In the Interest of P.J., C.J., T.J., and G.J., Minor Children

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1023 Filed September 12, 2018

IN THE INTEREST OF P.J., C.J., T.J., and G.J., Minor Children,

M.J., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Susan Cox, District

Associate Judge.

A father appeals the child-in-need-of-assistance adjudication order

temporarily removing his children from his care and the dispositional order

continuing their removal. AFFIRMED.

Jason S. Rieper of Rieper Law, PC, Des Moines, for appellant father.

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

General, for appellee State.

Lynn M. Vogan of Youth Law Center, Des Moines, guardian ad litem for

minor children.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2

MULLINS, Judge.

A father appeals the child-in-need-of-assistance adjudication order

temporarily removing his children from his care and the dispositional order

continuing the children’s out-of-home placement. He argues removal was not

necessary as there was no imminent risk to the children’s life and health and

continued removal is contrary to the children’s welfare.

I. Background Facts and Proceedings

The mother and father are married and have four children: P.K. (born 2009),

C.K. (born 2012), T.K. (born 2015), and G.K. (born 2017). The children came to

the attention of the department of human services (DHS) in January 2018 upon

allegations the father assaulted the mother in the presence of the children and the

mother abused prescription medication while she cared for the children.

In December 2017, prior to DHS involvement, the father raped the mother

in their bed. Two of the children were asleep in the same room. The mother had

to bite into a pillow to keep from crying out in pain and waking the children. Later

that month, the father physically assaulted the mother at least once. In early

January 2018, the mother moved out of the family home and left the children in the

father’s care. Upon successive applications by the father and paternal

grandfather, the court ordered involuntary hospitalization of the mother, first for

mental impairment and then for substance abuse. It was during hospitalization

that the mother first reported the rape and physical assault to police. While she

remained hospitalized, the DHS investigation began. 3

The mother was released from the hospital on February 1, upon which she

began an intensive outpatient treatment for substance abuse.1 On February 5, the

mother filed a petition for relief from domestic abuse seeking a protective order

against the father based upon the rape, physical assaults, and her fear of the

father. The mother and father agreed to the protective order on February 14, which

granted temporary custody to the father and supervised visitation to the mother.

On February 16, DHS concluded its child-abuse investigation and issued founded

child-abuse reports against both parents—denial of critical care for failure to

provide proper supervision against the father and the use of dangerous substances

against the mother.

On March 1, the State petitioned for child-in-need-of-assistance (CINA)

adjudications for all of the children based on the founded child-abuse reports.

During the March 23 adjudication hearing, all parties consented to the CINA

adjudication, and both the State and guardian ad litem (GAL) recommended the

children remain in the physical custody of both parents. The father challenged the

custody recommendation and requested primary custody. During the contested

hearing, the State submitted the founded child-abuse assessments against both

parents, the police report filed by the mother regarding the sexual and domestic

assaults, and the protection order between the parents. The mother testified to

the December rape and other physical altercations between her and the father.

After she text messaged the father about the sexual assault, he responded “I’m

sorry babe it won’t happen again.” She further testified to an incident in which the

1 The mother was discharged from outpatient treatment in mid-March after successfully completing the program. 4

father followed her in his truck and tried to run her off the road when the children

were in his vehicle. The mother also testified the paternal grandmother uses

marijuana frequently, stating that “when you go over to the house, all you smell is

pot.” She testified the children have been cared for at the paternal grandparents’

house. She was also concerned the oldest child often acted as the parent for the

younger children, including giving them baths and getting up in the middle of the

night to take care of them. The father did not testify or present any evidence.

At the conclusion of the hearing, the court entered its ruling on the record,

and subsequently in a written ruling, adjudicated all four children as CINA pursuant

to Iowa Code section 232.2(6)(c)(2) and (n) (2018). The court ordered temporary

removal of the children from the parents’ custody and placed them in the custody

of DHS. In its written ruling, the court found the father raped the mother in

December. The court also found the father physically assaulted the mother at least

twice and during one of the assaults the children were awake and one child begged

him to stop. Further, the court found the mother is addicted to prescription

medication and only recently completed treatment. Based upon those findings,

the court held that remaining in the parental home would be contrary to the

children’s welfare and substantial evidence existed to believe removal was

necessary to avoid imminent risk to the children’s health or lives.2 After their

removal, the children were placed with two separate relatives.

The court held a contested dispositional hearing in May. At the hearing, the

State and GAL both recommended the children remain in their current placements

2 The father appealed the adjudication order, which the supreme court denied on May 3. 5

while the father advocated for the children’s return to his custody. The father

testified he believed behaviors the children were showing were the result of being

removed from his care. He also testified he had requested therapy to assist him

in handling all that had happened and that it was not a request that originated with

DHS. The father claimed that, at the adjudication hearing, he did not dispute the

rape allegation or the contention that the oldest child was caring for the younger

children only because he was not called as a witness.

The father admitted to allowing his sister, who was recently released from

jail on a drug charge and has an extensive drug history, and his mother, who also

has drug issues,3 to attend one of his recent supervised visits with the children.

He failed to notify both DHS and the person providing supervision of their presence

during the visit. He also admitted to allowing his mother to care for his children in

December and to confronting her about her drug use many times, both in the past

and present.

