Opinion
No. 1-820 / 00-0905.
Filed January 9, 2002.
Appeal from the Iowa District Court for Floyd County, GERALD W. MAGEE, Associate Juvenile Judge.
A father appeals from the provisions of a juvenile court's dispositional review order. AFFIRMED.
Kevin E. Schoeberl of Story, Schoeberl Kowalke, L.L.P., Cresco, for appellant.
Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, and Marilyn Dettmer, County Attorney, for appellee.
Cynthia Schuknecht of Noah, Smith Schuknecht, Charles City, for minor children.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Hearing was held in April 2000 to review placement of Denise and Paul, who had previously been adjudicated children in need of assistance (CINA). Upon review of the circumstances, the juvenile court found that returning the children to their father's custody would put them at risk of suffering adjudicatory harm. The court upheld the adjudication of the children as children in need of assistance. The father appeals. He claims he established by a preponderance of the evidence that the children would not suffer adjudicatory harm if returned to his custody. He also contends the juvenile court erred in failing to find a lack of reasonable services and in ordering circumvention of the guardian ad litem's duties. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Dennis and Michelle are the parents of Paul, age eight, and Denise, age six. In June of 1998, the children were initially removed from their parents' home after health care providers became suspicious about Denise's recurring rashes. Denise was hospitalized a number of times between March and June of 1998. Her rash would improve when she was hospitalized, but worsen when she would return home. Denise's health care providers were concerned that she was being injured through the acts of her mother by Munchausen Syndrome by Proxy.
The children were returned to the family home in August 1998 with the court's order that the mother not reside in the home and have only supervised contact with the children. The children were removed on November 11, 1998, after Michelle spent a night in the family home. On March 2, 1999, Denise and Paul were adjudicated children in need of assistance under Iowa Code sections 232.2(6)(b) and 232.2(6)(c)(2).
A dispositional hearing was held regarding the children's custody in the summer of 1999. At this hearing, the juvenile court received evidence of Dennis's history as a sexual abuser. The State offered the testimony of two women, including Dennis's adult daughter, who described being sexually abused by Dennis when they were minors. Dennis admits he is a convicted sex offender for indecent contact with his daughter, Sandra, but denies all other allegations of sexual abuse. A dispositional order was issued by the juvenile court in August of 1999. The order included the following provision regarding Dennis:
IT IS FURTHER ORDERED that these children not be returned to the care of their father until either one of the following has occurred: (1) Dennis has completed an assessment as to his propensity to sexually reoffend by a trained and experienced professional agreed upon between the parties; or, (2) has participated in specialized treatment with a recognized professional dealing with sexual abuse issues, and provide documentation thereof.
Dennis has appealed this requirement in a separate proceeding .
On February 25, 2000, a periodic review hearing was held. In an order issued April 3, 2000, the juvenile court found it was not safe to return the children to their parents' care due to multiple issues and a lack of progress. The court ordered the children remain adjudicated children in need of assistance. The court further ordered the children to remain in the temporary legal custody of the Department of Human Services for placement in family foster care. Additionally, the court ordered continued social services for the family and reiterated the order that Dennis immediately participate in risk assessment and/or treatment for possible sexual perpetration issues. Dennis appeals the juvenile court's determination that the children are to remain adjudicated CINA. He also contends the trial court erred in failing to address the reasonable efforts issue and in circumventing the statutory duties of the guardian ad litem.
II. SCOPE OF REVIEW
This case arises out of a child in need of assistance proceeding in juvenile court pursuant to Iowa Code section 232.2(6) (1999). Appellate review of an order entered after a review hearing in a CINA proceeding is de novo. In re D.S., 437 N.W.2d 587, 587-88 (Iowa Ct.App. 1989). While we give weight to the juvenile court's findings of fact, we are not bound by them. Iowa R. App. P. 14(f)(7); In re S.V., 395 N.W.2d 666, 668 (Iowa Ct.App. 1986). As always in our consideration of these matters, the welfare and best interests of the children are paramount. D.S., 437 N.W.2d at 588.
III. CINA REVIEW
On appeal Dennis contends he carried his burden of proof by showing that the children would not suffer adjudicatory harm if returned to his care. When a parent seeks return of a child removed as the result of a CINA adjudication, the parent has the burden of proving by a preponderance of the evidence that the child will not suffer harm if returned home. D.S., 437 N.W.2d at 588. The harms which must be negated are specified in Iowa Code section 232.2(6). They consist of the grounds for adjudicating a child to be in need of assistance. The threatened adjudicatory harm relied upon by the reviewing court need not be the specific adjudicatory harm which precipitated the original CINA adjudication. In re S.W., 500 N.W.2d 32, 34 (Iowa 1993).
Dennis was unable to show by a preponderance of the evidence that the children should be returned home at this time. Numerous experts involved in the case offered testimony to support the State's position that until Dennis submits to a risk assessment evaluation and participates in sexual abuse therapy, the children will continue to be at risk if left in his custody. Dennis offered two witnesses, and testified himself. When the review hearing was concluded no witness, other than Dennis himself, testified that the children would not suffer adjudicatory harm if returned to their father's custody. Our review of the evidence convinces us that Dennis has failed to carry his burden of proof. We affirm the juvenile court's determination that the children remain children in need of assistance. The children should remain in the custody of the Department of Human Services for foster care placement.
IV. REASONABLE EFFORTS
Dennis asserts the trial court erred in failing to address the issue of whether the requisite "reasonable efforts" were made to reunify him with his children. Iowa Code section 232.102 provides that the Department of Human Services must provide "reasonable efforts" to preserve and to unify the family prior to any out-of-home placement or to eliminate the need for removal of the child or to make it possible for the child to safely return to the family home. See Iowa Code § 232.102(10).
Upon a review of the record, it is clear that the Department of Human Services has extended numerous services in an effort to reunify Dennis's family. One of the most fundamental issues in this custody matter is Dennis's refusal to cooperate with services and counseling. The record suggests the problem has not been with the services, but with Dennis's response to them. There is no evidence in the record suggesting Dennis was ever denied requested services. While the trial court's order did not directly address the sufficiency of the services offered by the state, our de novo review of the record clearly shows the State has fulfilled its duty to make reasonable efforts to reunite Dennis with his children.
V. GUARDIAN AD LITEM'S DUTIES
Dennis claims the court erred in ordering the circumvention of the statutory duties of the guardian ad litem. On February 1, 2000, the court granted the request of the guardian ad litem to circumscribe the duties provided by Iowa Code section 232.2(22). The court relieved the guardian ad litem of the statutory duty to conduct in-person interviews with the children's parents and medical providers.
The State claims Dennis has failed to preserve this issue for appeal because his notice of appeal, filed May 23, 2000, included no reference to the court's order regarding the duties of the guardian ad litem. A notice of appeal "shall specify the parties taking the appeal and the decree, judgment, order or part thereof appealed from." Iowa R. App. P. 6. Dennis's notice of appeal specifically mentioned eight orders or rulings from which he was appealing. The court's order circumscribing the duties of the guardian ad litem was not included. The issue has not been preserved for review.
However, even assuming Dennis had properly preserved this issue, our review of the record indicates the trial court had good cause to relieve the guardian ad litem of certain duties. The guardian ad litem had sufficient contact with both attorneys involved in the case to eliminate the necessity of in-person interviews with the parents. Additionally, there were no medical issues presented which would require personal interviews with care providers.
AFFIRMED.