In the Interest of C.H. and D.H., Minor Children

• Court: Court of Appeals of Iowa
• Decided: January 23, 2019
• Docket: 18-1828
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1828 Filed January 23, 2019

IN THE INTEREST OF C.H. and D.H., Minor Children,

W.H., Father, Appellant,

C.H., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Winnebago County, Karen Kaufman

Salic, District Associate Judge.

A mother and father separately appeal a permanency order involving their

two children. AFFIRMED IN PART AND REVERSED IN PART ON BOTH

APPEALS.

Michael J. Moeller of Sorensen & Moeller Law Office, Clear Lake, for

appellant father.

Jane M. Wright, Forest City, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Phillip Garland, Garner, guardian ad litem for C.H.

Theodore J. Hovda, Garner, guardian ad litem for D.H.

Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ. 2

VAITHESWARAN, Judge.

A mother and father separately appeal a permanency order involving their

two children, born in 2002 and 2004. They contend the district court (1) should not

have denied their request to cancel a no-contact order preventing interaction with

their children; (2) should have lifted a sequestration order which prohibited

disclosure of the children’s locations; and (3) should have concluded that the

department of human services failed to make reasonable efforts toward

reunification.

I. Background Facts and Proceedings

The department became involved with the family after the older sibling was

alleged to have sexually abused the younger child. The older child was transferred

to a youth shelter and became the subject of a delinquency petition. The younger

child initially remained with the parents. The district court ordered him removed

from the home after the father obtained permission to take the older child from the

shelter to a designated city within the State but instead took him to an unauthorized

out-of-state location.

At the time of the younger child’s removal, the State sought an order

prohibiting contact between the parents and younger child or, in the alternative,

supervised contact. The State cited the father’s removal of the older child from the

State. The district court issued a “Chapter 232 protective order” restraining the

parents from having “any contact with” the younger child.

The mother moved to have the protective order modified but, in the interim,

she and the father left the State and failed to maintain contact with the department

or service providers. Eventually, the father was found in Tennessee and was 3

arrested on an outstanding warrant. Authorities returned him to Iowa, where he

was jailed pending sentencing on an unrelated criminal matter. The mother

returned to Iowa with the father. According to a department report, the children

were “extremely confused and distraught about their parents’ disappearance.”

During the parents’ five-month absence, the district court entered what it

characterized as a “sequestration order” prohibiting disclosure of contact

information regarding the children. After the mother returned, she sought to have

the order lifted. She also reasserted her request to have the no-contact order

canceled and asked the court to ensure the department made reasonable efforts

toward reunification. The father filed similar motions.

The court modified the no-contact order to permit written communication

between the mother and the younger child but required “no mention of Father in

the letters.” Following a permanency hearing, the court filed a permanency order

addressing all the outstanding issues. The court declined to modify the no-contact

order any further, denied the motion to lift the sequestration order, and concluded

the department made reasonable reunification efforts. The parents appealed.

II. No-Contact Order

The parents raise constitutional challenges to the no-contact order.

Because constitutional issues were neither raised nor decided in the district court,

we conclude error was not preserved for our review. See M.D. v. K.A., ___ N.W.2d

___, ___, 2018 WL 6259488, at *7 (Iowa 2018) (“[W]e should not decide an

important constitutional matter on appeal when the [parent] failed to preserve [the]

argument for appeal.” (Christensen, J., concurring in part and dissenting in part)).

We will only address their non-constitutional challenge to the no-contact order. 4

The mother argues the restrictions on contact “severely limit[] Parents’

ability to work towards reunification.” The father makes a similar argument.

On our de novo review, we agree the no-contact order limited one of the

primary reunification services—visitation with the children.1 That said, the father

took the older child out of the State without permission, failed to appear for a

criminal proceeding, and evaded a warrant. Additionally, the record contains

disputed and unresolved allegations that the father facilitated the sexual abuse of

the younger child, allegations that warranted retaining the no-contact order against

the father. We conclude the district court acted appropriately in leaving the no-

contact order in place with respect to the father. See Iowa Code § 232.104(5)

(2017) (“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.”).

As for the mother, she followed the father when he left the State and she

remained incommunicado for several months. Although she reengaged in

reunification services on her return to Iowa, her lengthy absence justified the

court’s decision to modify rather than lift the no-contact order. Commendably, the

mother made sufficient progress that the department caseworker and a service

provider testified they would not oppose further easing of the contact restrictions.

