In the Interest of G.S., O.S., and C.S., Minor Children ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0022
Filed April 15, 2020
IN THE INTEREST OF G.S., O.S., and C.S.,
Minor Children,
N.S., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Stephen A. Owen,
District Associate Judge.
A father appeals the juvenile court ruling granting a limited waiver of
confidentiality in his child-in-need-of-assistance case. REVERSED IN PART AND
REMANDED.
Patrick C. Peters of Payer, Hunziker, Rhodes & Peters, LLP, Ames, for
appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Shannon M. Leighty, Nevada, attorney and guardian ad litem for minor
children.
Considered by Bower, C.J., May, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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BLANE, Senior Judge.
N.S. has three children who are the subjects of this child-in-need-of-
assistance (CINA) proceeding. An investigation of incidents involving one of the
children led to a founded child-abuse assessment against N.S. for sexual abuse.
The juvenile court, at disposition, ordered a limited waiver of confidentiality so
authorities could inform other entities of the findings in the case and provide notice
that N.S. presents a danger to children with whom he has unsupervised contact.
N.S. appeals this provision of the dispositional order.
Because we find no authority for this broad disclosure or waiver of
confidentiality, we reverse that portion of the order.
I. BACKGROUND FACTS AND PROCEEDINGS
N.S. had a child-abuse report founded against him for sexual abuse of one
of his children. He was placed on the child-abuse registry. The report stated:
The department determines the alleged perpetrator of the child
abuse will continue to pose a danger to the child who is the subject
of the report of child abuse OR to another child with whom the
alleged perpetrator may come into contact. . . .
The case met a preponderance of the evidence AND is a type
of abuse required to be registered.
The children in the family were removed and adjudicated CINA. A dispositional
hearing followed the adjudication. In the dispositional order, the court ordered N.S.
to submit to a psychosexual evaluation. The court noted the graphic descriptions
of sexual contact the child shared with a forensic interviewer, a short story N.S.
wrote describing himself grooming and sexually abusing a ten-year-old child,1 and
1 At one point N.S. described the short story as a true account but he denied this
later.
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his free disclosure to the department of human services (DHS) that adults can be
sexually attracted to children and should be able to have sexual relationships with
them. At the time of the dispositional hearing, there was no criminal proceeding
against N.S.
In the dispositional order, the court stated:
The clear and convincing evidence in this case leads the court to
conclude very confidently that [N.S.] is a serial child sex abuser. He
presents as an imminent risk of harm, if not an outright clear and
present danger, to every child with whom he has unsupervised
contact. This includes not only his own children, but every child in
this community. Of great concern is the fact that [N.S.] is employed
as a bus driver.
Later, the court added:
His financial affidavit shows that he works as a school bus driver.
While the official juvenile court records are deemed confidential by
Code, the legislative intent of Iowa Code Chapter 232 [(2019)] is to
protect the children of this state. The state, the Iowa DHS, and the
Story County Attorney all have a vested interest, if not an affirmative
duty, to ensure the protection of the children of this state. Further,
[N.S.] should not be placed in a position of acting upon his deviant
tendency toward child sex abuse and should also be protected from
being placed into situations that would lead him into serious legal
jeopardy resulting in alienation from his children.
The court included the following directive in the dispositional order:
The peace of this state must be preserved and the children of this
state protected from imminent harm. This does not involve grand or
drastic measures by a court in most cases, including this one. A
simple and narrowly tailored waiver of the confidentiality provide[d]
by [Iowa Code section] 232.147 will suffice. Therefore, the state or
DHS may share this court’s finding that [N.S.] poses an imminent risk
of harm to children with whom he has unsupervised contact. This
sole finding may be shared with any relevant private or governmental
entity in order to reasonably protect children in this community. The
purpose for the exercise of the narrow and limited waiver of
confidentiality is to protect children from imminent harm and to
ensure the Iowa DHS and Story County Attorney may fulfill their legal
and policy duties to proactively protect children and ensure the laws
of this state are not violated.
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By permitting the state, County Attorney or DHS to share the
court’s finding, the court is not permitting a wholesale examination of
the official juvenile court record. The state shall protect the identity
of the children and the mother in these proceedings. The state, Iowa
DHS, or Story County Attorney may only share the court’s finding
that: [N.S.] poses an imminent risk of harm to any child with whom
he has unsupervised contact.
(Emphasis added.) N.S. appeals this aspect of the dispositional order. Although
he contested before the juvenile court the order for a psychosexual evaluation and
the adjudication of the children as CINA, N.S. does not challenge those aspects of
the order on appeal.
