In the Interest of I.D., Minor Child, S.P., Father ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0319
Filed June 10, 2015
IN THE INTEREST OF I.D.,
Minor Child,
S.P., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Daniel L.
Block, Associate Juvenile Judge.
A father appeals the dispositional orders denying his request to begin
immediate visitation with his child. AFFIRMED.
Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant
father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Kathleen A. Hahn, Assistant
County Attorney, for appellee State.
Melissa Anderson Seeber of the Waterloo Juvenile Public Defender,
Waterloo, attorney and guardian ad litem for minor child.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
2
DOYLE, J.
In this child-in-need-of-assistance (CINA) proceeding, S.P., the biological
father of I.D., appeals from the dispositional order and the dispositional review
order continuing I.D.’s custody with the Iowa Department of Human Services
(Department) and denying his request for immediate visitation with I.D. The
State asserts the father failed to preserve the issue for our review but, in any
event, his claim fails based upon the child’s best interests. Though this is a close
case, we affirm.
I. Background Facts and Proceedings.
S.P. is the father, and R.M. is the mother of I.D., born in 2006. The
mother is married to J.M., I.D.’s stepfather. I.D. has a younger half-sibling, the
mother and stepfather’s child, not at issue here. The children live with the
mother.
The children came to the attention of the Department in October 2013,
after it was reported the stepfather assaulted the mother while she was holding
her youngest child, in front of I.D. Specifically:
[The stepfather] hit and choked [the mother], causing injuries. [The
mother] yelled for [I.D.] to go to the neighbor’s home for help but
[the stepfather] refused to allow [I.D.] to leave the home. [The
stepfather] threatened to harm the children. He threatened the
family with a knife. [The stepfather] was [arrested and] charged
with child endangerment, domestic abuse, and harassment.
The stepfather ultimately served time in prison for his acts. I.D. reported
witnessing other incidents of domestic violence between the mother and
stepfather.
3
The father was contacted regarding the incident, and he told the
Department’s case worker that he had had sporadic contact with I.D. due to his
work schedule “and his own choices,” and he had last seen I.D. in approximately
April 2013. He could not “provide any information regarding the care [I.D.]
receive[d].” He later stated he had not seen the child “until her paternity was
established when she was [six]-months old,” and he saw the child occasionally
with the mother thereafter. He acknowledged he had not maintained a
relationship with the child; nevertheless, the father expressed a desire to become
involved in the child’s “life through this court process,” though he did “not want to
push the relationship on [the child].”
In January 2014, the child was adjudicated CINA, and she subsequently
began seeing a therapist and participating in play therapy “to address [her]
issues [of being bullied] at school as well as her having to testify in criminal court
against [the stepfather].” The father told the case worker he was “willing to follow
the guidance of the [child’s] therapist” in establishing a relationship with the child.
The Department’s February 2014 report to the court prior to the dispositional
hearing reported the father had indicated again
that he would like to have more regular contact with [the child] but
was willing to not push the issue (as he legally could) at this time
and was willing to work with [the Department] and the [child’s
therapist] to assess what the best plan for contact would be, based
on what is best for [the child]. It was discussed that the [case]
worker ha[d] a call into the play therapist . . . to get a
recommendation from the therapist about the best way to proceed
with contact. It was discussed that it might include his first contacts
[with the child] being in a therapeutic setting (therapy) but also
could include being supervised by the [service] provider until a
relationship [was] more established. [The father] was in agreement
to [proceed] in whatever way the therapist and [the Department]
recommended.
4
A family interaction plan was to be developed in the future for contact between
the father and the child after the therapist was consulted and could make a
recommendation.
In March 2014, the court filed its dispositional order directing I.D. to
continue play therapy. The court noted the father had “filed a motion for
concurrent jurisdiction and [was] anxious to begin visitation with [the child],” but
the mother objected to the father’s motion. The court continued the CINA
adjudication and the child’s placement with the mother under the supervision of
the Department, with visitation at the Department’s discretion. It did not rule on
the father’s motion for concurrent jurisdiction. The court set a review hearing for
June 2014.
Just prior to the June review hearing, the Department filed its report to the
court. The report set forth information regarding the progress of the mother,
stepfather, and the children. Concerning the father, it stated the father “agree[d]
to wait to see [the child] until her therapist recommend[ed] it. He does not want
to cause her stress but has a strong desire to be in her life.” The report then
stated: “At this time this worker has not heard back from [the child’s] therapist
with an update regarding visits” and that the worker would “continue to contact
[the therapist] in hopes of having an answer at court.” Following the review
hearing, the juvenile court filed its review order directing the father to “work with
the child’s play therapist in determining when/how visitation should commence,”
and it set another review hearing for October 2014.
