In the Interest of R.M., Minor Child, C.R., Mother, State of Iowa, A.M., Father, appellee/cross-appellant.

IN THE COURT OF APPEALS OF IOWA

No. 14-1863
Filed February 25, 2015

IN THE INTEREST OF R.M.,
Minor Child,

C.R., Mother,
Appellant,

STATE OF IOWA,
Appellant,

A.M., Father,
Appellee/Cross-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Marion County, John D. Lloyd,

Judge.

The State and the mother of a child adjudicated in need of assistance

appeal from a permanency order granting the father six additional months of

services and visitation. AFFIRMED.

William E. Sales III of Sales Law Firm, P.C., Des Moines, for mother.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, and Ed Bull, County Attorney, for appellant-State.

Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for father.

Marshall Orsini, Des Moines, attorney and guardian ad litem for minor

child.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2

TABOR, J.

R.M., now age five, has been removed from his father’s custody since

October 2013 based on a confirmed report the father denied the child critical

care. In October 2014, the juvenile court entered a permanency order under

Iowa Code section 232.104(2)(b) (2013) keeping the child’s placement with his

mother, but continuing for an additional six months reasonable efforts to reunite

R.M. with his father, including increased visitation. The State and the mother

appeal from that permanency order, contending the court should have placed

R.M. in the mother’s sole legal custody under section 232.104(2)(d). The father

cross-appeals a finding in the permanency order that the Department of Human

Services had been making reasonable efforts to reunify him with his son.

Following our de novo review,1 we affirm the permanency order. The

evidence presented at the hearing warranted a delay in permanency and the

court set out conditions of visitation to be offered by the DHS and expected

behavioral changes on Adam’s part that formed its basis for deciding the need for

removal could be resolved at the end of the six months. See Iowa Code

§ 232.104(2)(b). As for the cross-appeal, we conclude Adam’s challenge to DHS

1
We review permanency orders de novo, sorting through both the facts and law and
adjudicating rights anew on the issues properly presented on appeal. In re A.T., 799
N.W.2d 148, 150–151 (Iowa Ct. App. 2011). We give weight to the factual findings of
the juvenile court, but are not bound by them. Id. The parties contend we review the
decision to delay permanency for an abuse of discretion, citing an unpublished case of
our court predating In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (stating “the proper
standard of review for all termination decisions should be de novo”). We need not
decide today whether a decision to grant a six-month extension under section
232.104(2)(b) is subject only to de novo review or whether the previously applied abuse-
of-discretion standard also comes into play. Under either standard, we conclude the
juvenile court should be affirmed here.
3

reasonable efforts predating the permanency hearing was rendered moot by the

visitation ordered in the six-month extension and decline to address that issue.

See In re B.B., 516 N.W.2d 874, 877 (Iowa 1994) (holding issue is moot if it no

longer presents a justiciable controversy because it has become academic).

I. Background facts and proceedings

R.M. is the son of Adam and Christine; the parents are not married to

each other. The district court previously entered a decree awarding the parents

joint legal custody, placing physical care with Christine, and granting Adam

overnight visitation every other weekend and two evening visits during the week.

The parents were operating under this decree in August 2013 when R.M.

came home from visiting Adam with a mark on his neck. When Christine asked

what happened, R.M. said Adam wrapped duct tape around his head and rubbed

soap in his eyes. A DHS investigation confirmed the child’s allegation as a denial

of critical care. Adam has continually denied the allegation. The State charged

Adam with neglect of a dependent person, but dismissed that prosecution in

March 2014.2

As a result of this incident, the juvenile court adjudicated R.M. as a child in

need of assistance (CINA) under Iowa Code section 232.2(6)(c)(2)3 in an order

2
A no-contact order in the criminal case prohibited Adam from interacting with his son.
The order was modified in December 2013 to allow visitation under DHS supervision.
3
The section reads:
“Child in need of assistance” means an unmarried child: . . . c. Who has
suffered or is imminently likely to suffer harmful effects as a result of any
of the following: . . . (2) The 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.
Iowa Code § 232.2(6)(c)(2) (2013).
4

issued December 18, 2013. That order found the father was “responsible for

physical abuse against the child.” The order placed discretion for visitation with

the DHS, and upon the recommendation of the child’s therapist. The court

ordered Adam to obtain a substance abuse evaluation and, if recommended by

the evaluation, use a SCRAM device to detect his alcohol use. Adam obtained a

substance abuse evaluation on January 8, 2014. The evaluator did not

recommend any treatment.

Visitation between Adam and R.M. was a long time coming. At a

disposition hearing on February 12, 2014, Adam argued DHS was not making

reasonable efforts at reunification because he had not been allowed visitation

with his son.4 At a disposition hearing on May 20, 2014, the court ordered Adam

to engage in counseling to “enable him to deal with [R.M.’s] perception of abuse.”

