IN THE COURT OF APPEALS OF IOWA
No. 16-0409
Filed April 27, 2016
IN THE INTEREST OF J.L.,
Minor child,
D.L., Father,
Appellant.
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Appeal from the Iowa District Court for Black Hawk County, Daniel L.
Block, Associate Juvenile Judge.
Stepfather appeals from a dispositional order continuing his stepson in the
custody of the department of human services for placement in family foster care.
AFFIRMED.
Linda A. Hall of Linda Hall Law Firm & Mediation Services, P.L.L.C.,
Cedar Falls, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Melissa A. Anderson-Seeber of the Juvenile Public Defender’s Office,
Waterloo, for minor child.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.
The child at issue, J.L., was born in September 2015. The child was
removed from the mother, Melanie’s, care due to Melanie’s methamphetamine
use and demonstrated inability to care for the newborn. Melanie has had four
other children removed from her care for similar reasons. Subsequent to
removal of the child, Melanie married Derek. Derek is not the biological father of
the child at issue. The child was adjudicated in need of assistance (“CINA”), and
the matter came on for dispositional review hearing. Derek now appeals from a
dispositional order providing custody of J.L. shall remain with the Iowa
Department of Human Services (IDHS) for placement in family foster care.
We review CINA proceedings de novo. See In re D.D., 653 N.W.2d 359,
361 (Iowa 2002). We examine both the facts and law, and we adjudicate anew
those issues properly preserved and presented. See In re L.G., 532 N.W.2d 478,
480–81 (Iowa Ct. App. 1995). We give weight to the findings of the juvenile
court. See In re E.H. III, 578 N.W.2d 243, 248 (Iowa 1998). While doing so, our
statutory obligation to review adjudication proceedings de novo means our
review is not a rubber stamp of what has come before. “The most important
consideration in any CINA case is the best interests of the child.” D.D., 653
N.W.2d at 362.
“Following the entry of an order pursuant to section 232.96, the court shall,
as soon as practicable, hold a dispositional hearing in order to determine what
disposition should be made of the petition.” Iowa Code § 232.99(1) (2015).
“When the dispositional hearing is concluded the court shall make the least
restrictive disposition appropriate considering all the circumstances of the case.”
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Iowa Code § 232.99(4). The code sets forth possible dispositions in sections
232.100 through 232.102, from least restrictive to most restrictive. Suspending
judgment is the least restrictive alternative. See Iowa Code § 232.100. Transfer
of legal custody and placement away from the parent is the most restrictive. See
Iowa Code § 232.102. Within section 232.102, several alternatives are provided,
including placement with another parent, relative, or suitable person; placement
with a child-placing agency, facility or institution; or placement with IDHS. See
Iowa Code § 232.102(1)(a)(1)-(3). Our supreme court has interpreted these
sections to favor placement with a relative over placement with a non-relative.
See In re N.M., 528 N.W.2d 94, 97 (Iowa 1995). However, because the best
interest of the child is the primary concern, the juvenile court is not required to
order placement with relatives over other alternatives. See, e.g., In re T.H., No.
02–1844, 2003 WL 21543837, at *2 (Iowa Ct. App. July 10, 2003) (affirming
placement in foster care over placement with grandmother).
Here, the juvenile court chose the most restrictive disposition—transfer of
custody for placement into foster care. Custody may be transferred by the
juvenile court if it finds by clear and convincing evidence that “(1) [t]he child
cannot be protected from physical abuse without transfer of custody; or (2) [t]he
child cannot be protected from some harm which would justify the adjudication of
the child as a [CINA] and an adequate placement is available.” Iowa Code
§ 232.102(5)(a). Clear and convincing evidence is more than a preponderance
of the evidence and less than evidence beyond a reasonable doubt. See In re
L.G., 532 N.W.2d 478, 481 (Iowa Ct. App. 1995).
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Derek contends the least restrictive disposition appropriate is placement of
the child with him, as the father of the child. The argument fails for two reasons.
First, Derek is not the father of the child within the meaning of Iowa Code
chapter 232. He is not the biological father or adoptive father of the child. See In
re J.C., 857 N.W.2d 495, 505 (Iowa 2014) (holding “parent” within the meaning of
chapter 232 is limited to a biological parent or an adoptive parent). Nor is he the
established father or legal father of the child because he and Melanie were not
married at the time of the child’s birth. Even if he were the established or legal
father of the child, the fact would be immaterial because the supreme court has
held an established father qua father is not able to participate as a matter of right
in chapter 232 proceedings involving the father’s child. See id.
Second, on de novo review, we conclude there is clear and convincing
evidence supporting the dispositional order. The child cannot be placed with the
father because the father resides with the mother. There remain valid concerns
regarding the mother creating a risk of adjudicatory harm to the child. Similar
concerns exist regarding Derek. For example, Derek was incarcerated at the
time of the child’s birth and there continue to be concerns regarding his criminal
activity and relapse into substance abuse. During semi-supervised visitation,
Derek struggled to meet the child’s basic needs, such as feeding the child and
changing the child’s diapers. With respect to Melanie and Derek, there remain
valid concerns regarding their denial of critical care, limited parenting skills,
substance abuse, exposure of the child to illegal substances, and inadequate
supervision of the child.
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For the foregoing reasons, we affirm the dispositional order.
AFFIRMED.