Opinion
No. 1-843 / 01-0226.
Filed February 20, 2002.
Appeal from the Iowa District Court for Floyd County, GERALD W. MAGEE, Associate Juvenile Judge.
The father of two minor children appeals a dispositional review order which found the children remained in need of assistance and continued temporary legal custody with the Iowa Department of Human Services. AFFIRMED.
Kevin E. Schoeberl, Cresco, for appellant.
Thomas J. Miller, Attorney General, and M. Elise Pippin, Assistant Attorney General, for appellee State.
Cynthia Schuknecht, Charles City, for minor children.
Judith O'Donohoe, Charles City, for mother.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Dennis, the father of two minor children, appeals a juvenile court dispositional review order, which found the children remained in need of assistance and directed that their temporary legal custody continue with the Iowa Department of Human Services [the Department] for placement in family foster care. We affirm.
Background Facts and Proceedings . Dennis and Michelle are the parents of Paul, age eight, and Denise, age six. In June 1998 the children were removed from the family home due to concerns Michelle suffered from Munchausen Syndrome by Proxy and was causing an illness in Denise. Although briefly returned to Dennis's custody, the children were again removed in November 1998, based on Michelle and Dennis's denial regarding Michelle's condition and their resistance to services, as well as Dennis's inability to adequately supervise Michelle's contact with the children. In March 1999 Paul and Denise were adjudicated as children in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(b) and 232.2(6)(c)(2) (1997). Although the juvenile court declined to enter a CINA adjudication based on Dennis's history as a sexual abuse perpetrator, it did find the history should be considered at disposition.
During the summer 1999 dispositional hearing, the court heard evidence regarding Dennis's past sexual abuse of three female minors, including Sandra, his now-adult daughter. It was presented with expert opinions that, unless Dennis underwent a sexual abuse reoffender assessment and specialized sexual abuse treatment, the children would be at risk in his custody. The juvenile court found it was still not safe to return the children to their parents' care based on a number of factors, including the fact "the great weight of evidence now presented reflects that Dennis is an admitted sex offender who has received no specialized treatment for sex offenses and that without treatment he may be at risk to reoffend." The court further ordered the children should not be returned to Dennis until he either completed an assessment or participated in treatment.
Dennis filed an appeal regarding the temporary removals, the CINA adjudicatory order and the dispositional order. We affirmed the juvenile court in all regards. In re D.C-B., No. 99-1509 (Iowa Ct. App. Dec. 28, 2001).
As of the February 2000 review hearing, Dennis had yet to comply with the order for assessment or treatment. The juvenile court once again found the children remained in need of assistance and that their temporary legal custody should remain with the Department. It "ordered" Dennis to immediately participate in a risk assessment and/or treatment. By the time of the October 2000 review hearing, Dennis had completed a psychological risk assessment, administered by Dr. Dan Courtney, which was presented to the court. The juvenile court again found the children could not be returned to their parents' care for several reasons, including Dennis's propensity to sexually reoffend:
Although Dennis also appealed from this order, we affirmed the juvenile court's decision, finding the Department had provided reasonable services, and that Dennis had failed to show the children would not suffer adjudicatory harm if returned to his care. In re D.C-B., No. 00-0905 (Iowa Ct. App. Jan. 9, 2002).
In "ordering" therapy, the juvenile court required Dennis to participate in an offered service as a condition of regaining the physical care of his children.
[Dennis] resists any therapy, has no plans for treatment claiming a lack of funds and claiming that there has been no court order or recommendation for such treatment. . . . Doctor Courtney reports that Dennis minimizes his past sexual offenses, has not accepted full accountability, has a "highly questionable perspective" on how to prevent reoffending, blames circumstances and victims, avoids the basic issue of genuine remorse, is unable to define behaviors he needs to manage, and, is "definitely at risk in being the primary caregiver and attachment figure." . . . However, he can be treated and was referred to various agencies by Doctor Courtney. . . . His attorney has made inquiries and is now waiting responses.
Dennis was directed to immediately begin specialized sexual offender therapy. Dennis filed a request for reconsideration under Iowa Rule of Civil Procedure 179(b) that, among other issues, reiterated his ongoing objection to the assessment and treatment and requested court-ordered funds to assist with payment of the treatment. The court filed a supplemental order directing the Department, if appropriate, to utilize certain funds to assist Dennis with payment, providing such funds were available. Dennis appeals.
Scope of Review . We conduct a de novo review of CINA proceedings. In re H.G., 601 N.W.2d 84, 85 (Iowa 1999). We give weight to the fact findings of the juvenile court, especially when considering the credibility of the witnesses, but we are not bound by these findings. Iowa R. App. P. 14(f)(7). Our overriding concern in such cases is always the best interests of the children. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001).
Return of Custody . Because the children's custody had been transferred pursuant to Iowa Code section 232.102, Dennis bore the burden of showing the children would not suffer adjudicatory harm, as defined in Iowa Code section 232.2(6) (1999), if they were returned to his care. In re A.Y.H., 483 N.W.2d 820, 822-23 (Iowa 1992). As of the February 2000 review hearing, that burden could not be met. See In re D.C-B., No. 00-0905 (Iowa Ct. App. Jan. 9, 2002) (affirming the juvenile court's ruling, which found the children could not be returned for a number of reasons, including lack of progress in family therapy and Dennis's resistance to or perception that services were not needed and his corresponding attempts to control or amend the services).
