In the Interest of A.F., Minor Child, D.F., Mother

• Court: Court of Appeals of Iowa
• Decided: August 16, 2017
• Docket: 17-0919
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-0919 Filed August 16, 2017

IN THE INTEREST OF A.F., Minor Child,

D.F., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,

District Associate Judge.

A mother appeals from a permanency order. AFFIRMED.

Natalie Hope Cronk of Cronk & Waterman, P.L.C., Iowa City, for appellant

mother.

Thomas J. Miller, Attorney General, and Mary A. Triick and Ana Dixit,

Assistant Attorneys General, for appellee State.

Kimberly Ann Opatz of Linn County Advocate, Cedar Rapids, guardian ad

litem for minor child.

Considered by Danilson, C.J., and Tabor and McDonald, JJ. 2

MCDONALD, Judge.

This case arises out of a child-in-need-of-assistance proceeding. Deloris,

the mother, appeals from the juvenile court’s amended permanency order as to

her child, A.F. (born 2013).1 The amended permanency order provided custody

of A.F. would be returned to Deloris under the protective supervision of the Iowa

Department of Human Services (“IDHS”). The order further provided for

concurrent jurisdiction to allow A.F.’s father, Paul, to proceed in the district court

regarding issues of custody, visitation, and child support. Finally, the amended

permanency order granted IDHS discretion to implement an appropriate

interaction plan for A.F. and his parents. On appeal, Deloris contends the

juvenile court (1) erred in denying her motion to dismiss the child-in-need-of-

assistance proceeding, (2) erred in returning custodial rights to her but modifying

the parents’ pre-existing physical care arrangement, and (3) unconstitutionally

delegated its authority to determine custody and visitation to IDHS.

Our review in child-in-need-of-assistance proceedings is de novo. See In

re D.D., 653 N.W.2d 359, 361 (Iowa 2002). We examine both the facts and the

law, and we adjudicate anew issues properly preserved and presented for

appellate review. See In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995).

Deloris’s first claim is the juvenile court should have dismissed the

assistance proceeding because she no longer posed any risk of harm to A.F.

The record reflects the child was removed from Deloris’s care in March 2016 due

to concerns regarding Deloris’s inability to provide adequate supervision and

1 Deloris has two other children. She did not appeal the permanency order as to one of the children, and her appeal as to the other child was dismissed as untimely by the supreme court. 3

care for the child and due to concerns regarding Deloris’s use of controlled

substances, including marijuana and methamphetamine. A.F. was placed with

Paul, who, up to that point in time, had largely been uninvolved in A.F.’s life.

Deloris made significant progress throughout the life of the case. She began

treatment for her mental-health conditions and ceased using controlled

substances. Her interactions with A.F. improved, and her contact with A.F.

increased over time. By the time of the permanency review hearing, the attorney

for the State reported, with respect to A.F., “Deloris has done everything that

she’s been required to do.”

Although Deloris made significant progress in addressing the concerns

giving rise to removal, the juvenile court was not required to dismiss the

assistance proceeding. Instead, the decision to dismiss or close an assistance

proceeding is within the broad discretion of the juvenile court. See In re E.H.,

No. 02-0764, 2003 WL 289596, at *1 (Iowa Ct. App. Feb. 12, 2003). A juvenile

court may terminate a dispositional order if the court determines “[t]he purposes

of the order have been accomplished and the child is no longer in need of

supervision, care, or treatment” or “[t]he purposes of the order have been

sufficiently accomplished and the continuation of supervision, care, or treatment

is unjustified or unwarranted.” Iowa Code § 232.103(4)(a), (d) (2016).

Under the circumstances, we cannot conclude the district court abused its

broad discretion in declining to dismiss this assistance proceeding. The trial

home placement of A.F. with Deloris was relatively new. The juvenile court had

not inappropriate concern regarding Deloris’s ability to maintain the positive

changes. The juvenile court had not inappropriate concern regarding the child’s 4

ongoing adjustment to the new parenting arrangement. The juvenile court

indicated that it would consider closing the case in due course but that it wanted

to exercise caution at the time of the hearing. This was a prudent course of

action under the circumstances. We find no abuse of discretion.

Deloris next challenges the juvenile court’s decision to continue the de

facto shared-care arrangement. She contends the juvenile court was required to

restore the status quo ante—that is, the juvenile court was required to grant her

primary physical care of the child, which was the care arrangement prior to the

initiation of this assistance proceeding. We disagree. The juvenile court has

broad power to act in the best interest of the child, including the power over

custody, care, and visitation with the child. See Iowa Code § 232.104(5) (“Any

permanency order may provide restrictions upon the contact between the child

and the child’s parent or parents, consistent with the best interest of the child.”);

In re K.R., 537 N.W.2d 774, 777 (Iowa 1995) (providing the juvenile court has

exclusive jurisdiction over custody, guardianship, care, and visitation during a

pending assistance proceeding); In re T.M., No. 11-0307, 2011 WL 1584586, at

*1 (Iowa Ct. App. Apr. 27, 2011) (affirming permanency order granting IDHS the

discretion to manage contact between the child and parents). Here the juvenile

court took a cautious step toward reunification, which was reasonable under the

circumstances.

Finally, Deloris asserts a constitutional challenge to the amended

permanency order. She contends affording IDHS discretion to implement an

interaction plan is an unconstitutional delegation of judicial power to the

executive branch. Deloris is correct in asserting that it is exclusively the province 5

of the court to determine custody, care, and visitation arrangements. See In re

Marriage of Stephens, 810 N.W.2d 523, 530–31 (Iowa Ct. App. 2012) (“The

legislature has granted to the court the responsibility to make an impartial and

independent determination as to what is in the best interests of the child . . . .”).

A court may not delegate this power to a third party. See id.; In re S.P., No. 16-

1919, 2017 WL 108798, at *5 (Iowa Ct. App. Jan. 11, 2017) (“The juvenile court

may not delegate its judicial function to any third party . . . .”). Here, however,

there was no delegation of power. The juvenile court made the custody and care

determination and afforded the agency discretion to implement the court’s

decision in the best interest of the child. This was a permissible exercise of the

juvenile court’s authority. See, e.g., T.M., 2011 WL 1584586, at *1 (affirming

disposition order “giving DHS discretion to manage the contact between [the

child] and his father”); In re J.L., No. 10-0041, 2002 WL 100501, at *3 (Iowa Ct.

App. Jan. 28, 2002) (stating “[t]here is statutory and case law to support the

juvenile court’s” delegation to the agency of discretion in implementing a

visitation arrangement).

For the above-stated reasons, we affirm the judgment of the juvenile court.

AFFIRMED.