Opinion
No. 1-898 / 00-2055.
Filed March 27, 2002.
Appeal from the Iowa District Court for Polk County, CYNTHIA MOISAN, District Associate Judge.
Joseph and Joey appeal from the juvenile court's delinquency dispositional order placing them in the custody of juvenile court services for placement commensurate with their needs. AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTION.
Bryan J. Tingle, Des Moines, for appellants.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney and Celene Coffman, Assistant County Attorney, for appellee-State.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Joseph and Joey appeal from the juvenile court's delinquency dispositional order placing them in the custody of juvenile court services for placement commensurate with their needs. They claim the juvenile court erred (1) in placing them in a residential facility instead of the less restrictive care of their aunt, and (2) in determining reasonable efforts had been made to prevent or eliminate the need for out of home placement. As part of their first claim they also argue that the juvenile court erred by failing to specify the duration and nature of the disposition, including the type of residence or confinement ordered. We affirm in part, reverse in part, and remand with direction.
I. BACKGROUND FACTS AND PROCEEDINGS
Joseph and Joey, twin boys born on January 21, 1986, were both in the custody of their legal guardian, their great Aunt Ethel (Ethel), when they became involved with juvenile court services. On September 5, 2000 a petition was filed by the State alleging the boys had committed first-degree theft, in violation of Iowa Code sections 714.1(1) and 714.2(1) (1999), interference with official acts, in violation of Iowa Code section 719.1(1), and second-degree theft in violation of Iowa Code sections 714.1(1) and 714.2(2). They waived their right to a detention hearing and the juvenile court filed a detention order placing the boys in Meyer Hall.
On September 25, 2000 Joseph and Joey entered pleas of guilty to operating a vehicle without the owner's consent and theft in the first degree. On November 1, 2000 the boys were adjudicated to have committed the delinquent acts to which they had pled guilty and their temporary legal custody was placed with juvenile court services (JCS). At that time the court set the matter for a further hearing in order for the juvenile court officer (JCO) to determine if Boys Town would be able to accept the boys.
The further dispositional hearing was held on November 13, 2000. The juvenile court confirmed the boys to have committed delinquent acts and ordered them placed in JCS custody for placement commensurate with their needs. The juvenile court found out of home placement was necessary because continued placement in the home would be contrary to the children's welfare due to their need for structure and due to continuing substance abuse issues. The juvenile court further found that reasonable efforts had been made to prevent or eliminate the need for removal from their home, including previous "evaluations, counseling, [and] shelter."
On November 20, 2000 the juvenile court held a hearing on the boys motion for modification of the dispositional order. It continued the original placement of the children with JCS but allowed them visitation passes with Ethel for Thanksgiving and one night a week. Joseph and Joey appeal from the juvenile court's dispositional orders alleging the court erred in placing them in a residential facility as opposed to the less restrictive care of Ethel and in determining reasonable efforts had been made to prevent or eliminate the need for out of home placement.
II. SCOPE OF REVIEW
Our scope of review in appeals from delinquency proceedings is de novo. In re G.J.A., 547 N.W.2d 3, 5 (Iowa 1996). We review both questions of law and fact anew. In re D.L.C., 464 N.W.2d 881, 883 (Iowa 1991). We give weight to the fact findings of the juvenile court, especially in considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g); In re N.W.E., 564 N.W.2d 451, 453 (Iowa Ct.App. 1997).
III. MERITS
Iowa Code section 232.52(6) states in relevant part:
When the court orders the transfer of legal custody of a child pursuant to subsection 2, paragraph "d", "e" or "f", the order shall state that reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child's home.
Iowa Code § 232.52(6). Nowhere did the juvenile court indicate what code provision it was applying in making its dispositional order. Joseph and Joey argue the juvenile court's dispositional order was made pursuant to section 232.52(2)(e). They argue that disposition pursuant to section 232.52(2)(e) was erroneous because the criteria for such a disposition were not met. As the boys were not found to have committed an act which was a forcible felony or a felony violation of section 124.401 or chapter 707, the boys were fourteen years of age, and the boys had neither previously been found to have committed a delinquent act nor had a prior delinquency adjudication, we agree section 232.52(2)(e) was not applicable.
Section 232.52(2)(e) provides:
e. An order transferring the guardianship of the child, subject to the continuing jurisdiction and custody of the court for the purposes of section 232.54, to the director of the department of human services for purposes of placement in the state training school or other facility, provided that the child is at least twelve years of age and the court finds the placement to be in the best interests of the child or necessary for the protection of the public, and that the child has been found to have committed an act which is a forcible felony, as defined in section 702.11, or a felony violation of section 124.401 or chapter 707, or the court finds any three of the following conditions exist:
(1) The child is at least fifteen years of age and the court finds the placement to be in the best interests of the child or necessary to the protection of the public.
(2) The child has committed an act which is a crime against a person and which would be an aggravated misdemeanor or a felony if the act were committed by an adult.
(3) The child has previously been found to have committed a delinquent act.
(4) The child has previously been placed in a treatment facility outside the child's home or in a supervised community treatment program established pursuant to section 232.191, subsection 4, as a result of a prior delinquency adjudication.
We also note that section 232.52(2)(e) involves an order transferring guardianship of a child to the director of the department of human services, which the juvenile court clearly did not do.
The State contends the juvenile court's dispositional order was made pursuant to section 232.52(2)(d)(2). However, an order under that provision is an order "transferring the legal custody of the child . . . to . . . a child placing agency or other suitable private agency or facility." JCS does not appear to be a "child placing agency" or "other suitable private agency or facility."
