IN THE COURT OF APPEALS OF IOWA
No. 17-0920 Filed July 19, 2017
IN THE INTEREST OF L.H., Minor Child,
R.H., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Gary P.
Strausser, District Associate Judge.
The father appeals the juvenile court’s dispositional order confirming the
adjudication of his child as a child in need of assistance. REVERSED.
Mark J. Neary, of Neary Law Office, Muscatine, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Sara Strain Linder of Bray & Klockau, P.L.C., Iowa City, guardian ad litem
for minor child.
Considered by Danilson, C.J., and Potterfield and Bower, JJ. 2
POTTERFIELD, Judge.
A father appeals from the juvenile court’s order adjudicating L.H. to be a
child in need of assistance (CINA). He contends the juvenile court erred in
finding the State proved the grounds for adjudicating the child CINA under Iowa
Code section 232.2(6)(b) and (c)(2) (2017). We reverse.
I. Background Facts and Proceedings.
L.H.1 came to the attention of the Iowa Department of Human Services
(DHS) in June 2016 due to concerns of physical abuse by the father. It was
alleged the father assaulted L.H.’s older half-sibling, A.D., when he grabbed
A.D.’s neck and pushed him into a doorframe. L.H. did not witness the event.
After the incident, the mother called 911 and took A.D. to the hospital. A.D. was
diagnosed with a subdural hematoma on the head. Hospital, DHS, and police
reports indicate the mother intended to take the children to her father’s house
after the incident; the mother later testified that she was already residing with her
father at the time of the assault on A.D.
In December 2016, during a Family Safety, Risk, and Permanency visit
with the mother, the social worker observed “extreme bruising” on the mother’s
face, including broken blood vessels in her right eye, two black eyes, and bruises
along the mother’s forehead and cheeks. The mother claimed a snowball
caused the black eyes, and she tripped over a toy and hit a door, which caused
the facial bruising. The social worker noted “severe concerns for the presence of
domestic violence in the home.”
1 L.H. has half-siblings who are not at issue in this appeal. 3
On January 13, 2017, a contested adjudicatory hearing was held. A DHS
representative testified about the June 2016 incident with A.D. and the lack of
participation by the father in DHS processes. Another DHS worker testified that
since the June 2016 incident, the agency has been unable to meet with the father
because he does not respond to phone calls or letters from DHS. The mother
testified that A.D. might have exaggerated the June incident with the father. On
February 23, the court issued an order finding the father assaulted A.D. in June
and adjudicating L.H. and the half-siblings CINA pursuant to Iowa Code section
232.2(6)(b) and (c)(2). The order left L.H. and the half-siblings in the care of their
mother.
On April 20, a contested dispositional hearing was held. At the time of the
hearing, testimony confirmed the father remained uncooperative with DHS. He
refused to submit social history information to the department, and he refused to
answer questions asked by the department at the hearing. DHS representatives
also testified the father refused to cooperate with paternity testing. The district
court issued an order confirming L.H. as CINA, explaining, “[The father] has
unaddressed anger issues that present a danger to the children if not
addressed.” The father appeals.
II. Standard of Review.
We review CINA proceedings de novo. In re K.N., 625 N.W.2d 731, 733
(Iowa 2001). The State bears the burden to prove its allegations by clear and
convincing evidence. Iowa Code § 232.96(2). “Clear and convincing evidence”
must leave “‘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) (citation 4
omitted). We accord considerable weight to the factual findings of the juvenile
court, especially concerning the credibility of witnesses, but we are not bound by
those findings. In re W.G., 349 N.W.2d 487, 491–92 (Iowa 1984). Our primary
concern is the best interests of the children. Id. at 492.
III. Discussion.
The father claims the State failed to prove the statutory grounds required
to adjudicate L.H. as CINA because L.H. is not in imminent harm and there is no
risk of harm due to lack of supervision.2 The State and L.H.’s guardian ad litem
argue L.H. is in risk of imminent harm based on the father’s pattern of abusive
behavior and unaddressed anger issues. Their argument relies on the
assumption the mother will place L.H. under the supervision of the father, whose
anger issues make abuse imminently likely. There is no evidence L.H. has been
assaulted and no evidence the child witnessed a domestic abuse assault
between the mother and father.
