State of Iowa v. Iowa District Court for Warren County

IN THE SUPREME COURT OF IOWA
No. 11–2031

Filed March 22, 2013

STATE OF IOWA,

Plaintiff,

vs.

IOWA DISTRICT COURT FOR WARREN COUNTY,

Defendant.

On review from the Iowa Court of Appeals.

Certorari to the Iowa District Court for Warren County, Richard B.

Clogg, District Associate Judge.

A child seeks further review of a court of appeals decision

sustaining a writ of certiorari and holding the juvenile court lacked

authority to enter a consent decree placing the child in a residential

facility. WRIT SUSTAINED; COURT OF APPEALS DECISION

AFFIRMED; CASE REMANDED.

Thomas J. Miller, Attorney General, Charles K. Phillips and

Bruce L. Kempkes, Assistant Attorneys General, John W. Criswell,

County Attorney, and Douglas A. Eichholz and Karla J. Fultz, Assistant

County Attorneys for plaintiff.

Jane M. White of Pargulski, Hauser & Clarke, P.L.C., Des Moines,
for defendant.
 2

MANSFIELD, Justice.

This case asks us to consider the juvenile court’s authority in a

delinquency proceeding to enter a consent decree, over the State’s

objection, placing a child in the legal custody of juvenile court services,

with the department of human services as payment agent, for purposes

of placement in a residential facility. For the reasons set forth herein, we

conclude the legislature did not grant this authority to juvenile courts in

Iowa Code section 232.46, and therefore we sustain the writ of certiorari,

affirm the decision of the court of appeals, and remand this case for
further proceedings consistent herewith.

I. Background Facts and Proceedings.

After receiving reports that fifteen-year-old J.W.R. and his thirteen-

year-old brother engaged in sex acts with their twelve-year-old sister, the

State filed a petition in March 2011, alleging that J.W.R. committed the

delinquent acts of sexual abuse in the third degree and incest.1 J.W.R.

was removed from the family home and detained at the Polk County

Juvenile Detention Center. During the pendency of the proceeding,

J.W.R. was moved first to the Polk County Youth Shelter and then to

Four Oaks, a shelter located in Iowa City. This placement outside

J.W.R.’s home was based on the court’s concern for the safety of the

juvenile’s sister, who still lived at home, and concern that J.W.R. might

reoffend in a less restrictive environment. On October 19, 2011, J.W.R.

entered an Alford plea to the incest allegation, and the State dismissed

the sexual abuse charge.

A juvenile court officer (JCO) recommended J.W.R. be adjudicated

a delinquent and placed in a residential treatment facility for sex

1The State also filed a petition against J.W.R.’s brother. A consent decree was
entered in his case, and he went to live with his aunt and uncle.
 3

offenders. The JCO’s recommendation was based partly on an

evaluation of J.W.R. by a psychologist who diagnosed J.W.R. with

Asperger’s disorder and found that J.W.R. “was not safe out in the

community given his level of accepted responsibility, impulsivity and his

general denial.” The JCO added that he had been “asked if a Consent

Decree would be appropriate for [J.W.R.], unfortunately, there is not a

section in the Code that allows a transfer of custody and placement for

children under a Consent Decree.”

At the dispositional hearing during the afternoon following J.W.R.’s
Alford plea of guilty, J.W.R. offered the testimony of a child psychiatrist,

Dr. Kevin Took, who had reviewed the mental health records and met

with J.W.R. Dr. Took generally concurred in the diagnosis of J.W.R.,

although he preferred to describe it as pervasive developmental disorder

not otherwise specified (PDD-NOS).2 He strongly recommended against

placing J.W.R. in a sex offender treatment facility. He concluded that

because of J.W.R.’s developmental disorder and his lack of history of

other inappropriate sexual behavior, he would likely be victimized

himself or learn more inappropriate sexual behavior if placed in such a

facility. Dr. Took opined that a community-based program focusing on

improving all of J.W.R.’s social skills would be the most effective and

appropriate under the circumstances. Dr. Took recommended either a

family placement or, if no family placement was available, foster care.

J.W.R. requested the court to enter a consent decree pursuant to

Iowa Code section 232.46. The State argued that J.W.R. should be

2Pervasivedevelopmental disorders (PDDs) include several conditions, ranging
from the relatively mild—Asperger’s—to the most severe—childhood disintegrative
disorder—and includes autism. PDDs are characterized by delays in the development of
multiple basic functions including socialization and communication. Pervasive
developmental disorder not otherwise specified (PDD-NOS) refers to a PDD which is
more severe than Asperger’s but not as severe as autism.
 4

adjudicated a delinquent and placed in a residential treatment facility.

The State maintained that “if the Court decides to place [J.W.R.],” a

consent decree would be inappropriate.

The juvenile court issued a consent decree on October 21, 2011,

withholding adjudication that J.W.R. had committed a delinquent act.

The court directed that J.W.R. be placed under the supervision of

juvenile court services to receive a treatment program. It ordered that

J.W.R. remain in the Iowa City youth shelter pending placement in a

relative’s home or a foster home. The court also indicated that a further
hearing would occur on November 17.

The State filed a motion to enlarge, arguing that the court did not

have the authority to place J.W.R. outside the family home under a

consent decree, citing In re C.D.P., 315 N.W.2d 731 (Iowa 1982), and Iowa

Code sections 232.46 and 232.57. The juvenile court then issued an

order on November 15 reaffirming that “placement outside of the family

home is an option which should be considered” and noting that it would

also consider placing J.W.R. in a psychiatric medical institute (PMI) for

children.

Further hearings were held in late November and early December.

The JCO had supplemented his predisposition report after exploring

various placement options for J.W.R. The JCO reported that J.W.R.

could not be placed back into his own home because the victim was

living there and a no-contact order was in place. J.W.R.’s father was

willing to take custody of J.W.R., but the father’s work schedule would

have left J.W.R. unsupervised for most of the day. J.W.R.’s aunt and

uncle also expressed an interest in providing J.W.R.’s care, but J.W.R.’s
brother had already been placed with them. Because the two boys had

acted together in committing the offenses against their sister, it was not
 5

recommended that they live together. The JCO had also investigated the

possibility of other individual foster care placements, but at that time

there were no foster homes willing or available to match J.W.R.’s needs

or circumstances. Three potential PMI placements had also declined

because J.W.R. needed sex offender treatment.

JCO had located two group foster care placements that he found

suitable for J.W.R. As he explained, “Both programs specialize in sex

offending issues and have or did have clients with diagnosis of Pervasive

Development Disorder/Asperger’s.” The JCO therefore recommended
that J.W.R. be placed in either of these residential treatment/group

foster care facilities. The JCO noted that these programs do not

necessarily use a “Positive Peer Culture” and therefore would not raise

the concerns voiced by Dr. Took about J.W.R. being subject to abuse or

learning behavior from other sex offenders.

On December 5, 2011, over the State’s objection that it lacked

authority to do so, the court continued the consent decree and ordered

J.W.R. placed in a group foster care facility. Specifically, the juvenile

court ordered:

Adjudication is withheld and the child shall remain on his
Consent Decree as previously ordered by the Court.

The child is placed in the temporary legal custody of Juvenile
Court Services, with the Department of Human Services as
payment agent, for the purposes of placement in residential
treatment.

The State filed a petition for writ of certiorari, contending the

juvenile court exceeded its authority by entering a consent decree that

placed J.W.R. in residential treatment. We granted the writ and

transferred the case to the court of appeals. The court of appeals
sustained the writ of certiorari, reasoning: “In the instant case, the
 6

juvenile court ordered legal custody of [J.W.R.] to juvenile court services

with the DHS ‘as payment agent’ for purposes of placement in residential

treatment. This disposition is not permissible under section 232.46.”

One judge on the panel dissented. J.W.R. sought further review, and we

granted his application.

II. Scope of Review.

Certiorari is appropriate when a lower court or tribunal has

exceeded its authority or otherwise acted illegally. Iowa Ct. R. 1.1401,

Fisher v. Chickasaw Cnty., 553 N.W.2d 331, 333 (Iowa 1996). Our review
is for corrections of errors at law. State Pub. Defender v. Iowa Dist. Ct.,

747 N.W.2d 218, 220 (Iowa 2008). “Illegality exists when the court’s

findings lack substantial evidentiary support, or when the court has not

properly applied the law.” Id. (citation and internal quotation marks

omitted).

III. Discussion.

When a juvenile is believed to have committed a delinquent act, the

county attorney may initiate judicial proceedings by filing a petition.

