In the Interest of D.B., T.B., A.M., and A.T., Minor Children, State of Iowa, Jami Hagemeier, Guardian Ad Litem ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0740
Filed September 27, 2017
IN THE INTEREST OF D.B., T.B., A.M., and A.T.,
Minor Children,
STATE OF IOWA,
Petitioner-Appellant,
JAMI HAGEMEIER, Guardian Ad Litem,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan C. Cox, District
Associate Judge.
The State and guardian ad litem appeal from the dismissal of the child-in-
need-of-assistance petitions. AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED WITH DIRECTIONS.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellant State.
Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines,
guardian ad litem for all appellant children, and attorney for A.M. and D.B.
Sharon M. Wegner of Graham, Ervanian & Cacciatore, L.L.P., Des
Moines, attorney for T.B. & A.T.
Thomas P. Graves of Graves Law Firm, P.C., Clive, for appellee mother.
2
Aaron H.R. Ginkens of Ginkens Law Firm, P.L.C., West Des Moines, for
appellee father of D.B. & T.B.
Daniel M. Northfield, Urbandale, for appellee father of A.M.
Dale D. Mays of Mays and Clausen Law Office, Newton, for father of A.T.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
3
DANILSON, Chief Judge.
The State and the guardian ad litem appeal from the dismissal of the child-
in-need-of-assistance (CINA) petitions, which alleged the children were CINA
pursuant to Iowa Code section 232.2(6)(b) and (c)(2) (2017). Because the State
proved by clear and convincing evidence that A.T., T.B., and D.B. should be
adjudicated CINA, we reverse and remand with directions. We affirm the
decision of the juvenile court dismissing the CINA petition as to A.M.
I. Background Facts.
Alicia and Christopher are married and have five children between them.
A.M., age fourteen, is Alicia’s child with Michael. M.B., age eleven, is
Christopher’s child with A.L. (who lives in Florida).1 A.T., age twelve, is Alicia’s
1
M.B. is a behaviorally challenging child. M.B., A.L., and Christopher received informal
services from the department of human services (DHS) from November 2007 through
March 30, 2009. The juvenile court was formally involved beginning March 30, 2009,
when a CINA petition was filed. On July 16, 2009, M.B. was placed with her father and
his then-fiancé, Alicia. Fifteen days after placement, M.B. had an unexplained injury.
On August 20, 2012, M.B. was removed from the home of Christopher and Alicia
upon a finding by the juvenile court that she “is clearly the target child of physical and
emotional abuse.” The juvenile court found T.B., A.M., and A.T. “also experienced or
witnessed corporal punishment and are in imminent risk of the significant abuse levels
already perpetrated against” M.B. That court stated further,
If only M.B. is removed, it is likely that one of the other children will be
targeted, especially if one has a toileting accident. The parents must
resolve their anger, bullying, and blaming behaviors, understand and
accept their role in the harm they have perpetrated, learn and practice
positive parenting techniques, and heal their relationship with their
children before they can provide minimally adequate parenting.
Those juvenile proceedings were closed in 2014.
A therapist and former child protective service worker with DHS, Angye Jones,
was familiar with the family through earlier juvenile court proceedings. Ms. Jones
testified at the instant hearing, stating M.B. had disruptive behaviors including dishonest,
sneaky, stealing behaviors. She testified further:
When I left in April 2014, the case was transitioning to Jona Parks who
had just started at the department and had been the [Family Safety, Risk,
and Permanency] FSRP worker on the case. In consultation with [the
children’s therapist] Eileen Swoboda and several people I told Jona that
my recommendation at that time would be for the case to close . . . .
4
child with Randy. T.B., age six, and D.B., age seven months, are Alicia’s
children with Christopher. Alicia is employed as a certified medical assistant.
Christopher is a trucker who is on the road several days a week. Due to
Christopher’s absence, Alicia was the primary caregiver for all the children.
Alicia and M.B. have had a difficult relationship. M.B. continued to see a
therapist after the previous juvenile court proceedings were closed. In August
2016, Alicia and Christopher had M.B. undergo a psychological examination,
which indicated M.B. is mentally lower functioning, has “strong emotional
reactions,” and “directs her negative emotions towards others in her life
[particularly Alicia, so] that she can then blame them for the loss of her fantasized
perfect relationship with her father.”
