In the Interest of A.G., O.S., and S.S., Minor Children, D.S., Mother ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0115
Filed April 22, 2015
IN THE INTEREST OF A.G., O.S.,
and S.S.,
Minor Children,
D.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Monroe County, William S. Owens,
District Associate Judge.
A mother appeals from the dispositional order and dispositional review
order continuing out-of-home placement. REVERSED AND REMANDED.
Julie DeVries of DeVries Law Office, P.L.C., Centerville, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, and Steven Goodlow, County Attorney, for appellee.
Robert Bozwell of Bozwell Law Office and James Underwood of
Underwood Law Office, Centerville, for father.
Debra George of Griffing & George Law Firm, Centerville, attorney and
guardian ad litem for minor children.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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MCDONALD, J.
In this child-in-need-of-assistance proceeding, Devin, the mother of A.G.,
O.S., and S.S., appeals from the dispositional order and the dispositional review
order regarding O.S. The challenged orders continue legal custody of O.S. with
the Iowa Department of Human Services (“IDHS”) and continue placement of the
child in foster care. Devin contends the juvenile court did not make the least
restrictive disposition appropriate when considering all the circumstances of the
case. See Iowa Code 232.99 (2013). She contends the district court should
have suspended judgment and returned the child to her care. She further
contends that returning the child to her care is in the best interests of the child.
I.
IDHS came into contact with this family in March 2014 when O.S. was
admitted to the hospital with head trauma thought to be caused by an abusive
act. The only persons who provided unsupervised care to O.S. during the
possible time of injury were his parents Devin and Justin. Pursuant to an ex
parte removal order, O.S. was removed from Devin and Justin’s care and placed
with suitable others. A.G. was removed from Devin and Justin and placed with
A.G.’s biological father Nathan. S.S. was not yet born at the time of removal. At
the time of S.S.’s birth in July 2014, she was removed from the family and placed
in the care of suitable others.
After removal of the children from the family’s care, this matter came on
for a temporary removal hearing. In an order issued June 2014, the juvenile
court continued placement of A.G. with A.G.’s biological father. The court
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continued placement of O.S. with suitable others. The court noted there was a
continuing investigation into the facts and circumstances regarding O.S.’s injuries
and the parents had not provided an explanation of injury consistent with the
medical evidence. The court concluded both children remained at imminent risk
of harm unless removed from the parents.
Contemporaneous with removing the children from this family, the State
filed its petition to adjudicate the children in need of assistance (CINA). The
petition asserted the children were in need of assistance pursuant to Iowa Code
section 232.2(6)(b) (defining child in need of assistance to include one who has
suffered physical abuse or neglect). On August 25, 2014, without admitting to
the allegations set forth in the petition, the parents stipulated the children were in
need of assistance pursuant to a different Code section, Iowa Code section
232.2(6)(c)(2) (defining child in need of assistance to mean one who has suffered
or is imminently likely to suffer harmful effects as a result of the failure to exercise
a reasonable degree of care in supervising the child). The juvenile court found
the record sufficient to support a finding the children were in need of assistance
pursuant to section 232.2(6)(c)(2). Although all children were adjudicated in
need of assistance, the court ordered A.G. returned to the mother under the
conditions of a safety plan. The juvenile court ordered that custody of O.S. and
S.S. remain with IDHS for placement into foster care. At a subsequent hearing,
Devin testified she stipulated to the adjudication because it was the fastest way
to have A.G. returned to her care and because her lawyer told her she would
most likely have her parental rights terminated if she did not sign the stipulation.
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The case came on for a disposition hearing in November 2014. At the
disposition hearing, IDHS recommended A.G. remain in the custody and care of
the mother. IDHS also recommended custody of O.S. and S.S. remain with
IDHS for placement in foster care. On December 1, 2014, the juvenile court
issued its disposition order. The juvenile court found that A.G. was in the
mother’s home and “doing well.” The court found that O.S. and S.S. had
visitation with Devin and Justin two times per week, and “there are no reported
concerns.” The court noted the family’s service provider “testified Devin and
Justin have been responsive and cooperative with services . . . [and] that Devin
and Justin have followed the safety plan established for the family.” The juvenile
court nonetheless concluded O.S. “would be in imminent risk to life or health
unless removed.” The juvenile court ordered O.S. to remain placed in foster
care.