In its ruling, the court rejected the father’s arguments and found his

testimony “manipulative and not credible. He repeatedly insisted on blaming

others despite direct evidence to the contrary.” The court ordered the children to

remain out of the home due to the “father’s unaddressed violence,” his failure “to

provide minimally adequate care for the children, before removal,” and the

mother’s “need for increased stability and ongoing services for trauma.” It ordered

the children be evaluated for therapy and ordered assistance for the mother in her

counseling needs. It also ordered the father to complete a psychosexual

3 The paternal grandmother tested positive for marijuana after the adjudication hearing. 6

evaluation, complete all recommended treatment, complete the Iowa Domestic

Assault Program, and participate in therapy to address how his violence impacted

the children and how to parent safely and appropriately. The father appeals.

II. Standard of Review

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

(Iowa 2014). “We give weight to the fact findings of the juvenile court, especially

when considering the credibility of witnesses, but we are not bound by these

findings.” In re C.D., 509 N.W.2d 509, 511 (Iowa Ct. App. 1993). “Our primary

concern is the children’s best interests.” J.S., 846 N.W.2d at 40. “The children’s

best interests are to be determined by looking at the children’s long-range as well

as immediate interests.” C.D., 509 N.W.2d at 511–12. “The parent’s past

performance provides insight into this determination.” Id.

III. Analysis

On appeal, the father challenges the part of the juvenile court’s adjudication

order that removed the children from his custody and the dispositional order

continuing the removal. He does not challenge the CINA adjudication. He

contends continued placement outside his home is contrary to the children’s

welfare as behavioral issues have surfaced only since their removal.

A. Removal Order

First, we need not determine the validity of the removal order as the issue

is moot. After adjudicating the children as CINA during the March adjudication

hearing, the court temporarily removed the children from the parents’ custody and

placed them with DHS for purposes of foster or shelter care. The children were

subsequently placed into two relative homes under the supervision of DHS. The 7

court ordered a dispositional hearing and, at that hearing, custody was confirmed

with the two relative placements under the supervision of DHS. “Any error

committed in granting the temporary [removal] order cannot now be remedied. We

cannot go back in time and restore custody based on alleged errors in the initial

removal order.” In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994).

B. Dispositional Order

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

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

Iowa Code § 232.99(4). Section 232.102(6)(b) provides:

[T]he court must make a determination that continuation of the child in the child’s home would be contrary to the welfare of the child, and shall identify the reasonable efforts that have been made. The court’s determination regarding continuation of the child in the child’s home, and regarding reasonable efforts, including those made to prevent removal and those made to finalize any permanency plan in effect, as well as any determination by the court that reasonable efforts are not required, must be made on a case-by-case basis.

The children’s safety is the “paramount consideration.” Id.

Here the court continued removal of the children due to the father’s

unaddressed issues with violence and his failure to provide minimally adequate

care for the children before their removal. After a review of the record, we agree

with the district court that reasonable efforts were made to return the children to

their parents but serious concerns still exist. We conclude the children could not

be safely parented by the father at the time of the dispositional hearing. First, the

father must address his issues with violence. Though the father argues the

mother’s claims of domestic and sexual abuse are unsubstantiated, he had the

opportunity to deny the allegations at the adjudication hearing but did not do so. 8

He did not testify or offer any contradictory evidence to refute the allegations.

Further, the allegations were the basis for the DHS investigation and the founded

child-abuse assessments against the father.

While the father is open to therapy for himself and the children, his argument

on appeal focuses on the fact that he volunteered to attend therapy and offered

the name of a therapist to DHS. He contends DHS’s recommendation for therapy

only occurred after he suggested it. However, this is not the important issue. The

record reflects that in April, during supervised visits and a family team meeting, the

father spoke of a specific therapist who could provide services. He stated he was

still waiting to set up an appointment. As of the dispositional hearing in mid-May,

the father had yet to engage in any therapeutic services and no appointment was

set. Instead, the father had waited to hear from the therapist for nearly a month at

the time of the hearing and took no further steps. There is no evidence in the

record that the father sought assistance elsewhere, despite conceding that other

therapists are available and the specific therapist mentioned was not the only

individual who could help him.

There are also concerns about the father’s extended family and their contact

with the children. The father admitted he has concerns about his mother’s drug

use and recently confronted her about it in addition to confronting her multiple

times in the past. However, despite his concerns, before their removal, the father

left the children with his parents while he travelled for work. His mother tested

positive for marijuana after the adjudication hearing, yet during the father’s

supervised visits with the children, he allowed her to attend. The father also

included his sister in a visit without disclosing this to either DHS or the parties 9

providing supervision. The sister was recently released from jail on drug charges

and has an extensive history of substance abuse. DHS confirmed it would not

approve of the father’s sister visiting the children.

Additionally, there are concerns regarding the father’s care of the children

before their removal. The youngest child had a bout with E. coli earlier in the year,

which the father failed to mention during DHS’s investigation. His care of the child

was also an issue, as he failed to timely give the child his medication or follow

aftercare instructions for several weeks. The aftercare was completed after the

children’s removal. Finally, the evidence showed that the oldest child, who is eight

years old, acted in a parental role to the younger children when the children were

in the father’s primary care.

The district court’s task was to determine which placement would be best

to achieve the permanency goal of reunification. Both parents have serious issues

they need to address. The dispositional order requires the father to obtain a

psychosexual evaluation and successfully complete all recommended treatment,

successfully complete the Iowa Domestic Abuse Program, and participate in

therapy to address his violent tendencies. The order provides the father the

opportunity to demonstrate he is able to provide appropriate care for the children.

Under these circumstances, we find clear and convincing evidence the

continuation of temporary custody of the children in their current placements under

the supervision of DHS is the least restrictive disposition and is in the best interests

of the children. We therefore affirm the court’s adjudicatory and dispositional

orders.

AFFIRMED.