IN THE COURT OF APPEALS OF IOWA
No. 14-1863 Filed February 25, 2015
IN THE INTEREST OF R.M., Minor Child,
C.R., Mother, Appellant,
STATE OF IOWA, Appellant,
A.M., Father, Appellee/Cross-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Marion County, John D. Lloyd,
Judge.
The State and the mother of a child adjudicated in need of assistance
appeal from a permanency order granting the father six additional months of
services and visitation. AFFIRMED.
William E. Sales III of Sales Law Firm, P.C., Des Moines, for mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, and Ed Bull, County Attorney, for appellant-State.
Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for father.
Marshall Orsini, Des Moines, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2
TABOR, J.
R.M., now age five, has been removed from his father’s custody since
October 2013 based on a confirmed report the father denied the child critical
care. In October 2014, the juvenile court entered a permanency order under
Iowa Code section 232.104(2)(b) (2013) keeping the child’s placement with his
mother, but continuing for an additional six months reasonable efforts to reunite
R.M. with his father, including increased visitation. The State and the mother
appeal from that permanency order, contending the court should have placed
R.M. in the mother’s sole legal custody under section 232.104(2)(d). The father
cross-appeals a finding in the permanency order that the Department of Human
Services had been making reasonable efforts to reunify him with his son.
Following our de novo review,1 we affirm the permanency order. The
evidence presented at the hearing warranted a delay in permanency and the
court set out conditions of visitation to be offered by the DHS and expected
behavioral changes on Adam’s part that formed its basis for deciding the need for
removal could be resolved at the end of the six months. See Iowa Code
§ 232.104(2)(b). As for the cross-appeal, we conclude Adam’s challenge to DHS
1 We review permanency orders de novo, sorting through both the facts and law and adjudicating rights anew on the issues properly presented on appeal. In re A.T., 799 N.W.2d 148, 150–151 (Iowa Ct. App. 2011). We give weight to the factual findings of the juvenile court, but are not bound by them. Id. The parties contend we review the decision to delay permanency for an abuse of discretion, citing an unpublished case of our court predating In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (stating “the proper standard of review for all termination decisions should be de novo”). We need not decide today whether a decision to grant a six-month extension under section 232.104(2)(b) is subject only to de novo review or whether the previously applied abuse- of-discretion standard also comes into play. Under either standard, we conclude the juvenile court should be affirmed here. 3
reasonable efforts predating the permanency hearing was rendered moot by the
visitation ordered in the six-month extension and decline to address that issue.
See In re B.B., 516 N.W.2d 874, 877 (Iowa 1994) (holding issue is moot if it no
longer presents a justiciable controversy because it has become academic).
I. Background facts and proceedings
R.M. is the son of Adam and Christine; the parents are not married to
each other. The district court previously entered a decree awarding the parents
joint legal custody, placing physical care with Christine, and granting Adam
overnight visitation every other weekend and two evening visits during the week.
The parents were operating under this decree in August 2013 when R.M.
came home from visiting Adam with a mark on his neck. When Christine asked
what happened, R.M. said Adam wrapped duct tape around his head and rubbed
soap in his eyes. A DHS investigation confirmed the child’s allegation as a denial
of critical care. Adam has continually denied the allegation. The State charged
Adam with neglect of a dependent person, but dismissed that prosecution in
March 2014.2
As a result of this incident, the juvenile court adjudicated R.M. as a child in
need of assistance (CINA) under Iowa Code section 232.2(6)(c)(2)3 in an order
2 A no-contact order in the criminal case prohibited Adam from interacting with his son. The order was modified in December 2013 to allow visitation under DHS supervision. 3 The section reads: “Child in need of assistance” means an unmarried child: . . . c. Who has suffered or is imminently likely to suffer harmful effects as a result of any of the following: . . . (2) 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) (2013). 4
issued December 18, 2013. That order found the father was “responsible for
physical abuse against the child.” The order placed discretion for visitation with
the DHS, and upon the recommendation of the child’s therapist. The court
ordered Adam to obtain a substance abuse evaluation and, if recommended by
the evaluation, use a SCRAM device to detect his alcohol use. Adam obtained a
substance abuse evaluation on January 8, 2014. The evaluator did not
recommend any treatment.
