IN THE COURT OF APPEALS OF IOWA
No. 20-0358
Filed May 13, 2020
IN THE INTEREST OF A.O., L.S., C.S., C.S., A.S., A.C., and A.S.,
Minor Children,
K.S., Mother,
Appellant,
A.S., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Worth County, Adam D. Sauer,
District Associate Judge.
A mother and father appeal the juvenile court decision finding their children
were in need of assistance. AFFIRMED ON BOTH APPEALS.
Judith O’Donohoe of Elwood, O’Donohoe, Braun, White, LLP, Charles City,
for appellants mother and father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Patrick Rourick, St. Ansgar, attorney and guardian ad litem for minor
children.
Considered by Tabor, P.J., and Greer and Schumacher, JJ.
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SCHUMACHER, Judge.
A mother and father, Ac.S., appeal the juvenile court decision finding their
children were in need of assistance (CINA). We conclude the juvenile court
properly determined the children should be adjudicated CINA. We also agree the
children could not be returned to the parents’ care at the time of the dispositional
hearing. We concur in the court’s placement of the children. We affirm the
decision of the juvenile court.
I. Background Facts & Proceedings
K.S. is the mother of Al.S., born in 2003; A.O., born in 2004; A.C., born in
2008; An.S., born in 2016; Co.S., born in 2017; Ch.S., born in 2018; and L.S., born
in 2019. R.O. is the father of Al.S. and A.O. M.C. is the father of A.C. The father
of An.S. is unknown. Ac.S. is the father of Co.S., Ch.S., and L.S. K.S. is married
to Ac.S, and these parents had all seven children at issue in their care when the
Iowa Department of Human Services (DHS) became involved with the family. 1
While she was pregnant with L.S., the mother tested positive for
methamphetamine. L.S. had symptoms of opiate withdrawal at birth. The mother
stated she had been taking five times the recommended dosage of an over-the-
counter medication. Social workers visited the home and found it in compete
disarray. The home was cluttered with clothes and food, creating a safety concern
for the young children. The older children often missed school because they were
required to take care of the younger children, including getting up during the night
with the younger children. The children had poor hygiene and had not had a bath
1Any reference to “the parents” is a reference to K.S. and Ac.S. No other father
appealed.
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in several days. The parents were not meeting the children’s medical and dental
needs. The children were not up-to-date on their immunizations, and several of
them had tooth decay.2 An.S. required surgery to have twenty-two out of twenty-
four teeth capped. The examining dentist described this child’s teeth as “grossly
decayed” and “close to abscessing.” Ch.S. had eight cavities, which required
surgical repair.
The children were removed from the parents’ care on September 23, 2019.
A.C. was placed with M.C., the child’s father. The other children were placed in
foster care. On November 26, the juvenile court adjudicated the children CINA
pursuant to Iowa Code section 232.2(6)(c)(2) (2019).
A dispositional hearing was held on January 13 and February 4, 2020. The
mother testified the two oldest children, Al.S. and A.O., should remain in foster
care. These children were not attending visitation but did attend court-ordered
family therapy sessions with the mother. Al.S. and A.O. told social workers they
wanted to be placed with their father, R.O. There was a recommendation that
Ac.S. have no contact with Al.S. due to an incident of inappropriate sexual contact.
The mother and Ac.S. asked to have the five younger children returned to their
care.
A social worker from DHS, Kerri Knudsen, testified the parents needed to
make more progress before the children could be returned. She stated the parents
needed to have psychological evaluations to assess their parenting abilities.
Knudsen noted the parents did not attend all of the children’s medical
2 Neither parent asserted a religious exemption as to the vaccinations.
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appointments. In addition, the mother was verbally aggressive to Al.S. and A.O.
at visits. Knudsen recommended these two children be placed with R.O.
The juvenile court entered a dispositional order on February 11, 2020. The
court noted the home was currently clean and safe. The parents were participating
in supervised visitation with the younger children. The court stated the parents
needed to participate in all of the children’s medical appointments. In addition, the
parents needed to attend individual counseling in addition to couple’s counseling.
The court determined Al.S. and A.O. should be placed with R.O., A.C. should
remain in the care of M.C., and the four youngest children should remain in foster
care. The mother and Ac.S. appealed the dispositional order.
II. Standard of Review
Our standard of review for CINA proceedings is de novo. See In re J.S.,
846 N.W.2d 36, 40 (Iowa 2014). We are not bound by the factual findings of the
juvenile court, but we give weight to those findings. Id. The court’s “determinations
must be based upon clear and convincing evidence.” Id. at 41. Our primary
consideration is the best interests of the children. In re D.S., 563 N.W.2d 12, 14
(Iowa Ct. App. 1997).
III. Sufficiency of the Evidence
The mother and Ac.S. claim there is not clear and convincing evidence in
the record to support the CINA adjudication under section 232.2(6)(c)(2). This
provision applies to a child
Who has suffered or is imminently likely to suffer harmful effects as
a result of any of the following:
....
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(2) The failure of the child’s parent, guardian, custodian, or
other member of the household in which the child resides to exercise
a reasonable degree of care in supervising the child.
Iowa Code § 232.2(6)(c). The phrase “imminently likely” has been liberally
construed in CINA cases. In re L.H., 904 N.W.2d 145, 150 (Iowa 2017). CINA
proceedings “are designed to prevent probable harm to a child.” Id. (citation
omitted). The term “harmful effects” “pertains to the physical, mental, or social
welfare of a child.” Id. (citation omitted).
