B.L.’s father must show not only that he is a parent, but also that he had a right to custody of B.L.

Previously, B.L.’s father never had actual custody of B.L. Therefore, we must determine whether the father had any legal custody rights. The legislature has prescribed the rights of legal custody and visitation of a child born out of wedlock as follows:

The mother of a child born out of wedlock whose paternity has not been acknowledged ... has sole custody of the child unless the court orders otherwise. If a judgment of paternity is entered, the father may petition for rights of visitation or custody in an equity proceeding separate from any action to establish paternity.

Iowa Code § 675.40. The first sentence of this section places sole custody of a child with the mother unless the paternity has [346]*346been “acknowledged.” The second sentence allows the father to petition the court for custody rights after paternity is legally established. In this case, B.L.’s father admits that he never sought nor obtained visitation or custody rights in any legal action. He bases his claim of an existing custody right on his “acknowledgment of paternity.” The mother claims that the father’s acknowledgment came too late to provide custody rights.

Section 675.40 allows the mother the right of sole custody in the absence of the father’s acknowledgment of paternity. This statute does not specify when the mother’s right of sole custody commences. However, the best interests of a child dictate that the permissible time period during which the father may acknowledge paternity be short to eliminate prolonged uncertainty about the identity of the child’s custodian. Common sense leads us to the conclusion that the legislature never intended to allow the putative father to silently stand back for an extended period of time, acknowledge paternity of a child at a convenient time, and then claim joint custodial rights.

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Bluebook (online)
470 N.W.2d 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bl-v-iowa-district-court-for-johnson-county-iowa-1991.