Q. Do you have any other problems in that case you think should be
addressed? A. I don’t know that I call them problems. I think it was a very
complex case. I think there was a lot of factors. There was a lot of
emotion involved I think from all the parents, but the biggest, I think,
discovery for me as the case went on, I felt like [M.B.] had a lot of
behavior problems that maybe weren’t . . . focused on in the initial
assessment . . . .
Q. At the end though when you left the case, did you feel that the
children were safe in the [B.] household? A. I felt that it was safe to send
them home largely because we had had so much work with the children’s
therapist, especially Eileen Swoboda, which at that time was seeing
[M.B.], and we had so many meetings and so many consultations, and at
that time Judge Cohen was very clear that she was going to base her
decision on—largely on what Miss Swoboda recommended. And so at
the time I was leaving Miss Swoboda was recommending that [M.B.] be
returned to the home at this time.
Q. Do you have any personal concerns about safety of any of the
children in the [B.] home? A. When I closed the case I felt like things
were safe at that time.
5
Also in August 2016, five days after giving birth to D.B., Alicia had a
“massive heart attack,” which requires a lifelong need for medication. She is to
keep her “stress level down.” 2
In November 2016, A.M. went to live with his father, Michael.
On January 25, 2017, by ex parte order, M.B., A.T., T.B., and D.B. were
removed from Alicia and Christopher’s home based upon a report to DHS that
Alicia had hit M.B. and caused a bloody nose.
Six-year-old T.B. was interviewed and stated that M.B. gets spanked with
a spatula, Christopher slapped M.B., and M.B. had a bloody nose. In an
interview with a child protective worker, M.B. reported being hit in the face by her
father and being consistently grounded or in trouble. She also reported having to
eat hot sauce with added cayenne pepper as punishment; not receiving any gifts
for Christmas; being told she is “fat, stupid and bad”; being punished for loading
the dishwasher wrong; being beaten with a spatula; being forced to perform wall
squats or run up and down the stairs for extended periods of time; and being
forced to stand at the dinner table while everyone else got to sit.
The State sought to have D.B., T.B., A.T., and A.M. adjudicated CINA
pursuant to Iowa Code section 232.2(6)(b) and (c), asserting they were at risk of
physical or emotional harm as a result of abuse or neglect by Alicia and
Christopher. After the removal and adjudication hearing had begun,3 and before
2
Prior to D.B.’s birth, Christopher was home about one day a week. However, at the
time of the CINA hearing, Alicia stated Christopher was home “a minimum of two times
during the week plus weekends.”
3
The hearing was conducted over the course of six days—March 2, 7, 13, 14, 15, and
16.
6
the State presented all its evidence, the court issued an order returning D.B. to
his parents.4
All parties stipulated to M.B.’s continued removal and CINA adjudication.
A.M. remained living with Michael, who stipulated to A.M.’s removal and CINA
adjudication. While Alicia agreed with A.M.’s placement with Michael, she
contested adjudicating A.M. a CINA.
Chelyne Cunningham testified she was the therapist for A.T., T.B., and
M.B. She starting seeing A.T. in 2015 “because she was having some acting out
behaviors at home and at school due to relationship stressors that she had with
her father and potential abandonment that she was experiencing with them not
having a strong relationship.” Ms. Cunningham testified A.T. consistently denied
any abuse in Alicia and Christopher’s home as to herself or her siblings.
Ms. Cunningham stated she also started seeing M.B. five or six months
after sessions started with A.T.:
[M.B.] was brought to my office because she was having acting out
behaviors at home and at school which presented oddly for her age
for some of the things she was doing or not doing. So as an
example hygiene or lack thereof. Issues were brought up just her
not having some of the same interests that children her age
generally would have.
Ms. Cunningham recommended a psychological evaluation be prepared for M.B.
She was asked if M.B. is “good at accepting responsibility for her actions?” Ms.
Cunningham stated:
4
The State filed an application for interlocutory appeal, which was denied by the
supreme court. On appeal here, the State urges it was denied a fair trial by the court’s
return of D.B. partway through its evidence. We find the issue is moot. In any event, the
State had ample opportunity to present its evidence in support of the CINA petitions.
