Opinion
No. 5-197 / 05-0159
Filed April 13, 2005
Appeal from the Iowa District Court for Scott County, John G. Mullen, District Associate Judge.
A mother and father appeal from juvenile court orders entered in a child in need of assistance proceeding. AFFIRMED.
Charles Elles, Bettendorf, for appellant-father.
Stephen Newport of Newport Newport, P.L.C., Davenport, for appellant-mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, William E. Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee-State.
Brenda Drew-Peeples, Davenport, guardian ad litem for minor child.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Stacie M. and Kevin W. are the parents of Cory, born September 17, 2004. Cory was removed from his parents' custody just after his birth due to concerns raised by the Department of Human Services (DHS) regarding his parents. At the time of Cory's removal, Stacie's three older children had been previously removed from her care and were the subject of a pending termination proceeding. In addition, Kevin was listed on the sex offender registry because of a conviction for sexually abusing his three-year-old daughter in 1991.
On September 20, 2004, the State filed a petition claiming Cory was a child in need of assistance (CINA). Following a contested hearing, the juvenile court entered an order on November 30, 2004, adjudicating Cory to be in need of assistance pursuant to Iowa Code sections 232.2(6)(b) (imminent likelihood of abuse or neglect by parents) (2003), 232.2(6)(c)(2) (imminent likelihood of harm from parents' failure to exercise reasonable degree of supervision), 232.2(6)(d) (imminent likelihood of sexual abuse by parents), and 232.2(6)(g) (failure by parents to exercise reasonable degree of care). A dispositional order filed January 18, 2005, continued Cory's custody with DHS with placement in foster care.
The parties agreed that the evidence from the removal hearing, plus additional exhibits would determine the adjudicatiory issue.
Among other things, the dispositional order states: "The parents are demonstrating appropriate caregiving skills for the child. Visits are currently ten hours a week spread over three days. It is planned that visits will increase with efforts toward reunification."
Stacie filed a petition on appeal on February 2, 2005, challenging several orders entered in the CINA proceedings. On March 11, 2005, our supreme court entered an order granting Kevin's request to treat Stacie's petition as a joint petition filed on behalf of both parents.
We review CINA proceedings de novo. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). We give weight to the trial court's findings of fact, but are not bound by them. Id. It is the State's burden to prove the allegations by clear and convincing evidence. In re B.B., 598 N.W.2d 312, 315 (Iowa Ct.App. 1999).
On appeal, Stacie and Kevin contend the juvenile court's temporary removal order, CINA adjudication, and disposition order should be reversed. The parents argue that Kevin's conviction for sexually abusing his three-year-old daughter more that thirteen years ago does not support a finding of imminent danger to the parties' newborn child sufficient to justify removal of the child from his parents. They also contend that the termination of Stacie's parental rights to her three older children is insufficient to support removal of the child and the subsequent CINA adjudication.
We first address the parents' challenge to the issuance of an ex parte temporary removal order. We find it unnecessary to decide the validity of the temporary order entered by the court because we believe this issue is moot. See In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994) ("Any error committed in granting [a] temporary ex parte order cannot . . . be remedied [on appeal following a CINA dispositional order]"). This is because we cannot go back in time and restore custody based on alleged errors in the initial removal order. Id. Accordingly, we now turn our attention to the parents' contention that the juvenile court erred in adjudicating Cody as a child in need of assistance.
The parents contend DHS did not have a factual basis for requesting a removal order.
The State has the duty to make sure that every child within its borders receives appropriate care and treatment. In re D.T., 435 N.W.2d 323, 329 (Iowa 1989). Our juvenile statutes are designed to effectuate that duty. In re M.M., 483 N.W.2d 812, 814 (Iowa Ct.App. 1992). Thus, they are preventative as well as remedial. In re L.L., 459 N.W.2d 489, 494 (Iowa 1990). The goal of our statutory scheme is to prevent probable harm to the child; our statutes do not require delay until after the harm has happened. Id.
In its order adjudicating Cody CINA, the juvenile court made the following observation:
The parents [in contesting adjudication] are . . . almost wholly fixated on the allegations of the father's past sexual abuse and the implications that status has upon safety risks to the child. While that is a significant concern, in the Court's view that is only a small part of the issue relating to the competence, commitment or ability of the parents to safely parent this child. While addressing the risks of sexual abuse to the child is part of the case plan, the parents seem wholly unwilling to address any of the other issues [requiring the child's CINA adjudication].
We agree with this assessment. Stacie has a lengthy and well-documented history of providing inadequate parental care for her older three children. Her behavior as a parent detrimentally affected the emotional and physical well-being of those children. Stacie and her former husband, Wayne, began receiving services from the DHS in 2001. Efforts to reunify the family were not successful in modifying the parental behavior that led to the juvenile court's intervention on behalf of the children. As a result, the State petitioned to terminate their parental rights.
The record indicates that Stacie and Wayne refused to fully cooperate with service providers.
The record reveals that Stacie and Wayne's parental rights to their three children were terminated by a juvenile court order entered September 29, 2004, following a hearing held September 15. The juvenile court's termination order states that Stacie and Wayne appeared in court on September 15, and "acknowledged their shortcomings and stated affirmatively that they cannot meet the needs of the children without subjecting them to adjudicatory harm which forms the basis for their original adjudication and subsequent removal." This information regarding Stacie's past performance was obviously pertinent to the juvenile court's consideration of whether or not intervention was appropriate on behalf of Stacie and Kevin's newborn child. Moreover, although Kevin's offending sexual behavior occurred many years ago, the fact remains that Kevin sexually abused his own three-year-old daughter before beginning a relationship with Stacie, and he is listed on the sex offense registry. This information raises legitimate child safety issues. Upon our de novo review of the record, we conclude the juvenile court properly adjudicated Cory as a child in need of assistance. We also find no reason to set aside the juvenile court's dispositional order.
The juvenile court's order indicates that Stacie and Wayne appeared before the court at an "uncontested" termination hearing on September 15, 2004. Cory was born two days later.