In the Interest of K.P., K.P., J.P., K.P., J.P., K.P., J.P., and K.P., Minor Children ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0470
Filed June 19, 2019
IN THE INTEREST OF K.P., K.P., J.P., K.P., J.P., K.P., J.P., and K.P.,
Minor Children,
K.P., Mother,
Appellant,
B.S., Father of K.P.,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic,
District Associate Judge.
A mother and the father of one of her children appeal the juvenile court’s
removal order in a child-in-need-of-assistance proceeding. REVERSED IN PART
AND REMANDED.
Elizabeth A. Batey of Vickers Law Office, Greene, for appellant mother.
Danielle M. Ellingson of Eggert, Erb, Kuehner & DeBower, P.L.C., Charles
City, for appellant father of K.P.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Cameron Sprecher of Prichard Law Office, PC, Charles City, for appellee
father J.B.
Cynthia S. Schuknecht of Noah, Smith & Schuknect, P.L.C., Charles City,
attorney and guardian ad litem for minor children.
Considered by Vogel, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.
A mother and the father of one of her children appeal the juvenile court's
removal order in a child-in-need-of-assistance (CINA) proceeding. We find there
is not clear and convincing evidence supporting removal of the children. We
reverse the district court’s removal of all the children from the mother’s custody,
and removal of the youngest child from her father’s custody.
I. Background Facts & Proceedings
K.P. is the mother of eight children: K.P., born in 2004; K.P., born in 2005;
J.P., born in 2006; J.P., born in 2008; K.P., born in 2013; J.P., born in 2014; K.P.,
born in 2015; and K.P., born in 2017. J.B. (the father) is the father of the seven
older children and legal father to the youngest child. B.S. is biological father to the
youngest child.
Over the course of 2018, ten different child protective services
investigations were initiated; all ten were unconfirmed. By the last report at the
beginning of November, the Iowa Department of Human Service (DHS) placed the
children at “a high level of risk.” The allegations involve multiple children, and
included abuse, use of dangerous substances around the children, denial of critical
care, and failure to supervise the children. The mother and her paramour, B.S.,
began voluntary participation in a family services program in mid-2018. The father
moved to Texas for several months in 2018, leaving all the children in the mother’s
care.
In August 2018, the police were called for a domestic violence incident
between the mother and B.S., and DHS was notified as the actions occurred while
the youngest child was present. The mother accused B.S. of hitting her, throwing
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objects, punching holes in her walls, and abusing controlled substances and
alcohol. B.S. accused the mother of scratching him and stated he was the person
who called the police. A no-contact order was put in place between the mother
and B.S., but they dropped it in November. B.S. was living in the home again with
the mother and children from November 2018 until February 2019. The mother
and B.S. ended their relationship at the beginning of February, and B.S. moved in
with his parents.
Once the father returned to Iowa, the oldest child moved in with him full-
time. The second-oldest lived with the mother. The next five children split their
time between the parents’ homes. The oldest identified B.S. as a major reason to
not return to the mother’s house. The second oldest said the time the others were
at the father’s home was a chance to have a break from taking care of the younger
siblings. The youngest child lived with the mother and B.S., then split time between
the mother’s home and B.S.’s home after they separated.
Three of the children are hearing impaired and use cochlear implants. One
of them attends a resident program at the Iowa School for the Deaf during the
week. All three were frequently sent to school and daycare without one or both
implants before DHS involvement. The father appeared to be better at maintaining
the implants for the children. Reports show the children’s learning is hindered
when they do not have the necessary implants at school.
The mother, father, and B.S. do not co-parent effectively, and all three have
complained to DHS about the others. DHS described the situation among the
mother, the father, and B.S. as “chaos.” A no-contact order is in place between
the mother and father. In November 2018, the mother pleaded guilty to domestic
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assault, second offense, against the father. A separate domestic assault charge
relating to B.S. was dropped at that time.
