In the Interest of A.F., Minor Child, D.F., Mother ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0919
Filed August 16, 2017
IN THE INTEREST OF A.F.,
Minor Child,
D.F., Mother,
Appellant.
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Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,
District Associate Judge.
A mother appeals from a permanency order. AFFIRMED.
Natalie Hope Cronk of Cronk & Waterman, P.L.C., Iowa City, for appellant
mother.
Thomas J. Miller, Attorney General, and Mary A. Triick and Ana Dixit,
Assistant Attorneys General, for appellee State.
Kimberly Ann Opatz of Linn County Advocate, Cedar Rapids, guardian ad
litem for minor child.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.
This case arises out of a child-in-need-of-assistance proceeding. Deloris,
the mother, appeals from the juvenile court’s amended permanency order as to
her child, A.F. (born 2013).1 The amended permanency order provided custody
of A.F. would be returned to Deloris under the protective supervision of the Iowa
Department of Human Services (“IDHS”). The order further provided for
concurrent jurisdiction to allow A.F.’s father, Paul, to proceed in the district court
regarding issues of custody, visitation, and child support. Finally, the amended
permanency order granted IDHS discretion to implement an appropriate
interaction plan for A.F. and his parents. On appeal, Deloris contends the
juvenile court (1) erred in denying her motion to dismiss the child-in-need-of-
assistance proceeding, (2) erred in returning custodial rights to her but modifying
the parents’ pre-existing physical care arrangement, and (3) unconstitutionally
delegated its authority to determine custody and visitation to IDHS.
Our review in child-in-need-of-assistance proceedings is de novo. See In
re D.D., 653 N.W.2d 359, 361 (Iowa 2002). We examine both the facts and the
law, and we adjudicate anew issues properly preserved and presented for
appellate review. See In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995).
Deloris’s first claim is the juvenile court should have dismissed the
assistance proceeding because she no longer posed any risk of harm to A.F.
The record reflects the child was removed from Deloris’s care in March 2016 due
to concerns regarding Deloris’s inability to provide adequate supervision and
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Deloris has two other children. She did not appeal the permanency order as to one of
the children, and her appeal as to the other child was dismissed as untimely by the
supreme court.
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care for the child and due to concerns regarding Deloris’s use of controlled
substances, including marijuana and methamphetamine. A.F. was placed with
Paul, who, up to that point in time, had largely been uninvolved in A.F.’s life.
Deloris made significant progress throughout the life of the case. She began
treatment for her mental-health conditions and ceased using controlled
substances. Her interactions with A.F. improved, and her contact with A.F.
increased over time. By the time of the permanency review hearing, the attorney
for the State reported, with respect to A.F., “Deloris has done everything that
she’s been required to do.”
Although Deloris made significant progress in addressing the concerns
giving rise to removal, the juvenile court was not required to dismiss the
assistance proceeding. Instead, the decision to dismiss or close an assistance
proceeding is within the broad discretion of the juvenile court. See In re E.H.,
No. 02-0764, 2003 WL 289596, at *1 (Iowa Ct. App. Feb. 12, 2003). A juvenile
court may terminate a dispositional order if the court determines “[t]he purposes
of the order have been accomplished and the child is no longer in need of
supervision, care, or treatment” or “[t]he purposes of the order have been
sufficiently accomplished and the continuation of supervision, care, or treatment
is unjustified or unwarranted.” Iowa Code § 232.103(4)(a), (d) (2016).
Under the circumstances, we cannot conclude the district court abused its
broad discretion in declining to dismiss this assistance proceeding. The trial
home placement of A.F. with Deloris was relatively new. The juvenile court had
not inappropriate concern regarding Deloris’s ability to maintain the positive
changes. The juvenile court had not inappropriate concern regarding the child’s
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ongoing adjustment to the new parenting arrangement. The juvenile court
indicated that it would consider closing the case in due course but that it wanted
to exercise caution at the time of the hearing. This was a prudent course of
action under the circumstances. We find no abuse of discretion.
Deloris next challenges the juvenile court’s decision to continue the de
facto shared-care arrangement. She contends the juvenile court was required to
restore the status quo ante—that is, the juvenile court was required to grant her
primary physical care of the child, which was the care arrangement prior to the
initiation of this assistance proceeding. We disagree. The juvenile court has
broad power to act in the best interest of the child, including the power over
custody, care, and visitation with the child. See Iowa Code § 232.104(5) (“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.”);
In re K.R., 537 N.W.2d 774, 777 (Iowa 1995) (providing the juvenile court has
exclusive jurisdiction over custody, guardianship, care, and visitation during a
pending assistance proceeding); In re T.M., No. 11-0307, 2011 WL 1584586, at
*1 (Iowa Ct. App. Apr. 27, 2011) (affirming permanency order granting IDHS the
discretion to manage contact between the child and parents). Here the juvenile
court took a cautious step toward reunification, which was reasonable under the
circumstances.
Finally, Deloris asserts a constitutional challenge to the amended
permanency order. She contends affording IDHS discretion to implement an
interaction plan is an unconstitutional delegation of judicial power to the
executive branch. Deloris is correct in asserting that it is exclusively the province
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of the court to determine custody, care, and visitation arrangements. See In re
Marriage of Stephens, 810 N.W.2d 523, 530–31 (Iowa Ct. App. 2012) (“The
legislature has granted to the court the responsibility to make an impartial and
independent determination as to what is in the best interests of the child . . . .”).
A court may not delegate this power to a third party. See id.; In re S.P., No. 16-
1919, 2017 WL 108798, at *5 (Iowa Ct. App. Jan. 11, 2017) (“The juvenile court
may not delegate its judicial function to any third party . . . .”). Here, however,
there was no delegation of power. The juvenile court made the custody and care
determination and afforded the agency discretion to implement the court’s
decision in the best interest of the child. This was a permissible exercise of the
juvenile court’s authority. See, e.g., T.M., 2011 WL 1584586, at *1 (affirming
disposition order “giving DHS discretion to manage the contact between [the
child] and his father”); In re J.L., No. 10-0041, 2002 WL 100501, at *3 (Iowa Ct.
App. Jan. 28, 2002) (stating “[t]here is statutory and case law to support the
juvenile court’s” delegation to the agency of discretion in implementing a
visitation arrangement).
For the above-stated reasons, we affirm the judgment of the juvenile court.
AFFIRMED.