Shortly thereafter, the child’s play therapist provided a letter to the
Department discussing the child’s progress in therapy. The letter, dated June 20,
5
2014, stated the therapist had been meeting with the child weekly for individual
therapy sessions since January 2014. Concerning the father, it stated:
[The child] appears to be much more comfortable discussing topics
unrelated to her family. She continues to deny she knows [the
father] and refers to [the stepfather] as her dad. Although [the
child] continued to be very guarded, [the child] has been able to
express her feelings related to family dynamics. Specifically, [the
child] has expressed a desire to continue having contact [with the
stepfather].
The therapist recommended the child continue in therapy, but the therapist did
not recommend the father attend the child’s therapy sessions “until further
therapeutic progress [was] made regarding their relationship.”
In August 2014, the father met with the case worker and the child’s
therapist, and they developed a plan to assist the father “in becoming more
involved in [the child’s] life.” The child’s therapist wanted to expose the child to
the father “slowly and during [the child’s therapy] sessions.” The father “agreed
to write weekly letters to [the child]” and “send pictures of himself and his home
to assist [the child] in becoming more aware of him.” A phone meeting was
scheduled a month later. However, the father did not follow through with the plan
nor call in for the meeting.
Following the October 2014 review hearing, the juvenile court entered its
order essentially maintaining the status quo. Concerning the father, the court
stated the father had “acknowledge[d] that he need[ed] to initiate letters to [the
child].” The court found the father had “not followed through with [the] plan to
reinitiate himself back into [the child’s] life,” and it denied the father’s request for
concurrent jurisdiction, finding “no meaningful relationship exist[ed] between the
child and [the father].” Another review hearing was set for February 2015.
6
Prior to the February 2015 review hearing, the Department filed another
report to the court. The report indicated that the stepfather had been released
from prison in January 2015, and the child’s therapist recommended the
stepfather attend one of the child’s therapy sessions thereafter, which the
stepfather did. The therapist reported the session went well and that the child
and the stepfather “appeared to enjoy this time together.” Concerning the father,
the report stated that since the last court hearing in October, the father had sent
additional letters and pictures to the child’s therapist, and the therapist “shared
the pictures and a letter with [the child] on one occasion. [The child] looked down
and did not want to talk about him.” The therapist reported she would “continue
to work on finding the right time to address [the father] with [the child],” but she
did “not want to push” the child, fearing the child “could shut down completely.”
On February 5, 2015, the juvenile court held its review hearing. There, the
father requested immediate visitation with the child. The father explained he had
been willing to wait, but a year had gone by since the child started therapy with
no progress towards reuniting him with the child, and he had not seen the child
for eight to ten months despite his attempts to have contact with the child. He
noted that since the last hearing, he had sent emails and letters and pictures to
the child’s therapist, but there had been no progress; yet, although the child had
witnessed horrific domestic abuse between the stepfather and the mother, the
stepfather had been allowed to have a therapy session with the child. The father
stated he was trying to be patient, but he wanted to have a relationship with the
child, and he requested the court order visitation.
The child’s therapist was present for the hearing, and she explained:
7
I bring [the father] up and his emails every time they’re sent and
read them aloud to [the child]. [The child], immediately her
demeanor changes when we bring up the topic of [the father]. I’m
not against bringing up that subject. I think it’s something that
needs to be processed through. But as a therapist, I am not going
to force any of my clients to talk about something they’re not
emotionally ready to talk about. And when we talk about the
situation, we also talk about other family dynamics . . . . [R]ight
now, [the child] has a hard time even identifying how she feels
about seeing him. The most I’ve gotten from her is to say that she
feels in between good and bad when she thinks about writing a
response to [the father’s] emails.
So take it or leave it, that’s a little bit of therapeutic progress
from a child who immediately had no eye contact, shrugged her
shoulders and kept saying I don’t know every time I asked her a
question about [the father].
And, you know, I would like to be able to include him in
therapeutic sessions at some point. I don’t think we’re there yet.
I’m not against that. I am just looking out for the best interest of my
client. I’m not going to push her to discuss something that she’s
not ready completely to discuss even though I think we’re making
very, very tiny steps in progressions.
The child’s guardian ad litem recommended the court follow the therapist’s
recommendations, “trust[ing] the therapist to know what is the appropriate topic
that [the child] needs to be addressing at any given time.” She also requested
patience, clarifying there was no punitive reason for the delay. Rather, she was
really “look[ing] at the long-term best interest of the whole family.”
On the record, the court denied the father’s request for visitation, stating to
the father:
I understand your frustration. I wish I had an easy answer for you.