Because neither section 232.52(2)(e) nor section 232.52(2)(d)(2) applies to the facts of this case we do not and will not assume or find that the juvenile court's dispositional order was made pursuant to either of those provisions. It appears most likely the juvenile court may have intended its dispositional order to be pursuant to section 232.52(2)(d)(4), which involves placing the children in the legal custody of the chief juvenile court officer or the officer's designee. However, even this is of some doubt because such a transfer of custody is for "placement in a program under section 232.191, subsection 4," that provision involves "community treatment," and at both dispositional hearings the juvenile court appears to have ruled out a disposition that involved community based services and treatment.
Section 232.52(2)(d)(4) provides:
4. The chief juvenile court officer or the officer's designee for placement in a program under section 232.191, subsection 4. The chief juvenile court officer or the officer's designee may place a child in group foster care for failure to comply with the terms and conditions of the supervised community treatment program for up to seventy-two hours without notice to the court or for more than seventy-two hours if the court is notified of the placement within seventy-two hours of placement, subject to a hearing before the court on the placement within ten days.
We cannot determine on the record before us what statutory provision the juvenile court was applying in making its dispositional orders. However, it is clear the juvenile court must have been relying on one of the subparagraphs under section 232.52, subsection 2, paragraph "d." Accordingly, we need not determine here which provision the juvenile court applied, because whatever provision it applied required it to follow the mandate of section 232.52(6) that whenever the court "orders the transfer of legal custody of a child pursuant to subsection 2, paragraph `d', `e', or `f', the order shall state that reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child's home." Iowa Code § 232.52(6). Joseph and Joey argue the juvenile court erred in determining that such reasonable efforts had been made. We disagree.
The evidence in the record supports the juvenile court's conclusion that reasonable efforts were made to prevent the need for removal of the boys from Ethel's home. The reports completed by the JCO on Joseph and Joey indicated a history of prior services which had been offered to the boys. Both boys had been placed out of home in shelter care by Ethel on several previous occasions. They presumably received counseling while there. Included in the other services provided to the boys were a YESS shelter on at least two prior occasions, sometime between December 20, 1999 and January 12, 2000, and placement in shelters in Indianola and Knoxville. Joey apparently had also been placed in the Black Hawk County Youth Shelter in May and June 1999. The record also demonstrates that while they were living in Knoxville the boys participated in family centered services provided through the Marion County Department of Human Services and have had the benefit of tutoring and other activities provided by the Boys and Girls Club. Ethel had also sought counseling and support for the boys through her church.
Despite all of the community based services and support attempted by Ethel to help the boys, they have not responded by changing their behavior in a positive way. This was part of the reason stated by the JCO for not recommending any sort of community-based placement for the boys. Furthermore, following their detention the State provided both boys with complete psychological evaluations by Child Psychiatry Associates as well as biopsychological screening and substance abuse evaluations through Employee and Family Resources.
Based on our de novo review of the record we find there is ample evidence to support the juvenile court's determination that reasonable efforts had been made, through the services detailed above, to prevent or eliminate the need for removal of the boys from Ethel's home. We affirm on this issue. We also agree with and affirm the juvenile court's apparent decision that out of home placement is necessary. However, for the reason that follows we must reverse a portion of the juvenile court's dispositional order and remand for further proceedings.
Joseph and Joey also argue that the juvenile court's order does not comply with various provisions of Iowa Code section 232.52(1). Section 232.52(1) provides in relevant part:
Pursuant to a hearing as provided in section 232.52, the court shall enter the least restrictive dispositional order appropriate in view of the seriousness of the delinquent act, the child's culpability as indicated by the circumstances of the particular case, the age of the child, the child's prior record, or the fact that the child has received a youthful offender deferred sentence under section 907.3A. The order shall specify the duration and the nature of the disposition, including the type of residence or confinement orderedand the individual, agency, department or facility in whom custody is vested.
Iowa Code § 232.52(1) (emphasis added). The boys allege the court failed to comply with the requirements of this section by failing to specify the type of residence or confinement ordered and the duration of the confinement, and in failing to place them in the least restrictive placement appropriate.
The juvenile court did not specify in its order, nor does the record indicate, what the juvenile court intended regarding the duration and nature of the disposition or the type of residence or confinement. Section 232.52(1) requires the juvenile court's dispositional order to specify such matters. The court's order simply stated that the boys were "placed in JCS custody for placement commensurate with needs." We do not believe chapter 232 allows the juvenile court to grant such discretion to the JCS and thereby abdicate its responsibility, as mandated by the Code, to specify the duration and nature of the disposition, including the type of residence or confinement. See, e.g., In re V.B., 491 N.W.2d 168, 170 (Iowa Ct.App. 1992) (holding, where juvenile court ordered child removed from home following adjudication that child was in need of assistance, juvenile court could not grant Iowa Department of Human Services discretion to determine appropriate services, but instead must itself specify the necessary services through adoption of a permanency plan as required by section 232.102(7)). The manner by which the duration and nature of disposition are specified must follow statutory provisions, here section 232.52(1). See id.(holding the manner by which services are specified must follow applicable statutory provisions).
We conclude the juvenile court erred in failing to specify the duration and the nature of the disposition, including the type of residence or confinement ordered, as required by Iowa Code section 232.52(1). See In re M.D.S., 488 N.W.2d 715, 720 (Iowa Ct.App. 1992). We therefore reverse the juvenile court's dispositional order on this issue. However, we recognize the long journey of appellate review may result in the issue being moot before it is decided on our review. Recognizing this possibility, we reverse and remand on this issue for further dispositional hearing to allow the juvenile court to specify the matters required by section 232.52(1), in the event the issue is not moot. We do not retain jurisdiction.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTION.