In re J.D., T.D., C.D., D.D., & E.R. ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1602
Filed January 10, 2018
IN THE INTEREST OF J.D., T.D., C.D., D.D., and E.R.,
Minor Child,
S.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Montgomery County, Amy L.
Zacharias, District Associate Judge.
A mother appeals the juvenile court order temporarily removing her
children from her care. AFFIRMED.
Sarah M. Hart of Reisinger, Booth, and Associates, P.C., L.L.O., Omaha,
Nebraska, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Karen L. Mailander of Mailander Law Office, Anita, guardian ad litem for
minor children.
Considered by Vogel, P.J., and Tabor and Bower, JJ.
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BOWER, Judge.
A mother appeals the order temporarily removing her children from her
care. We find the children were properly removed pursuant to Iowa Code section
232.102(5)(a) (2017). We affirm the juvenile court.
I. Background Facts and Proceedings
The five children in this case ranged in age from three to twelve at the
time of the removal hearing. In April 2017, the Iowa Department of Human
Services (DHS) received a report of physical abuse against the father of four of
the children. The father was arrested and charged with child endangerment.
The mother and father were no longer in a relationship at the time of the incident.
However, during the course of the investigation, it was discovered the mother’s
boyfriend, W.B., who lived in the mother’s home with the children, was a
registered sex offender.1 DHS and law enforcement informed the mother and
W.B. and he was required to leave the home. Two days later, the mother and
W.B. married in order to avoid his removal.
After approximately one month, the mother and W.B. signed a safety plan
requiring W.B. to leave the home. The children made statements to the
caseworker they wanted W.B. to come back to the home and that his victim had
been lying about the abuse. Near the end of May, the children were adjudicated
to be children in need of assistance (CINA), and a no-contact order between
W.B. and all of the children was entered. The mother did not understand why the
no-contact order was entered and why allowing W.B. around the children
presented a safety concern. It was also discovered the mother was pregnant
1
In 2015, W.B. was convicted of second-degree child molestation in Missouri.
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with W.B.’s child. However, the children were allowed to remain in the care of
the mother.
DHS was immediately suspicious W.B. still had contact with the children,
though it had no proof. The juvenile court specifically reminded the mother any
violation of the no-contact order would result in the children being removed from
her care. W.B. was pulled over in a traffic stop approximately two weeks later,
and the mother and all five children were in the car with him. An ex-parte
removal order was filed July 12, 2017. The juvenile court noted, the mother “now
claims she will not allow contact between [W.B.] and the children and will do
whatever is necessary to have her children returned to her care. Given [her]
behaviors to this point, the Court finds that the children are not safe in her care
and should be temporarily removed.”
The children were placed in foster care, and the mother was granted
supervised visitation. The mother complied with the case-plan requirements, but
DHS remained concerned about her continued relationship with W.B. When the
mother was directly asked by the juvenile court if she was comfortable allowing
her children to have contact with a sex offender, she did not directly answer the
question. Instead she noted W.B. planned to appeal his conviction and that she
had spoken to some of W.B.’s children and they believed his victim lied about the
abuse.
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 juvenile court’s findings of fact but are not
bound by them. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). The highest
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concern in reviewing the proceedings are the best interests of the children. Id.
The juvenile court’s determinations must be made on the basis of clear and
convincing evidence. Iowa Code § 232.96(2).
III. Returning the Children to the Mother’s Care
The mother first claims the juvenile court did not have clear and
convincing evidence the children could not be returned to her care. A child
should be allowed to remain at home with their parent whenever possible and
should not be removed from the parent’s care unless they cannot be protected
from abuse. Id. § 232.102(5)(a). The juvenile court established a no-contact
order to protect the children from W.B., a registered sex offender. The mother
was unable or unwilling to understand the danger posed to the children by having
contact with W.B. and continued to allow W.B. to have contact with the children.
When questioned directly about whether she believed W.B. posed a danger to
the children, the mother would not answer and instead defended W.B. We find
there was clear and convincing evidence the mother would continue to violate the
no-contact order and endanger the children.
IV. Reasonable Efforts
The mother next claims DHS did not make reasonable efforts toward
reunification and requests she be allowed “to parent her children, unsupervised,
as she has completed all requirements from [DHS].” The wording of the request
makes the claim somewhat ambiguous. However, at the time of the review
hearing on September 28, 2017, the mother explicitly denied she was asking for
additional services, such as unsupervised visitation. To the extent the mother’s
argument is a request for additional services, we find the issue was not
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preserved. Generally issues must be presented to the juvenile court and ruled
on before being raised on appeal. In re R.J., 495 N.W.2d 114, 117 (Iowa App.
1992) (citation omitted).
The other alternative is a claim the children should be returned to the
mother’s care as the State failed to prove reasonable efforts were made by DHS.
The mother claims “the Court lists services that have been provided . . . as well
as recommendations from [DHS]. At the time of the Review/Modification
Hearing, [the mother] was in compliance with the full list of recommendations . . .”
We find the mother did not preserve any claim based on reasonable efforts as
she did not request additional services from the juvenile court. We also reaffirm
our findings above, noting the mother was unwilling to abide by the no-contact
order, and therefore, the children could not be returned to her care.
V. Least Restrictive Placement
The mother lastly claims foster care is not the least restrictive, appropriate
placement for the children. The mother believes having the children returned to
her care is the least restrictive placement, or in the alternative, having the
children moved to a placement closer to her home would be less restrictive.
However, the mother states her attorney “asked [DHS] multiple times to change
placement of the children.” This is insufficient to preserve the issue for appellate
review. Generally an issue must be brought before the juvenile court and ruled
on before it is raised on appeal. R.J., 495 N.W.2d at 117. The mother’s
statement and a review of the record show no such request was made to the
juvenile court. Therefore, we affirm the district court.
AFFIRMED.