7
Not at all. She—and that was another reason for the request
for the psychological evaluation. When I was stating that she
seems delayed, she has a very difficult time being accountable, and
she—even when you ask her about something that she’s done, you
would get a very what we call matter of fact a very blank stare
almost as if she, you know, went to another place and didn’t know
what you were talking about.
Q. She denied that behavior that was reported to you? A.
She wouldn’t speak, and with continued probing some sessions I
would have better luck with her stating, yes, I did that thing
whatever that thing was by the end of the session, but the majority
of the time especially when accountability issues were brought up
[M.B.] would just be silent and blank.
Q. When you talk about these behaviors, are these the kind
of behaviors that are just a little naughtiness from a child or are
they kind of behaviors that might create a danger to herself or
others? A. Absolutely.
Ms. Cunningham stated M.B. did not tell her about any abuse occurring in
the home, though T.B. reported M.B. had hit T.B. with a spatula.
Ms. Cunningham testified she started to see T.B. after the children were removed
from the home—T.B. expressed a desire to go home and denied any abuse
occurred. Ms. Cunningham also stated she had a number of sessions with the
parents and the family in a “variety of combination of sessions.”
On cross-examination, Ms. Cunningham was asked about targeted-abuse
victims. She testified generally as to potential harm to children who witness a
sibling being abused by their parents. When asked if there would be a concern
for the siblings in the home if a targeted child were removed, she stated:
There are a variety. One concern could be that once the
targeted child is gone, other children could become targeted.
Another concern could be that again, more—I’m speaking from a
mental health standpoint, that we are discussing attachment issues,
emotional issues, delays in overall life functioning.
8
DHS worker Laura Hansen completed the initial abuse assessment and
testified she believed the children were in need of assistance because of T.B.’s
report of abuse of M.B.:
I consulted with my supervisor with the assistance of the County
Attorney, Stephanie Brown, and based on the past case we
certainly felt that was the issue those children were kept out of the
home for an extended period of time. And again, given the services
that have been provided before and that we’re revisiting the
situation I didn’t believe that I could say that those children were
safe in the home.
When asked if she believed A.M., A.T., and T.B. could be returned home safely,
Ms. Hansen said she “would have serious concerns” because:
Well, that testimony by the witnesses indicated that they’ve
had similar problems with lying and stealing with the other children,
that they’ve indicated the use of physical discipline, and I recall
from the last review report in the service file that there was concern
about [Alicia’s] anxiety being taken out on [M.B.] If [M.B.] is not in
the home, then the determination is for one of those children being
targeted either for those same behaviors that set her off with regard
to [M.B.]
Ms. Hansen acknowledged she did not interview either Alicia or
Christopher in completing her assessment. She also acknowledged that the
children went to school on a consistent basis and none of the children had
reported abuse to school personnel. She acknowledged that no child other than
M.B. reported having been abused by Alicia or Christopher and that she had not
seen any physical injuries on any of the children.
Ms. Swoboda testified she provided therapy to M.B. between 2012 and
2014 and then again beginning in February 2017.5 She was asked, “Do you
have any training or knowledge of what a targeted child is?” Ms. Swoboda
5
Ms. Swoboda testified M.B. had instances of misbehavior in the foster home after
removal.
9
stated, “I certainly know the phrase. I would not say that I have had specific
training on a targeted child.” She testified generally about her understanding of a
“targeted child.” The State’s attorney asked her,
Q. If only a targeted child is removed from the home, are
there any concerns for leaving the remainder of the children in the
home? A. You’re asking me a theoretic question?
Q. I’m sorry. A. You’re asking me theoretically?
Q. Yes, theoretically. A. One of the things that would have
to be addressed in the event that the children remain in home—the
children remain in the home, is that the parent or the parents would
really want to be looking with the assistance of some skilled and
trusted professionals at what the entire environment in the home is
and can become in the presence of stress in order that that can be
changed—beneficially changed.
Alicia denied any physical abuse of M.B. or the other children. She
acknowledged Christopher had hit M.B. in the mouth but noted it was a “tap” with
two fingers. Alicia stated she had never seen Christopher hit or threaten any of
the children with a belt.
Christopher admitted he had spanked both M.B. and T.B. and had
“popped” T.B. and M.B. in the mouth. He also acknowledged he had threatened
to spank M.B. with a belt but denied having actually used a belt. Alicia and
Christopher both testified they would continue to use physical discipline in the
home if they deemed it appropriate.