II. STANDARD OF REVIEW
Although we normally review CINA proceedings de novo, we review
subsidiary rulings for an abuse of discretion. In re N.N., 692 N.W.2d 51, 54 (Iowa
Ct. App. 2004). When an issue requires statutory interpretation, we review for
correction of errors at law. In re J.C., 857 N.W.2d 495, 500 (Iowa 2014). A court
abuses its discretion when its ruling is based on grounds that are unreasonable or
untenable. Johnson v. Des Moines Metro. Wastewater Reclamation Auth., 814
N.W.2d 240, 244 (Iowa 2012). The grounds for a ruling are unreasonable or
untenable when they are “based on an erroneous application of the law.” Id.(quoting Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000)).
III. ANALYSIS
N.S. contends the juvenile court’s order to release the statement underlined
above was improper and not authorized by law.
The State and the children’s guardian ad litem (GAL) respond that various
code provisions allow the disclosure of this information. After an examination of
those and other relevant statutory provisions, we determine the district court erred
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in concluding that a “simple and narrowly tailored waiver of . . . confidentiality” was
accomplished in this case. We find the court did not have such a broad statutory
authority and therefore abused its discretion in granting authorities the ability to
share the court’s finding with “any relevant private or governmental entity in order
to reasonably protect children in this community.” (Emphasis added.)
The juvenile court authorized disclosure of a specific paragraph within the
dispositional order, which constitutes an “official juvenile court record.”2 See Iowa
Code § 232.2(38). “Official juvenile court records in all cases except those alleging
delinquency shall be confidential and are not public records.” Id. § 232.147(2).
But “official juvenile court records” “may be inspected and their contents shall be
disclosed” without a court order under limited circumstances not applicable under
the facts here. Id. With a court order, “official juvenile court records may be
inspected by and their contents may be disclosed to” a limited group of persons
not applicable here.3 See id. § 232.147(8).
2 Our code defines “Official juvenile court records” and “official records” as
official records of the court of proceedings over which the court has
jurisdiction under this chapter which includes but is not limited to
the following:
a. The docket of the court and entries therein.
b. Complaints, petitions, other pleadings, motions, and
applications filed with a court.
c. Any summons, notice, subpoena, or other process and
proofs of publication.
d. Transcripts of proceedings before the court.
e. Findings, judgments, decrees, and orders of the court.
Iowa Code § 232.2(38).
3 That section provides:
Pursuant to court order, official juvenile court records may be
inspected by and their contents may be disclosed to:
a. A person conducting bona fide research for research
purposes under whatever conditions the court may deem proper,
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A final general confidentiality provision says, “Notwithstanding any other
provision of law, a public record which is confidential under the provisions of this
chapter shall only be subject to release upon order of a court in a proceeding under
this chapter.” Id. § 232.147(19). The parties all seem to agree that nothing within
section 232.147 permits the disclosure or waiver of confidentiality ordered here.
The State offers an alternative theory: the disclosure is permitted under
Iowa Code chapter 235A, which sets out rules for the operation of the state child-
abuse registry. N.S. is a subject of the child-abuse registry following the founded
child abuse report naming him as the perpetrator. According to the State, the
disclosure of registry information “cannot be said to offend or circumvent the
confidentiality provisions of the child abuse registry” because “[c]hild abuse
information may be disclosed by the department” pursuant to a court order. And it
is true that the founded child-abuse report includes similar language to the
disclosure the court ordered. The report concludes, “[T]he alleged perpetrator of
the child abuse will continue to pose a danger to the child who is the subject of the
report of child abuse or to another child with whom the alleged perpetrator may
come into contact.” But no provision of the child-abuse registry chapter permits
the disclosure authorized here.
The child-abuse registry, like CINA proceedings, is governed by rules of
confidentiality. See id. § 235A.15(1) (“Notwithstanding chapter 22, the
provided that no personal identifying data shall be disclosed to such
a person.
b. Persons who have a direct interest in a proceeding or in
the work of the court.
Iowa Code § 232.147(8).
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confidentiality of all child abuse information shall be maintained, except as
specifically provided in this section.”) “Access to report data and disposition data
subject to placement in the central registry” is authorized only to the persons and
entities enumerated under chapter 235A. Id. § 235A.15(2). These include the
“subjects of a report,” persons involved in producing the assessment of child
abuse, entities providing “care” to a child, and others. Id. § 235A.15(2)(a)–(e).