The court also ordered visitation would resume “as [R.M.’s] counselor and

[Adam’s] counselor shall in consultation determine that such contact can be

accomplished with minimal risk to [R.M.’s] well-being.”5 This arrangement was

foiled in early July when Christine took R.M. out of therapy without informing

Adam.6

4
While the parties were awaiting the ruling from the February hearing, the juvenile court
judge assigned to the case recused himself because of ex parte contact from a member
of Adam’s family. District Court Judge John Lloyd was assigned to the case.
5
The court also ordered R.M. have contact with his paternal grandparents. Christine
had not allowed Adam’s family to see R.M. since August 2013.
6
Christine did inform the family safety, risk, and permanency (FSRP) worker, but the
worker did not tell Adam, his attorney or the DHS case manager. In a similar lack of
communication, the court learned at the permanency hearing that the FSRP worker had
been sharing her reports with Christine, but not Adam. Adam only received the reports
as a proposed exhibit before the hearing.
5

On July 10, 2014, Adam filed a motion for hearing on reasonable efforts.

In his motion he requested the following: visitation, regular contact with DHS

regarding R.M.’s progress in therapy, a new DHS worker, and any services that

could help address perceptions of abuse. The first visit between Adam and R.M.

occurred on July 29, 2014.

The court held the permanency hearing on October 1, 2014. The court

also considered Adam’s motion claiming DHS failed to make reasonable efforts

and a motion filed by Christine to reconsider or stay visitation. The court issued

its permanency order on October 24, 2014, granting Adam an additional six

months to achieve reunification. The court set the following schedule: additional

visitation to be supervised by the paternal grandfather starting no later than thirty

days from the ruling, after ninety days Adam would get at least one overnight visit

every other weekend, and within five months visitation was to return to the

parents’ district court decree schedule. The court also found DHS had made

reasonable efforts. In addition, the court granted concurrent jurisdiction.

Christine filed a notice of appeal on November 7, 2014, and the State filed

a notice of appeal on November 10, 2014. Also on November 10, 2014,

Christine asked the supreme court to stay the permanency order. That same day

in the juvenile court, Adam filed a motion under Iowa Rule of Civil Procedure

1.904(2) to amend or enlarge the findings of fact and conclusions of law in the

permanency order. On November 24, 2014, the supreme court denied

Christine’s motion to stay and remanded the case for a ruling on Adam’s rule

1.904(2) motion.
6

In his motion to enlarge or amend, Adam alleged the DHS was cancelling

many of his scheduled visits because “the professional parties in this case have

taken the unfortunate position that if the child doesn’t want a visit the parties will

not ‘force him.’” The motion alleged R.M. would refuse to visit when Christine

drove him, but was not reluctant to see his father when the FSRP worker

provided transportation. As a result, Adam asked the court to amend the ruling in

several regards. First, Adam asked the court to clarify that it adopted the DHS

case permanency plan with certain exceptions, including provisions concerning

Adam’s alcohol use and the graduated visitation schedule. Next, Adam asked

the court to make the following enlargements:

b. Add a finding of fact indicating that the concerns in regards to
father’s ability to safely care for the child will have been fully
addressed within 6 months so long as the Father continues in
therapy and continues to address the child’s reality of abuse.
c. Add a finding that all parties are to cooperate in effectuating the
visitation schedule as set out in Paragraph (6) of the Permanency
Order, and that the Child should not be allowed to unilaterally
cancel the visits. Parties are to facilitate visitation and are
cautioned that failure to facilitate that visitation or interfere with the
same may be grounds for that party to be held in contempt of the
Court’s order.
d. Add a finding that the Mother is not to transport the child to visits
and that all transportation of the child to visits be provided by the
FSRP worker. Specifically, indicate that the Mother and Father are
to have no contact during the visitation exchanges.

The district court granted the motion in its entirety on November 25, 2014.

We now address the challenge by the mother and the State to the court’s

granting of additional time.
7

II. Analysis

Following a permanency hearing, a juvenile court has four options:

a. Enter an order pursuant to section 232.102 to return the child to
the child’s home.
b. Enter an order pursuant to section 232.102 to continue
placement of the child for an additional six months at which time the
court shall hold a hearing to consider modification of its
permanency order. An order entered under this paragraph shall
enumerate the specific factors, conditions, or expected behavioral
changes which comprise the basis for the determination that the
need for removal of the child from the child’s home will no longer
exist at the end of the additional six-month period.
c. Direct the county attorney or the attorney for the child to institute
proceedings to terminate the parent-child relationship.
d. Enter an order . . . to . . . [t]ransfer sole custody of the child from
one parent to another parent.

Iowa Code § 232.104(2).