Ms. Jones was asked, “[I]s it common for one child who has been targeted
for abuse for another child to be abused in that home?” She responded, “I don’t
know if I’d use the word common. I think it happens in some cases, and in some
cases it doesn’t happen. Largely I think it depends on what the reason for the
abuse of the targeted child was for.”
10
The guardian ad litem (GAL) asserted at the close of the evidence that
she did not recommend again removing D.B. from the parents as he had already
experienced too many moves. She recommended A.M. remain with his father,
argued A.T. and T.B. should be confirmed CINA, and advocated that the parties
“work to transition these children home following the advice” of Ms. Swoboda.
The juvenile court ordered the immediate return of A.T. and T.B. to Alicia
and Christopher, “under the proviso there can be no physical discipline of those
children—no physical contact to discipline the children.”
In a written ruling issued on April 26, 2017, the juvenile court found though
physical punishment was used in the home,6 the State had failed to prove its
claim that M.B. was a “targeted child” and once removed from the home another
child would become the target of abuse. The court found “there was insufficient
expert testimony to establish their claim of [a] ‘targeted child.’ Witnesses testified
they heard [about] ‘targeted child’ but no one claimed expertise in this area.
Second, facts do not support the assertion M.B. was ‘targeted.’” The juvenile
court also found [M.B.]’s interview was not credible, noting that per the
psychological evaluation M.B. directed her negative emotions towards others in
her life and “obviously does not like” Alicia. It also found Alicia’s testimony to be
“credible and compelling,” noting Alicia “has struggled to work with a difficult
stepdaughter and obtain appropriate assistance. It has not worked.” The court
concluded the children were not at risk of physical abuse or neglect and ordered
the CINA petitions dismissed.
6
The court wrote it “does not condone either parent physically disciplining [M.B.]—given
her trauma history.”
11
The State appeals, as does the children’s GAL. Alicia and Christopher
contend the State failed to prove these children are at risk of harm. The attorney
for T.B. and A.T. asserts there was no showing they are at risk of harm.
II. Scope and Standard of Review.
We review CINA proceedings de novo. In re K.N., 625 N.W.2d 731, 733
(Iowa 2001). The State bears the burden to prove its allegations by clear and
convincing evidence. Iowa Code § 232.96(2). “Clear and convincing evidence”
must leave “no serious or substantial doubt about the correctness of the
conclusion drawn from it.” In re D.D., 653 N.W.2d 359, 361 (Iowa 2002) (citation
omitted). We accord considerable weight to the factual findings of the juvenile
court, especially concerning the credibility of witnesses, but we are not bound by
those findings. In re W.G., 349 N.W.2d 487, 491–92 (Iowa 1984). Our primary
concern is the best interests of the children. Id. at 492.
III. Discussion.
The State and GAL assert the children are at risk of imminent harm based
on the father and mother’s use of physical discipline targeting M.B. They
contend the physical discipline likely will be directed at another child now that
M.B. is out of the home.
A child is defined as a CINA under section 232.2(6)(b) if a parent “has
physically abused or neglected the child, or is imminently likely to abuse or
neglect the child.” (Emphasis added.) In a similar vein, under section
232.2(6)(c)(2), a child is in need of assistance if the child “has suffered or is
imminently likely to suffer harmful effects as a result of . . . [t]he failure of the
12
child’s parent . . . to exercise a reasonable degree of care in supervising the
child.” (Emphasis added.)
Physical abuse or neglect in this context means “any nonaccidental
physical injury suffered by a child as the result of the acts or omissions of the
child’s parent, guardian, or custodian or other person legally responsible for the
child.” In re J.S., 846 N.W.2d 36, 41 (Iowa 2014) (citation omitted). The “injury”
or “harm” suffered “pertains to the physical, mental or social welfare of a child.”
Id. (citation omitted). “The most important consideration in any CINA case is the
best interests of the child.” D.D., 653 N.W.2d at 362.
Here, there was testimony about concern for the children in Alicia and
Christopher’s home based on prior findings related to M.B., and with her being
out of the home, the possibility another child will become the target of the
parents’ behavior. The State asserts our statutory scheme reflects “[t]his
common sense notion, that abuse of one child in the home places others in the
home at risk sufficiently to justify court supervision.” The State cites a journal
article7 for the proposition, “[I]f the target child is removed from the home, a
sibling may become the new target of his or her parents’ abusive behavior.”
