IN THE COURT OF APPEALS OF IOWA
No. 17-0874
Filed September 13, 2017
IN THE INTEREST OF G.D. and A.D.,
Minor Children,
K.L., Custodian/Intervenor,
Appellant,
VICKI R. DANLEY, Guardian ad litem,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Page County, Amy L. Zacharias,
District Associate Judge.
The guardian ad litem and the custodian appeal from the juvenile court’s
dispositional order, in which the court refused to waive the State’s obligation to
provide reasonable efforts to reunify the family. AFFIRMED.
Scott D. Strait, Council Bluffs, for custodian/intervenor.
Vicki R. Danley, Sidney, guardian ad litem for minor children.
William C. Bracker of Law Office of Bill Bracker, Council Bluffs, for mother.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2
POTTERFIELD, Judge.
The guardian ad litem (GAL) and the custodian1 of G.D. and A.D. appeal
from the juvenile court’s dispositional order, in which the court denied the GAL’s
motion to waive the State’s obligation to make reasonable efforts to reunify the
children with their parents. The GAL maintains there was substantial evidence of
aggravated circumstances, pursuant to Iowa Code section 232.102(14)(b) and
(c) (2017),2 allowing the court to waive reasonable efforts for reunification.
Additionally, if reasonable efforts are not to be waived, the GAL argues the
department should not be required to allow visits between the children and the
parents as parts of its reasonable-efforts mandate in this case.3
I. Background Facts and Proceedings.
This is not this family’s first involvement with the Iowa Department of
Human Services (DHS). A case was opened and services were provided in both
2014 and 2015; in both instances, the case was voluntarily dismissed by DHS.
The present involvement began in July 2016, after both parents were observed to
have fresh track marks on their arms and arrested. The father admitted to the
arresting officer that both he and the mother had been using methamphetamine
intravenously with the children present. At the time, G.D. was six years old and
1
The custodian/intervenor is the children’s paternal grandmother.
2
At the time the GAL filed it and the district court decided it, the applicable subsections
were 232.102(12)(b) and (c)—as opposed to 232.102(14)(b) and (c). Effective July 1,
2017, the subsections were renumbered. They are otherwise unchanged. For our own
ease, we refer to the subsections under their current designation.
3
The GAL argues the juvenile court should not have immediately ordered visitation as
part of the reasonable-efforts mandate and instead should have waited until hearing
testimony at the dispositional hearing to determine if visitation was in the children’s best
interests. It is unclear what remedy the GAL seeks for the visits that have already
occurred; we consider the claim only insofar as it pertains to the future of the
reasonable-efforts mandate.
3
A.D. was three years old. While the mother continues to maintain she did not
use methamphetamine on that date, it is undisputed she allowed the father, who
was high and hallucinating he was being chased, to take the children with him
when he left in the family’s vehicle. The mother did nothing to stop the father,
and she did not summon help. Both parents were cited for felony child neglect.
As a result of the incident, the children were removed from the care of
their parents and the State filed a petition alleging the children were children in
need of assistance (CINA). Following an adjudicatory hearing, on October 12,
2016, the juvenile court found insufficient evidence to support the grounds for
adjudication; the court ordered the CINA petition to be dismissed and the children
to be returned to the care of their parents. However, there was a criminal no-
contact order in place preventing the parents from having contact with the
children, so the children’s paternal grandmother took custody of the children
through a guardianship.
The GAL appealed the dismissal of the CINA petition, and a panel of our
court found sufficient evidence for both children to be adjudicated pursuant to
Iowa Code section 232.2(6)(c)(2) and (n) (2016). See In re G.D., No. 16-1895,
2017 WL 512796, at *2 (Iowa Ct. App. Feb. 8, 2017).
After procedendo issued, the juvenile court scheduled a dispositional
hearing. The paternal grandmother, who was still the guardian of the children,
filed a motion to intervene, and the juvenile court granted it. Additionally, the
GAL filed a motion asking the court to waive reasonable efforts to reunify the
children with their parents.