Iowa Code § 232.35(1) (2011). The “consent decree,” however, provides a

way for those proceedings to be suspended short of an adjudication of

delinquency:

At any time after the filing of a petition and prior to entry of
an order of adjudication pursuant to section 232.47, the
court may suspend the proceedings on motion of the county
attorney or the child’s counsel, enter a consent decree, and
continue the case under terms and conditions established by
the court. These terms and conditions may include
prohibiting a child from driving a motor vehicle for a
specified period of time or under specific circumstances, or
the supervision of the child by a juvenile court officer or
other agency or person designated by the court, and may
include the requirement that the child perform a work
assignment of value to the state or to the public or make
restitution consisting of a monetary payment to the victim or
a work assignment directly of value to the victim.
 7

Id. § 232.46(1).

The consent decree may remain in force for up to a year and may

be extended for a second year. Id. § 232.46(4). If the child fails to

comply with the terms and conditions, he or she may be “held

accountable as if the consent decree had never been entered.” Id.

§ 232.46(5). However, if the child complies with the terms and

conditions for the required time, the original petition may not be

reinstated and the child may not be proceeded against for any delinquent

act alleged in the petition. Id. § 232.46(5)–(6).
The consent decree is essentially a bipartite arrangement between

the juvenile court and the allegedly delinquent child that is memorialized

in a court order (hence the term “consent decree”).3 Even if the county

attorney objects to the consent decree, the juvenile court may enter it

over the county attorney’s objections. Id. § 232.46(3). And nothing

requires that the consent decree be approved by the child’s parents, so

long as the parents are informed of the consequences of the decree and

the child “has voluntarily and intelligently agreed to the terms and

conditions of the decree.” Id.

The dispute in this case centers on the meaning of “terms and

conditions” in section 232.46(1). J.W.R. appears to contend that the

meaning is open-ended, so long as the court acts in the best interests of

the child. In his appellate brief, J.W.R. writes, “There is nothing in Iowa

Code § 232.46 which prohibits any specific term and condition which the

Court deems appropriate.” However, at oral argument, J.W.R.’s counsel

3The child may move the court to enter a consent decree, in which case he or

she bears the burden to show that entry of a decree is appropriate and the ultimate
decision whether to grant the juvenile’s request rests in the juvenile court’s discretion.
In re Matzen, 305 N.W.2d 479, 481–82 (Iowa 1981).
 8

conceded there were some limits on the terms and conditions that may

be imposed in a consent decree.

The State counters that the phrase “terms and conditions” needs

to be read in context and refers to the sort of terms and conditions that

would be imposed on a child who is returning to the community, such as

driving restrictions, supervision, or restitution. In other words, in the

State’s view, ordering the child to a residential facility would not be a

permissible term and condition.

Here, the juvenile court agreed with J.W.R. and ultimately used the
consent decree procedure to place him in the temporary custody of

juvenile court services so he could enter a group foster care facility where

he could receive treatment for his sex offenses and his mental health

condition. We believe the phrase “terms and conditions” is ambiguous

and needs to be interpreted within its statutory context.

“A statute is ambiguous if reasonable minds could differ or
be uncertain as to the meaning of the statute. Ambiguity
may arise from specific language used in a statute or when
the provision at issue is considered in the context of the
entire statute or related statutes.”

Mall Real Estate, L.L.C. v. City of Hamburg, 818 N.W.2d 190, 198 (Iowa

2012) (quoting Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789
N.W.2d 417, 424–25 (Iowa 2010)); see also Iowa Code § 4.1(38) (“Words

and phrases shall be construed according to the context and the

approved usage of the language . . . .”). The first sentence of section

232.46(1) states that the court may “enter a consent decree, and

continue the case under terms and conditions established by the court.”

Iowa Code § 232.46(1) The next sentence of the section goes on, “These

terms and conditions may include . . . .” Id. The remainder of the
sentence then furnishes three specific examples of what a consent decree
 9

may include: (1) “prohibiting a child from driving a motor vehicle for a

specified period of time or under specific circumstances”; (2) “the

supervision of the child by a juvenile court officer or other agency or

person designated by the court”; (3) “the requirement that the child

perform a work assignment of value to the state or to the public or make

restitution consisting of a monetary payment to the victim or a work

assignment directly of value to the victim.” Id.

In our view, the second sentence of section 232.46(1) is not mere

window dressing. See id. § 4.4(2) (stating that it is presumed “[t]he entire
statute is intended to be effective”); Mall Real Estate, 818 N.W.2d at 198

(indicating that we “interpret statutes in such a way that portions of

[them] do not become redundant or irrelevant”). Instead, we conclude

that the second sentence provides needed context and illustrates the

types of conditions the juvenile court may impose. See Eyecare v. Dep’t

of Human Servs., 770 N.W.2d 832, 837 (Iowa 2009) (“Generally, ‘the verb

“includes” imports a general class, some of whose particular instances

are those specified in the definition.’ ” (quoting Helvering v. Morgan’s,

Inc., 293 U.S. 121, 125 n.1, 55 S. Ct. 60, 61 n.1, 79 L. Ed. 232, 235 n.1

(1934))). None of the examples given in section 232.46(1) involve

changing the placement or custody of the child.4

There are additional reasons why we conclude the terms and

conditions authorized by section 232.46(1) do not include transfer of

custody and placement in a residential facility. First, there is no

mechanism in the law for funding a residential placement in a group

4The original list included only one item—“the supervision of the child by a
juvenile probation officer or other agency or person designated by the court.” See 1978
Iowa Acts ch. 1088, § 26. Still, the point remains that the list has never included
conditions that amount to a change in where the child will live and who will be legally
responsible for him or her.
 10

foster home under a section 232.46 consent decree. The juvenile court

ordered such funding in this case, but it cited no authority for doing so.

Section 234.35, cited by J.W.R.’s counsel, indicates that the department

of human services shall pay the cost of care in nine specifically described

circumstances, none of which is present here. These circumstances

include when a court has transferred custody of the child to the director

of human services, as in a child-in-need-of-assistance (CINA) proceeding,

or when a court has entered an order under section 232.52(2)(d)

transferring custody of the child following an adjudication of
delinquency. See Iowa Code § 234.35(1)(b), (e). In short, section 234.35

supports the State’s position in this case, because it specifically requires

the State to pay for group foster care that is ordered following an

adjudication of delinquency or CINA, but it does not mention consent

decrees at all. See id. § 232.35(1)(e).

Another possible argument, not raised by J.W.R., is that section

232.141(4)(c) authorizes state funding here. Section 232.141(4) provides:

4. Upon certification of the court, all of the following
expenses are a charge upon the state to the extent provided
in subsection 5:

a. The expenses of transporting a child to or from a
place designated by the court for the purpose of care or
treatment.

b. Expenses for mental or physical examinations of a
child if ordered by the court.

c. The expenses of care or treatment ordered by the
court.

However, we believe the reference in subsection (c) does not include

group foster care. We know this because section 232.143 requires
planning for group foster care expenditures to be coordinated with

“planning for services paid under section 232.141, subsection 4.” See
 11

Iowa Code § 232.143(2). Thus, section 232.143 indicates that group

foster care expenditures and “care or treatment” expenditures under

section 232.141(4) are two separate things.

Because the legislature did not authorize funding for residential

placements to group foster homes under consent decrees, it logically

follows that the legislature did not intend such placements to occur. As

the court of appeals put it, “If consent decrees could result in foster care

placement, then the legislature presumably would have included them in

[the section 234.35(1)(e)] payment provision.” It is true that the State is
not separately challenging the juvenile court’s directive that it pay for

J.W.R.’s group foster care, but rather is challenging the court’s overall

authority to order that disposition. Nonetheless, as a matter of statutory

interpretation, we should be hesitant to read a statute as authorizing a

disposition for which there are no available means of payment.5

In interpreting the phrase “terms and conditions” in section

232.46, it is fair for us to consider that the legislature provided no way to

pay for residential placements ordered under consent decrees, as

opposed to residential placements ordered by other means. We try to

read statutes to avoid conflicts and to reach reasonable results. See

Iowa Code §§ 4.4(3), .7; Iowa Right to Life Comm., Inc. v. Tooker, 808

N.W.2d 417, 428 (Iowa 2011) (“Of course, we do not interpret statutes in

isolation, especially when they are in apparent conflict.”).