On our de novo review, we conclude the State has proved its allegations
that A.T., T.B., and D.B. are CINA by clear and convincing evidence.
A.M. is in his father’s care outside the home of Alicia and Christopher.
A.M. has not seen Alicia since November 2016 and will remain in Michael’s care.
There is no evidence A.M. is at risk of physical or emotional harm if not
7
Nancy Wright & Eric Wright, SOS (Safeguard Our Survival): Understanding and
Alleviating the Lethal Legacy of Survival-Threatening Child Abuse, 16 Am. U. J. Gender
Soc. Pol’y & L. 1, 20-21 (2007).
13
adjudicated a CINA. See In re A.C., No. 08-1215, 2008 WL 4531458, at *2 (Iowa
Ct. App. Oct. 1, 2008) (holding CINA adjudication based on imminent harm was
not supported by clear and convincing where the record lacked evidence of
abuse towards the child at issue and the child was not in the father’s care).
We are left then with the assertion that A.T., T.B., and D.B. may be at risk
of physical or emotional harm as a result of abuse, neglect, or lack of supervision
because M.B. is no longer in the home. The testimony centered on “concerns”
that these children would become the focus of parental anger because M.B. was
no longer in the home. We agree with the juvenile court that no expert testimony
was presented that would support this assertion.
Notwithstanding, upon our de novo review, we conclude there is clear and
convincing evidence to support CINA adjudication as to the A.T., T.B., and D.B.
The dismissals of the CINA petitions suggest that we will protect a child with
behavior issues from abusive parents or custodians, but we will not protect other
children in the home from the same parents or custodians. Although raising a
child with behavioral issues is challenging, to say the least, there are other
parents that do not physically abuse their behaviorally-challenged child. Until the
root of the abusive behavior is resolved, all children in the home remain at risk of
imminent harm. See D.D., 653 N.W.2d at 362 (“Prior decisions likewise reflect
the common sense notion that, ordinarily, all siblings are at risk when one child
has been sexually abused.”).
Moreover, Christopher admitted once hitting T.B. in the mouth, and both
Christopher and Alicia believe physical discipline is appropriate at times. Their
14
definition of physical discipline also extends beyond spanking. And, even if Alicia
has not participated in abusive behavior, she clearly has been unable to protect
M.B.—and on at least one occasion, T.B.—from physical abuse levied by
Christopher. If the abuse to M.B. was a brief or isolated circumstance, we might
reach a different conclusion.
Furthermore, Christopher and Alicia have created or permitted a home
environment contrary to the best interests of the children by the habitual and
cruel mental and physical abuse inflicted upon M.B. Although the effect upon a
child of observing one or two incidents of abuse may require expert testimony,
we have no difficulty concluding adverse consequences may arise where the
conduct is pervasive and unavoidable. We conclude such adverse
consequences rise to the level of A.T., T.B., and D.B. being imminently likely to
suffer harmful effects as a result of a failure to exercise a reasonable degree of
care in supervising the children. See Iowa Code § 232.2(6)(c)(2).
We therefore reverse the dismissal of the CINA petitions as to A.T., T.B.,
and D.B. and remand for further proceedings with directions for entry of an order
adjudicating A.T., T.B., and D.B. to be children in need of assistance pursuant to
Iowa Code section 232.2(6)(b) and (c)(2). We express no opinion on the proper
disposition to impose. We affirm the dismissal of the petition with respect to A.M.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
DIRECTIONS.
Tabor, J., concurs; McDonald, J., concurs in part and dissents in part.
15
MCDONALD, Judge (concurring in part and dissenting in part).
I concur in part and dissent in part. I concur with the majority in affirming
the dismissal of the petition to adjudicate A.M. in need of assistance. I
respectfully disagree with the majority in reversing the dismissal of the petitions
to adjudicate A.T., T.B., and D.B. in need of assistance.
