Opinion
No. 5-975 / 05-1733
Filed January 19, 2006
Appeal from the Iowa District Court for Jefferson County, William S. Owens, Associate Juvenile Judge.
Parents appeal a juvenile court order adjudicating their children to be children in need of assistance. AFFIRMED.
Leslie D. Lamping of Day, Meeker, Lamping, Schlegel Salazar, Washington, for appellant father R.K.
Stephan H. Small, Fairfield, for appellant mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Timothy W. Dille, County Attorney, and Patrick J. McAvan, Assistant County Attorney for appellee State.
Mary B. Krafka of Krafka Law Office, Ottumwa, for father L.S.
Mike Fisher of Fisher Law Office, Oskaloosa, guardian ad litem for minor children.
Considered en banc.
I. Background Facts Proceedings
Paula and Larry are the parents of Misty, born in 1988, and Matthew, born in 1990. Paula is now married to Randell, and they are the parents of Destiny, born in 1993. In July 2004, Misty reported that she had been sexually abused by Randell. Randell admitted to the sexual abuse. Misty was removed from the home and placed in shelter care, then in foster care.
The State alleged the children were in need of assistance (CINA) under Iowa Code section 232.2(6)(c)(2) (2003) (child is likely to suffer harm due to parent's failure to supervise) and (d) (child has been sexually abused). In February 2005, during the first day of the adjudicatory hearing, the court granted the State's motion to amend the petition to include section 232.2(6)(b) (parent is imminently likely to abuse or neglect child). During the second day of the hearing, in March 2005, the State moved to amend the petition to include section 232.2(6)(k) (parent desires, for good cause, to have the child removed from the home). None of the parties had any objection to this amendment.
At the adjudication hearing, Paula testified that she told Randell to do what he had to so that the other children would not be removed from the home. She stated Randell admitted to the sexual abuse so that he would have to leave the home, but Matthew and Destiny could stay with her. Matthew testified that he did not believe Misty had been sexually abused by Randell. Paula has stated that she no longer wants a relationship with Misty. Paula encouraged the children to lie and pitted the children against each other. Paula and Randell had limited involvement with services.
At the close of the hearing, the juvenile court agreed to hold the record open to allow Randell to file certain depositions. Then in May 2005, Randell moved to include a psychiatric report for Misty, and this too was included in the evidence.
In July 2005, the juvenile court entered an order finding Misty was a child in need of assistance under sections 232.2(6)(c)(2), (d), and (k). The other children were adjudicated under section 232.2(6)(c)(2) only. The court specifically found Paula and Matthew were not credible witnesses. The court did not believe Paula's explanation as to why Randell admitted to the sexual abuse. The court removed a finding that Matthew stuttered, but otherwise denied the parents' post-trial motion. The court also denied Randell's request to submit additional evidence.
In August 2005, Randell was acquitted of the criminal charges against him stemming from Misty's allegations. A dispositional order was entered in October 2005. Misty remained out of the home and the court ordered the parties to participate in services. The parents now appeal the CINA adjudication and dispositional orders.
II. Standard of Review
Our scope of review in juvenile court proceedings is de novo. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). Although we give weight to the juvenile court's factual findings, we are not bound by them. Id. Our primary concern is the best interests of the children. In re E.H., 578 N.W.2d 243, 248 (Iowa 1998).
III. Judicial Misconduct
The parents claim the juvenile court engaged in misconduct due to certain terms used by the juvenile court in the adjudicatory ruling. The parents have not shown that the juvenile court was improperly biased against them, or that they did not receive a fair hearing. Furthermore, our review is de novo, and we are not bound by any specific terms used in the juvenile court order.
IV. Amendments
The parents contend the juvenile court improperly permitted the State to amend the CINA petition. We note that the court did not adjudicate the children under section 232.2(6)(b), and so the parents were not prejudiced by the amendment to include this ground. Also, none of the parties objected to the inclusion of section 232.2(6)(k), and so the parents have not preserved error on this claim. See In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994) (noting an issue not presented in the juvenile court may not be raised for the first time on appeal).
V. Reopening Record
The parents assert the juvenile court abused its discretion by failing to reopen the record to consider the evidence Randell sought to admit at the time he filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). This evidence included Misty's journal entries and a deposition of one of the psychiatrists who examined Misty. In ruling on this motion, the court stated:
This case was initiated by a the filing of a Petition alleging the Children to be Children in Need of Assistance in July 2004. A hearing for the parties to admit or deny those allegations was held in August 2004 and the first trial date set in October 2004. For various reasons which are a part of the record the trial was reset a number of times, and not concluded until March 2005. To now request that the Court consider further evidence which was not produced until more than two months after the case was submitted would not be appropriate, and would not be in the best interests of these children.
We find no abuse of discretion under the facts of this case. We find the denial of the motion to reopen the evidence was not unreasonable, given the length of time the case had been pending. See In re C.W., 554 N.W.2d 279, 281 (Iowa Ct.App. 1996) (noting that the denial of a motion to continue will be reversed only if it is unreasonable under the circumstances).
VI. Sufficiency of the Evidence
Finally, the parents claim there is insufficient evidence in the record to support a finding that the children were in need of assistance under chapter 232. We find clear and convincing evidence in the record to support a finding that all of the children were in need of assistance. Misty was consistent in her statements that she had been sexually abused by Randell, and Randell admitted to the same incidents. In addition, there was evidence Paula had encouraged the children to lie and had pitted them against each other. The parents were reluctant to participate in services.
We affirm the decision of the juvenile court.