Second, section 232.46 speaks in terms of the child “compl[ying]

with the express terms and conditions of the consent decree for the

required amount of time.” Iowa Code § 232.46(5). The outer time limit is

5The juvenile court appointed counsel for J.W.R. based on his mother’s financial
affidavit. There is no indication that the parents would be able or willing to pay for
group foster care for J.W.R.
 12

no more than two years. Id. § 232.46(4). These concepts make sense if

one is talking about loss of a privilege, like driving; or being subjected to

reporting and supervision; or undertaking a community service

obligation or making restitution. But their logic is less apparent when

one is talking about placement in a group foster home. We normally

would not use the verb “complying with” to describe what the child is

doing in that circumstance. Also, what would happen when the two-year

maximum time period runs out and the child still is in need of treatment

or has nowhere else to go? While probation-like conditions normally
have a deadline, we would not think of treatment having such a deadline.

Third, there is an apparent parallel between section 232.46, the

consent decree provision for delinquency proceedings, and section

232.100, the “suspended judgment” provision for child in need of

assistance (CINA) proceedings. Section 232.100 is worded similarly to

232.46 and provides:

After the dispositional hearing the court may enter an
order suspending judgment and continuing the proceedings
subject to terms and conditions imposed to assure the
proper care and protection of the child. Such terms and
conditions may include the supervision of the child and of
the parent, guardian or custodian by the department of
human services, juvenile court office or other appropriate
agency designated by the court.

Iowa Code § 232.100. This is considered the “least” restrictive alternative

available following a CINA adjudication, in contrast with section 232.102

which provides for “[t]ransfer of legal custody of child and placement.”

See Iowa Code §§ 232.99(4), .102.

The similar design of section 232.46 and section 232.100 is worth

noting. Both allow the court to stop the proceeding (either the
delinquency adjudication or the CINA disposition) and instead impose

terms and conditions that “may include” supervision. This parallelism
 13

dates back to 1978, when our legislature made a comprehensive revision

of the juvenile justice laws. See 1978 Iowa Acts ch. 1088 (codified at

Iowa Code ch. 229 (1979)); In re P.L., 778 N.W.2d 33, 36–37 (Iowa 2010)

(discussing this revision). As enacted in 1978, section 232.46’s

predecessor provided:

At any time after the filing of a petition and prior to the entry
of an order of adjudication . . . , the court may suspend the
proceedings on motion of the county attorney or the child’s
counsel, enter a consent decree, and continue the case
under terms and conditions established by the court. These
terms and conditions may include the supervision of the
child by a juvenile probation officer or other agency or
person designated by the court.

1978 Iowa Acts ch. 1088, § 26(1). And section 232.100’s predecessor

provided:

After the dispositional hearing the court may enter an order
suspending judgment and continuing the proceedings
subject to terms and conditions imposed to assure the
proper care and protection of the child. Such terms and
conditions may include the supervision of the child and of
the parent, guardian or custodian by the department of
social services, juvenile probation office or other appropriate
agency designated by the court.

Id. § 56.
Section 232.100, like section 232.46, does not expressly limit the

terms and conditions the juvenile court can impose. But consistent with

the statutory structure, we have said that when there is a suspended

judgment, the child remains with the parent. In re Long, 313 N.W.2d

473, 476 (Iowa 1981). We have the same structure here, as well as

similar terminology (i.e., “terms and conditions” and “[s]uch terms and

conditions may include the supervision of the child”).

Fourth, our precedents support this interpretation of section
232.46(1). In In re C.D.P., the juvenile court initially ordered the child,

with his and the county’s consent, to be placed at a specific facility. 315
 14

N.W.2d at 732. Later, the juvenile court also ordered transfer of the

child’s custody to the State, ordered that the child remain in the same

facility, and ordered that the State pay the costs of the child’s placement

retroactively to his initial admission. Id. On the State’s appeal, we held

that the direction to place the child in a specific facility was improper

because section 232.52(2)(d) only gave the juvenile court authority to

“direct the type of placement,” not to “direct a specific placement.” Id. at

733. We also noted that, notwithstanding the county and the juvenile’s

argument that the disposition had been ordered by consent under
section 232.46, “if [the county] wishes to pursue the proceeding, [the

county] must secure an adjudication of delinquency in order to support

the disposition.” Id. If a consent decree could bring about an out-of-

home placement, we would not have directed the county to “secure an

adjudication of delinquency” upon remand to obtain the out-of-home

disposition. See id.; see also In re Rousselow, 341 N.W.2d 760, 762

(Iowa 1983) (describing a consent decree as “a juvenile court decree

whereby the case may be continued, the child placed on probation under

supervision, with the child being required to make restitution to the

victim or performing a work assignment of equivalent value for the victim

or state”).

Finally, under J.W.R.’s interpretation of section 232.46(1), a child

could potentially be taken away from his or her parents without the

parents’ consenting to the action or even having an opportunity to be

heard. That would raise serious due process concerns. “The parent-

child relationship is constitutionally protected.” In re H.L.B.R., 567

N.W.2d 675, 677 (Iowa Ct. App. 1997). True, a child also can be removed
under some circumstances if the child is adjudicated CINA or if the child

is adjudicated to be delinquent. But in the former instance, the parents
 15

will be parties to the proceeding, and in both of these instances, evidence

will be presented, and the court will render a decision based on specific

legal standards. See Iowa Code § 232.2(6) (defining “child in need of

assistance”); id. § 232.2(12) (defining “delinquent act”); id. § 232.47

(setting forth rules and procedures for an adjudication of delinquency);

id. § 232.50 (requiring a dispositional hearing after an adjudication of

delinquency); id. § 232.52 (setting forth possible dispositions and

requiring the court to enter “the least restrictive dispositional order

appropriate in view of the seriousness of the delinquent act”); id.
§ 232.96 (setting forth rules and procedures for a CINA hearing); id.

§ 232.99 (requiring a dispositional hearing after a CINA adjudication and

requiring “the least restrictive disposition appropriate considering all the

circumstances of the case”). The consent decree process, by contrast,

simply involves a court exercising its discretion and obtaining the

agreement of the child. Normally, we interpret statutes so they do not

present constitutional difficulties. See id. § 4.4(1).

No due process claim has been raised in this case, and there is no

indication that either parent is opposed to what the juvenile court

ordered here. Yet that is not the point. We need to take constitutional

requirements into account when we interpret ambiguous language, such

as “terms and conditions.” Section 232.46(3) states, “A consent decree

shall not be entered unless the child and the child’s parent, guardian or

custodian is informed of the consequences of the decree by the court and

the court determines that the child has voluntarily and intelligently

agreed to the terms and conditions of the decree.” In short, the

legislature specifically provided that the child had to agree to the decree
but the parent only had to be informed of its consequences. In this tight

space, there is no room to insert a provision for a hearing where the
 16

parent objects. We would be rewriting the statute. Instead, to avoid due

process problems, we should interpret the more elastic phrase “terms

and conditions” as not authorizing a change of custody and a group

foster care placement.

J.W.R. argues that any ambiguities in section 232.46(1) should be

interpreted in favor of the child. Section 232.1 provides,

“This chapter shall be liberally construed to the end
that each child under the jurisdiction of the court shall
receive, preferably in the child’s own home, the care,
guidance and control that will best serve the child’s welfare
and the best interest of the state.”

Notably, this language refers to both the interest of the child and

that of the state. In any event, as we have said in another context, the

concept of the child’s best interests must be applied within the

framework established by the legislature. See In re P.L., 778 N.W.2d 33,

37 (Iowa 2010). We believe the overall statutory design here compels the

conclusion that terms and conditions do not include a change of custody

and placement in a residential facility.6

IV. Conclusion.

For the foregoing reasons, we find that section 232.46 is a less

restrictive alternative, analogous to the suspended judgment, whereby a
child can remain with his parent or parents under supervision,

restrictions, or restitutionary obligations without being adjudicated

6In his application for further review, J.W.R. argues that it would violate the

Equal Protection Clause of the United States Constitution for him to be denied a
consent decree when his brother was granted one. This argument was not raised either
in J.W.R.’s appellee brief or in the juvenile court, and therefore we do not reach it. See
Chamberlain, L.L.C. v. City of Ames, 757 N.W.2d 644, 648 (Iowa 2008) (“When presented
with an application for further review from the court of appeals, we may consider ‘all of
the issues properly preserved and raised in the original briefs.’ ” (quoting Bokhoven v.
Klinker, 474 N.W.2d 553, 557 (Iowa 1991))).
 17

delinquent. It does not authorize a juvenile court to change temporary

custody, send a child to a residential facility, and require State payment.