Visitation between Adam and R.M. was a long time coming. At a
disposition hearing on February 12, 2014, Adam argued DHS was not making
reasonable efforts at reunification because he had not been allowed visitation
with his son.4 At a disposition hearing on May 20, 2014, the court ordered Adam
to engage in counseling to “enable him to deal with [R.M.’s] perception of abuse.”
The court also ordered visitation would resume “as [R.M.’s] counselor and
[Adam’s] counselor shall in consultation determine that such contact can be
accomplished with minimal risk to [R.M.’s] well-being.”5 This arrangement was
foiled in early July when Christine took R.M. out of therapy without informing
Adam.6
4 While the parties were awaiting the ruling from the February hearing, the juvenile court judge assigned to the case recused himself because of ex parte contact from a member of Adam’s family. District Court Judge John Lloyd was assigned to the case. 5 The court also ordered R.M. have contact with his paternal grandparents. Christine had not allowed Adam’s family to see R.M. since August 2013. 6 Christine did inform the family safety, risk, and permanency (FSRP) worker, but the worker did not tell Adam, his attorney or the DHS case manager. In a similar lack of communication, the court learned at the permanency hearing that the FSRP worker had been sharing her reports with Christine, but not Adam. Adam only received the reports as a proposed exhibit before the hearing. 5
On July 10, 2014, Adam filed a motion for hearing on reasonable efforts.
In his motion he requested the following: visitation, regular contact with DHS
regarding R.M.’s progress in therapy, a new DHS worker, and any services that
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IN THE COURT OF APPEALS OF IOWA
No. 14-1863 Filed February 25, 2015
IN THE INTEREST OF R.M., Minor Child,
C.R., Mother, Appellant,
STATE OF IOWA, Appellant,
A.M., Father, Appellee/Cross-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Marion County, John D. Lloyd,
Judge.
The State and the mother of a child adjudicated in need of assistance
appeal from a permanency order granting the father six additional months of
services and visitation. AFFIRMED.
William E. Sales III of Sales Law Firm, P.C., Des Moines, for mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, and Ed Bull, County Attorney, for appellant-State.
Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for father.
Marshall Orsini, Des Moines, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2
TABOR, J.
R.M., now age five, has been removed from his father’s custody since
October 2013 based on a confirmed report the father denied the child critical
care. In October 2014, the juvenile court entered a permanency order under
Iowa Code section 232.104(2)(b) (2013) keeping the child’s placement with his
mother, but continuing for an additional six months reasonable efforts to reunite
R.M. with his father, including increased visitation. The State and the mother
appeal from that permanency order, contending the court should have placed
R.M. in the mother’s sole legal custody under section 232.104(2)(d). The father
cross-appeals a finding in the permanency order that the Department of Human
Services had been making reasonable efforts to reunify him with his son.
Following our de novo review,1 we affirm the permanency order. The
evidence presented at the hearing warranted a delay in permanency and the
court set out conditions of visitation to be offered by the DHS and expected
behavioral changes on Adam’s part that formed its basis for deciding the need for
removal could be resolved at the end of the six months. See Iowa Code
§ 232.104(2)(b). As for the cross-appeal, we conclude Adam’s challenge to DHS
1 We review permanency orders de novo, sorting through both the facts and law and adjudicating rights anew on the issues properly presented on appeal. In re A.T., 799 N.W.2d 148, 150–151 (Iowa Ct. App. 2011). We give weight to the factual findings of the juvenile court, but are not bound by them. Id. The parties contend we review the decision to delay permanency for an abuse of discretion, citing an unpublished case of our court predating In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (stating “the proper standard of review for all termination decisions should be de novo”). We need not decide today whether a decision to grant a six-month extension under section 232.104(2)(b) is subject only to de novo review or whether the previously applied abuse- of-discretion standard also comes into play. Under either standard, we conclude the juvenile court should be affirmed here. 3
reasonable efforts predating the permanency hearing was rendered moot by the
visitation ordered in the six-month extension and decline to address that issue.