4
The dispositional hearing took place on April 21, 2017. The mother
testified at the hearing, admitting she has struggled with the use of illegal drugs
throughout much of her life and has previously had her parental rights terminated
to other children. Testimony from the children’s counselors and the social worker
included statements of concern that the children had been traumatized a number
of times over the preceding three years and were yet again suffering from
instability.
The juvenile court found there was not clear and convincing evidence to
establish aggravating circumstances and denied the GAL’s motion to waive
reasonable efforts. The court maintained the placement of the children with the
paternal grandmother, and the permanency goal remained to reunify the children
with the parents.
The GAL and the paternal grandmother appeal.
II. Standard of Review.
We perform a de novo review of dispositional orders in CINA cases. In re
K.B., 753 N.W.2d 14, 15 (Iowa 2008).
III. Discussion.
The GAL’s motion to waive reasonable efforts alleged aggravating
circumstances existed pursuant to section 232.102(14)(b) and (c). The section
provides:
14. If the court determines by clear and convincing evidence
that aggravated circumstances exist, with written findings of fact
based upon evidence in the record, the court may waive the
requirement for making reasonable efforts. The existence of
aggravated circumstances is indicated by any of the following:
....
5
b. The court finds the circumstances described in section
232.116, subsection 1, paragraph “i”, are applicable to the child.
c. The parent’s parental rights have been terminated under
section 232.116 or involuntarily terminated by an order of a court of
competent jurisdiction in another state with respect to another child
who is a member of the same family, and there is clear and
convincing evidence to show that the offer or receipt of services
would not be likely within a reasonable period of time to correct the
conditions which led to the child’s removal.
Iowa Code section 232.116(1)(i) states:
(1) The child meets the definition of child in need of
assistance based on a finding of physical or sexual abuse or
neglect as a result of the acts or omissions of one or both parents.
(2) There is clear and convincing evidence that the abuse or
neglect posed a significant risk to the life of the child or constituted
imminent danger to the child.
(3) There is clear and convincing evidence that the offer or
receipt of services would not correct the conditions which led to the
abuse or neglect of the child within a reasonable period of time.
Here, the juvenile court determined there was not clear and convincing evidence
the receipt of services would not be likely within a reasonable period of time to
correct the conditions which led to the child’s removal. We agree.4
A.D.’s counselor testified A.D. has been diagnosed with chronic post-
traumatic stress disorder and attention deficit hyperactivity disorder. She also
testified he has suffered trauma when he lived with his mother in the past and he
is currently working through that trauma with art therapy and play therapy. His
anxiety worsened when visits with the mother restarted in February 2017.
However, the counselor did not opine that A.D. should not have visits with his
4
We note that A.D. and G.D. have been removed from both parents’ care and the GAL’s
initial motion did not specify that it was asking the court to waive reasonable efforts only
as to the mother. However, all of the testimony focused on the mother’s relationship
with the children—presumably because it is the paternal grandmother who is currently
guardian of the children.
6
mother or be returned to her care. When asked how long A.D. should continue
to participate in therapy, she testified:
You know, individual therapy is not—it’s going to be a good thing
for him ongoing for a while just to kind of deal with all of the past
trauma he has had. If something happens that he is going to be
placed back in [the mother’s care], I would hope that several
services continue, whether it be [behavioral health intervention
services], therapy, maybe family therapy in the future, so that we
are not just jumping the gun and the kids are going back. There
needs to be small baby steps.
G.D.’s counselor testified about similar concerns regarding past trauma
G.D. had suffered while in his mother’s care, including issues with hunger and
unsanitary home conditions. She stated he has been able to process some of
that trauma and refers to himself as happy when talking about visits with his
mother. When asked how long G.D. would need therapy, his counselor testified,
“I think we have a ways out. [Six] months to a year wouldn’t be uncommon,
especially given his speech issues. His vocabulary is increasing, but it has a
long ways to go.” G.D.’s counselor did not testify that visits between G.D. and
the mother were hurtful to G.D., and she did not testify that it would harm G.D. tor
reunify with his mother.