This does not mean we have any substantive disagreement with

J.W.R.’s placement. The issue is not whether J.W.R. should be placed in

group foster care where he can receive appropriate treatment. The issue

is whether a juvenile court can bring about that result by ordering a

transfer of custody, payment by the State, and a residential placement

pursuant to section 232.46, the consent decree provision of the juvenile

justice chapter. In our view, the legislature established the framework,
and it must be followed here. See Anderson v. State, 801 N.W.2d 1, 1

(Iowa 2011).

J.W.R. could be placed in the group foster home under section

232.52(2)(d) following an adjudication of delinquency. Alternatively, and

without an adjudication of delinquency, it may be possible to place him

there as a child in need of assistance under section 232.2(6)(l). Indeed,

J.W.R. makes this very point on appeal, stating,

It is unfortunate that the State chose not to handle
this matter as a Child in Need of Assistance proceeding
rather than a delinquency. A [CINA] proceeding would have
allowed a lot more flexibility in treating the needs of this
entire family.

As detailed above, a large part of the problem here is that for reasons

beyond his control, J.W.R. cannot be placed with any of his relatives.

Lastly, we are not deciding that a juvenile court can never use its

consent decree authority to arrange for a child to receive treatment out of

the home. We leave that question for another day. We are holding,

simply, that the decree in this case involving a residential placement that
 18

required a change of custody and State payment exceeded the court’s

authority under section 232.46.7

We sustain the writ. We remand this case to the juvenile court for

further proceedings consistent herewith.

WRIT SUSTAINED; COURT OF APPEALS DECISION AFFIRMED;

CASE REMANDED.

All justices concur except Appel, Wiggins, and Hecht, JJ., who

dissent.

7Here, the consent decree involved removing J.W.R. from his parents and
putting him in a group foster home for treatment purposes. The State objected to this
below, stating among other things, “The State believes that the Court’s grant of a
Consent Decree requires the return of the child to his paternal or maternal home.” On
appeal, the State urges that residential treatment may never be ordered under a
consent decree. As we often do in deciding appeals, we have accepted the State’s
argument in part. See, e.g., State v. Clark, 351 N.W.2d 532, 536 (Iowa 1984) (“We go
with Clark’s argument only part of the way.”), superseded by statute, 1986 Iowa Acts
ch. 1220, § 2, as recognized in State v. Chesmore, 474 N.W.2d 551, 552 (Iowa 1991).
We conclude that under the circumstances presented here, where residential treatment
requires a change of custody, the decree exceeded the juvenile court’s authority under
section 232.46. We do not and need not decide whether the State’s argument is correct
in its entirety.
 19

#11–2031, State v. Iowa Dist. Ct.

APPEL, Justice (dissenting).

I agree with the majority opinion to the extent it rejects the

contention that a juvenile court is categorically prohibited from ordering

residential treatment as part of a consent decree. I respectfully dissent

from the balance of the opinion and the result in this case.

The sole issue before the court, according to the State’s brief, is

whether “According to Governing Case Law, The Juvenile Court Acted

Illegally When It Granted A Consent Decree, Then Proceeded to Place
[J.W.R.] in Residential Treatment.” The sole issue presented under this

heading is whether a juvenile may be placed in residential treatment

pursuant to a consent decree. It is a categorical challenge to the

authority of the juvenile court to impose residential treatment as a term

or condition of a consent decree. The answer to this categorical question,

as I explain below, is that the juvenile court has broad discretion under

Iowa Code section 232.46 (2011) to impose residential treatment as a

term or condition of a consent decree. Because this is the only issue

raised on appeal, this case should be affirmed.

Though the sole issue as presented by the State is whether the

juvenile court may place the child in residential treatment pursuant to a

consent decree, the majority opinion begins by rewriting the State’s

characterization of the issue to add new issues. According to the

majority:

This case asks us to consider the juvenile court’s
authority in a delinquency proceeding to enter a consent
decree, over the State’s objection, placing a child in the legal
custody of juvenile court services, with the department of
human services as payment agent, for purposes of placement
in a residential facility.
 20

(Emphasis added.) The majority thus adds two issues into the case that

the State did not present either at the district court or on appeal. First,

the majority attempts to expand the issues to include a question of

custody. Second, it interjects the issue of payment for the residential

services.

No one challenged the issue of temporary transfer of custody under

the juvenile code in the juvenile court at any time. At the beginning of

the case, the juvenile court, after the parents were given notice and an

opportunity to be heard, temporarily transferred “custody” to juvenile
court services and placed J.W.R. in shelter care pursuant to Iowa Code

section 232.21. As correctly noted by the State in its statement of the

issue, what is involved in this case is the placement of the child, not a

temporary transfer of custody.

The State raised no objection to the temporary transfer of custody

to juvenile court services when J.W.R. was placed in shelter care.

Neither did the parents, despite their opportunity for a full hearing on

the issue. See Iowa Code § 232.38. The consent decree and subsequent

orders relating to residential treatment did not change this custody

arrangement. Instead, it only transferred J.W.R. from his then-current

placement, Four Oaks, to a residential facility where he could receive

both shelter care and appropriate treatment.

The State did not claim custody could not remain with juvenile

court services after the transfer to residential treatment. The State did

not claim the custody arrangements were improper, and no rule 1.904(2)

motion was ever filed claiming the juvenile court lacked statutory

authority to continue custody with juvenile court services. See Meier v.
Senecaut, 641 N.W.2d 532, 539 (Iowa 2002) (noting that a rule 1.904(2)

(then-rule 179(b)) motion is “necessary to preserve error ‘when the
 21

district court fails to resolve an issue, claim, or other legal theory

properly submitted for adjudication’ ” (citation omitted)). The sole

objection raised by the State was that the juvenile court lacked the

authority to require residential treatment as a term or condition of a

consent decree.

Nor is the issue of payment by DHS before the court. The issue

was not raised with the juvenile court at any place or time. Nowhere in

the appellate brief does the State challenge the payment mechanism.

The most that can be said is that the State cited In re C.D.P., 315 N.W.2d
731 (Iowa 1982), an action brought by the department of social services

challenging an order requiring it to fund residential treatment without a

transfer of custody to the department.

Plainly, unlike this case, In re C.D.P. was a funding dispute. The

department was a party in the case seeking to avoid payment. Id. at 733.

The State relied upon In re C.D.P. here to support its argument that

residential treatment may never be ordered under Iowa Code section

232.46, which is, of course, a completely different issue. Nowhere in its

brief on appeal does the State claim on behalf of DHS that it has been

improperly ordered to pay. Nowhere is there any suggestion that the

State is seeking to protect the public purse. The majority opinion in

effect seeks to vindicate what it sees as the interests of DHS in a

proceeding when DHS is not before the court and none of the parties

have raised the funding issue. The majority opinion takes J.W.R. to task

for not raising arguments related to funding, when the issue was never

raised in the case. But J.W.R. cannot be faulted for not jousting with

ghosts.
The majority suggests that an interpretation of funding provisions

is essential to determine the scope of the terms and conditions that a
 22

district court may impose pursuant to a consent decree under Iowa Code

section 232.46. Even if the issue of state funding were properly before

the court, with full briefing of the applicable statutes and argumentation,

a decision that the State cannot be required to pay for residential

services pursuant to a consent decree would not prevent a juvenile court

from ordering residential treatment if payment could be obtained from

another source.

The majority correctly notes that nothing in the record indicates

that there may be payment from another source. But then, oddly, the
majority uses that against J.W.R. In fact, the issue was not raised below

because it was not joined in the juvenile court. The lack of juvenile court

development of the issue cannot be charged against J.W.R. when the

State did not raise the issue at the juvenile court level. Once again, the

majority thus turns issue preservation on its head by attacking a party’s

failure to respond to an issue that the opposing party failed to raise.

In short, I would rule solely on the issue presented and affirm the

order of the juvenile court. I would defer to another day the other issues

the litigants have not brought to us and which have not been fully

briefed. For the reasons expressed below in some detail, I conclude a

juvenile court may order residential treatment as a term or condition of a

consent decree. Our precedents require us to defer to another day the

other issues that the litigants have not brought to us.

In any event, even under the majority opinion, the juvenile court

on remand has some room to sculpt a consent decree. In its concluding

paragraph, which I take is the holding of the case, the majority does not

prohibit the juvenile court from making a residential placement pursuant
to a consent decree. Admittedly, there is language in the majority

opinion to the contrary, but this must be regarded as dicta in light of the
 23

explicit holding. The issue in this case may be moot, but under the

majority opinion, if the juvenile court alters the temporary custody

language and does not mandate that DHS pay for the services under

Iowa Code chapter 232, the juvenile court in other cases may be able to

exercise discretion to craft a consent decree involving residential

treatment in the best interest of the child.