Shortly after the disposition hearing, the matter came on again for a
disposition review hearing. In an order issued January 7, 2015, the juvenile court
found that both parents had completed their psychological assessments. The
court found that both parents were participating in IDHS-required therapy and
attending IDHS-required appointments. The reports from these sessions and
appointments showed the parents made progress in each session. The court
noted that S.S. had been returned to the parents’ custody and care and that the
parents were having extended visits with O.S. The court further found “Devin
and Justin are doing well, are participating in all recommended services, and
doing well with visits.” Again, without noting any deficiencies in the parents, the
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court ordered that custody of O.S. remain with IDHS for placement in foster care.
The court also ordered that IDHS develop a reunification schedule for O.S. with
the goal that O.S. be reunited with the family before the next scheduled review
hearing. The mother timely appeals from the dispositional and dispositional
review orders.
II.
We review CINA proceedings de novo. See In re D.D., 653 N.W.2d 359,
361 (Iowa 2002). Although not bound by the juvenile court’s factual findings, we
give them weight, especially when considering the credibility of witnesses. See
In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). “The most important consideration
in any CINA case is the best interest of the child.” D.D., 653 N.W.2d at 362.
Following a dispositional hearing, Iowa courts are required to “make the
least restrictive disposition appropriate considering all the circumstances of the
case.” Iowa Code § 232.99(4). The Code sets forth possible dispositions in
sections 232.100 through 232.102, from least restrictive to most restrictive.
Suspending judgment is the least restrictive alternative. See Iowa Code
§ 232.100. Where there is a suspended judgment, the child remains with the
parent. See State v. Iowa Dist. Ct., 828 N.W.2d 607, 615 (Iowa 2013). Transfer
of legal custody and placement away from the parent is the most restrictive.
Iowa Code § 232.102.
Here, the juvenile court chose the most restrictive disposition—transfer of
custody for placement into foster care. Custody may be transferred by the
juvenile court if it finds by clear and convincing evidence that “(1) The child
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cannot be protected from physical abuse without transfer of custody; or (2) The
child cannot be protected from some harm which would justify the adjudication of
the child as a [CINA] and an adequate placement is available.” Id. Clear and
convincing evidence is more than a preponderance of the evidence and less than
evidence beyond a reasonable doubt. See In re L.G., 532 N .W.2d 478, 481
(Iowa Ct. App. 1995). It means that there must be no serious or substantial
doubt about the correctness of a particular conclusion drawn from the evidence.
See id. Because our review is de novo, we should not be passive where there is
a deficient presentation of evidence. Instead, we must satisfy ourselves the
State has come forth with the quantum and quality of evidence sufficient to prove
the statutory grounds for transferring custody.
We conclude there was not clear and convincing evidence supporting the
disposition ordered here. First, while not revisiting the adjudication order, we
recognize the medical evidence developed after removal casts some doubt on
whether the child was at risk of physical abuse. Throughout these proceedings,
neither Devin nor Justin admitted to abusing O.S. In fact, they denied the
allegations of abuse and requested a second opinion regarding the cause of
O.S.’s head injuries given his medical history. They obtained a second opinion
from Dr. Kenneth Mack of the Mayo Clinic, who evaluated O.S. Dr. Mack’s report
indicates diagnoses of macrocephaly and history of seizures and pailledema
secondary in whole or part to a venous sinus thrombosis. Dr. Mack’s report
discusses potential other causes of injury and concludes, “I rarely say this, but I
think in this particular situation, one has to be suspicious that there may be an
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explanation other than nonaccidental trauma for what we are seeing with the
neuroimaging studies.” Dr. Mack’s conclusion that there may be explanations for
O.S.’s injury has not yet been addressed by IDHS.
