In the Interest of O.F. and G.F., Minor Children ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0814
Filed July 13, 2023
IN THE INTEREST OF O.F. and G.F.,
Minor Children,
TAMMY BANNING, Guardian Ad Litem,
Appellant,
STATE OF IOWA,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block,
Associate Juvenile Judge.
The children, through their attorney and guardian ad litem, and the State
appeal from the dispositional order, challenging the visitation provisions allowing
the mother to transition to semi-supervised visits and to supervise the father’s
contact with the children. REVERSED IN PART ON BOTH APPEALS.
Tammy Banning of Waterloo Juvenile Public Defender, Waterloo, appellant
attorney and guardian ad litem for minor children.
Brenna Bird, Attorney General, and Erin Mayfield and Mary A. Triick (until
withdrawal), Assistant Attorneys General, for appellant State.
Michele R. McCann, Cedar Falls, for appellee father.
Michelle M. Jungers of Jungers Law PLLC, Waterloo, for appellee mother.
Considered by Bower, C.J., and Tabor and Greer, JJ.
2
GREER, Judge.
O.F. (born in 2020) and G.F. (born in 2022) were removed from their
parents’ care in July 2022 after G.F. presented at the emergency room with serious
injuries that neither parent could adequately explain. Since that time, both children
were adjudicated a child in need of assistance (CINA) and have remained in the
care of their paternal grandparents. In the May 2023 dispositional order, the
juvenile court ordered the children to remain in the custody of the Iowa Department
of Health and Human Services. No party challenges this ruling. The court also
ruled “that the best interests of the children require that a transition should begin
while under the supervision of the juvenile court.” The transition, as outlined by
the court, allowed the mother semi-supervised visits with the children and allowed
her to supervise the father’s contact with the children. Both the State and the
children, through their attorney and guardian ad litem (GAL), challenge this portion
of the dispositional order.1
I. Background Facts and Proceedings.
At about 10:00 a.m. on June 30, 2022, G.F. was taken to a local emergency
room by her father and grandmother. The father reported he was carrying three-
month-old G.F. the night before when O.F. hugged his legs, causing him to trip.
He described tossing G.F. onto the nearby couch as he fell so as not to land on
top of her. He also reported that his hand was stuck in G.F.’s swaddle and he
heard a pop (though was not sure where the noise came from) and that when he
1 The State and GAL asked that the implementation of the visitation transition be
stayed pending this appeal, and our supreme court granted the motions for stay
before transferring the case to us.
3
got up and reached G.F., her eyes were rolled back into her head and her arms
were tense. The mother, who is a registered nurse, was not at home at the time,
but she returned shortly after. Neither she nor the father sought medical help for
G.F. Testing at the emergency room showed G.F. had bilateral subdural
hematomas or bleeding on the brain. Because that hospital did not have a
pediatric neurologist, G.F. was sent by helicopter to the University of Iowa
Hospitals and Clinics (UIHC).
Following additional testing at UIHC, it was determined that besides the
subdural hematomas, G.F. also had multiple spots and layers of retina
hemorrhages in both eyes and both of her femurs were fractured. A number of
tests were completed to rule out possible underlying medical conditions and
genetic disorders; none of the test results provided a medical explanation for G.F.’s
injuries. Ultimately, UIHC’s child protection team concluded G.F.’s injuries were
nonaccidental and opined that child abuse was the mostly likely explanation for
her constellation of injuries.
Before G.F. was discharged from UIHC, both G.F. and O.F. were removed
from the parents’ custody. The department placed them in the care of the paternal
grandparents.
At the CINA hearing, Erin Brown, who is a family and pediatric nurse
practitioner2 and member of the child protection team at UIHC, testified that femur
2 Brown graduated from the United States Air Force Academy with a bachelor’s
degree in biopsychology, received a master of science in nursing from Vanderbilt
University with a family nurse practitioner specialty, and obtained post-graduate
certifications in pediatric acute care and pediatric primary care nursing specialty
studies along with a doctorate of nursing practice at the University of Iowa.