I. Background Facts and Proceedings.

After the State filed a petition in March 2011 alleging that fifteen-

year-old J.W.R. committed the delinquent acts of sexual abuse in the
third degree and incest, J.W.R. was removed from the family home and

detained at the Polk County Juvenile Detention Center. On June 3, the

court entered an order placing the child in “the temporary custody of the

. . . Juvenile Court Services, with the Iowa Department of Human

Services as payment agent.” A copy of the June 3 order was served on

the department.

On October 19, J.W.R. entered an Alford plea to the incest

allegation, and the State dismissed the sexual abuse charge. At the

hearing following his Alford plea, J.W.R. requested that the court enter a

consent decree pursuant to Iowa Code section 232.46 rather than

proceed to adjudication. The evidence adduced at the hearing revealed

that mental health experts had diagnosed J.W.R. with Asperger’s

syndrome, a type of pervasive development disorder. Expert testimony

indicated J.W.R. could benefit from residential treatment, an option

recommended by the juvenile court officer assigned to the case.

The State resisted the entry of a consent decree. The county

attorney told the district court:

I don’t believe that a consent decree plus placement is even a
possibility in this case and I would present the Court a case
on that. It’s In the Interest of C.D.P., 315 N.W.2d 731, an
 24
Iowa Supreme Court case that talks about placement after a
consent decree not being allowed. So if the Court decides to
place [J.W.R.], I don’t believe consent decree is appropriate
based on my reading of that case.

On October 21, the juvenile court entered its findings of fact,

conclusions of law, and order. The district court noted that there were

no prior referrals related to the child and that the child was a “good

candidate for juvenile probation because the child has done well in

detention and shelter care.” As a result, the juvenile court declared that

entry of a consent decree was “in the best interests of the child.”

With respect to placement, the October 21 order stated that J.W.R.

shall be placed on a Consent Decree under the supervision
of the Fifth Judicial District Juvenile Court Services upon
the terms and conditions as may be reasonably required,
and which shall include a mental health treatment program.
The Juvenile Court Officer is directed to supplement the
Predisposition Report to consider placement of the child in a
foster home if placement in a relative’s home is not an
option. Pending such report and further order, the child
shall remain in his current placement at Four Oaks, Iowa
City Youth Shelter . . . .

The State on November 4 filed a motion to enlarge, arguing again

that the district court lacked the authority to place the child outside the

home as part of a consent decree. On November 15, the juvenile court

generally denied the motion to enlarge, but did further state that
placement outside the family home should be considered, including

possible placement in a psychiatric medical institution for children.

On November 16, the juvenile court filed a further order. This

order stated that “temporary custody of the child is continued with

Juvenile Court Services, with the Iowa Department of Human Services as

payment agent, for purposes of placement in a shelter care facility.”

Unfortunately for J.W.R., the juvenile court was precluded from placing
him in his own home because the victim still lived there. Further
 25

complicating the matter, although J.W.R.’s aunt and uncle had

expressed an interest in caring for him, J.W.R.’s younger brother had

already been placed there. The juvenile court officer recommended that

the two boys not live together because they had acted together in

committing the offenses. The juvenile court officer further recommended

against J.W.R. living with his father because his father’s work schedule

would have left J.W.R. unsupervised for most of the day.

Finally, the juvenile court filed its consent decree on December 5.

This order stated, “The child is placed in the temporary legal custody of
Juvenile Court Services, with the Department of Human Services as

payment agent, for the purpose of placement in residential treatment.” It

appears the juvenile court was contemplating placement, at the

recommendation of the juvenile court officer, in a group foster care home

that specialized in the treatment of sex offenders, including those

suffering from Asperger’s syndrome, pending acceptance of J.W.R. into

the program.

The State filed a petition for a writ of certiorari, contending the

district court exceeded its authority by entering a consent decree that

placed J.W.R. in residential treatment.8 We granted the writ and

transferred the case to the court of appeals.

A majority of the court of appeals panel sustained the writ. The

majority concluded the statute was ambiguous and applied a number of

principles of statutory construction. First, the majority determined the

rule of ejusdem generis precluded a construction of the statute that a

term or condition could include residential treatment. Second, the

majority concluded that because a deferred judgment in a criminal

8The State did not challenge the authority of the district court to order the
department of human services to pay for the residential treatment.
 26

proceeding does not include jail time, a consent decree could not involve

residential treatment. Third, the majority concluded that, under Iowa

caselaw, the district court lacked authority to order an out-of-home

placement. Finally, the majority noted there was no express funding

mechanism for the placement. As a result, the court of appeals

sustained the writ and remanded the case to the district court for further

proceedings.

II. Overview of Chapter 232.

A. Legislative History of Juvenile Consent Decrees in Iowa.
1. The Iowa Juvenile Justice Act of 1978. Work to revise the

chapter of the Code related to juvenile justice began in 1973 when the

general assembly requested the Iowa Legislative Council to direct the

penal and correctional systems study committee to conduct a study of

Iowa’s juvenile justice system. Penal & Corr. Sys. Study Comm., Report

to the Legislative Council and the Members of the First Session of the

Sixty-Sixth General Assembly, at 1 (1975).

Picking up where the penal and correctional systems study

committee left off, the juvenile justice study committee completed its first

interim report in 1975. The report noted that “[c]urrently the practice of

informal probation (the practice of placing a juvenile under supervision

without an adjudication) is widely used throughout the state of Iowa

without clear statutory authority.” Juvenile Justice Study Comm.,

Report to the Legislative Council and the Members of the Second Session of

the Sixty-Sixth General Assembly, at 2 (1976). The interim report further

provided:

The Study Committee recommends that the practice of
informal probation be statutorily provided with the following
procedural safeguards; the juvenile’s participation in an
informal probation agreement must be voluntary with the
 27
advice of his or her parent, guardian, or other responsible
adult and legal counsel and if an informal probation
agreement is entered into a petition alleging delinquency
may not be filed against the juvenile arising out of the same
transaction or occurrences which initially brought the
juvenile to the attention of the authorities. The Committee
further recommends that informal probation agreements not
be effective for longer than a six-month period.

Id. The report led to the introduction of a draft bill in the closing days of

the legislative session in May 1976. See S.F. 1344, 66th G.A., 2d Sess.

(Iowa 1976). The draft bill contained a proposed section on consent

decrees. See id. § 23.

The juvenile justice study committee’s second interim report

detailed its findings from its examination of the draft bill. Juvenile

Justice Study Comm., Report to the Legislative Council and the Members

of the First Session of the Sixty-Seventh General Assembly, at 2 (1977)

[hereinafter 1977 Report]. In particular, it noted a division of the draft

bill detailed the “guidelines for consent decrees (which are comparable to

deferred judgments in criminal court).” Id. at 3.

Finally, in 1978 the legislature enacted House File 248. See 1978

Iowa Acts ch. 1088. The bill’s explanation described it as “a complete

reorganization of the Code dealing with juveniles.” H.F. 248, 67th G.A.,

2d Sess., explanation (Iowa 1978).
2. Liberal construction. The first section of the 1978 Juvenile

Justice Act did not change from its predecessor. It provides for liberal

construction of the juvenile justice chapter:

This chapter shall be liberally construed to the end that each
child under the jurisdiction of the court shall receive,
preferably in his or her own home, the care, guidance and
control that will best serve the child’s welfare and the best
interest of the state. When a child is removed from the
control of his or her parents, the court shall secure for the
child care as nearly as possible equivalent to that which
should have been given by the parents.
 28

1978 Iowa Acts ch. 1088, § 1. This section remains substantially the

same today. See Iowa Code § 232.1 (2011).

3. Original consent decree provision. As enacted in 1978, the Act

provided for consent decrees in delinquency proceedings. See 1978 Iowa

Acts ch. 1088, § 26 (codified at Iowa Code § 232.46 (1979)). The

language of the original Act broadly vested discretion in the juvenile

court to enter a consent decree “under terms and conditions established

by the court.” Id. The original Act further provided, “These terms and

conditions may include the supervision of the child by a juvenile
probation officer or other agency or person designated by the court.” Id.

Finally, the Act provided that the original petition against the child could

not be reinstated if the child “complied with the express terms and

conditions of the consent decree for the required amount of time or until

earlier dismissed.” Id.