See In re B.B., 516 N.W.2d 874, 877 (Iowa 1994) (holding issue is moot if it no
longer presents a justiciable controversy because it has become academic).
I. Background facts and proceedings
R.M. is the son of Adam and Christine; the parents are not married to
each other. The district court previously entered a decree awarding the parents
joint legal custody, placing physical care with Christine, and granting Adam
overnight visitation every other weekend and two evening visits during the week.
The parents were operating under this decree in August 2013 when R.M.
came home from visiting Adam with a mark on his neck. When Christine asked
what happened, R.M. said Adam wrapped duct tape around his head and rubbed
soap in his eyes. A DHS investigation confirmed the child’s allegation as a denial
of critical care. Adam has continually denied the allegation. The State charged
Adam with neglect of a dependent person, but dismissed that prosecution in
March 2014.2
As a result of this incident, the juvenile court adjudicated R.M. as a child in
need of assistance (CINA) under Iowa Code section 232.2(6)(c)(2)3 in an order
2 A no-contact order in the criminal case prohibited Adam from interacting with his son. The order was modified in December 2013 to allow visitation under DHS supervision. 3 The section reads: “Child in need of assistance” means an unmarried child: . . . c. Who has suffered or is imminently likely to suffer harmful effects as a result of any of the following: . . . (2) 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) (2013). 4
issued December 18, 2013. That order found the father was “responsible for
physical abuse against the child.” The order placed discretion for visitation with
the DHS, and upon the recommendation of the child’s therapist. The court
ordered Adam to obtain a substance abuse evaluation and, if recommended by
the evaluation, use a SCRAM device to detect his alcohol use. Adam obtained a
substance abuse evaluation on January 8, 2014. The evaluator did not
recommend any treatment.
Visitation between Adam and R.M. was a long time coming. At a
disposition hearing on February 12, 2014, Adam argued DHS was not making
reasonable efforts at reunification because he had not been allowed visitation
with his son.4 At a disposition hearing on May 20, 2014, the court ordered Adam
to engage in counseling to “enable him to deal with [R.M.’s] perception of abuse.”
The court also ordered visitation would resume “as [R.M.’s] counselor and
[Adam’s] counselor shall in consultation determine that such contact can be
accomplished with minimal risk to [R.M.’s] well-being.”5 This arrangement was
foiled in early July when Christine took R.M. out of therapy without informing
Adam.6
4 While the parties were awaiting the ruling from the February hearing, the juvenile court judge assigned to the case recused himself because of ex parte contact from a member of Adam’s family. District Court Judge John Lloyd was assigned to the case. 5 The court also ordered R.M. have contact with his paternal grandparents. Christine had not allowed Adam’s family to see R.M. since August 2013. 6 Christine did inform the family safety, risk, and permanency (FSRP) worker, but the worker did not tell Adam, his attorney or the DHS case manager. In a similar lack of communication, the court learned at the permanency hearing that the FSRP worker had been sharing her reports with Christine, but not Adam. Adam only received the reports as a proposed exhibit before the hearing. 5
On July 10, 2014, Adam filed a motion for hearing on reasonable efforts.
In his motion he requested the following: visitation, regular contact with DHS
regarding R.M.’s progress in therapy, a new DHS worker, and any services that
could help address perceptions of abuse. The first visit between Adam and R.M.
occurred on July 29, 2014.