We conclude this gradual approach, which was approved by the district court,

served the dual purposes of protecting the child from further trauma and fostering

1 The protective order listed the younger child as the protected party, but all concerned appear to concede the parents were also prohibited from interacting with the older child. 5

III. Sequestration Order

The original sequestration order stated: “Pursuant to the State’s motion, . . .

the circumstances justify withholding information regarding the location of the

children from the parents.” Following the permanency hearing, the district court

denied the motion to lift the sequestration order after noting the “risk of abduction”

remained and, once the children’s contact information was disclosed, it could not

be “taken back.” The court also addressed the department’s request to have the

parents sign releases allowing communication between their therapists and the

children’s therapist:

While [the sequestration order] does require a lot of extra work on everyone’s part, it should be clear to parents what they need to work on. Discussions between their therapists and the children’s is appropriate to ensure that parents are working on areas that need to be address[ed] and to be able to make assessments about how to safely move forward with more contact. Obviously, if Father continues to deny his role in the abuse of the children and Mother continues to refuse to believe the abuse happened, whether they ever get to talk directly to the children’s therapists is moot.

The parents again raise constitutional challenges to the sequestration

order. Those challenges are not preserved for our review. See K.A., ___ N.W.2d

at ___, 2018 WL 6259488, at *7. The mother also argues “[t]he sequestration

order makes it such that Parents have no ability to know where the children are

located, what facility the children are living in, who the children are seeing for

counseling, and no ability to provide information to or with the foster parents or

placements of the children.” The father makes a similar argument.

By its terms, the original sequestration order only prohibited the

dissemination of information about the location of the children. However, as

interpreted by the department and reaffirmed by the district court, the order also 6

precluded the dissemination of information generated by service providers who

interacted with the children. On our de novo review, we are not persuaded that

the State established the continued need for either aspect of the sequestration

order.

First, with respect to the prohibition on disclosing the children’s location

given the ongoing risk of abduction, the no-contact order as to the father and the

modified no-contact order as to the mother sufficed to protect the children. The

department failed to prove an ongoing need for the additional sequestration order.

Indeed, the department caseworker conceded the parents already knew where the

younger child was located and had “not made any attempts to have contact with

him.” She also noted the father was on probation and his probation officer had

authority to control his travel. In light of these concessions, the component of the

sequestration order prohibiting disclosure of the children’s location was essentially

moot.

We turn to the portion of the order prohibiting the dissemination of any

information generated by service providers, including therapists who counseled

the children. The mother’s attorney pointed out that, as it stood, “the parents [had]

no idea what issues need to be addressed through the counselors,” making it “very

difficult” to work toward reunification. He also addressed the department’s request

to have the parents sign releases allowing their therapists to communicate with the

children’s therapist. He noted releases are a “two-way street” and the department

wanted parental information yet, at the same time, wanted to “limit the ability for

the parents to subpoena any information from those providers.” Counsel summed

up as follows: 7

The attorneys for parents’ have no ability to question or cross examine any of the children’s providers that have been relied upon by the State to present their reasons for restricting contact or for parents or their attorneys to question the providers on what issues the children are having, with zero input of parent’s in their treatment.

The father essentially seconded these arguments.

On our de novo review, we agree that the portion of the sequestration order

that was construed to prohibit dissemination of provider information to the parents

stymied parental efforts to work toward reunification. Without an understanding of

the areas of concern, they were hard-pressed to address those concerns.

Additionally, the department failed to articulate how parental knowledge of service-

provider concerns would harm the children.

We conclude the sequestration order was essentially moot, overbroad if

construed to preclude the dissemination of provider information to the parents, and

duplicative of the no-contact order. Accordingly, we reverse the denial of the

parents’ motion to lift the sequestration order.

IV. Reasonable Efforts

The department has an obligation to make reasonable efforts toward

reunification of parent and child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).

The parents argue the department failed to fulfill this mandate. On our de novo

review, we disagree.

The department furnished a host of services to address the circumstances

that led to the children’s removal. Although most were geared to the children, the

parents were unavailable to engage in reunification services for a lengthy period

of time. When they returned, they had to start from scratch. Under these

circumstances, we conclude the department satisfied its reasonable-efforts 8

mandate. See In re D.T., 435 N.W.2d 323, 330 (Iowa 1989) (“[T]he juvenile court’s

no contact order and the juvenile authorities’ insistence on therapy for the family

constituted reasonable efforts to prevent or eliminate the necessity for the removal

of the two children from the home.”).

V. Disposition

We affirm all aspects of the permanency order except the portion denying

the parents’ motion to lift the sequestration order. We reverse that portion of the

AFFIRMED IN PART AND REVERSED IN PART ON BOTH APPEALS.