The State suggests section 235A.15(2)(e)(16) applies, which allows access
to “the superintendent, or the superintendent’s designee, of a school district or to
the authorities in charge of an accredited nonpublic school for purpose of a
volunteer or employment record check.” Subparagraph (e)(22) also allows
disclosure to “the employer or prospective employer of a school bus driver for
purposes of an employment record check.” Undoubtedly, the purpose of the order
was to warn the school bus employer4 that their employee might be a danger to
children. These code provisions appear to allow that disclosure, but the court’s
order goes significantly beyond these narrow rules of disclosure, permitting the
State to reveal the information to “any relevant private or governmental entity in
order to reasonably protect children in this community.” Neither provision of
subparagraph (e) allows such a broad disclosure.
Subparagraph (c) also permits access by “[i]ndividuals, agencies, or
facilities providing care to a child . . . for cases of founded child abuse placed in
4 Nothing in the record identifies N.S.’s school bus employer—whether it is a
private company or a school district. Nothing in the record indicates the school
bus employer inquired of the State or DHS whether their employee, N.S., had any
abuse concerns or record. It is also not clear from the order whether the court
authorized the State and DHS to give unsolicited disclosures or only released them
to disclose when approached and asked to do so.
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the registry.” Id. § 235A.15(2)(c). This includes, in relevant part, “a federal, state
or local governmental unit, or agent of the unit, that has a need for the information
in order to carry out its responsibilities under law to protect children from abuse
and neglect.” Id. § 235A.15(2)(c)(13). Again, while this might encompass the
school and the school bus provider, the actual order is significantly broader in
scope. And, arguably, this provision does not apply to schools because “public
schools are not agencies which are legally responsible for the care, treatment or
supervision of the child within the meaning of [section] 232.147(3)(e).” Access to
Confidential Juvenile Court Records by School Officials, 80-1-10 Iowa Op. Att’y
Gen. 576, 1980 WL 25912, at *1 (1980) (opining confidential juvenile court records
are not available to school officials without a court order because the “care”
contemplated by juvenile records sections of the code “is that primary care,
treatment and supervision to be provided by the child’s parents or custodian, rather
than the minimal care provided by schools”).
The State next suggests disclosure is allowed under Iowa Code section
235A.19(3)(f). That section permits “[a] subject of a child abuse report, as
identified in section 235A.15, subsection 2, paragraph ‘a’, [to] have the right to
examine report data and disposition data which refers to the subject.” Iowa Code
§ 235A.19(1). Paragraph (f) says, “The department shall not disclose any report
data or disposition data until the conclusion of the proceeding to correct the data
or findings, except . . . [p]ursuant to court order.” But this provision refers only to
a proceeding to correct the data and findings of a child abuse assessment on which
“[a] subject of a child abuse report may file with the department” and be afforded
a hearing. Iowa Code § 235A.19(3)(a). The DHS may disclose relevant
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information after “the proceeding to correct the data or findings” with a court order.
Id. § 235A.19(3)(f)(4). In addition, the “subject” of a child-abuse assessment is
limited to a child named in a report as a victim; a parent, guardian, or legal
custodian of a child named in a report; a person named in a report as having
abused a child; or their attorneys. See id. § 235A.15(2)(a)(1)–(4). Outside private
and government entities do not have a right to view the report or disposition data
under section 235A.19(3)(f), even with a court order. The section also authorizes
only the DHS to act, not the State or the county attorney, while the juvenile court’s
order authorizes all three to disclose.
The GAL suggests the order is proper under Iowa Code section 232.71B(9)
as a protective disclosure. This section has to do with the duties of the DHS when
it receives a report of child abuse.
If the department determines that disclosure is necessary for the
protection of a child, the department may disclose to a subject of a
child abuse report referred to in section 235A.15, subsection 2,
paragraph “a”, that an individual is listed in the child or dependent
adult abuse registry or is required to register with the sex offender
registry in accordance with chapter 692A.
Iowa Code § 232.71B(9). Again, the section authorizes disclosure to a “subject”
of the child-abuse report as defined under Iowa Code section 235A.15(2)(a); it
does not permit disclosure to a third-party private or government entity. And,
again, the section only authorizes the DHS to disclose, not the State or county
attorney.
