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.
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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.
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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.
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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
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“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).
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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).
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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
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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.
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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
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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.