L.H. was adjudicated a CINA pursuant to Iowa Code section 232.2(6)(b)
and(c)(2). Section 232.2(6)(b) requires that a parent “has physically abused or
neglected the child, or is imminently likely to abuse or neglect the child.” Section
232.2(6)(c)(2) provides that a child “has suffered or is imminently likely to suffer
harmful effects as a result of . . . [t]he failure of the child’s parent . . . to exercise
2 The father also argues L.H. must reside with the father to be adjudicated CINA under the relevant statute. L.H. was adjudicated CINA under section 232.2(6)(b), which applies to a child’s parent who “has physically abused or neglected the child, or is imminently likely to abuse or neglect the child.” The appellant is L.H.’s biological father. The father’s residence is inconsequential under these facts and the relevant statutes. Accordingly, we decline to address the father’s residence as related to the CINA proceedings. The father also presents various arguments regarding the CINA adjudication of L.H.’s half-siblings. However, half-siblings are not involved in this appeal. Accordingly, we decline to address them. 5
a reasonable degree of care in supervising the child.” Physical abuse or neglect
in this context means “any nonaccidental physical injury suffered by a child as
the result of the acts or omissions of the child’s parent, guardian, or custodian or
other person legally responsible for the child.” In re J.S., 846 N.W.2d 36, 41
(Iowa 2014). The “injury” or “harm” suffered “pertains to the physical, mental or
social welfare of a child.” Id. “The most important consideration in any CINA
case is the best interests of the child.” D.D., 653 N.W.2d at 362.
The State has the burden of proving its CINA petition allegations by clear
and convincing evidence.
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IN THE COURT OF APPEALS OF IOWA
No. 17-0920 Filed July 19, 2017
IN THE INTEREST OF L.H., Minor Child,
R.H., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Gary P.
Strausser, District Associate Judge.
The father appeals the juvenile court’s dispositional order confirming the
adjudication of his child as a child in need of assistance. REVERSED.
Mark J. Neary, of Neary Law Office, Muscatine, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Sara Strain Linder of Bray & Klockau, P.L.C., Iowa City, guardian ad litem
for minor child.
Considered by Danilson, C.J., and Potterfield and Bower, JJ. 2
POTTERFIELD, Judge.
A father appeals from the juvenile court’s order adjudicating L.H. to be a
child in need of assistance (CINA). He contends the juvenile court erred in
finding the State proved the grounds for adjudicating the child CINA under Iowa
Code section 232.2(6)(b) and (c)(2) (2017). We reverse.
I. Background Facts and Proceedings.
L.H.1 came to the attention of the Iowa Department of Human Services
(DHS) in June 2016 due to concerns of physical abuse by the father. It was
alleged the father assaulted L.H.’s older half-sibling, A.D., when he grabbed
A.D.’s neck and pushed him into a doorframe. L.H. did not witness the event.
After the incident, the mother called 911 and took A.D. to the hospital. A.D. was
diagnosed with a subdural hematoma on the head. Hospital, DHS, and police
reports indicate the mother intended to take the children to her father’s house
after the incident; the mother later testified that she was already residing with her
father at the time of the assault on A.D.
In December 2016, during a Family Safety, Risk, and Permanency visit
with the mother, the social worker observed “extreme bruising” on the mother’s
face, including broken blood vessels in her right eye, two black eyes, and bruises
along the mother’s forehead and cheeks. The mother claimed a snowball
caused the black eyes, and she tripped over a toy and hit a door, which caused
the facial bruising. The social worker noted “severe concerns for the presence of
domestic violence in the home.”
1 L.H. has half-siblings who are not at issue in this appeal. 3
On January 13, 2017, a contested adjudicatory hearing was held. A DHS
representative testified about the June 2016 incident with A.D. and the lack of
participation by the father in DHS processes. Another DHS worker testified that
since the June 2016 incident, the agency has been unable to meet with the father
because he does not respond to phone calls or letters from DHS. The mother
testified that A.D. might have exaggerated the June incident with the father. On
February 23, the court issued an order finding the father assaulted A.D. in June
and adjudicating L.H. and the half-siblings CINA pursuant to Iowa Code section
232.2(6)(b) and (c)(2). The order left L.H. and the half-siblings in the care of their
mother.
On April 20, a contested dispositional hearing was held. At the time of the
hearing, testimony confirmed the father remained uncooperative with DHS. He
refused to submit social history information to the department, and he refused to
answer questions asked by the department at the hearing. DHS representatives
also testified the father refused to cooperate with paternity testing. The district
court issued an order confirming L.H. as CINA, explaining, “[The father] has
unaddressed anger issues that present a danger to the children if not
addressed.” The father appeals.