Finally, the State suggests school bus driver statutes provide an avenue for
the disclosure. Iowa Code sections 321.375(2) and (3)(e) set out qualifications for
school bus drivers in Iowa. As part of a pre-hiring investigation, school bus
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employers must be given access to, among other public records, the central child-
abuse registry. See id. § 321.375(2). The same section directs the employer to
follow the same procedure upon renewal of the bus driver employee’s contract or
school bus license. Id. Placement on the child abuse registry is grounds for
immediate suspension of a school bus driver. See id. § 321.375(3)(e). But, once
again, the court’s order goes far beyond any disclosure that must necessarily be
made to aid a school bus company in its hiring decisions and maintaining the safety
of children who ride school buses.
We have also examined the possibility of “redissemination” under Iowa
Code section 235A.17(1):
1. A person, agency, or other recipient of child abuse information
authorized to receive such information shall not redisseminate such
information, except that redissemination shall be permitted when all
of the following conditions apply:
a. The redissemination is for official purposes in connection
with prescribed duties or, in the case of a health practitioner,
pursuant to professional responsibilities.
b. The person to whom such information would be
redisseminated would have independent access to the same
information under section 235A.15.
c. A written record is made of the redissemination, including
the name of the recipient and the date and purpose of the
redissemination.
d. The written record is forwarded to the registry within thirty
days of the redissemination.
We conclude, again, that this section does not permit the breadth of the disclosure
here. While the State, DHS, and the county attorney are “authorized to receive”
child abuse registry information under section 235A.15(2), redisseminating that
information to private entities is not within their “official purposes in connection with
prescribed duties.” Id. § 235.17(1)(a). It is not generally part of their prescribed
duties to disseminate child-abuse registry information—in fact, the statutes impose
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an affirmative duty on those actors to keep the information confidential except in
the instances permitted by code.
In addition, the order permits disclosure to persons and entities—such as
friends or neighbors who have children who might come in contact with N.S.—who
would not “have independent access to the same information under section
235A.15.” Id. § 235A.17(1)(b). Further, we are not aware from our record that the
required written record under paragraphs (c) and (d) occurred in this case.
We find, and the parties cite, no published or unpublished opinion
evaluating this kind of disclosure or waiver order. And we have carefully combed
the relevant code sections permitting disclosure of otherwise confidential
information in a CINA proceeding or when, as here, the perpetrator is placed on
the child-abuse registry.
Although well-meaning, we cannot find authority for the juvenile court to
order the disclosure of confidential information in a CINA proceeding outside the
instances permitted by statute. The order allowing the State and DHS to inform
“any relevant private or governmental entity in order to protect children in this
community” that N.S. “poses an imminent risk of harm to any child with whom he
has unsupervised contact” extends far beyond the more limited disclosures our
code provides. It permits the State to inform any business or public service location
where children may be present or any parent acquaintance or neighbor of whose
children might come in contact with N.S. of a very alarming conclusion regarding
him. We understand the court is interpreting chapter 232 liberally in an attempt to
serve the best interests of the children in the community. See id. § 232.1 (“This
chapter shall be liberally construed to the end that each child under the jurisdiction
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of the court shall receive, preferably in the child’s own home, the care, guidance
and control that will best serve the child’s welfare and the best interest of the
state.”). There is a founded child-abuse report naming N.S. and disturbing facts
about his conduct have come to light during the CINA case. But the confidentiality
provisions exist to protect both the children and the parents in a CINA case from
disclosure of their private information. The statute permits disclosure under
circumstances encompassing N.S.’s bus driving job. But the court did not stop
there.
We further find no provision in the law that allows for what the court
characterizes as a “limited waiver of confidentiality” under Iowa Code section
232.147. The disclosures permitted by statute are not characterized as “waivers
of confidentiality,” and we see no provision in the law allowing the court to waive
the confidentiality that belongs to the subjects of the CINA proceeding. The
legislature weighs and balances the needs for disclosure and confidentiality in
CINA cases. As well-intended the juvenile court’s order may be, it must conform
to the statutory authority imposed by the legislature. We therefore conclude the
court abused its discretion in issuing the directive. We reverse that part of the
dispositional order and remand for further proceedings consistent with this opinion.
The State also argues this issue is moot because N.S. did not file a motion
to stay and the county attorney already complied with the juvenile court’s order
and informed the relevant entity – N.S.’s school bus employer. We disagree—this
opinion still has “force or effect in the underlying controversy” because there is no
limit to how many entities the State may inform or for how long, including any future
employer N.S. may have where the employment may bring him in contact with
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children. See Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 540 (Iowa 1997).
The court is without authority to permit such disclosures.
REVERSED IN PART AND REMANDED.