In the Interest of A.C., B.C., and P.C., Minor Children

• Court: Court of Appeals of Iowa
• Decided: June 5, 2024
• Docket: 24-0435
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0435 Filed June 5, 2024

IN THE INTEREST OF A.C., B.C., and P.C., Minor Children,

P.C., Father, Appellant/Cross-Appellee,

C.C., Mother, Appellee/Cross-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Poweshiek County,

Richelle Mahaffey, Judge.

A father appeals and the mother cross-appeals from a dispositional order in

a child-in-need-of-assistance proceeding. AFFIRMED ON APPEAL AND

CROSS-APPEAL.

Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for

appellant/cross-appellee father.

Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellee/cross-

appellant mother.

Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney

General, for appellee State.

Rebecca L. Petig of Bierman and Petig, P.C., Grinnell, attorney and

guardian ad litem for minor children.

Considered by Tabor, P.J., and Greer and Schumacher, JJ. 2

SCHUMACHER, Judge.

A father appeals the dispositional order, challenging the continued removal

of three children from his custody. The father also challenges the district court’s

determination that the guardian ad litem (GAL) did not have a conflict of interest

necessitating removal. The mother of two of the children cross-appeals,

challenging the district court’s grant of concurrent jurisdiction as to child support

only, the allowance of the paternal grandparents as supervisors for some of the

father’s visitation, and the award of specific visitation for the father.

I. Background Facts and Prior Proceedings

A.C., born in 2013, B.C., born in 2017, and P.C., born in 2019, are the

children of the father. B.C. and P.C. are also the children of the mother.1 A.C.’s

mother is deceased.2

The family first came to the attention of the Iowa Department of Health and

Human Services (HHS) due to physical violence and substance abuse. There

were allegations of physical violence by the father against the mother and against

the children. B.C. and P.C. were adjudicated children in need of assistance (CINA)

in October 2023. Following a hearing on an Iowa Code chapter 236 (2023) civil

protective order in December, the district court granted the mother sole custody of

B.C. and P.C. But as A.C. was not the biological child of the mother, the district

1 Two other children are involved in the juvenile proceedings but are not involved

in this appeal. B.S. and J.W. are the children of the mother but are not the children of the father in the instant appeal. The fathers of B.S. and J.W. have not appealed. 2 As part of the dispositional order, the court also found that A.C. was an Indian

child and that the Indian Child Welfare Act was applicable to A.C. only. 3

court declined to address custody of A.C. HHS sought a removal order from the

father’s custody for A.C., which was granted in December.

A combined uncontested adjudication hearing for A.C. and a contested

dispositional hearing for all three children was held in February. A.C. was

adjudicated CINA and remained outside of his father’s custody following the

dispositional hearing. P.C. and B.C. were formally removed from their father’s

custody in the dispositional order. All three children were placed in the mother’s

custody. The court determined that removal of the children from their father

outweighed the potential harm of removal, including, but not limited to, physical,

emotional, social, and mental trauma resulting from the removal and that custody

with the father was contrary to the children’s welfare.

The mother and father were married but separated. The mother requested

that the court grant concurrent jurisdiction so she could litigate issues of child

support, spousal support, and “other custody and property matters.” The court

granted her request for concurrent jurisdiction as to child support.

The court found that reasonable efforts had not been made with respect to

the father between December 18 and February 8. The court set a visitation

schedule, granting the father a minimum of five hours of professionally supervised

visits a week and allowing the paternal grandparents to supervise any additional

visitation.

The father requested the children’s GAL be removed due to a conflict of

interest. The court denied this request. 4

II. Standard of Review

We review CINA proceedings de novo. In re A.M.H., 516 N.W.2d 867, 870

(Iowa 1994). We give weight to the district court’s factual findings, but we are not

bound by them. In re L.B., 970 N.W.2d 311, 313 (Iowa 2022). “[O]ur fundamental

concern is the best interests of the child[ren].” In re K.N., 625 N.W.2d 731, 733

(Iowa 2001).

III. Discussion

The father argues the district court “erred in finding removal as to B.C. and

P.C., and continued removal as to A.C., was appropriate under Iowa Code

Section 232.95.” He asserts the court did not make the “least restrictive disposition

appropriate” under Iowa Code section 232.99(4). And the father argues “[t]he court

erred in determining that the guardian ad litem did not have a conflict of interest

that necessitated her removal from the case.”

The mother cross-appeals, arguing the district court erred “by granting

concurrent jurisdiction only as to child support,” “by directing [HHS] to allow” the

paternal grandparents “to supervise visitation with the children,” and “by directing

a certain number of hours of visitation when a period of no visitation or more

restricted visitation is in the children’s best interest.”

A. Legal Custody

Following the dispositional hearing, the district court ordered the removal of

B.C. and P.C. and the continued removal of A.C. from the father’s custody. The

father asserts removal was not appropriate under sections 232.95 and 232.99.