Second, the record establishes the parents largely have been compliant
with IDHS’s required services and programming and have been appropriate with
the children. The parents completed required psychological assessments and
attended their parent-child interactive therapy sessions. The service provider
working with the family, when asked whether she had “any other suggestion for
services that would help Devin reunite with her children,” responded, “No, not at
this moment. I think they’ve been addressed.” The parents exercised
supervised visitation with all of the children, including O.S. By all accounts, those
visits went well. The children seemed bonded with each other and appropriately
bonded with the parents. IDHS recommended and the juvenile court found that
A.G. and S.S. should be returned to the legal custody and care of the parents.
Third, and dispositive, we are at a loss to reconcile the different
dispositions with respect to each of the children in this case. The adjudication
order found the children to be in need of assistance due to the risk of harm
caused by the parents’ failure to provide adequate supervision. Nonetheless, at
the time of adjudication, the juvenile court ordered A.G. returned to the parents’
legal custody and care subject to a safety plan. At the time of the review hearing,
S.S., O.S.’s younger sibling, was returned to the care of the parents. There is no
evidence in the record that supports the conclusion that O.S. was materially more
likely to suffer abuse or other adjudicatory harm than A.G. or S.S. There is no
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evidence in the record that would otherwise support the different dispositions.
Our court has concluded that, until the parent can establish the ability to parent
the child safely, the least restrictive disposition is for the child to be placed with
others. See In re L.F., No. 13-1409, 2013 WL 5949653, at *4-5 (Iowa Ct. App.
Nov. 6, 2013) (affirming dispositional order placing child outside home where
evidence established child abuse, mother undoubtedly lied about the child abuse,
and mother recruited child’s sibling to take responsibility for injury); In re J.C., No.
13-1957, 2013 WL 3291867 at *3 (Iowa Ct. App. June 26, 2013) (affirming
dispositional order placing child with another where mother failed to demonstrate
the ability to safely care for the child); In re M.O., No. 06-0405, 2006 WL
1280481, at * 2 (Iowa Ct. App. May 10, 2006) (affirming juvenile court order of
continued placement with another where mother had substantially addressed
mental health and parenting issues but record reflected she had not yet
completed all remedial services intended to improve her parenting skills).
Where, as here, IDHS recommended and the juvenile court found that two other
children of similar age could be safely returned to the parents, in the absence of
any distinguishing factor regarding the third child, we must conclude that the third
child could also be returned to the parents. Cf. In re J.S., No. 14-1014, 2014 WL
4938012, at *4 (Iowa Ct. App. Oct. 1, 2014) (affirming different disposition as to
three children where oldest, teenage child had particular psychological needs
and expressed desire to not be placed with parents); In re S.R.A., 440 N.W.2d
619, 621 (Iowa Ct. App. 1989) (affirming disposition order for placement outside
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family where evidence established sex abuse occurred and all experts testified
the family could not be reunited without additional services).
We also agree that the State did not overcome the presumption that
O.S.’s best interests are best served by being returned to the custody and care of
the parents. Iowa Code chapter 232 is to be “liberally construed to the end that
each child under the jurisdiction of the court shall receive, preferably in the child’s
own home, the care, guidance and control that will best serve the child’s welfare
and the best interest of the state.” Iowa Code § 232.1. There is a rebuttable
presumption that the child’s best interests are served by parental custody, In re
R.F., 471 N.W.2d 821, 824 (Iowa 1991), and whenever possible, “the court
should permit the child to remain at home with the child’s parent, guardian, or
custodian.” Iowa Code § 232.102(5)(a). As indicated above, the service
providers could not identify any additional services Devin needed at this time.
The testimony established O.S. and Devin are bonded. O.S. is excited to see his
mother at visitation, squealing with delight, raising his arms, and hugging her.
We conclude it is in the best interest of the child for disposition of this case to be
in harmony with the disposition of the cases involving the child’s siblings until
such time as the evidence dictates a different result.
III.
For the foregoing reasons, we find granting custody of O.S. to IDHS for
placement in nonrelative foster care was not the least restrictive placement and
contrary to the best interests of the child. Accordingly, we reverse and remand
for entry of a disposition order not inconsistent with this opinion. See In re K.P.,
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No. 11-1869, 2012 WL 2122227, at *11 (Iowa Ct. App. June 13, 2012) (providing
the same relief).
REVERSED AND REMANDED.