In the Interest of J.L., Minor Child, D.L., Father

• Court: Court of Appeals of Iowa
• Decided: April 27, 2016
• Docket: 16-0409
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0409 Filed April 27, 2016

IN THE INTEREST OF J.L., Minor child,

D.L., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Daniel L.

Block, Associate Juvenile Judge.

Stepfather appeals from a dispositional order continuing his stepson in the

custody of the department of human services for placement in family foster care.

AFFIRMED.

Linda A. Hall of Linda Hall Law Firm & Mediation Services, P.L.L.C.,

Cedar Falls, for appellant father.

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

General, for appellee State.

Melissa A. Anderson-Seeber of the Juvenile Public Defender’s Office,

Waterloo, for minor child.

Considered by Potterfield, P.J., and Mullins and McDonald, JJ. 2

MCDONALD, Judge.

The child at issue, J.L., was born in September 2015. The child was

removed from the mother, Melanie’s, care due to Melanie’s methamphetamine

use and demonstrated inability to care for the newborn. Melanie has had four

other children removed from her care for similar reasons. Subsequent to

removal of the child, Melanie married Derek. Derek is not the biological father of

the child at issue. The child was adjudicated in need of assistance (“CINA”), and

the matter came on for dispositional review hearing. Derek now appeals from a

dispositional order providing custody of J.L. shall remain with the Iowa

Department of Human Services (IDHS) for placement in family foster care.

We review CINA proceedings de novo. See In re D.D., 653 N.W.2d 359,

361 (Iowa 2002). We examine both the facts and law, and we adjudicate anew

those issues properly preserved and presented. See In re L.G., 532 N.W.2d 478,

480–81 (Iowa Ct. App. 1995). We give weight to the findings of the juvenile

court. See In re E.H. III, 578 N.W.2d 243, 248 (Iowa 1998). While doing so, our

statutory obligation to review adjudication proceedings de novo means our

review is not a rubber stamp of what has come before. “The most important

consideration in any CINA case is the best interests of the child.” D.D., 653

N.W.2d at 362.

“Following the entry of an order pursuant to section 232.96, the court shall,

as soon as practicable, hold a dispositional hearing in order to determine what

disposition should be made of the petition.” Iowa Code § 232.99(1) (2015).

“When the dispositional hearing is concluded the court shall make the least

restrictive disposition appropriate considering all the circumstances of the case.” 3

Iowa Code § 232.99(4). The code sets forth possible dispositions in sections

232.100 through 232.102, from least restrictive to most restrictive. Suspending

judgment is the least restrictive alternative. See Iowa Code § 232.100. Transfer

of legal custody and placement away from the parent is the most restrictive. See

Iowa Code § 232.102. Within section 232.102, several alternatives are provided,

including placement with another parent, relative, or suitable person; placement

with a child-placing agency, facility or institution; or placement with IDHS. See

Iowa Code § 232.102(1)(a)(1)-(3). Our supreme court has interpreted these

sections to favor placement with a relative over placement with a non-relative.

See In re N.M., 528 N.W.2d 94, 97 (Iowa 1995). However, because the best

interest of the child is the primary concern, the juvenile court is not required to

order placement with relatives over other alternatives. See, e.g., In re T.H., No.

02–1844, 2003 WL 21543837, at *2 (Iowa Ct. App. July 10, 2003) (affirming

placement in foster care over placement with grandmother).

Here, the juvenile court chose the most restrictive disposition—transfer of

custody for placement into foster care. Custody may be transferred by the

juvenile court if it finds by clear and convincing evidence that “(1) [t]he child

cannot be protected from physical abuse without transfer of custody; or (2) [t]he

child cannot be protected from some harm which would justify the adjudication of

the child as a [CINA] and an adequate placement is available.” Iowa Code

§ 232.102(5)(a). Clear and convincing evidence is more than a preponderance

of the evidence and less than evidence beyond a reasonable doubt. See In re

L.G., 532 N.W.2d 478, 481 (Iowa Ct. App. 1995). 4

Derek contends the least restrictive disposition appropriate is placement of

the child with him, as the father of the child. The argument fails for two reasons.

First, Derek is not the father of the child within the meaning of Iowa Code

chapter 232. He is not the biological father or adoptive father of the child. See In

re J.C., 857 N.W.2d 495, 505 (Iowa 2014) (holding “parent” within the meaning of

chapter 232 is limited to a biological parent or an adoptive parent). Nor is he the

established father or legal father of the child because he and Melanie were not

married at the time of the child’s birth. Even if he were the established or legal

father of the child, the fact would be immaterial because the supreme court has

held an established father qua father is not able to participate as a matter of right

in chapter 232 proceedings involving the father’s child. See id.

Second, on de novo review, we conclude there is clear and convincing

evidence supporting the dispositional order. The child cannot be placed with the

father because the father resides with the mother. There remain valid concerns

regarding the mother creating a risk of adjudicatory harm to the child. Similar

concerns exist regarding Derek. For example, Derek was incarcerated at the

time of the child’s birth and there continue to be concerns regarding his criminal

activity and relapse into substance abuse. During semi-supervised visitation,

Derek struggled to meet the child’s basic needs, such as feeding the child and

changing the child’s diapers. With respect to Melanie and Derek, there remain

valid concerns regarding their denial of critical care, limited parenting skills,

substance abuse, exposure of the child to illegal substances, and inadequate

supervision of the child. 5

For the foregoing reasons, we affirm the dispositional order.