The court held the permanency hearing on October 1, 2014. The court
also considered Adam’s motion claiming DHS failed to make reasonable efforts
and a motion filed by Christine to reconsider or stay visitation. The court issued
its permanency order on October 24, 2014, granting Adam an additional six
months to achieve reunification. The court set the following schedule: additional
visitation to be supervised by the paternal grandfather starting no later than thirty
days from the ruling, after ninety days Adam would get at least one overnight visit
every other weekend, and within five months visitation was to return to the
parents’ district court decree schedule. The court also found DHS had made
reasonable efforts. In addition, the court granted concurrent jurisdiction.
Christine filed a notice of appeal on November 7, 2014, and the State filed
a notice of appeal on November 10, 2014. Also on November 10, 2014,
Christine asked the supreme court to stay the permanency order. That same day
in the juvenile court, Adam filed a motion under Iowa Rule of Civil Procedure
1.904(2) to amend or enlarge the findings of fact and conclusions of law in the
permanency order. On November 24, 2014, the supreme court denied
Christine’s motion to stay and remanded the case for a ruling on Adam’s rule
1.904(2) motion. 6
In his motion to enlarge or amend, Adam alleged the DHS was cancelling
many of his scheduled visits because “the professional parties in this case have
taken the unfortunate position that if the child doesn’t want a visit the parties will
not ‘force him.’” The motion alleged R.M. would refuse to visit when Christine
drove him, but was not reluctant to see his father when the FSRP worker
provided transportation. As a result, Adam asked the court to amend the ruling in
several regards. First, Adam asked the court to clarify that it adopted the DHS
case permanency plan with certain exceptions, including provisions concerning
Adam’s alcohol use and the graduated visitation schedule. Next, Adam asked
the court to make the following enlargements:
b. Add a finding of fact indicating that the concerns in regards to father’s ability to safely care for the child will have been fully addressed within 6 months so long as the Father continues in therapy and continues to address the child’s reality of abuse. c. Add a finding that all parties are to cooperate in effectuating the visitation schedule as set out in Paragraph (6) of the Permanency Order, and that the Child should not be allowed to unilaterally cancel the visits. Parties are to facilitate visitation and are cautioned that failure to facilitate that visitation or interfere with the same may be grounds for that party to be held in contempt of the Court’s order. d. Add a finding that the Mother is not to transport the child to visits and that all transportation of the child to visits be provided by the FSRP worker. Specifically, indicate that the Mother and Father are to have no contact during the visitation exchanges.
The district court granted the motion in its entirety on November 25, 2014.
We now address the challenge by the mother and the State to the court’s
granting of additional time. 7
II. Analysis
Following a permanency hearing, a juvenile court has four options:
a. Enter an order pursuant to section 232.102 to return the child to the child’s home. b. Enter an order pursuant to section 232.102 to continue placement of the child for an additional six months at which time the court shall hold a hearing to consider modification of its permanency order. An order entered under this paragraph shall enumerate the specific factors, conditions, or expected behavioral changes which comprise the basis for the determination that the need for removal of the child from the child’s home will no longer exist at the end of the additional six-month period. c. Direct the county attorney or the attorney for the child to institute proceedings to terminate the parent-child relationship. d. Enter an order . . . to . . . [t]ransfer sole custody of the child from one parent to another parent.
Iowa Code § 232.104(2).
In this case, the juvenile court went with (b)—providing Adam an
additional six months to work toward reunification. The State and Christine argue
the permanency order was improper because it did not “enumerate the specific
factors, conditions, or expected behavioral changes which comprise the basis for
the determination that the need for removal of the child from the child’s home will
no longer exist at the end of the additional six-month period.” They also contend
the evidence did not warrant a delay of R.N.’s permanency.
By our reading, the permanency order meets the specificity requirement in
the statute. The order directs the parties to comply with the DHS case
permanency plan with certain modifications. The order sets out guidelines for
Adam’s alcohol use, directs him to attend therapy and discuss the abuse issue,
directs R.M. to be in therapy, and gradually increases visitations so that Adam 8
will have the chance for more meaningful contact with his son. We conclude the
order complies with section 232.104(2)(b).
