In the Interest of A.C., M.B., and B.E., Minor Children ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-2045
Filed May 1, 2019
IN THE INTEREST OF A.C., M.B., and B.E.,
Minor Children,
STATE OF IOWA,
Appellant,
J.B., Father of M.B.,
Appellant.
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Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
The State appeals an order in a child-in-need-of-assistance proceeding
returning custody of a child to her mother and scheduling the return of a second
child within forty-five days of the order. AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED.
Daniel M. Northfield, Urbandale, for appellant father of M.B.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellant State.
Lisa M. Noble of Noble Law Office, Des Moines, for appellee mother.
Erin E. Mayfield of Youth Law Center, Des Moines, guardian ad litem for
minor children.
Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, Judge.
The State appeals an order in a child-in-need-of-assistance proceeding
returning custody of a child to her mother and scheduling the return of a second
child within forty-five days of the order.1 The State argues (1) both children would
be subject to harm if returned and (2) the juvenile court should have changed the
permanency goal to termination of the mother’s parental rights.
I. Background Facts and Proceedings
This case involves three children, born in 2006, 2009, and 2014. The
department of human services intervened in early 2017 after learning that the
father of the youngest child sexually abused the oldest child. It was later learned
that another person sexually abused the second child. The children’s mother
agreed to abide by a safety plan.
In time, the department determined the mother lacked insight into the
abuse. The State filed a child-in-need-of-assistance petition.
The juvenile court ordered the children temporarily removed “due to their
mother’s failure to protect them from sexual abuse and failure to comply with safety
plans.” Later, the court confirmed the removal order and adjudicated the children
in need of assistance. In the adjudication order, the court found the mother
“demonstrated a marked inability to control her emotions and act appropriately in
front of the children.”
One year after the adjudication order was filed, the court filed a permanency
order continuing the children’s placement outside the mother’s home. The court
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The father of the second child also filed an appeal. In light of our disposition of the
State’s appeal, we find it unnecessary to address the merits of his appeal.
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simultaneously granted the mother a six-month extension to work toward
reunification after exhorting her to show “insight into the abuse and the safety
concerns of this case . . . and demonstrate her ability to keep her children safe
from sex offenders moving forward.”
Two months later, the department reported that the mother shared pictures
of the children on her Facebook page that the father of the youngest child “liked.”
The department also reported an incident at a birthday party in which the mother
“requested to Facetime the father of the third child.” The service provider who was
supervising the party denied the request.
In light of these and other incidents, the department social worker assigned
to the case expressed “concern[] regarding [the mother’s] inability to determine
what [was] appropriate, how to support her children and their best interest by not
placing them in the middle of situations or placing/inflicting blame on them.” The
juvenile court seconded the department’s concern in an order entered around the
same time as the report. The court reiterated that the mother chose “to be
romantically involved with at least three sex offenders” and “[a]t least two of her
children [were] sexually assaulted by these men.”
Then came the permanency review order that is the subject of this appeal.
The court began by reciting the mother’s lengthy history of failing to protect the
children from sexual abuse. The court then expressed concern that the mother
“still enmeshed” the oldest child “in conversations and reminders of . . . her
assailant” and “appear[ed] oblivious to [the child’s] need to avoid triggering events
and reminders of her abuser.” The court instructed the mother to “fully address
her ongoing relationship with [the man who sexually abused her oldest child] and
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plan to set appropriate boundaries to emotionally and physically protect her
daughter.” The court also required the mother to “work with [the older two
children’s] therapists to take accountability for the removal—including repeatedly
allowing sex offenders access to her children.” The mother was again granted a
six-month extension to complete these and other goals set forth in the order. At
the same time, the court ordered the youngest child “return[ed] . . . to the mother
immediately” in light of the “good relationship” between mother and child,” their
successful participation in joint therapy, and the mother’s long-term participation in
individual therapy. As for the older children, the court stated continued out-of-
home placement was “necessary due to the unresolved mental health, substance
abuse and sexual abuse concerns.” But the court ordered the second child
“return[ed] to the mother within 45 days . . . provided the mother” successfully
complied with the goals identified in the order.
The State appealed and sought a stay of the order, which the Iowa Supreme
Court granted. The case was transferred to the court of appeals for disposition.
II. Adjudicatory Harm
The children were adjudicated in need of assistance under Iowa Code
section 232.2(6)(c)(2) and (n) (2017). Section 232.2(6)(c)(2) requires a showing
that the child “has suffered or is imminently likely to suffer harmful effects” due to
a “failure of the child’s parent, guardian, custodian, or other member of the
household in which the child resides to exercise a reasonable degree of care in
supervising the child.” See In re L.H., 904 N.W.2d 145, 149–50 (Iowa 2017).
“[H]armful effects” relate to “the physical, mental, or social welfare of a child.” In
re J.S., 846 N.W.2d 36, 41 (Iowa 2014) (quoting In re Wall, 295 N.W.2d 455, 458
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(Iowa 1980)). Section 232.2(6)(n) authorizes the juvenile court to adjudicate a
child in need of assistance if the “parent’s or guardian’s mental capacity or
condition, imprisonment, or drug or alcohol abuse results in the child not receiving
adequate care.” See In re M.W., 876 N.W.2d 212, 222 (Iowa 2016).
On our de novo review, we agree the mother-child joint therapy sessions
went well. The therapists reported the mother “was receptive to [the youngest
child’s] experiences and worked to support [the child] in her emotional regulation
and expression.” Similarly, the mother engaged with the second child, who opened
up to her more than she did with her foster parents. But, as the juvenile court
acknowledged, there was more work to be done. Despite fifteen months of
individual therapy, the mother had yet to internalize the danger to her children
posed by the men in her life or her role in facilitating the abuse. As the juvenile
court stated: “The Court is extremely concerned the mother remains in Facebook
contact with [the oldest child’s] offender and allows him to see pictures of the child.
There are other examples of unsafe boundaries contained in this order.” The court
found it necessary to have the department develop “a specific plan to address” the
mother’s continued inability to set appropriate boundaries.
We conclude the order requiring immediate reunification of the third child
with her mother and reunification of the second child within forty-five days was
premature. While the mother’s therapist testified she made progress toward
setting safe boundaries, the therapist could not speak to whether the mother was
in a position to keep the child safe from sex abusers. Under these circumstances,
it was appropriate to first implement the proposed plan outlined by the juvenile
court and then await a determination of whether the mother assuaged the court’s
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concerns. We reverse those portions of the permanency review order requiring
immediate and scheduled return of the second and third children.
III. Permanency Goal
The State argues the juvenile court should have changed the permanency
goal to termination. We disagree. The juvenile court afforded the mother an
additional six months to work toward clearly specified goals. See Iowa Code
§ 232.104(2)(b) (requiring court to enumerate specific conditions that must be
satisfied during the extension period). Given the mother’s consistent participation
in individual therapy, supervised visits, and other services, the court acted well
within its authority to afford the mother additional time. The six-month period has
yet to expire. Accordingly, we conclude the State’s request to change the
permanency goal is premature.
IV. Disposition
We affirm the juvenile court’s permanency review order in all respects
except that we reverse that portion of the order requiring immediate reunification
of the youngest child with the mother and reunification of the second child within
forty-five days. We remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.