IN THE COURT OF APPEALS OF IOWA
No. 16-2002
Filed February 22, 2017
IN THE INTEREST OF B.B.,
Minor child,
D.B., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Virginia Cobb,
District Associate Judge.
Father appeals from a dispositional order entered pursuant to Iowa Code
chapter 232 (2016). AFFIRMED.
Bryan J. Tingle of Tingle Law Office, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.
The child at issue, B.B., was removed from his parents in February 2016
and adjudicated in need of assistance pursuant to Iowa Code section
232.2(6)(c)(2) (2016) in June 2016. Following a dispositional hearing, the
juvenile court ordered temporary legal custody of the child remain with the
department of human services for family foster care. Doug, the father of B.B.,
appeals the adjudication and dispositional orders.
We review child-in-need-of-assistance 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 (Iowa Ct. App. 1995). “Although our review is de
novo, we do afford the decision of the district court deference for policy reasons.”
State v. Snow, No. 15-0929, 2016 WL 4801353, at *1 (Iowa Ct. App. Sept. 14,
2016). We will uphold an adjudicatory order only if there is clear and convincing
evidence supporting the statutory grounds cited by the juvenile court. See Iowa
Code § 232.96(2); D.D., 653 N.W.2d at 361. Evidence is “clear and convincing”
when there are no serious or substantial doubts as to the correctness of
conclusions of law drawn from the evidence. See D.D., 653 N.W.2d at 361.
Doug challenges the adjudication order in two respects. First, he
contends the State failed to prove the ground for adjudication by clear and
convincing evidence. Second, he contends the juvenile court should have placed
B.B. in his care. We are unable to grant relief on either claim. There is no record
of the adjudication hearing, nor has there been an attempt to reconstruct the
record.
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The rules of appellate procedure require that if the “appellant
intends to urge on appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence,
appellant shall include in the record a transcript of all evidence
relevant to such finding or conclusion.” Iowa R. App. P. 6.10(2)(c).
It is the appellant’s duty to provide a record on appeal affirmatively
disclosing the alleged error relied upon. State v. Ludwig, 305
N.W.2d 511, 513 (Iowa 1981). The court may not speculate as to
what took place or predicate error on such speculation.
Without the benefit of a full record of the lower courts’
proceedings, it is improvident for us to exercise appellate review.
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Rule 6.10(3)
allows an appellant the chance to have a record on appeal when
the lower court does not report or record the proceedings. F.W.S.’s
failure to comply with rule 6.10(3) precludes him from seeking relief
on appeal. In re T.V., 563 N.W.2d 612, 614 (Iowa 1997).
Therefore, we must affirm the decision of the district court because
F.W.S. has failed to present a proper record on appeal.
In re F.W.S., 698 N.W.2d 134, 135-36 (Iowa 2005).
We do address the merits of Doug’s challenge to the dispositional order.
Following a dispositional hearing, Iowa courts are required to “make the least
restrictive disposition appropriate considering all the circumstances of the case.”
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. Where
there is a suspended judgment, the child remains with the parent. See State v.
Iowa Dist. Ct., 828 N.W.2d 607, 615 (Iowa 2013). Transfer of legal custody and
placement away from the parent is the most restrictive. See Iowa Code
§ 232.102.
Our court has concluded that, until the parent can establish the ability to
parent the child safely, the least restrictive disposition is for the child to be placed
with others. See In re L.F., No. 13-1409, 2013 WL 5949653, at *4–5 (Iowa Ct.
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App. Nov. 6, 2013) (affirming dispositional order placing child outside home
where evidence established child abuse, mother undoubtedly lied about the child
abuse, and mother recruited child’s sibling to take responsibility for injury); In re
J.C., No. 13-1957, 2013 WL 3291867, at *3 (Iowa Ct. App. June 26, 2013)
(affirming dispositional order placing child with another where mother failed to
demonstrate the ability to safely care for the child); In re M.O., No. 06-0405, 2006
WL 1280481, at *2 (Iowa Ct. App. May 10, 2006) (affirming juvenile court order of
continued placement with another where mother had substantially addressed
mental health and parenting issues but record reflected she had not yet
completed all remedial services intended to improve her parenting skills).
Doug contends the juvenile court should have placed the child in his care
as the least restrictive alternative. On de novo review, we disagree. The record
reflects, at the time of the dispositional hearing, the father had not yet addressed
several issues giving rise to appreciable risk of harm to the child. The father was
making progress in his therapy, but he had not sufficiently addressed his
aggressive and controlling behavior and inability to draw boundaries and avoid
unhealthy relationships. The father has a history of domestic violence with the
mother of the child, including reports during the pendency of this case that he
struck the mother and caused her to have two black eyes. The father recently
dropped a no-contact order against his ex-wife and commenced a relationship of
some type with her. He sought and continues to seek for his ex-wife to have a
relationship with the child. However, it is not disputed the ex-wife stabbed Doug
in an attempt to kill him. It is also not disputed that the ex-wife exposed their
child, who is older than B.B. and not at issue in this proceeding, to drugs and
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violence. While Doug continues to make progress in accord with the case plan,
we conclude continued placement of the child in family foster care was the least
restrictive alternative.
AFFIRMED.