4
fractures are something you would expect to see “in car accidents, so a high
velocity impact type event, and we can see it with a violent kind of twisting-pulling
type motion. It is not a type of fracture that you would see with like regular care,
like I’m changing my child’s diaper in a way.” She characterized the retinal
hemorrhages similarly, testifying that for them to occur “require[s] kind of, again,
that same type of sheering or rotational acceleration/deceleration forces to have
that degree.” Brown testified that G.F. “appears to be a victim of child physical
abuse . . . with abusive head trauma etiology.”
Following the CINA hearing, the juvenile court adjudicated both G.F. and
O.F. in need of assistance and confirmed their removal from their parents’ custody.
The court ruled:
The parents’ story does not adequately explain the medical
findings, nor the serious extent of the child’s injuries. The child’s
severe injuries are not accidental in nature. [G.F.] endured a yet
unexplained significant abusive incident where she experienced
such severe acceleration and deceleration and impact to her head
that caused significant brain and retinal hemorrhaging. That the
abusive incident was inflicted with such severe force that it resulted
[in] both of her femurs being fractured. That the injuries are not
accidental in nature and consistent with physical abuse upon an
infant. No other party is alleged to have been caring for the children
during the time period in question, other than the parents . . . .
In March 2023, the father was criminally charged with child endangerment
causing serious bodily injury. Even after the criminal charge, both the mother and
father were able to visit and parent the children so long as the grandparents were
present and supervising, and the parents provided much of the care to the children
on a daily basis. The parents were engaged in services, including parenting
classes and mental-health therapy.
5
As of the March disposition hearing, the parents either could not or would
not explain how G.F. sustained her injuries, other than maintaining the version of
events given to the emergency personnel. The father had yet to testify in any
hearing. The mother recognized that the medical providers believed the injuries
were nonaccidental but she testified she was not present for any injury to G.F., did
not know what happened, and did not believe the injuries were purposely inflicted.
When asked about the delay in medical care for G.F. after the injuries on the
evening of June 29, the mother downplayed the issue, testifying:
Q. . . . Have you ever said you—if you went back in time that,
knowing what you now know, you still would not have sought medical
treatment for [G.F.]? A. No. I believe I testified in court that knowing
at the time what I did I was doing what was best for my daughter.
Q. You thought at the moment— A. At the moment I thought
I was doing what was best for her, yes.
....
Q. Earlier about not taking [G.F.] for medical treatment you
said if I had x-ray vision I would have taken her in right away. Can
you explain what you meant by that? A. I mean, if I knew at the time
the injuries occurred that she had two broken legs, I would have
brought her in immediately, but at the time all I knew was what [the
father] told me happened, and she was not symptomatic. I know it’s
reported in all the medical reports that she was, but that’s not true. I
got home that night. I was able to change her diaper, assess her.
She was—there was no injuries that I could see. I fed her, gave her
Tylenol and she slept until at least [3:00] a.m.
Q. But when you got home that night and you were assessing
her, weren’t you aware that she’d had a head injury? A. No.
Q. So [the father] hadn’t told you about the fall? A. Yes. But
how was I supposed to know there was a head injury.
Q. He didn’t tell you that when he got to her— A. Yes. Her
eyes rolled back and she was tense, but I looked at it as it could have
been shock from being thrown across the room. And, yes, I
understand that other people say I should have brought her in, but if
we brought her in that night, they would have given her Tylenol, like
I did. She would have been sleeping and they would have sent us
home.
Q. How do you know that? A. Because when we brought her
in the next morning, even though she was very inconsolable, they
didn’t do the imaging immediately. You would think, right, that if there
6
was a head injury they would have done the imaging right away,
right, but they didn’t.
Q. Did they discharge her without doing any imaging on her
head? A. No. But they waited over two hours to do the imaging. If
it was that big of a concern that there was a brain injury, they would
have done it immediately. So I don’t know why I’m the only one to
blame for it when they didn’t do it right away either.
At disposition, the State and the GAL took the position that all visits should remain
fully supervised. Their position matched that of the department, which asserted in
its report to the court, “Absent an explanation that matches the science, it is
impossible to have a reasonable assurance that the children would be safe from
future harm should they return to the care of their parents.”