In this case, the juvenile court went with (b)—providing Adam an

additional six months to work toward reunification. The State and Christine argue

the permanency order was improper because it did not “enumerate the specific

factors, conditions, or expected behavioral changes which comprise the basis for

the determination that the need for removal of the child from the child’s home will

no longer exist at the end of the additional six-month period.” They also contend

the evidence did not warrant a delay of R.N.’s permanency.

By our reading, the permanency order meets the specificity requirement in

the statute. The order directs the parties to comply with the DHS case

permanency plan with certain modifications. The order sets out guidelines for

Adam’s alcohol use, directs him to attend therapy and discuss the abuse issue,

directs R.M. to be in therapy, and gradually increases visitations so that Adam
8

will have the chance for more meaningful contact with his son. We conclude the

order complies with section 232.104(2)(b).

Next, we turn to the evidence supporting the juvenile court’s decision to

give Adam more time to eliminate the need for removal of R.M. from his care.

Removal was prompted by R.M.’s report that his father wrapped duct tape

around his mouth and rubbed soap in his eyes. While the DHS found the child

credible in reporting this incident, the assessment also noted the child was not

injured as a result. The incident, though troubling, appears to be isolated, as the

record reveals no other reports of neglect or abuse. Christine’s reports that R.M.

cried or was fearful of his visits with Adam were inconsistent with observations of

the FSRP worker.7 The FSRP worker testified Adam and R.M. have an

affectionate bond and visits were going well in the summer and fall of 2014.

The State is rightly concerned with Adam’s failure to acknowledge any

wrongdoing. Parents’ refusal to address their role in a child’s abuse may hurt

their chances of regaining custody. In re C.H., 652 N.W.2d 144, 150 (Iowa

2002). But a parent’s insistence he is innocent cannot automatically disqualify

him from resuming custody. Our supreme court has said: “The State may require

parents to otherwise undergo treatment, but it may not specifically require an

admission of guilt as part of the treatment.” Id.

Adam has seen a therapist to address the aftermath of the abuse alleged

by his son and has been ordered to attend therapy as a condition of the

7
The record revealed that R.M. would make comments to Adam that seemed to be
prompted by an adult, such as “why are you being mean to my mom” and “why are you
drinking.” The juvenile court observed: “I spent 40 years in this business, and as far as
I’m concerned, I’ve got a kid being used as a little weapon in this case.”
9

permanency order. While Adam still denies the August 2013 incident, the

therapists working with him and R.M. will be helpful to the juvenile court in

ultimately deciding if Adam can be a safe caretaker even in the absence of an

admission.

In addition to their focus on the abuse allegation, both the State and the

mother allege Adam has not dealt with an alcohol abuse problem.8 Adam has

alcohol-related convictions, but testified he does not believe he has a drinking

problem. Adam also gave a concerning answer regarding how many instances

of public intoxication would signal a drinking problem. But when directed to do so

by the court, Adam promptly obtained a substance abuse evaluation, which

recommended no treatment was necessary. When asked in an earlier hearing

what he disclosed to the evaluator about his alcohol consumption, Adam

responded: “I said I’m a normal 28-year-old single guy. I like to hang out with my

friends, watch football, have some drinks every now and then.” The DHS worker

did not report any problem with Adam being under the influence during visits with

R.M. Still, the juvenile court ordered Adam not to drink alcohol within twelve

hours of any visit with R.M. On this record, we do not view Adam’s alcohol use

as sufficient cause to deny the six-month extension.

Finally, we address Christine’s argument that the permanency order’s

“regimented increase in contact” between Adam and R.M. presupposes “an

ultimate reunification without concern as to the child’s readiness for it.” Christine

admits “deliberately increasing contact is absolutely proper” and in R.M.’s best

8
The State highlights Adam’s disinclination to wear an alcohol monitoring device called
a “SCRAM bracelet.” Such monitoring was never ordered by the court.
10

interests, but she questions the lack of ongoing review. Adam counters that by

granting his motion to amend, the court “set out the steps that will need to be

completed to obviate the concerns that brought this family” to the attention of

DHS. We agree with Adam.

The court appropriately directed the DHS to make specific efforts to

increase visits and to protect R.M.’s welfare. Because the DHS delayed

visitation between Adam and R.M. from December 2013 until July 2014, the court

did not have sufficient information at the permanency hearing to place sole

custody with the mother under section 232.102(2)(d).9 Given the history of this

case, the court acted reasonably in imposing targeted visitation milestones on

the DHS. The review hearing scheduled for March 13, 2015, will provide the

parties an opportunity to assess Adam’s progress toward reunification.

AFFIRMED.

9
The court’s ability to monitor progress could have occurred more quickly if Christine
had not unilaterally taken R.M. out of therapy without informing Adam.