Section 232.2(6)(b) requires proof that a parent or guardian “has
physically abused or neglected the child, or is imminently likely to abuse or
neglect the child.” Iowa Code § 232.2(6)(b). “But ‘physical abuse or neglect’ and
‘abuse or neglect’ are terms of art in this context. Within chapter 232, ‘physical
abuse or neglect’ and ‘abuse or neglect’ mean ‘any nonaccidental physical injury
suffered by a child as the result of the acts or omissions of the child’s parent,
guardian, or custodian or other person legally responsible for the child.’” In re
J.S., 846 N.W.2d 36, 41 (Iowa 2014) (quoting Iowa Code § 232.2(42)). The
majority concludes this section can be satisfied by showing the child suffered
injury or harm pertaining to the physical, mental, or social welfare of a child. The
language quoted by the majority relates to the definition of “harmful effects” to the
child within the meaning of section 232.2(6)(c)(2). See J.S., 846 N.W.2d at 41
(distinguishing the two provisions). Section 232.2(6)(b) requires proof of
nonaccidental physical injury or an imminent likelihood of the same.
Section 232.6(c)(2) requires the State to prove the children have suffered
or are imminently likely to suffer “harmful effects” as a result of the parents failure
“to exercise a reasonable degree of care in supervising the child.” “Harmful
effects” has a broad definition. See id. The State can satisfy its burden by
16
establishing there was “harm to a child’s physical, mental, or social well-being or
such harm was imminently likely to occur.” Id.
Like the juvenile court, I conclude the State failed to prove by clear and
convincing evidence either of these grounds with respect to A.T., T.B., or D.B.
“Clear and convincing evidence is more than a preponderance of the evidence
and less than evidence beyond a reasonable doubt.” In re L.G., 532 N.W.2d
478, 481 (Iowa Ct. App. 1995). “It is the highest evidentiary burden in civil
cases.” In re M.S., 889 N.W.2d 675, 679 (Iowa Ct. App. 2016). “It means there
must be no serious or substantial doubt about the correctness of a particular
conclusion drawn from the evidence.” Id. It is a demanding standard. A
standard not met here.
There was no expert witness who supported the State’s theory of targeted
abuse. There was no expert witness who testified M.B. was a target of child
abuse within the meaning of this theory. There was no expert witness who
testified this family demonstrated the characteristics and behaviors consistent
with those engaging in targeted-child abuse. There was no expert witness who
testified the children at issue would be at increased risk of abuse if M.B. was
adjudicated in need of assistance and removed from the home. The majority
concedes there was no evidence to support the State’s theory of targeted child
abuse. The State’s theory of targeted abuse was simply legal argument without
any supporting evidence. The juvenile court correctly rejected the State’s
unsupported theory.
17
There was strong evidence the children at issue are not at risk of harm.
The mother and father denied physical abuse of the children. The juvenile court
found the mother’s testimony to be credible and compelling. The mother testified
regarding the difficulties of parenting M.B. and the parents’ use of discipline in
the house. The father did the same. The parents both testified about their
attempts to obtain help for M.B. in treating her mental-health conditions and help
in learning how to manage M.B., including their efforts outside of any child-
welfare proceeding. This supports the district court finding that the family is
struggling to manage a difficult child. For example, the father admitted to
“popping” M.B. in the mouth once. He explained he “found out [M.B.] was going
to school and she was using racial slurs towards other boys and just saying a lot
of vulgar stuff. She had admitted to saying it. I popped her in the mouth and
said, we don’t say these things.” Under the circumstances, this lone incident
does not rise to the level of physical abuse.
There is strong evidence from persons with long-standing relationships
with the family supporting the conclusion the children at issue are not at risk of
adjudicatory harm. The children’s therapist testified she had no reason to believe
any of these children, including M.B., were being targeted. She testified A.T. and
T.B. denied any physical abuse. She testified A.T. and T.B. told her they want to
go home. She testified the parents are concerned about the well-being of the
children and are active in the children’s lives. This was demonstrated in a
colloquy during the hearing. T.B.’s attorney requested the mother be allowed to
have contact with the child to attend the child’s dance recital in Chicago, which
18
the State resisted. The attorney made the request on behalf of the six-year old
child who “really, really” wanted her mom to be there. According to T.B.’s
attorney, T.B. “doesn’t understand what’s going on, why she doesn’t live in the
home right now, and it’s very important for her to have her mom present.” This
does not sound like the request of a child at risk of harm.
A former DHS worker, who is now a therapist and who was formerly
involved with this family in her capacity as a DHS worker, testified she would
recognize a “targeted child” and she did not believe the parents were targeting
M.B. or the other children.