In the dispositional order, the juvenile court found:
The children have been removed from the care of their
parents for nearly one year. Despite a goal for reunification, the
State’s position is clear that no recommendations for a return of care
to a parent will occur until one or both of the parents provide an
explanation for the injuries sustained by [G.F.], or [accepts]
responsibility. [G.F.] has responded well to her medical treatment
and reportedly is a healthy child. The Court must believe that the
services being offered to families in the Juvenile Court have a
benefit, are capable of effecting change and rehabilitating those the
services are being offered. Many of the cases which come before
the court include parents’ unwilling to acknowledge their addictions
or abuse. However, after providing clean drug tests or following
through with services, the children who have been removed often are
able to return home. [The mother and father] have been under a
microscope for almost one year. [They] have engaged in nearly
every service available through the Juvenile Court. [They] have
exercised extensive supervised visitation. [They] have very strong
family support. [The mother] is no longer working as a nurse and is
available for extensive visitation. [The father] works from home and
is also available for regular visitation. Both parents have been able
to be with their children nearly every waking hour while under the
supervision of the grandparents. The grandparents remain very
supportive of both parents and requirements of the court. Other than
the parents’ inability to explain the injuries sustained by [G.F.] the
only concern identified has been that [the mother and father] may be
“passive parents,” in that they tend to give in to the children’s wants.
7
The court concluded the best interests of the children required the transition to
semi-supervised visits for the mother and allowing the mother to supervise the
father’s contact with the children.3
The State and the GAL appeal.
II. Standard of Review.
Our review of CINA proceedings is de novo. In re J.S., 846 N.W.2d 36, 40
(Iowa 2014). “In reviewing the proceedings, we are not bound by the juvenile
court’s fact findings; however, we do give them weight.” Id. As always, “[o]ur
primary concern is the children’s best interests.” Id.III. Discussion.
In its CINA order, the juvenile court concluded that G.F.’s injuries were
“severe” and “not accidental in nature.” Neither parent challenges those findings.
Additionally, the court recognized the injuries were the result of “a yet unexplained
significant abusive incident.” And that remained true at the time of the disposition
3 Specifically, the court ordered:
Said transition shall begin with four-hour semi-supervised visitations
(Monday–Friday) in the grandparent’s home for a period of four (4)
weeks. After three weeks and no safety concerns being reported,
semi-supervised visits shall move to eight hours in length (Monday-
Friday) for a period of four (4) weeks. Any contact between the
children and [the father] shall remain supervised by [the mother].
[The father] shall not be left in the sole supervision of the children at
any time during the period of semi-supervised visitations. If [the
father] is found in the sole care of the children during semi-
supervised visitations, all visits between both parents shall
immediately return to fully supervised until further order of this court.
The [department], [GAL], [court appointed special advocate (CASA)],
and/or any individual designated by the [department] shall be
authorized to conduct frequent drop-ins during the semi-supervised
visitation period. Following eight-week period of semi-supervised
visitation the matters shall be reviewed by the court for further
determination on moving to unsupervised visitation.
8
hearing—about nine months after the injuries took place. Yet, the juvenile court
concluded it was in the children’s best interests to begin spending semi-supervised
time with the mother and leaving only the mother to supervise the father’s contact
with the children.
Our courts have long recognized that it is an “awesome challenge” to treat
a parent for a deficit the parent claims not to have. See In re C.H., 652 N.W.2d
144, 147 (Iowa 2002). Because “[w]ithout knowing what services were appropriate
due to the parents’ unwillingness to disclose what happened to their child, the
department’s hands [are] tied in providing the necessary services to address the
protection of the child.” In re H.H., No. 23-0146, 2023 WL 2909070, at *3 (Iowa
Ct. App. Apr. 12, 2023). “The requirement that a parent acknowledge and
recognize abuse is essential for any meaningful change to occur.” In re S.R., 600
N.W.2d 63, 65 (Iowa 1999). “Without this acknowledgement, the services provided
[are] not likely to be effective.” Id. As the department’s social work case manager
testified, “If concerns aren’t acknowledged, if the problem isn’t acknowledged, then
it’s difficult to discuss what . . . it’s going to take to resolve that concern.” She
noted that the department laid out “steps and the goals” related to reunification but
reaching the goal requires accountability.4 So even though the parents completed
steps required for reunification, which the court emphasized in its ruling, no person
could yet explain the cause for the severe injuries suffered by G.F., so the goal
could not be met. Thus, it is difficult to know if the core concerns were met by the
services offered to ensure safety going forward.