Thus, at its inception the Juvenile Justice Act did not limit the

terms and conditions a district court could impose. Nor did it limit the

type of custody arrangements or treatment options a juvenile court could

impose as a term or condition. Rather, it stated the terms and

conditions permissively “may include” probation. This makes sense

because the legislature contemplated consent decrees in juvenile

proceedings as an analog to deferred judgments in adult criminal

proceedings. In fact, the legislature had recently completed an overhaul

of the criminal code, in which it provided that “[w]ith the consent of the

defendant, the court may defer judgment and place the defendant on

probation upon such conditions as it may require” and that “[u]pon

fulfillment of the conditions of probation the defendant shall be
discharged without entry of judgment.” See 1976 Iowa Acts ch. 1245,

ch. 3, § 702 (codified at Iowa Code § 907.3(1) (1979)).
 29

4. 1982 amendment authorizing district court to order work

assignments or restitution in consent decrees parallels provision following

an adjudication. In 1982, the legislature amended the consent decree

provision of the Juvenile Justice Act to provide that the terms and

conditions may also permissibly include a “requirement that the child

perform a work assignment of value to the state or to the public or make

restitution consisting of a monetary payment to the victim or a work

assignment directly of value to the victim.” 1982 Iowa Acts ch. 1209,

§ 11 (codified at Iowa Code § 232.46(1) (1983)).
This amendment was not directed to the living arrangements of a

juvenile, but instead only provided express authorization for a district

court to authorize restitution payments that might not otherwise have

been provided for by the Code. See H.F. 2460, 69th G.A., 2d Sess.,

explanation (Iowa 1982) (noting the amendment was to “add language to

include restitution to a victim or to the state or public as a specific

disposition under . . . a consent decree”). The amendment was plainly

designed to ensure the terms and conditions of a consent decree could

relate to restitution in addition to other terms, such as those possibly

pertaining to living arrangements.

Notably, the legislature had already provided, in a substantively

identical provision as a part of the 1978 Act, that an order following an

adjudication of delinquency could prescribe a work assignment or the

payment of restitution. See 1978 Iowa Acts ch. 1088, § 32 (codified at

Iowa Code § 232.52(2)(a) (1979)). Thus, the addition of language related

to restitution was not designed to distinguish remedies available under a
 30

consent decree from remedies available pursuant to adjudication.9

Indeed, the opposite seems to be true. The legislative language ensures

that the power to impose restitution is available in the contexts of both

consent decrees and adjudications of delinquency.

5. 1994 amendments authorize district court to restrict driving

privileges in consent decrees and following adjudications. In 1994, the

legislature amended the consent decree provision for a second time. Like

the 1982 amendment, the 1994 amendment had nothing to do with

living conditions or residential placement. Instead, it related to driving
privileges. The amendment provided that the terms and conditions of a

consent decree could also include “prohibiting a child from driving a

motor vehicle for a specified period of time or under specific

circumstances.” 1994 Iowa Acts ch. 1172, § 19. In the same piece of

legislation, the legislature also provided for the suspension of driving

privileges following an adjudication of delinquency involving certain

delinquent acts.10 Id. § 21. Thus, the legislature again paralleled the

consent decree provision and the provision setting forth permissible

orders following an adjudication of delinquency by ensuring judicial

authority to impose driving restrictions in both situations.

B. Juvenile Consent Decree Provisions in Other States. A

number of states have statutory provisions related to consent decrees or

consent decrees in their juvenile justice codes. Some states’ consent

decree or consent decree provisions, like Iowa’s, use broad language

authorizing the district court to enter consent decrees or decrees under

9In the same piece of legislation, the legislature also provided for victim
restitution under informal adjustments. See 1982 Iowa Acts ch. 1209, § 8 (codified at
Iowa Code § 232.29 (1983)).
10Again,the legislature provided for the same restrictions under an informal
adjustment. See 1994 Iowa Acts ch. 1172, § 14.
 31

terms and conditions that may be imposed by district courts. For

instance, in Alabama, a juvenile court may impose terms and conditions

agreed to by the child and his or her parent, legal guardian, or

custodian. Ala. Code § 12-15-211(a) (LexisNexis 2012). Similarly,

Nevada allows the juvenile court to “[p]lace the child under the

supervision of the juvenile court pursuant to a supervision and consent

decree” without any express limitation as to the terms and conditions

that might be imposed. Nev. Rev. Stat. § 62C.230(b) (2011). In

Wyoming, the juvenile court may “place a delinquent child under the
supervision of a probation officer,” and such “placement of the child is

subject to the terms, conditions and stipulations agreed to by the parties

affected.” Wyo. Stat. Ann. § 14-6-228(a) (2012).

Other states, however, markedly depart from the Iowa approach

and explicitly use restrictive language to limit the discretion of the

district court in fashioning juvenile consent decrees. For instance, in

Pennsylvania, a consent decree may be entered before adjudication to

“continue the child under supervision in his own home.” 42 Pa. Cons.

Stat. Ann. § 6340(a) (Supp. 2012). New Mexico has a similar provision.

See N.M. Stat. Ann. § 32A-2-22(A) (2010) (“[T]he court may . . . continue

the child under supervision in the child’s own home under terms and

conditions negotiated with probation services and agreed to by all the

parties affected.”). The Wisconsin statute takes the middle ground,

providing that a consent decree may “place the juvenile under

supervision in the juvenile’s own home or present placement.” Wis. Stat.

Ann. § 938.32(1)(a) (West 2009) (emphasis added). Plainly, placement of

a child in a residential facility pursuant to a consent decree would be
outside the scope of the court’s authority under the narrow statutes of

Pennsylvania or New Mexico. Iowa’s statute, however, does not have
 32

comparable language limiting the discretion of the district court to

fashion the terms and conditions of a consent decree that are in the best

interests of the child.

C. Caselaw Related to Consent Decrees. There is very little

appellate caselaw related to juvenile consent decrees. This is hardly

surprising. Ordinarily, when a consent decree is issued, the parties have

reached an agreement regarding the course of action to be followed with

respect to the juvenile. Iowa Code section 232.46(3) expressly provides,

however, that a county attorney may object to a consent decree. Such an
objection occurred in this case and led to the present appeal.

The parties have cited two Iowa cases related to juvenile consent

decrees. In In re Rousselow, 341 N.W.2d 760, 763 (Iowa 1983), a child

argued the juvenile court improperly refused to consider the child’s

motion for a consent decree even though an adjudicatory hearing had

been held because no order adjudicating the child delinquent had been

entered. Agreeing with the child, we held that the juvenile court should

have considered the child’s motion because section 232.46(1) does not

turn on whether an adjudicatory hearing has been held, but rather on

the entry of an order of adjudication, and because such an order could

be deferred until a dispositional hearing. Id. at 764–65. Further, in

Rousselow we characterized the continuation of a juvenile’s case under a

consent decree as a probationary period. Id. at 762. The case did not

discuss, however, whether the juvenile court had the authority to require

residential treatment, transfer custody, or require the department of

social services to pay for residential treatment as a term or condition of a

consent decree.
The parties also cited In re C.D.P. There, we considered the validity

of a juvenile court order that transferred custody to the department of
 33

social services (the predecessor to the department of human services),

placed the child in a specific facility, and ordered payment by the

department of social services. In re C.D.P., 315 N.W.2d at 732. Notably,

although the parties and the juvenile court referred to the order as a

consent decree, we held it was not a consent decree because the

department “was not a party to any consent proceedings under section

232.46.” Id. at 733. Thus, we found section 232.46 inapplicable and

reasoned the transfer of custody to the nonparty department of social

services must necessarily have been a disposition made pursuant to
section 232.52. Id. As a result, the district court was required to

adjudicate the child pursuant to Iowa Code section 232.50 prior to

attempting to transfer custody to the department and requiring it to pay

placement costs. Id. We further held that where custody of a child is

transferred to the department under Iowa Code section 232.52(2)(d)(3),

the juvenile court may not order placement in a specific facility. Id.

Finally, we held that where disposition of a juvenile case occurs

pursuant to an adjudication under Iowa Code section 232.52, there must

first be a dispositional hearing under Iowa Code section 232.50. Id.

Because the juvenile court had ordered custody transferred to the

department of social services pursuant to a dispositional order not

preceded by an adjudication of delinquency, which was impermissible

under section 232.50 and 232.52, we remanded the case to allow the

court to adjudicate the child delinquent to the extent it wished to enter a

dispositional order transferring custody of the child to the department.