Next, we turn to the evidence supporting the juvenile court’s decision to
give Adam more time to eliminate the need for removal of R.M. from his care.
Removal was prompted by R.M.’s report that his father wrapped duct tape
around his mouth and rubbed soap in his eyes. While the DHS found the child
credible in reporting this incident, the assessment also noted the child was not
injured as a result. The incident, though troubling, appears to be isolated, as the
record reveals no other reports of neglect or abuse. Christine’s reports that R.M.
cried or was fearful of his visits with Adam were inconsistent with observations of
the FSRP worker.7 The FSRP worker testified Adam and R.M. have an
affectionate bond and visits were going well in the summer and fall of 2014.
The State is rightly concerned with Adam’s failure to acknowledge any
wrongdoing. Parents’ refusal to address their role in a child’s abuse may hurt
their chances of regaining custody. In re C.H., 652 N.W.2d 144, 150 (Iowa
2002). But a parent’s insistence he is innocent cannot automatically disqualify
him from resuming custody. Our supreme court has said: “The State may require
parents to otherwise undergo treatment, but it may not specifically require an
admission of guilt as part of the treatment.” Id.
Adam has seen a therapist to address the aftermath of the abuse alleged
by his son and has been ordered to attend therapy as a condition of the
7 The record revealed that R.M. would make comments to Adam that seemed to be prompted by an adult, such as “why are you being mean to my mom” and “why are you drinking.” The juvenile court observed: “I spent 40 years in this business, and as far as I’m concerned, I’ve got a kid being used as a little weapon in this case.” 9
permanency order. While Adam still denies the August 2013 incident, the
therapists working with him and R.M. will be helpful to the juvenile court in
ultimately deciding if Adam can be a safe caretaker even in the absence of an
admission.
In addition to their focus on the abuse allegation, both the State and the
mother allege Adam has not dealt with an alcohol abuse problem.8 Adam has
alcohol-related convictions, but testified he does not believe he has a drinking
problem. Adam also gave a concerning answer regarding how many instances
of public intoxication would signal a drinking problem. But when directed to do so
by the court, Adam promptly obtained a substance abuse evaluation, which
recommended no treatment was necessary. When asked in an earlier hearing
what he disclosed to the evaluator about his alcohol consumption, Adam
responded: “I said I’m a normal 28-year-old single guy. I like to hang out with my
friends, watch football, have some drinks every now and then.” The DHS worker
did not report any problem with Adam being under the influence during visits with
R.M. Still, the juvenile court ordered Adam not to drink alcohol within twelve
hours of any visit with R.M. On this record, we do not view Adam’s alcohol use
as sufficient cause to deny the six-month extension.
Finally, we address Christine’s argument that the permanency order’s
“regimented increase in contact” between Adam and R.M. presupposes “an
ultimate reunification without concern as to the child’s readiness for it.” Christine
admits “deliberately increasing contact is absolutely proper” and in R.M.’s best
8 The State highlights Adam’s disinclination to wear an alcohol monitoring device called a “SCRAM bracelet.” Such monitoring was never ordered by the court. 10
interests, but she questions the lack of ongoing review. Adam counters that by
granting his motion to amend, the court “set out the steps that will need to be
completed to obviate the concerns that brought this family” to the attention of
DHS. We agree with Adam.
The court appropriately directed the DHS to make specific efforts to
increase visits and to protect R.M.’s welfare. Because the DHS delayed
visitation between Adam and R.M. from December 2013 until July 2014, the court
did not have sufficient information at the permanency hearing to place sole
custody with the mother under section 232.102(2)(d).9 Given the history of this
case, the court acted reasonably in imposing targeted visitation milestones on
the DHS. The review hearing scheduled for March 13, 2015, will provide the
parties an opportunity to assess Adam’s progress toward reunification.
AFFIRMED.
9 The court’s ability to monitor progress could have occurred more quickly if Christine had not unilaterally taken R.M. out of therapy without informing Adam.