In the Interest of J.S., J.S., and J.S., Minor Children, O.S., Mother, B.S., Father

• Court: Court of Appeals of Iowa
• Decided: October 1, 2014
• Docket: 14-1014
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1014 Filed October 1, 2014

IN THE INTEREST OF J.S., J.S., and J.S., Minor Children,

O.S., Mother, Appellant,

B.S., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark Fowler, District

Associate Judge.

A father challenges orders adjudicating his son and two daughters as

children in need of assistance. Both the father and mother contest the

dispositional order placing the oldest child in foster care. AFFIRMED.

Carrie E. Coyle of Carrie E. Coyle, P.C., Davenport, for appellant-mother.

Tammy Westhoff Gentry of Parrish, Kruidenier, Dunn, Boles, Gribble &

Gentry, L.L.P., Des Moines, for appellant-father.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, Michael J. Walton, County Attorney, and Julie Walton, Assistant County

Attorney, for appellee.

Timothy Tupper, Davenport, attorney and guardian ad litem for minor

children.

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

TABOR, J.

More than four years after their divorce, the continued hostility between

the parents involved in this appeal has resulted in emotional injury to their two

teen-aged daughters Je.S. and Ja.S., as well as to their eleven-year-old son

Ju.S. The juvenile court adjudicated the children in need of assistance (CINA)

and directed the Iowa Department of Human Services (DHS) to assume custody

of the oldest child for placement in foster care. The father appeals the CINA

adjudications, and each parent argues separately Je.S. should be placed in his

or her custody. We affirm the adjudicatory and dispositional orders based on our

independent review of the juvenile court record.

This family came to the attention of the Iowa DHS in July 2013, when

Je.S. was admitted to the adolescent psychiatric unit at the University of Iowa

Hospitals after she attempted suicide by taking an overdose of ibuprofen. The

doctor who treated Je.S. named both parents in a report of mental injury filed

with the DHS. Je.S. told the doctor she was afraid of her father after an incident

in March 2013 when he reportedly dragged her upstairs to her room and threw

her on the bed. She then went to live with her mother, where she was subjected

to verbal abuse and demoralizing criticisms. On the night of Je.S.’s overdose,

the mother had presented her with a list of ways she had been a disappointment.

Finding a correlation between the behavior of the parents and the daughter’s

mood and impairment, the doctor filed the report for mental injury. The doctor

diagnosed Je.S. with major depressive disorder and adjustment disorder with

anxiety. 3

The trouble extended to her two younger siblings. The middle child, Ja.S.,

also tried to commit suicide by overdosing on medication. Ja.S. has a diagnostic

impression of adjustment disorder with depression and anxiety. Their younger

brother, Ju.S., swallowed an empty bullet shell as a way of acting out. He has a

diagnostic impression of adjustment disorder with anxiety. All three children

have said their parents’ acrimonious relationship led them to act as they did.

On November 25, 2013, the State filed a child in need of assistance

(CINA) petition for all three children under Iowa Code sections 232.2(6)(b), (c)(1),

(c)(2), (e), (f), and (n) (2013). The guardian ad litem and court appointed special

advocate (CASA) also recommended adjudication. Following a hearing, the

juvenile court adjudicated all three CINA under section 232.2(6)(c)(2).1 The court

found Je.S., Ja.S., and Ju.S. have suffered emotional distress and were likely to

suffer additional harm due to the contentious, argumentative, and unhealthy

relationship between their parents.

The father filed a pro se motion to amend or enlarge the juvenile court’s

ruling under Iowa Rule of Civil Procedure 1.904(2). In five pages, the father

contended the court erred in finding he failed to provide proper supervision for

the children. On June 10, 2014, the court issued an order reaffirming its

adjudication under subparagraph (c)(2). The court also found the State had

1 “The failure of the child’s parent, guardian, custodian, or other member of the household in which the child resides to exercise a reasonable degree of care in supervising the child.” Iowa Code § 232.2(6)(c)(2). 4

proved by clear and convincing evidence the children were CINA under

subparagraph (c)(1). 2

On appeal, the father argues the State failed to prove Je.S., Ja.S, and

Ju.S. were CINA under Iowa Code sections 232.2(6)(c)(1) and (c)(2). He also

argues the court abused its authority by adding the subparagraph (c)(1) as a

basis for adjudication in its ruling on his motion to amend or enlarge. The mother

does not challenge the CINA adjudications, but she and the father both challenge

the dispositional order placing Je.S. in foster care.

I. Adjudication

We review CINA proceedings de novo. In re J.S., 846 N.W.2d 36, 40

(Iowa 2014). Our primary concern is the children’s best interests. Id. CINA

determinations must be based upon clear and convincing evidence. Iowa Code

§ 232.96(2). “Clear and convincing evidence” is evidence leaving “no serious or

substantial doubt about the correctness of the conclusion drawn from it.” In re

D.D., 653 N.W.2d 359, 361 (Iowa 2002). We may affirm the juvenile court if one

ground, properly urged, exists to support its adjudication. In re L.G., 532 N.W.2d

478, 480 (Iowa Ct. App. 1995).