Id. In any event, In re C.D.P. does not have any bearing on this case

because we are faced with a consent decree entered pursuant to section
232.46 and solely concerned with the juvenile court’s authority to order

residential treatment as a condition of a consent decree.
 34

III. Discussion of Merits.

A. Positions of the Parties. On appeal, the State raises only one

issue in its brief: “Did the juvenile court act illegally in granting a

consent decree, then placing the teenager in residential treatment?” The

State argues that under In re Rousselow and In re C.D.P., residential

treatment may be ordered only after an adjudication under Iowa Code

section 232.52. According to the State, our caselaw does not allow a

district court to enter an order for residential treatment pursuant to a

consent decree under Iowa Code section 232.52. J.W.R. responds by
contending that the legislature broadly vested the district court with the

power to impose “terms and conditions” in a consent decree under Iowa

Code section 232.46 and that the statute does not contain any language

prohibiting a consent decree that includes residential treatment as a

term or condition. As indicated by the following discussion, the

resolution of this issue does not depend on resolution of the custody or

funding issues.

B. Broad Discretion in District Court to Sculpt Consent

Decrees. We begin with noting that as the statute was originally passed,

the legislature vested broad discretion with the juvenile court to

determine the terms and conditions of a consent decree. While the

legislature provided that such terms and conditions may include

probation under supervision, there was nothing in the original legislation

suggesting the juvenile court lacked the authority to require residential

treatment as a term or condition of a consent decree.

It is noteworthy that the Iowa consent decree provision does not

contain the limitation of consent decree provisions in states like
Pennsylvania or New Mexico, which expressly limit consent decrees to
 35

situations involving in-home placement. Instead, Iowa has opted for a

broader statutory approach.

Further, the legislature’s use of the broad and flexible phrase

“terms and conditions” does not mean that there are no limitations on

juvenile court discretion. Iowa Code § 232.46. For example, a term or

condition might not be valid if it had no relationship to the crime for

which the offender was committed, related to conduct which was not in

itself criminal, or required or forbade conduct not reasonably related to

future criminality. See Samuel M. Davis, Rights of Juveniles, § 7:3 (2013)
(citing In re Frank V., 285 Cal. Rptr. 16, 21 (Ct. App. 1991)). Otherwise,

however, the juvenile court has broad discretion in shaping a consent

decree to meet the specific facts of each case.

C. Liberal Construction of Broad District Court Discretion to

Enter Consent Decrees. Any interpretation of the scope of discretion of

a district court in establishing the terms and conditions of a consent

decree under section 232.46 must also take into account the general

instructions of the legislature in section 232.1. The legislature has

directed that “[t]his chapter shall be liberally construed to the end that

each child . . . shall receive . . . the care, guidance and control that will

best serve the child’s welfare and the best interest of the state.” Iowa

Code § 232.1. Juvenile proceedings “are not criminal proceedings but

are special proceedings that serve as an alternative . . . with the best

interest of the child as the objective.” In re J.A.L., 694 N.W.2d 748, 751

(Iowa 2005). A narrow reading of the authority of the juvenile court to

fashion consent decrees under section 232.46 is inconsistent with these

principles.
D. Legislative History Comparing Consent Decrees to Deferred

Judgment Supports Residential Treatment. As noted above, the 1977
 36

committee report compared consent decrees to deferred judgments in the

criminal context. See 1977 Report, at 3. In the context of deferred

judgments, we have held that the legislature has given the district court

broad authority to establish conditions of probation. State v. Rogers, 251

N.W.2d 239, 241–43 (Iowa 1977). We have further stated that in

granting probation, the terms and conditions must relate to

rehabilitation of the convicted criminal, protection of the community, or

both. Id. at 243. We have specifically held that a requirement that the

defendant attend a residential treatment center is a legally permissible
condition of a deferred judgment in the adult criminal context. State v.

Sinclair, 582 N.W.2d 762, 765–66 (Iowa 1998). Because the legislature

intended the consent decree in juvenile proceedings to be analogous to

the deferred judgment in criminal proceedings, it logically follows that

the legislature also intended residential treatment to be a legally

permissible condition of consent decrees.

The court of appeals cited State v. Tensley, 334 N.W.2d 764 (Iowa

1983), for the proposition that the district court lacks authority to order

residential treatment as a condition of a consent decree because it would

be akin to ordering the juvenile to serve jail time and therefore was

mutually exclusive to releasing the child on probation. In Tensley, we

held that a criminal defendant could not be sentenced to serve time in a

county jail as a condition of probation because, while the deferred

judgment statute permitted “commitment to an alternate jail facility or a

community correctional residential treatment facility,” neither was meant

to be the equivalent of jail. Id. at 765 (internal quotation marks and

citations omitted); see also Trecker v. State, 320 N.W.2d 594, 596 (Iowa
1982). But whether pursuant to a consent decree or probation

subsequent to a deferred judgment, residential treatment is not
 37

punishment. Instead, residential treatment is for the benefit of the

juvenile or the defendant, depending on the case.

E. The Doctrine of Ejusdem Generis Has No Application in

Determining Scope of Consent Decrees Under Section 232.46. The

doctrine of ejusdem generis “provides that when general words follow

specific words in a statute, the general words are read to embrace only

objects similar to those objects of the specific words.” Teamsters Local

Union No. 421 v. City of Dubuque, 706 N.W.2d 709, 715 (Iowa 2005). Key

to the application of the doctrine is the identification of a class. See id.;
see also Federated Mut. Implement & Hardware Ins. Co. v. Dunkelberger,

172 N.W.2d 137, 141 (Iowa 1969) (noting the doctrine “applies only

where the specific words relate to a single class, character or nature”),

overruled on other grounds by Lewis v. State, 256 N.W.2d 181 (Iowa

1977).

Examination of the legislative history of Iowa Code section 232.46

demonstrates that the doctrine of ejusdem generis has no application.

Certainly the probationary language in the original statute would not be

construed to limit the power of the district court to enter consent

decrees. As originally enacted, section 232.46 provided that a consent

decree may include probation under supervision as a term or condition,

but this language, standing alone, cannot be construed to prohibit

residential treatment. In other words, when the statute was originally

enacted, there was no class that might restrict the scope of the general

phrase “terms and conditions.”

The 1982 and 1994 amendments to the consent decree statute

were similarly not designed to limit the permissible terms and conditions
of a consent decree, but rather served primarily to expand the district

court’s authority to impose terms and conditions related to two different
 38

areas—restitution and driving privileges. They were also added to

parallel the consent decree and informal adjustment provisions of the

juvenile justice chapter with the provision providing possible dispositions

following an adjudication of delinquency.

The addition of two diverse sanctions, which the district court may

include as part of a consent decree, do not form an identifiable class of

conduct triggering ejusdem generis. After the amendments, the statute

vests the juvenile court with discretion to sculpt a consent decree with

terms and conditions that may include terms and conditions related to
supervision, terms and conditions related to work and restitution, and

terms and conditions related to driving privileges, among others. Simply,

the statute has never contained a class with similar characteristics that

would trigger the doctrine’s application. See 2A Norman J. Singer & J.D.

Shambie Singer, Sutherland Statutory Construction § 47.18, at 382 (7th

ed. 2007) (noting that without similar characteristics, “classification is

arbitrary and meaningless” for ejusdem generis purposes). Where a

general term is followed by specific terms not suggesting a class, the rule

does not apply. Id. § 47.20, at 387.

Further, the additional amendments were added to both the

consent decree and the adjudication provisions of chapter 232. It seems

doubtful the legislature added the language to section 232.52 to expand

the range of options for the juvenile court, but added identical language

to section 232.46 to restrict the juvenile court’s power to shape consent

decrees. Clearly, the legislature wanted to add to the options of the

juvenile court in both the consent decree and adjudication settings. It

did not want to limit the power of the juvenile court in the consent decree
context as compared to an adjudicative context.
 39

Moreover, the juvenile court’s authority to order treatment under

section 232.46 stems from two clauses. First, the unbound “terms and

conditions established by the court” provides an avenue through which

the juvenile court could order residential treatment. Iowa Code

§ 232.46(1). Second, because one of the suggested terms and conditions

is akin to probation and because residential treatment is a permissible

condition of probation, it follows that such treatment would also be

permissible under the probation clause.

F. Inapplicability of Due Process Concerns. The majority seeks
to inject into this case the issue of whether J.W.R.’s parents were

deprived of due process by the consent decree in this case. J.W.R.’s

parents, of course, do not complain, but nonetheless, the majority

proceeds to explore the issue.