II. Standard of Review.
We review CINA proceedings de novo. In re K.N., 625 N.W.2d 731, 733
(Iowa 2001). The State bears the burden to prove its allegations by clear and
convincing evidence. Iowa Code § 232.96(2). “Clear and convincing evidence”
must leave “‘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) (citation 4
omitted). We accord considerable weight to the factual findings of the juvenile
court, especially concerning the credibility of witnesses, but we are not bound by
those findings. In re W.G., 349 N.W.2d 487, 491–92 (Iowa 1984). Our primary
concern is the best interests of the children. Id. at 492.
III. Discussion.
The father claims the State failed to prove the statutory grounds required
to adjudicate L.H. as CINA because L.H. is not in imminent harm and there is no
risk of harm due to lack of supervision.2 The State and L.H.’s guardian ad litem
argue L.H. is in risk of imminent harm based on the father’s pattern of abusive
behavior and unaddressed anger issues. Their argument relies on the
assumption the mother will place L.H. under the supervision of the father, whose
anger issues make abuse imminently likely. There is no evidence L.H. has been
assaulted and no evidence the child witnessed a domestic abuse assault
between the mother and father.
L.H. was adjudicated a CINA pursuant to Iowa Code section 232.2(6)(b)
and(c)(2). Section 232.2(6)(b) requires that a parent “has physically abused or
neglected the child, or is imminently likely to abuse or neglect the child.” Section
232.2(6)(c)(2) provides that a child “has suffered or is imminently likely to suffer
harmful effects as a result of . . . [t]he failure of the child’s parent . . . to exercise
2 The father also argues L.H. must reside with the father to be adjudicated CINA under the relevant statute. L.H. was adjudicated CINA under section 232.2(6)(b), which applies to a child’s parent who “has physically abused or neglected the child, or is imminently likely to abuse or neglect the child.” The appellant is L.H.’s biological father. The father’s residence is inconsequential under these facts and the relevant statutes. Accordingly, we decline to address the father’s residence as related to the CINA proceedings. The father also presents various arguments regarding the CINA adjudication of L.H.’s half-siblings. However, half-siblings are not involved in this appeal. Accordingly, we decline to address them. 5
a reasonable degree of care in supervising the child.” Physical abuse or neglect
in this context means “any nonaccidental physical injury suffered by a child as
the result of the acts or omissions of the child’s parent, guardian, or custodian or
other person legally responsible for the child.” In re J.S., 846 N.W.2d 36, 41
(Iowa 2014). The “injury” or “harm” suffered “pertains to the physical, mental or
social welfare of a child.” Id. “The most important consideration in any CINA
case is the best interests of the child.” D.D., 653 N.W.2d at 362.
The State has the burden of proving its CINA petition allegations by clear
and convincing evidence. Iowa Code § 232.96. “Clear and convincing evidence
is more than a preponderance of the evidence and less than evidence beyond a
reasonable doubt. It means that there must be no serious or substantial doubt
about the correctness of a particular conclusion drawn from the evidence.” In re
L.G., 532 N.W.2d 478, 481 (Iowa Ct. App. 1995) (citations omitted).
The father has demonstrated aggressive behavior towards his family. The
father has a documented child-abuse report against L.H.’s half-sibling, and the
record suggests another incident of abuse occurred since it was discovered
L.H.’s mother had two black eyes. Yet clear and convincing evidence is lacking
as to L.H.’s risk of imminent harm. Protective measures were put in effect,
including the mother’s care of the children in a different residence. Although L.H.
may be at risk of harm, the supporting evidence is not clear. See In re A.C., No.
08-1215, 2008 WL 4531458, at *2 (Iowa Ct. App. Oct. 1, 2008) (holding CINA
adjudication based on imminent harm was not supported by clear and convincing
where the record lacked evidence of abuse towards the child at issue and the
child was not in the father’s care); In re Z.W., No. 04-0383, 2004 WL 1075063, at 6
*4 (Iowa Ct. App. May 14, 2004) (holding sex offender’s brief presence in the
home while the children were supervised by the mother and the mother’s
previous relationship with the sex offender were insufficient to establish clear and
convincing evidence of imminent harm to the children). We reverse the
adjudication of CINA as to L.H.
REVERSED.