We turn first to the father’s objection to the court’s expanded ruling in

response to his pro se motion to enlarge or amend. Motions under rule 1.904(2)

“are permitted so that courts may enlarge or modify findings based on evidence

already in the record.” In re J.J.S., Jr., 628 N.W.2d 25, 29 (Iowa Ct. App. 2001)

(quoting In re Marriage of Bolick, 539 N.W .2d 357, 361 (Iowa 1995)). “Rule

2 “Mental injury caused by the acts of the child's parent, guardian, or custodian.” Iowa Code § 232.2(6)(c)(1). 5

1.904(2) permits the court to enlarge or amend its findings and conclusions and

to modify or substitute the judgment or decree.” In re Marriage of Okland, 699

N.W.2d 260, 263–64 (Iowa 2005). The language of the rule does not limit the

court’s modification to relief requested in the 1.904(2) motion. In this case, the

father was on notice from the CINA petition that section (c)(1) was being alleged

as a ground for adjudication. The court did not hear new evidence, but rather

based its enlarged conclusions on evidence presented at the CINA hearing. We

find no error in the court’s modification of its original order. See generally Iowa

Elec. Light & Power Co. v. Lagle, 430 N.W.2d 393, 396 (Iowa 1988) (“A district

court’s power to correct its own perceived errors has always been recognized by

this court, as long as the court has jurisdiction of the case and the parties

involved.”).

As for the merits of the adjudication, the father alleges he is being blamed

for the mother’s infliction of mental injury on the children. We find the father’s

focus to be misdirected. The question is not which parent is more blameworthy.

The question is whether the children have suffered or are imminently likely to

suffer harmful effects as a result of (1) mental injury caused by the parents’ acts

or (2) the failure of the parents to exercise a reasonable degree of care in

supervising them. Iowa Code § 232.2(6)(c)(1), (c)(2). “Harmful effects” relate to

“the physical, mental or social welfare of a child.” J.S., 846 N.W.2d at 41. A

“mental injury” is defined as a “nonorganic injury to a child’s intellectual or

psychological capacity as evidenced by an observable and substantial

impairment in the child’s ability to function within the child’s normal range of 6

performance and behavior.” Iowa Code § 232.2(35). We conclude the juvenile

court’s CINA adjudication under subsection (c)(1) is supported by clear and

convincing evidence. See In re L.G., 532 N.W.2d at 480 (allowing affirmance on

any ground properly urged).

The juvenile court heard evidence concerning efforts by all three children

to harm themselves. An Iowa DHS social worker testified, “All three kids

expressed to the Department that the relationship between the parents is very

contentious and conflictual and that’s causing them emotional distress.” The

worker explained the mother lacks boundaries as to the information she shares

with the children about her critical feelings toward the father and their ongoing

custody issues. The father, while less blatant, also communicates his negative

feelings toward the mother to others, and the children are aware of those

communications. The children are hesitant to talk to the DHS workers while in

the company of their father.

The emotional battle is not new. As far back as 2009, a case worker from

the Colorado Department of Human Services said “[i]t is our assessment that this

is a case of spousal conflict that could possibly result in an unhealthy emotional

environment for the children.” The parents were divorced in Colorado in 2010.

The Colorado court granted custody of the children to the father and the family

moved to Iowa in the fall of 2011. Both parents now live in Scott County. The

prediction of the Colorado social worker has proved true as the divorced parents

continue to behave vindictively toward one another, leaving the children feeling

stuck in the middle. 7

The actions of both parents have contributed to mental injuries to all three

children, as evidenced from the children’s fragile mental health and endeavors to

harm themselves attributed to the constant stress of their parents’ embittered

relationship. See Iowa Code § 232.2(6)(c)(1).

The Iowa DHS reports that the father has been contentious and controlling

since the case opened. He declines to meet with the case workers and restricts

communication to emails. He insists on tape recording the family team meetings.

He is so determined not to give any advantage to the mother on any issue that

he fails to do what is in the best interests of the children. Even during the

adjudication hearing, the father and his counsel tried to shift blame for the

children’s difficulties to their mother.

The State offered clear and convincing evidence in support of

subparagraph (c)(1). Both Je.S. and Ja.S. reacted to the emotional toll from their

parents’ conduct by taking overdoses of medication and Ju.S. swallowed a bullet

due to the stress of his circumstances. The DHS case plan includes therapy for

all three children. Continued DHS supervision is necessary to ensure the

psychological harm to the children does not worsen.

II. Disposition Order

The juvenile court is required to reach the “least restrictive disposition

appropriate considering all the circumstance of the case.” Iowa Code § 232.99.

Following a disposition hearing, the district court ordered Ja.S. and Ju.S. to be

placed with the father under DHS supervision. The court ordered the oldest

child, Je.S., into DHS custody for placement in foster care. The father argues 8

Je.S. should be returned to his care and the company of her two siblings. The

mother argues Je.S. should be returned to her care as she is able to meet her

daughter’s needs and it is in Je.S.’s best interests.

After reviewing the record, we find the district court’s placement of Je.S. to

be appropriate. The mother has been unable to address the issues faced by

Je.S. The mother and Je.S. fight often. The mother has left the home following

these fights to stay overnight with a friend. The record also reflects the mother

does not appreciate the severity of Je.S.’s depression and has discouraged her

participation in therapy. Je.S.’s therapist and her CASA recommended she not

remain with the mother.

As for the father, the record shows that he and Je.S. do not communicate

on a regular basis. Je.S. has threatened to run away if placed with her father.

We believe it is appropriate to consider the concerns voiced by Je.S., who is now

fifteen years old. Cf. Iowa Code § 232.116(3)(b) (allowing children older than ten

years to object to the termination of parental rights); In re Marriage of Hunt, 476

N.W.2d 99, 101 (Iowa Ct. App. 1991) (giving weight to children’s views on

custody in dissolution case). Our goal is to ensure the safety and welfare of the

child through the least restrictive disposition. Given the circumstances in this

record, we agree with the juvenile court’s decision not to place Je.S. with either

parent at this time, but recognize that placement may be subject to change as

the family continues towards the goal of reunification.

AFFIRMED.