In this case, an order transferring temporary custody of the child

with juvenile court services was entered on June 3, 2011. A copy of the

order was sent to J.W.R.’s parents. The parents received notice, but filed

no objection to the temporary transfer of custody to juvenile court

services. Further, the parents appeared at the October 19 adjudicatory

hearing, during which the consent decree was discussed, and again

raised no objection.

The December 5 order did not alter custody arrangements.

Custody of J.W.R. had already been temporarily transferred to juvenile

court services. Instead, the consent decree only affected J.W.R.’s

placement. See Pfoltzer v. Cnty. of Fairfax, 775 F. Supp. 874, 883 n.17

(E.D. Va. 1991). The fact that the consent decree involved placement

and not custody was recognized by the State when it characterized the
issue as one involving placement of the child in a residential treatment
 40

facility. The State correctly did not characterize the issue as one

involving a transfer of custody as the majority mistakenly does.

The due process concerns associated with placement are

significantly less than those associated with a transfer of custody. See

id. at 882–83 & n.17. In Fitzgerald v. Williamson, 787 F.2d 403, 408 (8th

Cir. 1986), a case in which a state agency had acquired legal custody of a

child, the Eighth Circuit noted that postdeprivation procedural

safeguards are constitutionally adequate. In Iowa, a habeas remedy is

available for such deprivations. See Lamar v. Zimmerman, 169 N.W.2d
819, 821 (Iowa 1969) (“Although habeas corpus was originally designed

to test the legality under which a person was restrained of his liberty, it

was long ago enlarged to include an inquiry into the proper custody of

minor children.”). A parent may also file a habeas petition to challenge

placement. See Doan Thi Hoang Anh v. Nelson, 245 N.W.2d 511, 513–14,

516 (Iowa 1976) (permitting a Vietnam War refugee to file a petition for a

writ of habeas corpus to regain custody of her child who had been placed

with an Iowa family for purposes of adoption, but had not yet been

legally adopted).

In any event, Iowa Code section 232.38(1) prohibits judicial

proceedings subsequent to the filing of a petition without the presence of

the child’s parents, unless they have failed to appear after reasonable

notification. Further, Iowa Code section 232.46(3) expressly provides

that the juvenile court may not enter a consent decree “unless the child

and the child’s parent, guardian or custodian is informed of the

consequences of the decree by the court.” Iowa Code § 232.46(3).

Granted, the provision allows a county attorney to object to the entry of a
consent decree and does not expressly allow a parent to object to its

terms. Id. Even if the parents were not entitled to a predeprivation right
 41

to be heard, contrary to Fitzgerald, such a right would be implied. See

Traverso v. People ex rel. Dep’t of Transp., 864 P.2d 488, 494–95 (Cal.

1993) (“[T]he United States Supreme Court . . . [has] inferred a right to a

hearing when constitutional problems would otherwise arise.”); see also

State v. One 1978 Chevrolet Corvette VIN No. 1Z87L8S437138, 667 P.2d

893, 897 (Kan. Ct. App. 1983) (suggesting that courts can graft

requirements for notice and a hearing onto a statute that does not

otherwise explicitly set forth those requirements in order to give the

statute a constitutional interpretation). If at all possible, we construe
statutes to avoid constitutional issues. Simmons v. State Pub. Defender,

791 N.W.2d 69, 73–74 (Iowa 2010).

G. Timing Issues. The majority opinion suggests that residential

treatment is inappropriate because of the timing restrictions of section

232.46, which permits a consent decree to remain in effect for up to two

years. Iowa Code § 232.46(4). The timing restrictions, however, do not

prevent the juvenile court, in its discretion, from utilizing residential

treatment as a term and condition of a consent decree where the timing

restriction does not present an obstacle. The timing limitations, of

course, must be respected by a juvenile court. Further, a consent decree

may remain in effect beyond a child’s eighteenth birthday. In re J.J.A.,

580 N.W.2d 731, 738 (Iowa 1998).

H. Impact of Funding Issues. Initially, it must be noted that no

party raised in the trial court the issue of whether the district court had

the authority to order DHS to pay for the residential treatment imposed

as a term or condition of the consent decree in this case. Further, on

appeal, the State makes no claim that the juvenile court lacked the
authority to order DHS to pay. Moreover, DHS has not involved itself in

the case.
 42

Therefore, this case is fundamentally different from In re C.D.P.,

where the department of social services brought the challenge. The State

does not contend that it is representing DHS or seeking to advance

DHS’s financial interests. As a result, any issue regarding the

appropriateness of the funding of the placement with the department in

this case is not before the court.

In any event, even the precise question related to funding in this

case is not the terms and conditions under which DHS may be required

to pay for placement under an adjudication. The real question is to what
extent DHS may be required to pay for placement pursuant to temporary

orders entered by the juvenile court prior to an adjudication which

remain in place following a consent decree. If that issue was properly

before us, there would be a number of interesting questions to explore.

For example, Iowa Code section 232.21 authorizes the juvenile

court to order shelter care in various licensed care facilities and “[a]ny

other suitable place designated by the court” as long as it is not a

detention facility. Id. § 232.21(2)(a)(4); see also id. § 232.21(1)(e). When

a child is placed in shelter care pursuant to section 232.21, the state

must pay the costs. Id. § 234.35(1)(h). In the case of an alleged

delinquent child, shelter care may continue for any period until the final

disposition of the case. Id. § 232.2(50).

In this case, J.W.R. was placed in shelter care at Polk County

Youth Services and then at Four Oaks shelter in Iowa City. The

placement in the residential facility in this case at least arguably

includes a shelter care component, which may be paid for by the state,

id. § 234.35(1)(h), and a treatment component, which may also be paid
for by the state, id. § 232.141(4)(c).
 43

Further, even if there is no authority for the state to pay for the

residential treatment in this case, the argument may be made that

section 232.46 does not prohibit a parent or some third party from

paying for the treatment even if the state is precluded from doing so. In

fact, section 232.141(1) directs the juvenile court to inquire into the

ability of the child’s parent to pay the cost of court-ordered treatment

and order such payment if the parents are able. See id. § 232.141(1).

Finally, even if there is no express statutory authority for the state

to pay the costs of residential treatment ordered pursuant to a consent
decree, that does not mean the district court may never order residential

treatment pursuant to a consent decree. The current funding provisions

were amended in 1989 as part of an effort to shift the burden of

providing juvenile justice services from the county to the state. See 1989

Iowa Acts ch. 283, § 23 (codified at Iowa Code § 232.141 (Supp. 1989)).

There is nothing in the legislative history to suggest a purpose of the

change in the funding stream was to alter the discretion of the district

court to enter consent decrees based upon terms and conditions the

district court believed appropriate.

None of these issues, however, have been raised in this case. The

above discussion is simply designed to illustrate the wisdom of our

traditional rules of issue preservation.

IV. Conclusion.

Iowa Code section 232.46 vests broad discretion in the district

court to enter consent decrees under terms and conditions approved by

the juvenile court. The legislative history reveals that consent decrees

were akin to deferred judgments in the criminal context. Because a
district court may order a criminal defendant to residential treatment as

part of a probation order entered pursuant to a deferred judgment, it is
 44

safe to assume that the legislature also intended the juvenile court to

have similar power in the context of a consent decree under Iowa Code

section 232.46. This analogy is strengthened by section 232.1, which

emphasizes that the terms of the Act are to be liberally construed.

Further, the language of the statute, coupled with the legislative

history, demonstrates that the doctrine of ejusdem generis does not serve

to curtail the discretion of the juvenile court to enter consent decrees or

specify their terms and conditions. It would also be ironic to turn

subsequent amendments designed to expand judicial remedies upside
down and interpret them as a tool to restrict judicial authority.

Moreover, timing concerns are of little import because the juvenile court

would be unlikely to issue a consent decree if it was likely to lose

jurisdiction over the child in short order.

Finally, we should not consider the potential due process concerns

of parents arising from a transfer of custody under section 232.46

because the State lacks the standing to raise these concerns. In any

event, the custody concerns are without merit. We should similarly not

consider issues of funding that are not properly before the court.

Payment for residential treatment pursuant to a consent decree is a

complicated issue that we should not be so quick to decide without input

from the parties. In any event, DHS has not challenged its ability to pay,

and the State has not preserved the issue on DHS’s behalf.

For the above reasons, the juvenile court has the broad discretion

to sculpt a consent decree under section 232.46 that includes residential

treatment. As a result, the writ of certiorari should be annulled.

Wiggins and Hecht, JJ., join this dissent.