Section 232.99(4) states: “When the dispositional hearing is concluded the

court shall make the least restrictive disposition appropriate considering all the 5

circumstances of the case.” The dispositions available to the court include

suspended judgment, retention of custody by a parent, appointment of a guardian,

and transfer of legal custody of child and placement. See Iowa Code

§§ 232.99(4) 232.100, .101, .101A, .102.

All three children were placed in the custody of the mother, who is the

biological mother of B.C. and P.C. and the stepmother of A.C. This followed the

father’s extended history of spousal abuse and inappropriate punishment of the

children. After concluding the father physically abused the mother in front of the

children, the district court noted, “not only is it abhorrent that the children witnessed

[the father] abusing their mother, but that it is emotionally and mentally harmful

and dangerous to their well-being.”

The father argues he has “made excellent progress” and has attended

regular therapy to address anger management. This therapy began in

September 2023, with the family participating in HHS services since May 2023. A

founded child abuse assessment in October 2023 detailed abuse by the father.

The court noted the father’s testimony “showed a lack of understanding regarding

his dangerous behavior.” We have found it necessary “that the parents

acknowledge and recognize the abuse before any meaningful change can occur

is essential in meeting the child’s needs.” See In re H.R.K., 433 N.W.2d 46, 50

(Iowa Ct. App. 1988).

The father also argues the court failed to make the least restrictive

disposition appropriate. See Iowa Code § 232.99(4). B.C. and P.C. were placed

with their mother; A.C. was placed with his stepmother in the same household as

his siblings. When considering the least restrictive placement, the placement must 6

be in the best interests of the child. See In re K.P., No. 11-1869, 2012

WL 2122227, at *7 (Iowa Ct. App. Jun. 13, 2012). Iowa Code

section 232.102(1)(a) states that

After a dispositional hearing, the court may enter an order transferring the legal custody of the child to a parent of the child. If the court finds that custody with either of the child’s parents is not in the child’s best interests, the child’s custody shall be transferred to the department for placement of the child in any of the following categories in the following order of priority: (1) An adult relative of the child including but not limited to adult siblings and parents of siblings.

B.C. and P.C. were placed with a parent, and A.C. was placed with the

parent of a sibling. “[U]ntil the parent can establish the ability to parent the child

safely, the least restrictive disposition is for the child to be placed with others.” In

re A.G., No. 15-0115, 2015 WL 1849520, at *4 (Iowa Ct. App. Apr. 22, 2015).

Placement with the mother, outside the custody of the father, who has yet to fully

address issues with physical abuse, was warranted. See id.; see also Iowa Code

§ 232.99. We conclude that continued removal from the father is in the children’s

best interest and placement with the mother was the least restrictive disposition

available under Iowa Code section 232.99. While the goal remains reunification,

custody of the children with their father is currently contrary to their welfare.

B. Removal of the Guardian ad Litem

The father also contends that the court improperly denied his motion to

remove the GAL for a conflict of interest. He alleges the GAL has a conflict of

interest stemming from her position as a part-time magistrate in Poweshiek

County. In that position, the GAL presided over a case in which the father was

charged with violation of a no-contact order in June 2019. The mother was the 7

protected party under that no-contact order, and the GAL found the father guilty of

that charge. The father argues the GAL’s subsequent involvement in this CINA

proceeding implicates Iowa Rules of Professional Conduct 32:1.7 and 32:1.12.

“[A] conflict exists when an attorney is placed in a situation conducive to

divided loyalties.” State v. Watson, 620 N.W.2d 233, 239 (Iowa 2000) (citation

omitted). Iowa Rule of Professional Conduct 32:1.7(a) states:

[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.

The father does not explain the alleged conflict under rule 32:1.7. The GAL is not

representing the father, and therefore 32:1.7 cannot apply to create any conflict

under these circumstances.

Rule 32:1.12 is entitled “Former judge, arbitrator, mediator, or other third-

party neutral.” It states:

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

The father was involved in a 2019 violation of a no-contact order proceeding, but

such was separate from the instant proceedings. The GAL was not involved in the

CINA proceeding as a magistrate, and therefore we find rule 32:1.12 is also

inapplicable in this situation. 8

Because “a conflict exists when an attorney is placed in a situation

conducive to divided loyalties,” Watson, 620 N.W.2d at 239 (citation omitted), there

is not a conflict requiring the removal of the GAL.

C. Concurrent Jurisdiction

In her cross-appeal, the mother argues the district court should have

granted concurrent jurisdiction not only as to child support, but also as to custody,

spousal support, and property distribution.

Iowa Code section 232.3(2) allows that “[t]he juvenile court with jurisdiction

of the pending action under this chapter, [ ] may, . . . authorize the party to litigate

concurrently in another court a specific issue relating to the custody, guardianship,

or placement of the child who is the subject of the action.” The mother argues she

is in a difficult financial situation caring for the children, and “allowing concurrent

jurisdiction only for child support for 2 children does not adequately address the

need to distribute the marital assts in an equitable manner.”

