IN THE COURT OF APPEALS OF IOWA
No. 18-1023
Filed September 12, 2018
IN THE INTEREST OF P.J., C.J., T.J., and G.J.,
Minor Children,
M.J., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
A father appeals the child-in-need-of-assistance adjudication order
temporarily removing his children from his care and the dispositional order
continuing their removal. AFFIRMED.
Jason S. Rieper of Rieper Law, PC, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Lynn M. Vogan of Youth Law Center, Des Moines, guardian ad litem for
minor children.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.
A father appeals the child-in-need-of-assistance adjudication order
temporarily removing his children from his care and the dispositional order
continuing the children’s out-of-home placement. He argues removal was not
necessary as there was no imminent risk to the children’s life and health and
continued removal is contrary to the children’s welfare.
I. Background Facts and Proceedings
The mother and father are married and have four children: P.K. (born 2009),
C.K. (born 2012), T.K. (born 2015), and G.K. (born 2017). The children came to
the attention of the department of human services (DHS) in January 2018 upon
allegations the father assaulted the mother in the presence of the children and the
mother abused prescription medication while she cared for the children.
In December 2017, prior to DHS involvement, the father raped the mother
in their bed. Two of the children were asleep in the same room. The mother had
to bite into a pillow to keep from crying out in pain and waking the children. Later
that month, the father physically assaulted the mother at least once. In early
January 2018, the mother moved out of the family home and left the children in the
father’s care. Upon successive applications by the father and paternal
grandfather, the court ordered involuntary hospitalization of the mother, first for
mental impairment and then for substance abuse. It was during hospitalization
that the mother first reported the rape and physical assault to police. While she
remained hospitalized, the DHS investigation began.
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The mother was released from the hospital on February 1, upon which she
began an intensive outpatient treatment for substance abuse.1 On February 5, the
mother filed a petition for relief from domestic abuse seeking a protective order
against the father based upon the rape, physical assaults, and her fear of the
father. The mother and father agreed to the protective order on February 14, which
granted temporary custody to the father and supervised visitation to the mother.
On February 16, DHS concluded its child-abuse investigation and issued founded
child-abuse reports against both parents—denial of critical care for failure to
provide proper supervision against the father and the use of dangerous substances
against the mother.
On March 1, the State petitioned for child-in-need-of-assistance (CINA)
adjudications for all of the children based on the founded child-abuse reports.
During the March 23 adjudication hearing, all parties consented to the CINA
adjudication, and both the State and guardian ad litem (GAL) recommended the
children remain in the physical custody of both parents. The father challenged the
custody recommendation and requested primary custody. During the contested
hearing, the State submitted the founded child-abuse assessments against both
parents, the police report filed by the mother regarding the sexual and domestic
assaults, and the protection order between the parents. The mother testified to
the December rape and other physical altercations between her and the father.
After she text messaged the father about the sexual assault, he responded “I’m
sorry babe it won’t happen again.” She further testified to an incident in which the
1
The mother was discharged from outpatient treatment in mid-March after successfully
completing the program.
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father followed her in his truck and tried to run her off the road when the children
were in his vehicle. The mother also testified the paternal grandmother uses
marijuana frequently, stating that “when you go over to the house, all you smell is
pot.” She testified the children have been cared for at the paternal grandparents’
house. She was also concerned the oldest child often acted as the parent for the
younger children, including giving them baths and getting up in the middle of the
night to take care of them. The father did not testify or present any evidence.
At the conclusion of the hearing, the court entered its ruling on the record,
and subsequently in a written ruling, adjudicated all four children as CINA pursuant
to Iowa Code section 232.2(6)(c)(2) and (n) (2018). The court ordered temporary
removal of the children from the parents’ custody and placed them in the custody
of DHS. In its written ruling, the court found the father raped the mother in
December. The court also found the father physically assaulted the mother at least
twice and during one of the assaults the children were awake and one child begged
him to stop. Further, the court found the mother is addicted to prescription
medication and only recently completed treatment. Based upon those findings,
the court held that remaining in the parental home would be contrary to the
children’s welfare and substantial evidence existed to believe removal was
necessary to avoid imminent risk to the children’s health or lives.2 After their
removal, the children were placed with two separate relatives.
The court held a contested dispositional hearing in May. At the hearing, the
State and GAL both recommended the children remain in their current placements
2
The father appealed the adjudication order, which the supreme court denied on May 3.
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while the father advocated for the children’s return to his custody. The father
testified he believed behaviors the children were showing were the result of being
removed from his care. He also testified he had requested therapy to assist him
in handling all that had happened and that it was not a request that originated with
DHS. The father claimed that, at the adjudication hearing, he did not dispute the
rape allegation or the contention that the oldest child was caring for the younger
children only because he was not called as a witness.
The father admitted to allowing his sister, who was recently released from
jail on a drug charge and has an extensive drug history, and his mother, who also
has drug issues,3 to attend one of his recent supervised visits with the children.
He failed to notify both DHS and the person providing supervision of their presence
during the visit. He also admitted to allowing his mother to care for his children in
December and to confronting her about her drug use many times, both in the past
and present.
In its ruling, the court rejected the father’s arguments and found his
testimony “manipulative and not credible. He repeatedly insisted on blaming
others despite direct evidence to the contrary.” The court ordered the children to
remain out of the home due to the “father’s unaddressed violence,” his failure “to
provide minimally adequate care for the children, before removal,” and the
mother’s “need for increased stability and ongoing services for trauma.” It ordered
the children be evaluated for therapy and ordered assistance for the mother in her
counseling needs. It also ordered the father to complete a psychosexual
3
The paternal grandmother tested positive for marijuana after the adjudication hearing.