4 The department’s goals included: “Parents/Caregivers will gain insight/provide
transparency with respect to the events that led to [G.F.’s] injuries.”
9
So to that end, while these parents completed services geared toward
general parenting concerns, our concern for safety requires that we can confidently
say the services effectively addressed the issue and the children will be safe with
the parents. See In re D.D., 955 N.W.2d 186, 197 (Iowa 2021) (Christensen, C.J.,
concurring specially) (“It is incumbent upon the juvenile court to determine a[] . . .
course of action to keep [the child] safe instead of simply crossing its fingers and
hoping [the parent] will not reoffend.”). But that is not what we have here. While
the parents were participating in services, participation is not the same as making
meaningful changes. See id. at 192 (“Progress in therapy and similar efforts to
‘put the work in’ are unquestionably important. But the statute doesn’t ask whether
all the boxes have been checked or the work put in; it asks whether the child
remains in need of supervision, care, or treatment.”). And the juvenile court made
no findings that these parents actually are more prepared or better able to safely
parent these children.
The juvenile court seemed to decide that the transition to semi-supervised
visits was necessary so this family could get to reunification before the clock ran
out. But “[r]eunification is a goal, not a mandate.” Id. at 196 (Christensen, C.J.,
concurring specially). And while the State and GAL may, at first blush, have
seemed obstinate in their positions that the case not progress until more was
known about how G.F. was injured, when a parent refuses to make the necessary
change to keep their children safe, then “[the parent]—not the system—has drawn
a harsh line in the sand that precludes reunification.” Id. at 197 (Christensen, C.J.,
concurring specially); see also In re K.C., No. 18-1249, 2019 WL 325863, at *3
10
(Iowa Ct. App. Jan. 23, 2019) (recognizing it was the parent who failed to address
their role in the child’s injuries that was the barrier to reunification).
Based on the consistent version of events told by the parents, the mother
was not present at the time G.F. sustained her injuries. And we recognize the
mother cannot offer more information about an event of which she has no
knowledge. But the mother also does not believe that G.F.’s injuries were
intentionally caused5 in spite of the opinion of a number of medical professionals
and the CINA adjudication entered by the court. And “[i]t’s folly to think the mother
will stand sentinel to protect against a foe she doesn’t acknowledge exists.” D.D.,
955 N.W.2d at 193. Thus, allowing the mother to act as supervisor over the father’s
care goes against what our cases have taught when denial is involved.
The department is required to make reasonable efforts to reunify these
children with the mother and father. See In re A.A.G., 708 N.W.2d 85, 91 (Iowa
Ct. App. 2005). But the children’s “health and safety [is] the paramount concern in
making reasonable efforts.” Iowa Code § 232.102A(1)(a) (2022). Without more
than the juvenile court’s belief that services must be working, we cannot conclude
that the transition in visitation laid out by the juvenile court is in the children’s best
interests. See In re M.B., 553 N.W.2d 343, 346 (Iowa Ct. App. 1996) (“[C]hildren
5 In her reunification/transitional proposal for the court, filed after the dispositional
hearing, the mother went only so far as to say that she “acknowledged that the
injuries suffered by [G.F.] were scientifically likely to have been caused by non-
accidental trauma.” But she was steadfast that the father did not intentionally inflict
the injuries on G.F., testifying “I do not believe he did it. . . . [B]ut I also know that
you guys believe he may have and so I’m willing to do whatever it takes to get my
kids home, but I’m not willing to testify that he did it because I don’t know for certain
who or if they were even intentionally inflicted on my daughter.”
11
should not be placed at risk so their parents can experiment with their parenting
skills.”).
We reverse the juvenile court’s dispositional ruling to the extent it orders
visitation to transition to semi-supervised. Visitation is to remain at the discretion
of the department in consultation with the GAL.
REVERSED IN PART ON BOTH APPEALS.