“The juvenile court has exclusive jurisdiction over the custody and

placement of a child who is subject to CINA proceedings.” In re N.S.,

No. 00-0727, 2001 WL 98571, at *3 (Iowa Ct. App. Feb. 7, 2001). But “[t]he

juvenile court has the legal discretion to authorize concurrent jurisdiction and must

exercise this discretion in the children’s best interests.” In re T.B.,

No. 17-0619, 2017 WL 2875886, at *1 (Iowa Ct. App. July 6, 2017).

While the mother requested that the court grant concurrent jurisdiction as

to several dissolution-related issues, the court limited concurrent jurisdiction to

child support. In doing so, the court stated: 9

the Court does find that it is appropriate to grant concurrent jurisdiction for the limited purpose of allowing [the mother] to seek child support. The testimony at the hearing showed that [the mother] is under a serious financial burden caring for all five children. While [the father] has voluntarily contributed some money to a shared bank account, it is not enough to meet the needs of the children and to pay the family bills. Additionally, funds are withdrawn from that account for debts that are solely associated with [the father], including his car payment. The best interests of the children would be served by allowing [the mother] to pursue child support in District Court.

In granting concurrent jurisdiction, the best interests of the children control.

In re B.H., No. 06-0009, 2006 WL 470220, at *1 (Iowa Ct. App. Mar. 1, 2006); In

re R.J.H., No. 03-1119, 2003 WL 22017283, at *1 (Iowa Ct. App. Aug. 27, 2003).

Additionally, in authorizing concurrent jurisdiction, “[t]he juvenile court has the legal

discretion to authorize a party to litigate concurrently a specific issue relating to

custody, guardianship, or placement of a child who is the subject of a pending

juvenile action.” In re R.G., 450 N.W.2d 823, 825 (Iowa 1990). On our review, we

see no reason to disturb the court’s ruling on this issue.

D. Visitation Supervision by the Paternal Grandparents

The mother challenges the district court’s ruling that allowed the children’s

paternal grandparents to supervise visitation with the father. The mother argues

this visitation schedule is not in the best interests of the children, and “the court

has the authority to order unsupervised or supervised visits for the parents but

does not have the authority to order that certain people supervise the visits.” 3

We first note that “the nature and extent of visitation is always controlled by

the best interests of the child.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.

3 Despite her assertion that the court lacks authority, the mother provides no citation to support this claim. 10

App. 1996). The State and the father argue that since HHS must make every

reasonable effort toward reunification “consistent with the best interests of the

[children],” In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (citation omitted),

visitation supervised by the paternal grandparents is warranted as it is consistent

with the goal of reunification while maintaining the best interests of the children.

The court found supervision by the grandparents presents no safety

concern for the children. Although our review is de novo, we give weight to the

findings of the district court. L.B., 970 N.W.2d at 313. The social casework

manager testified that there were no safety concerns about supervision by the

paternal grandparents, and the court’s order allowed for HHS to revoke the

paternal grandparents’ supervision privileges should a safety concern arise. The

court’s order is consistent with the best interests of the children. See M.B., 553

N.W.2d at 345.

E. Visitation with the Father

Finally, the mother argues the court erred in ruling that the father would

have a right to a minimum of five hours of visitation with the children each week.

She argues this visitation is excessive and not in the best interests of the children.

“The power of the juvenile court in CINA proceedings includes

determination of visitation rights of parents.” In re K.R., 537 N.W.2d 774, 777

(Iowa 1995). And “[v]isitation between a parent and child is an important ingredient

to the goal of reunification.” M.B., 553 N.W.2d at 345. The best interests of the

children control. Id. The father and the State point to Iowa Code section 232.102A,

which requires HHS to make reasonable efforts toward reunification. Reasonable

efforts toward reunification include “visitation designed to facilitate reunification 11

while providing adequate protection for the child.” In re C.B., 611 N.W.2d 489, 493

(Iowa 2000).

The court here found the previous amount of visitation to be “unacceptable,”

and it noted “[v]isitation with [the father’s] children has been stymied.” Prior to the

hearing, the father had only received five visits over seventy-five days. Because

of this, the court concluded that HHS was not making reasonable efforts to reunify.

Considering visitation is important in the process of reunification, and reasonable

efforts must be made toward that end, we affirm the visitation guidelines crafted by

the district court. See M.B., 553 N.W.2d at 345; see also C.B., 611 N.W.2d at 493.

IV. Conclusion

Continued removal of the three children from the father’s custody was

warranted in light of the father’s failure to address a history of physical abuse and

was in the children’s best interest. It is contrary to the children’s welfare to be in

the father’s custody and placement with the mother is the least restrictive

placement available. We affirm the court’s denial of the father’s motion to remove

the GAL, the court’s grant of concurrent jurisdiction as to child support only, the

specific visitation awarded to the father, and allowance of supervision of the

father’s visitation by the paternal grandparents.

AFFIRMED ON APPEAL AND CROSS-APPEAL.