The only significant change occurring between the February and October hearings was Dennis's completion of the risk assessment, which found Dennis was at definite risk for reoffending if made the children's primary caregiver. The assessment noted hormonal therapy would not be a sufficient safeguard should Dennis regain custody of the children and recommended a specific form of sexual offender group treatment. Dennis had yet to receive such treatment and, although he had made inquires regarding specialized therapy programs, he continued to resist and disagree with the treatment recommendations.
Upon review of the record in this matter, we find that Dennis did not establish a change in circumstances sufficient to warrant the return of the children to his care. See In re J.F., 386 N.W.2d 149, 152 (Iowa Ct. App. 1986) (requiring parent to show circumstances have so materially and substantially changed that the best interests of the children require a change in custody). While there is no proof Dennis ever abused Paul or Denise, the children's well being dictates the court take whatever steps are necessary to prevent actual harm. In re N.M.W., 461 N.W.2d 478, 480 (Iowa Ct. App. 1990). The doctor's assessment, when viewed in light of the prior expert testimony regarding the risk for reoffending absent successful completion of treatment, as well as the remainder of the record, sufficiently supports the juvenile court's determination to leave the children's custody with the Department.
Reasonable Services . Dennis alleges the Department has failed to make reasonable efforts towards reunification, as required by Iowa Code section 232.102. The alleged failures range from restricted visitation to lack of assistance with the assessment and treatment requirements to not proceeding with placement of the children in the care of his daughter Sandra and her husband Orlando. A number of Dennis's contentions are mere repetitions of those made in his prior appeal, and we have already ruled that as of February 2000, the Department had made reasonable efforts in those regards. In re D.C-B., No. 00-0905 (Iowa Ct. App. Jan. 9, 2002). A review of the record demonstrates nothing occurring between the February and October hearings that would impact or alter those determinations. We therefore address only the claims regarding placement of the children with Dennis's daughter and son-in-law and any obligation of the Department to coordinate the specialized sex offender treatment or provide financial assistance for both the specialized treatment and marriage counseling.
1. Placement of the Children . Two home studies were completed regarding the viability of placing the children with their half-sister and her husband. Although the first home study did not recommend placement with Sandra and Orlando, the second home study, which was completed shortly before the October 2000 review hearing, did recommend such placement. However, the recommendation was conditioned on the couple receiving counseling and continued support, with some counseling occurring even before the children would be placed in their home.
In addition, the family therapist opined the children should continue in their current foster care placement while Sandra and Orlando participated in therapy regarding sexual abuse and its dynamics, with that therapist making the determination as to when the couple would be ready and able to accept the children into their home. This opinion was seconded by the CASA coordinator. Given the foregoing recommendations and the time frame in which they occurred, we cannot say the Department failed to provide reasonable services regarding the children's placement.
2. Coordinating and Funding Therapy . When ordering Dennis to participate in the risk assessment, the juvenile court placed the burden of arranging and paying for the assessment upon Dennis, and not the Department. Once the assessment was completed and therapy recommended, the Department did make some inquiries regarding the availability of various programs. Dennis, however, wanted to discuss the assessment with the evaluator before scheduling treatment and remained resistive to the therapy recommendation. He had not made any efforts to identify and arrange for participation in a treatment program until two to three days prior to the October hearing. Perhaps even more importantly, Dennis never specifically requested assistance in arranging for treatment. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999) (holding failure to demand a service, other than those already provided, waives the issue of whether services were adequate).
Nor has Dennis made a persuasive case regarding lack of funding. The departmental social worker testified the Department had no mechanism in place to fund the optional couple's counseling suggested by the family therapist. She also stated she was unaware if any funding was available to defray the costs of the specialized sex offender therapy and that any availability would be tied to the type of treatment being received. Given that the Department was unaware what type of program Dennis would be joining, it cannot be held accountable for failing to prearrange funding. Once again, it is significant that Dennis never requested financial assistance. S.R., 600 N.W.2d at 65. Given all the foregoing, particularly Dennis's resistive stance and lack of cooperation, we cannot find the Department's failure to arrange and fund Dennis's therapy constituted a lack of reasonable services.
Waiver of Error . Dennis presents two additional arguments. He contends the risk assessment was inadmissible as being both irrelevant and without foundation in light of the fact Dr. Courtney did not testify and was therefore not available for cross examination. He also contends he was deprived of due process when the court limited the presentation of his case to thirty minutes. However, Dennis fails to cite any authority in support of his arguments, and his contentions do not fall within the limited number of propositions for which authority need not be cited. Iowa R. App. P. 14(f). This failure is sufficient to waive these arguments on appeal. See Iowa R. App. P. 14(a)(3). In addition, Dennis did not object to the court's limitation of his time, and we do not consider for the first time on appeal an issue, even if constitutional in nature, that was not first passed on by the trial court. In re C.D., 508 N.W.2d 97, 100 (Iowa Ct. App. 1993). Accordingly, we find these arguments have been waived and do not consider them in our review.
AFFIRMED.