But I am going to obviously take things at the child’s pace. You’ve
heard me say that before, I think. I truly believe . . . in my
[eighteen] years of experience as a juvenile court judge and
[twenty] some years in juvenile court, if I just say [to the child],
“Hey, guess what? [Y]ou’re going to start seeing your dad.” It’s
going to be detrimental to both of you and to your long-term goal of
having a relationship with [the child].
8
However, the court stated it “fully expect[ed] that this needs to work towards the
relationship—you know, visitation, I guess, in a therapeutic setting and ultimate
visitation.” The court advised the father to continue writing letters to the child and
“keep persevering.”
Thereafter, the court filed its order continuing the CINA proceedings and
maintaining the status quo. The court again denied the father’s visitation
request, finding the father had “not actively followed through with a plan to
reinitiate himself back into [the child’s] life through letters and emails” and noting
the child’s therapist did not support starting visitation at that time. However, it
granted the father’s prior request for concurrent jurisdiction for the purposes of
establishing custody, visitation, and placement of the child.
The father now appeals.
II. Discussion.
On appeal, the father asserts the juvenile court erred in denying his
request for visitation, as well as finding visitation should occur at the direction of
the child’s therapist. He points out he has not had contact with the child for more
than a year and believes the therapist “has failed to address the father/child
relationship.” The State contends error was not preserved on this issue, but it
alternatively argues the juvenile court did not err in not awarding the father
visitation or in allowing the child’s therapist to dictate when and how visitation
between the father and the child should occur. We address the arguments in
turn.
9
A. Error Preservation.
The State first asserts the father “never addressed any argument the
therapist ‘failed to address the father/child relationship [in a timely manner].’” It
also maintains, among other things, that the father “never acknowledges his own
failings” and “makes no challenge to the juvenile court finding . . . that he ‘has not
actively followed through with [the] plan [for reunification].’”
It is true that parties to a child welfare hearing have an obligation to
preserve error for appeal, even if the alleged error impacts their constitutional
rights. See In re K.C., 660 N.W.2d 29, 38 (Iowa 2003) (finding parents waived
due process challenge because they “did not lodge an objection alerting the
juvenile court to their complaints”). However, it is clear the father raised the
visitation issue at the February 2015 review hearing, as well as the prior review
hearings. Clearly challenging the timeliness of the therapist’s progress and
priorities with the child, the father pointed out at the most recent hearing that
even the stepfather was able to have contact with the child via the therapist,
while he had waited patiently for more than a year without anything. His wish to
reunite with the child has been known by all parties since the commencement of
the CINA proceedings; there was no surprise here.
Additionally, though the juvenile court made a finding in its February 2015
order the father was “not actively follow[ing] through,” the information provided by
the father’s counsel and the child’s therapist contradict that finding, as well as the
court’s own statements on the record to the father explaining its reasoning for not
permitting immediate visitation. The court, relying upon the child’s therapist,
10
believed immediate visitation was not in the child’s best interests. There is no
error preservation issue here.
B. Visitation Request.
Turning to the father’s argument, we find this to be a very close case. It
appears the father has done essentially everything asked of him to re-engage
with the child. He has been patient and willing to work with the child and the
child’s therapist to protect the child from any harm that might occur with him re-
establishing a relationship with the child. It seems disingenuous to find the child
may be harmed in having therapy sessions with the father, when therapy
sessions with the stepfather were allowed. The court may certainly order
visitation notwithstanding the therapist’s recommendation.
That being said, our primary concern is always the best interests of the
child. K.N., 625 N.W.2d at 733; see also Iowa Code § 232.1 (2013). At the
outset of the case, the father admitted he had not seen the child in approximately
six months and did not have a relationship with the child. That is on the father.
The child was in the mother’s care, where she witnessed domestic abuse, and
the father did not intervene or seek custody of the child.
At this point, the child’s therapist opined the child’s best interests were
served in taking small steps toward reintegrating the father into the child’s life.
The juvenile court, in making its ruling, considered the child’s therapist’s
recommendations. This is reasonable, given the absence of a real relationship
between the child and the father before the CINA proceedings. Moreover, it is
clear there is a plan, even if it is moving slower than the father would like, to
develop a relationship between the father and child. The father’s patience is
11
admirable, but his patience must continue so long as the child’s best interests are
served in progressing slowly toward involving the father in the child’s life.
Additionally, we note the court has now granted concurrent jurisdiction so that
legal custody arrangements can be made. Because it is clear it is in the child’s
best interests to deny the father’s visitation request at this time but continue the
child’s therapy with the goal of visitation between the father and the child, we
affirm the juvenile court’s dispositional order and the dispositional review order.
AFFIRMED.