IN THE COURT OF APPEALS OF IOWA
No. 18-1828
Filed January 23, 2019
IN THE INTEREST OF C.H. and D.H.,
Minor Children,
W.H., Father,
Appellant,
C.H., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Winnebago County, Karen Kaufman
Salic, District Associate Judge.
A mother and father separately appeal a permanency order involving their
two children. AFFIRMED IN PART AND REVERSED IN PART ON BOTH
APPEALS.
Michael J. Moeller of Sorensen & Moeller Law Office, Clear Lake, for
appellant father.
Jane M. Wright, Forest City, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Phillip Garland, Garner, guardian ad litem for C.H.
Theodore J. Hovda, Garner, guardian ad litem for D.H.
Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.
A mother and father separately appeal a permanency order involving their
two children, born in 2002 and 2004. They contend the district court (1) should not
have denied their request to cancel a no-contact order preventing interaction with
their children; (2) should have lifted a sequestration order which prohibited
disclosure of the children’s locations; and (3) should have concluded that the
department of human services failed to make reasonable efforts toward
reunification.
I. Background Facts and Proceedings
The department became involved with the family after the older sibling was
alleged to have sexually abused the younger child. The older child was transferred
to a youth shelter and became the subject of a delinquency petition. The younger
child initially remained with the parents. The district court ordered him removed
from the home after the father obtained permission to take the older child from the
shelter to a designated city within the State but instead took him to an unauthorized
out-of-state location.
At the time of the younger child’s removal, the State sought an order
prohibiting contact between the parents and younger child or, in the alternative,
supervised contact. The State cited the father’s removal of the older child from the
State. The district court issued a “Chapter 232 protective order” restraining the
parents from having “any contact with” the younger child.
The mother moved to have the protective order modified but, in the interim,
she and the father left the State and failed to maintain contact with the department
or service providers. Eventually, the father was found in Tennessee and was
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arrested on an outstanding warrant. Authorities returned him to Iowa, where he
was jailed pending sentencing on an unrelated criminal matter. The mother
returned to Iowa with the father. According to a department report, the children
were “extremely confused and distraught about their parents’ disappearance.”
During the parents’ five-month absence, the district court entered what it
characterized as a “sequestration order” prohibiting disclosure of contact
information regarding the children. After the mother returned, she sought to have
the order lifted. She also reasserted her request to have the no-contact order
canceled and asked the court to ensure the department made reasonable efforts
toward reunification. The father filed similar motions.
The court modified the no-contact order to permit written communication
between the mother and the younger child but required “no mention of Father in
the letters.” Following a permanency hearing, the court filed a permanency order
addressing all the outstanding issues. The court declined to modify the no-contact
order any further, denied the motion to lift the sequestration order, and concluded
the department made reasonable reunification efforts. The parents appealed.
II. No-Contact Order
The parents raise constitutional challenges to the no-contact order.
Because constitutional issues were neither raised nor decided in the district court,
we conclude error was not preserved for our review. See M.D. v. K.A., ___ N.W.2d
___, ___, 2018 WL 6259488, at *7 (Iowa 2018) (“[W]e should not decide an
important constitutional matter on appeal when the [parent] failed to preserve [the]
argument for appeal.” (Christensen, J., concurring in part and dissenting in part)).
We will only address their non-constitutional challenge to the no-contact order.
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The mother argues the restrictions on contact “severely limit[] Parents’
ability to work towards reunification.” The father makes a similar argument.
On our de novo review, we agree the no-contact order limited one of the
primary reunification services—visitation with the children.1 That said, the father
took the older child out of the State without permission, failed to appear for a
criminal proceeding, and evaded a warrant. Additionally, the record contains
disputed and unresolved allegations that the father facilitated the sexual abuse of
the younger child, allegations that warranted retaining the no-contact order against
the father. We conclude the district court acted appropriately in leaving the no-
contact order in place with respect to the father. See Iowa Code § 232.104(5)
(2017) (“Any permanency order may provide restrictions upon the contact between
the child and the child’s parent or parents, consistent with the best interest of the
child.”).
As for the mother, she followed the father when he left the State and she
remained incommunicado for several months. Although she reengaged in
reunification services on her return to Iowa, her lengthy absence justified the
court’s decision to modify rather than lift the no-contact order. Commendably, the
mother made sufficient progress that the department caseworker and a service
provider testified they would not oppose further easing of the contact restrictions.
We conclude this gradual approach, which was approved by the district court,
served the dual purposes of protecting the child from further trauma and fostering
reunification.