One of the mother’s coworkers, Dr. Mow, testified at trial. He testified the
mother would bring the children into the office after school before going to after
school activities. Dr. Mow testified he saw the children frequently. He testified,
as a colleague of the mother, he did “curb side consults” regarding the children,
including looking at rashes, ear pain, injuries, etc. He testified, as a mandatory
reporter, he never saw any sign of child abuse. Specifically, he testified he had a
chance “to look at them closely, exam [sic] them though their heart, lungs, that
type of stuff, look at the extremities. I’ve never seen any signs of abuse or any
sign of being battered.”
Friends and family supported the testimony of the professionals. The
family’s next-door neighbor watches D.B. The other children come to the
neighbor’s house in the morning before school. She sees them almost every day
of the school year. She testified the children “were very well cared for.” She
19
testified she never saw any signs of abuse. She testified she did not believe it
possible that any of the children were abused.
After the children were removed from the home, they were placed with a
family friend. She testified the parents have been supportive of her during the
pendency of the case. They have given financial support to the children. The
caretaker of the children testified she had not seen any signs of abuse with
respect to any of the children during the time she has known the family. She
testified she had no concerns of the children being in danger or harm if returned
to the parents.
In contrast to this evidence, the juvenile court found M.B.’s allegations
were not credible. Specifically, the juvenile court found M.B. was dishonest and
“was trying to come up with answers/stories” when asked questions about abuse
during her interview with the regional child protection center. The credibility
finding is supported by other record evidence. M.B.’s treating mental-health
professionals and the psychological evaluations conducted before the initiation of
this case and during this case show M.B. is low functioning, in the borderline
range. She loses control of her thoughts and feelings, and “strong emotional
reactions are particularly likely to interfere with her ability to perceive events
accurately.” M.B. exhibited controlling behaviors, was dishonest and sneaky,
instigated conflict, and directed her negative attention toward her stepmother as
the primary target of M.B.’s hostility.
The juvenile court also made unusually strong credibility findings
regarding the DHS worker involved with this family. The juvenile court “believe[d]
20
the DHS worker lost her objectivity re: this family and focused merely on their
past,” the “DHS worker clearly did not like the parents,” and the “personal
animosity [on the worker’s part] was palpable and disturbing.” The juvenile court
found the department to be so biased against the family that it entered an order
directing “DHS to regain their professional objectivity” regarding this family. The
juvenile court’s credibility determination was supported by the record. The
State’s witnesses repeatedly referred to prior proceedings and not the allegations
at issue in this proceeding. I interpret the juvenile court’s strongly worded rebuke
of the DHS and its employees to mean the worker’s testimony was biased and
should be afforded little to no weight.
Although our review is de novo, we give deference to juvenile court
opinions for reasons both institutional and pragmatic. See Hensch v. Mysak, No.
17-0348, 2017 WL 4050671, at *1 (Iowa Ct. App. Sep. 13, 2017); In re P.C., No.
16-0893, 2016 WL 4379580, at *2 (Iowa Ct. App. Aug. 17, 2016). Credibility
determinations, especially, are the particular province of the trial court. See P.C.,
2016 WL 4379580, at *2; see also In re A.M.H., 516 N.W.2d 867, 870 (Iowa
1994). The juvenile court heard testimony and argument for six days spread out
over the course of several weeks. The juvenile court had the opportunity to
observe the parents and the witnesses and make credibility determinations
based on its observations. I would afford the juvenile court’s credibility findings
greater deference than the majority does in reviewing the evidence.
I would affirm the juvenile court’s finding that M.B. is a difficult child and
her parents occasionally disciplined her inappropriately. That blame lies with
21
them and not with her. However, there is no showing of inappropriate discipline
of the children at issue in this case, and there is no proof of the “targeting” theory
in this home. There is not clear and convincing evidence the children at issue
are at risk of adjudicatory harm if returned to the care of the parents. Indeed, the
juvenile court ordered D.B. to be returned to the parents prior to the completion
of the adjudication hearing. The State unsuccessfully sought interlocutory review
of that decision. D.B. remained in the care of the parents throughout the
remainder of the proceedings without incident. If anything, it seems the risk of
harm, if any, has been diminished following M.B.’s removal from the home. For
the foregoing reasons, I would affirm the juvenile court’s decision to dismiss all
four CINA petitions. Therefore, I concur in part and dissent in part.