We find there is clear and convincing evidence in the record to show the
children would likely be harmed by the parents’ failure to exercise a reasonable
degree of care in supervising the children. The parents’ house was in complete
disarray when social workers first visited. The parents had not been bathing the
children, and the children exhibited poor hygiene. The parents had not been
meeting the children’s medical needs, as the younger children were not up-to-date
on their immunizations. The parents had not been meeting the children’s dental
needs—two of the children required dental surgery because of tooth decay.
Moreover, the older children often missed school because they were required to
take care of the younger children. We conclude the juvenile court properly filed a
CINA adjudication for the children under section 232.2(6)(c)(2).
IV. Reasonable Efforts
The mother and Ac.S. assert DHS did not engage in reasonable efforts to
avoid continued removal of the children. Although this argument raises the issue
of reasonable efforts, the parents do not assert they should have been offered
additional or different services than those provided by DHS. Furthermore, the
record does not reflect the parents raised the issue before the juvenile court.
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Because the parents do not challenge the services they have received, we do not
further address this issue. See In re C.H., 652 N.W.2d 144, 148 (Iowa 2002)
(finding a parent could not challenge on appeal the services provided when the
issue had not been presented to the juvenile court).
V. Placement of Children
A. On appeal, the mother claims all seven of her children should be
returned to her care. At the dispositional hearing, however, she testified Al.S. and
A.O. should remain in foster care. The mother agreed to discontinue visits with
these children because of their “rocky” relationship and because she was meeting
with them in family therapy sessions. The mother agreed Al.S. and A.O. should
remain out of the home. We determine the mother has waived her right to
challenge whether Al.S. and A.O. should be returned to the mother’s care.. See
In re H.S., No. 17-1902, 2018 WL 540998, at *1 (Iowa Ct. App. Jan. 24, 2018)
(“[T]he mother cannot be heard on appeal to complain about a ruling she agreed
was appropriate.”); see also Jasper v. State, 477 N.W.2d 852, 856 (Iowa 1991
(noting a litigant “cannot deliberately act so as to invite error and then object
because the court has accepted the invitation”).
The mother also claims Al.S. and A.O. should not be placed with their father,
R.O., and instead should remain in foster care. Section 232.99(4) states, “When
the dispositional hearing is concluded the court shall make the least restrictive
disposition appropriate considering all the circumstances of the case.” After a
dispositional hearing, a child may be placed with “[a] parent who does not have
physical care of the child.” Iowa Code § 232.102(1)(a)(1). Placing Al.S. and A.O.
with their father is less restrictive than placing them in foster care. See In re E.R.,
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No. 18-1216, 2018 WL 6131924, at *2 (Iowa Ct. App. Nov. 21, 2018) (reviewing
levels of restrictiveness).
At the dispositional hearing, Knudsen recommended that Al.S. and A.O. be
placed with R.O. She testified R.O. was fully cooperative with DHS, including
participating in therapy with the children. He scheduled some appointments for
the children and followed through with those. He consistently attended visitation.
In the past, there was an allegation of sexual contact between another child in
R.O.’s home and Al.S. R.O. confirmed there would be no unsupervised contact
between this child and Al.S. and A.O. Al.S. and A.O., who were teenagers, told
social workers they wanted to live with R.O. We concur in the juvenile court’s
decision to place Al.S. and A.O. in the care of R.O., which was the least restrictive
appropriate placement.
B. The mother asked to have the five younger children returned to her
care. As Ac.S. is the father of the three youngest children, he can only advocate
for the return of these children. The mother and Ac.S. point out that they have
cleaned up the home so it is no longer presents safety hazards for the children.
They state they have been involved in the children’s medical care and have
demonstrated adequate parenting skills.
Knudsen testified she did not recommend returning the children to the care
of the mother and Ac.S. at the time of the dispositional hearing. The parents had
attended some medical appointments, but Knudsen stated the parents should be
attending all of the children’s appointments. She stated the parents needed to
have psychological evaluations to help assess their parenting abilities. Also, the
parents were attending joint therapy and Knudsen had requested they attend
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individual therapy. The parents continued to have supervised visitation and had
not progressed to semi-supervised or unsupervised visitation.
The juvenile court determined the children should continue to be placed out
of the home. The court stated it was concerned about the parents’ failure to attend
individual therapy in addition to joint counseling and their lack of involvement in
attending the children’s medical appointments. The court found, “The problems
for which the Court became involved have not resolved.” We agree with the
juvenile court’s conclusion. While the parents made progress, they were not yet
in a position where the children could be returned to their care.
The juvenile court determined A.C. should continue in the care of the child’s
father, M.C., while An.S., Co.S., Ch.S., and L.S. should continue in foster care.
The mother challenges the placement of A.C. with M.C., stating M.C. was not
supporting her relationship with the child. Prior to these juvenile court proceedings,
the mother and M.C. had a shared custody arrangement for A.C. At the
adjudication hearing on October 21, 2019, the mother stated M.C. was “a great
dad.”
We determine the children could not be returned to the mother’s care at the
time of the dispositional hearing. Placing A.C. with his father, who already shared
in the care of the child, is the least restrictive appropriate placement. Furthermore,
there was no evidence to show M.C. was not providing adequate care of the child.
We concur in the court’s placement of A.C. with M.C.
We affirm the decision of the juvenile court.
AFFIRMED ON BOTH APPEALS.