The family’s social worker was also assigned to their 2014 and 2015
cases. She testified she participated in and “signed off” on the department’s
previous two decisions to voluntarily dismiss the family’s cases, meaning she
“believe[d] we ha[d] achieved safe closure.” When asked about her concerns
that the family was again involved with DHS for the third time in three years and
her obligation to recommend the children reunify with the parents, she testified:
I think that’s pretty—honestly when I have a case come back
through the Department of Human Services, of course, I look at the
7
Department’s role. I look at my role. I look at did I make the right
decision as a supervisor, did we miss something, did we not
provide something that’s support to this family that might have
helped. I think in the totality of it, of course I should look at that.
That’s an ethical responsibility of being a supervisor for the
Department. Hence that’s part of the reason I’m going to keep this
case. Because I want my eyes on it only. It’s concerning to me
because it seems to be a mom—and everything I am saying, mom
and dad and I have already talked about. When mom and dad
have close supervision and external control—and what I mean by
that is like the Department, [Family Safety, Risk, and Permanency]
(FSRP), juvenile court—they do textbook beautiful. I will say that
when I have observed the children’s visits with their parents—and I
have done that since the case came back—I would say probably
it’s the best parenting skills I have ever seen in [twenty-six] years of
doing child welfare work.
My concern is when those external controls go away and the
eyes go away, mom and dad—and I have heard a lot of testimony
today really focusing on mom. One of the things I want to make
sure of today as I’m testifying, it’s not just mom. Dad was using
methamphetamine as well and . . . the children have also
confronted him during visits that I have been at about mom and you
using drugs again.
I feel for these kids that reunification occurs, DHS and
juvenile court goes away, and then we come back to the same
issues. I think that pattern leads to the anxiety and the trauma and
just that—those feelings of distrust that they have.
We understand the social worker’s testimony to mean she has concerns that the
parents are able to appear to have made significant changes or growth when
they, in fact, have not. In light of the history of DHS’s involvement with this
family, such concerns are valid. But those concerns do not establish that the
parents are unable to actually make those changes when offered services and
held accountable.
While both counselors testified about the children’s fear of further
instability in their lives, neither opined that eventually returning the children to
their parents would be detrimental to the children. Additionally, the social worker
and FSRP provider were asked to rate the mother’s motivation to accept services
8
and implement suggestions on a scale from one to ten, and both gave her a
“ten.” There is not clear and convincing evidence that the receipt of services will
not allow for the reunification of this family within a reasonable time. And nothing
in the record suggests that future visits between the children and the mother
would harm the children. See In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App.
1996) (“The reasonable efforts concept would broadly include a visitation
arrangement designed to facilitate reunification while protecting the child from the
harm responsible for the removal.”); cf. In re C.M., No. 03-1988, 2004 WL
240300, at *1–2 (Iowa Ct. App. Feb. 11, 2004) (noting “[t]he nature and extent of
visitation is controlled by the best interests of the child[ren]” and finding visitation
was not a necessary component of reasonable efforts when the father was
uncooperative, did not see any to reason to change, and acted in a manipulative
and intimidating manner).
For these reasons, we affirm the juvenile court’s dispositional order.5
AFFIRMED.
5
That is not to say that we do not share some of the GAL’s and custodian’s concerns
the mother has failed to take responsibility for the trauma suffered by the children. Both
of the counselors testified the children have reported traumatic issues involving lack of
cleanliness in the home—including bugs, going hungry, and seeing the “pee pee” of one
of the mother’s “friends.” The mother attempted to imply the children have been
coached by their paternal grandmother to discuss such issues, but both counselors
testified they have seen no signs of coaching. See In re C.H., 652 N.W.2d 144, 150
(Iowa 2002) (noting the State may require a parent to admit past transgressions insofar
as the parent is required to obtain meaningful treatment for their problems, and “[a]
parent’s failure to address his or her role in [the harm suffered by the children] may hurt
the parents’ chances of regaining custody and care of their children”).