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evaluation, complete all recommended treatment, complete the Iowa Domestic
Assault Program, and participate in therapy to address how his violence impacted
the children and how to parent safely and appropriately. The father appeals.
II. Standard of Review
CINA proceedings are reviewed de novo. In re J.S., 846 N.W.2d 36, 40
(Iowa 2014). “We give weight to the fact findings of the juvenile court, especially
when considering the credibility of witnesses, but we are not bound by these
findings.” In re C.D., 509 N.W.2d 509, 511 (Iowa Ct. App. 1993). “Our primary
concern is the children’s best interests.” J.S., 846 N.W.2d at 40. “The children’s
best interests are to be determined by looking at the children’s long-range as well
as immediate interests.” C.D., 509 N.W.2d at 511–12. “The parent’s past
performance provides insight into this determination.” Id.
III. Analysis
On appeal, the father challenges the part of the juvenile court’s adjudication
order that removed the children from his custody and the dispositional order
continuing the removal. He does not challenge the CINA adjudication. He
contends continued placement outside his home is contrary to the children’s
welfare as behavioral issues have surfaced only since their removal.
A. Removal Order
First, we need not determine the validity of the removal order as the issue
is moot. After adjudicating the children as CINA during the March adjudication
hearing, the court temporarily removed the children from the parents’ custody and
placed them with DHS for purposes of foster or shelter care. The children were
subsequently placed into two relative homes under the supervision of DHS. The
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court ordered a dispositional hearing and, at that hearing, custody was confirmed
with the two relative placements under the supervision of DHS. “Any error
committed in granting the temporary [removal] order cannot now be remedied. We
cannot go back in time and restore custody based on alleged errors in the initial
removal order.” In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994).
B. Dispositional Order
“When the dispositional hearing is concluded the court shall make the least
restrictive disposition appropriate considering all the circumstances of the case.”
Iowa Code § 232.99(4). Section 232.102(6)(b) provides:
[T]he court must make a determination that continuation of the child
in the child’s home would be contrary to the welfare of the child, and
shall identify the reasonable efforts that have been made. The
court’s determination regarding continuation of the child in the child’s
home, and regarding reasonable efforts, including those made to
prevent removal and those made to finalize any permanency plan in
effect, as well as any determination by the court that reasonable
efforts are not required, must be made on a case-by-case basis.
The children’s safety is the “paramount consideration.” Id.
Here the court continued removal of the children due to the father’s
unaddressed issues with violence and his failure to provide minimally adequate
care for the children before their removal. After a review of the record, we agree
with the district court that reasonable efforts were made to return the children to
their parents but serious concerns still exist. We conclude the children could not
be safely parented by the father at the time of the dispositional hearing. First, the
father must address his issues with violence. Though the father argues the
mother’s claims of domestic and sexual abuse are unsubstantiated, he had the
opportunity to deny the allegations at the adjudication hearing but did not do so.
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He did not testify or offer any contradictory evidence to refute the allegations.
Further, the allegations were the basis for the DHS investigation and the founded
child-abuse assessments against the father.
While the father is open to therapy for himself and the children, his argument
on appeal focuses on the fact that he volunteered to attend therapy and offered
the name of a therapist to DHS. He contends DHS’s recommendation for therapy
only occurred after he suggested it. However, this is not the important issue. The
record reflects that in April, during supervised visits and a family team meeting, the
father spoke of a specific therapist who could provide services. He stated he was
still waiting to set up an appointment. As of the dispositional hearing in mid-May,
the father had yet to engage in any therapeutic services and no appointment was
set. Instead, the father had waited to hear from the therapist for nearly a month at
the time of the hearing and took no further steps. There is no evidence in the
record that the father sought assistance elsewhere, despite conceding that other
therapists are available and the specific therapist mentioned was not the only
individual who could help him.
There are also concerns about the father’s extended family and their contact
with the children. The father admitted he has concerns about his mother’s drug
use and recently confronted her about it in addition to confronting her multiple
times in the past. However, despite his concerns, before their removal, the father
left the children with his parents while he travelled for work. His mother tested
positive for marijuana after the adjudication hearing, yet during the father’s
supervised visits with the children, he allowed her to attend. The father also
included his sister in a visit without disclosing this to either DHS or the parties
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providing supervision. The sister was recently released from jail on drug charges
and has an extensive history of substance abuse. DHS confirmed it would not
approve of the father’s sister visiting the children.
Additionally, there are concerns regarding the father’s care of the children
before their removal. The youngest child had a bout with E. coli earlier in the year,
which the father failed to mention during DHS’s investigation. His care of the child
was also an issue, as he failed to timely give the child his medication or follow
aftercare instructions for several weeks. The aftercare was completed after the
children’s removal. Finally, the evidence showed that the oldest child, who is eight
years old, acted in a parental role to the younger children when the children were
in the father’s primary care.
The district court’s task was to determine which placement would be best
to achieve the permanency goal of reunification. Both parents have serious issues
they need to address. The dispositional order requires the father to obtain a
psychosexual evaluation and successfully complete all recommended treatment,
successfully complete the Iowa Domestic Abuse Program, and participate in
therapy to address his violent tendencies. The order provides the father the
opportunity to demonstrate he is able to provide appropriate care for the children.
Under these circumstances, we find clear and convincing evidence the
continuation of temporary custody of the children in their current placements under
the supervision of DHS is the least restrictive disposition and is in the best interests
of the children. We therefore affirm the court’s adjudicatory and dispositional
orders.
AFFIRMED.