On February 15, 2019, the court adjudicated all eight children as CINA
pursuant to Iowa Code section 232.2(6)(c)(2) (2019). DHS and the guardian ad
litem recommended the parents share custody of the children. The court noted
concerns of domestic violence in the presence of the children, allegations of
physical abuse and drug use in the home, and the mother’s failure to meet the
children’s medical needs. The court required DHS approval of other adults in the
home, ordered the parents and their household members to submit to alcohol and
drug testing as directed, prohibited persons under the influence of alcohol or drugs
around the children, directed the mother to complete a domestic abuse program,
the mother to attend individual therapy, ordered B.S. to have no contact with any
child but the youngest, and required the parents ensure the children’s medical
needs are met and the cochlear implants are worn at all times as directed.
On March 14, a dispositional hearing was held. The State and the guardian
ad litem supported following DHS’s recommendation the parents continue to share
custody. The DHS report noted two of the older children were taking care of their
siblings often and the hearing-impaired children did not consistently wear their
cochlear implants while in the mother’s care. The mother said she was attending
mental-health therapy and had completed a substance-abuse evaluation, though
no records were submitted. The father requested placement of the children in his
care, testifying at the hearing the oldest child reported abuse in the mother’s home.
All eight children were removed from the mother’s custody, and the youngest child
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was removed from B.S.’s custody. The court found the following circumstances
supported removal:
Mother, [B.S.] and [B.S.]’s household members unresolved
substance abuse issues, history of violence and abuse in the home
in the presence of the children, failure of Mother to meet the essential
needs of the children—particularly failure to make sure that the
children who need them have their implants available to allow them
to hear, conflictual relationships between parents, lack of compliance
with Court orders for services, lack of progress since case initiation,
lack of proper supervision of the children, Mother’s frequent
absences from the home, and conflictual relationships between the
oldest children and parents.
In particular, the court sought to prevent the older children from being placed in a
caretaker or parent role with the younger siblings. The seven older children were
placed in their father’s custody. The court ordered four of the children to participate
in therapy. The youngest child was placed in foster care. B.S. is not allowed
contact with the seven older children. The court again ordered all adult household
members of the parents to submit to drug testing.
The mother and B.S. appeal the removals. The father supports the court
order, and the State offers no argument on appeal.
II. Standard of Review
Our review in 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. “We review both the
facts and the law, and we adjudicate rights anew.” In re K.N., 625 N.W.2d 731,
733 (Iowa 2001). “As in all juvenile proceedings, our fundamental concern is the
best interests of the child[ren].” Id.6
III. Analysis
The court may remove a child from home when it determines by clear and
convincing evidence “that continuation of the child in the child’s home would be
contrary to the welfare of the child.” Iowa Code § 232.102(6)(b). The court is to
“make the least restrictive disposition appropriate considering all the
circumstances of the case.” Id. § 232.99(4).
The mother and B.S. both claim compliance with the recommendations in
the district court’s adjudication order to the extent possible. The mother submitted
a summary of services from the worker who had been visiting the family since
April 2018. The worker specifically noted the mother had been participating in
services and was working on improving her parenting abilities. DHS reported the
mother had begun mental-health therapy. The mother and B.S. were no longer
involved at the time of the hearing, and that relationship had been the source of
many of the court’s concerns. The DHS report noted B.S. claimed to have
completed a substance-abuse evaluation and DHS was awaiting the report and
any related drug testing. DHS was also waiting on paperwork from the adults in
B.S.’s household before arranging any drug testing. B.S. complied with the order
to avoid the other seven children.
Upon our review of the record at the time of the dispositional hearing, we
find there is not clear and convincing evidence supporting removal of the children.
The guardian ad litem, DHS, and the State did not recommend the removal, nor
does the State support it on appeal. We reverse the juvenile court’s removal of
the children from the mother’s custody and the youngest child from B.S.’s custody.
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We leave the remaining provisions of the dispositional order in place and remand
for further proceedings.
REVERSED IN PART AND REMANDED.