1
The protective order listed the younger child as the protected party, but all concerned
appear to concede the parents were also prohibited from interacting with the older child.
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III. Sequestration Order
The original sequestration order stated: “Pursuant to the State’s motion, . . .
the circumstances justify withholding information regarding the location of the
children from the parents.” Following the permanency hearing, the district court
denied the motion to lift the sequestration order after noting the “risk of abduction”
remained and, once the children’s contact information was disclosed, it could not
be “taken back.” The court also addressed the department’s request to have the
parents sign releases allowing communication between their therapists and the
children’s therapist:
While [the sequestration order] does require a lot of extra work
on everyone’s part, it should be clear to parents what they need to
work on. Discussions between their therapists and the children’s is
appropriate to ensure that parents are working on areas that need to
be address[ed] and to be able to make assessments about how to
safely move forward with more contact. Obviously, if Father
continues to deny his role in the abuse of the children and Mother
continues to refuse to believe the abuse happened, whether they
ever get to talk directly to the children’s therapists is moot.
The parents again raise constitutional challenges to the sequestration
order. Those challenges are not preserved for our review. See K.A., ___ N.W.2d
at ___, 2018 WL 6259488, at *7. The mother also argues “[t]he sequestration
order makes it such that Parents have no ability to know where the children are
located, what facility the children are living in, who the children are seeing for
counseling, and no ability to provide information to or with the foster parents or
placements of the children.” The father makes a similar argument.
By its terms, the original sequestration order only prohibited the
dissemination of information about the location of the children. However, as
interpreted by the department and reaffirmed by the district court, the order also
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precluded the dissemination of information generated by service providers who
interacted with the children. On our de novo review, we are not persuaded that
the State established the continued need for either aspect of the sequestration
order.
First, with respect to the prohibition on disclosing the children’s location
given the ongoing risk of abduction, the no-contact order as to the father and the
modified no-contact order as to the mother sufficed to protect the children. The
department failed to prove an ongoing need for the additional sequestration order.
Indeed, the department caseworker conceded the parents already knew where the
younger child was located and had “not made any attempts to have contact with
him.” She also noted the father was on probation and his probation officer had
authority to control his travel. In light of these concessions, the component of the
sequestration order prohibiting disclosure of the children’s location was essentially
moot.
We turn to the portion of the order prohibiting the dissemination of any
information generated by service providers, including therapists who counseled
the children. The mother’s attorney pointed out that, as it stood, “the parents [had]
no idea what issues need to be addressed through the counselors,” making it “very
difficult” to work toward reunification. He also addressed the department’s request
to have the parents sign releases allowing their therapists to communicate with the
children’s therapist. He noted releases are a “two-way street” and the department
wanted parental information yet, at the same time, wanted to “limit the ability for
the parents to subpoena any information from those providers.” Counsel summed
up as follows:
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The attorneys for parents’ have no ability to question or cross
examine any of the children’s providers that have been relied upon
by the State to present their reasons for restricting contact or for
parents or their attorneys to question the providers on what issues
the children are having, with zero input of parent’s in their treatment.
The father essentially seconded these arguments.
On our de novo review, we agree that the portion of the sequestration order
that was construed to prohibit dissemination of provider information to the parents
stymied parental efforts to work toward reunification. Without an understanding of
the areas of concern, they were hard-pressed to address those concerns.
Additionally, the department failed to articulate how parental knowledge of service-
provider concerns would harm the children.
We conclude the sequestration order was essentially moot, overbroad if
construed to preclude the dissemination of provider information to the parents, and
duplicative of the no-contact order. Accordingly, we reverse the denial of the
parents’ motion to lift the sequestration order.
IV. Reasonable Efforts
The department has an obligation to make reasonable efforts toward
reunification of parent and child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
The parents argue the department failed to fulfill this mandate. On our de novo
review, we disagree.
The department furnished a host of services to address the circumstances
that led to the children’s removal. Although most were geared to the children, the
parents were unavailable to engage in reunification services for a lengthy period
of time. When they returned, they had to start from scratch. Under these
circumstances, we conclude the department satisfied its reasonable-efforts
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mandate. See In re D.T., 435 N.W.2d 323, 330 (Iowa 1989) (“[T]he juvenile court’s
no contact order and the juvenile authorities’ insistence on therapy for the family
constituted reasonable efforts to prevent or eliminate the necessity for the removal
of the two children from the home.”).
V. Disposition
We affirm all aspects of the permanency order except the portion denying
the parents’ motion to lift the sequestration order. We reverse that portion of the
order.
AFFIRMED IN PART AND REVERSED IN PART ON BOTH APPEALS.