No. 3-090 / 02-1202.Court of Appeals of Iowa.
Filed February 28, 2003.
Appeal from the Iowa District Court for Clinton County, Arlen J. Van Zee, District Associate Judge.
Mother appeals from a dispositional order denying her request for services and finding that reasonable efforts could be waived.AFFIRMED.
Mary Lynn Wolfe, Clinton, for appellant mother.
Robert J. McGee, Clinton, for appellant grandparents.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Michael Wolfe, County Attorney, and Jayme Kirsch, Assistant County Attorney for appellee-State.
Thomas D. Lonergan of Mayer, Mayer, Lonergan Rolfes, Clinton, guardian ad litem for minor children.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
SACKETT, C.J.
Appellant Kristian, the mother of twin boys Brady and Bradley, appeals from a dispositional order denying her request for services and finding that reasonable efforts could be waived. Kristian’s father and mother, appellant grandparents David and Kathy, who were allowed to intervene in the proceedings, appeal from the same order which denied their request to have the children placed with them.[1] We affirm.
We review de novo. In re D.B., 598 N.W.2d 312, 315 (Iowa Ct.App. 1999).
The twins were born on December 28, 2001. Kristian was nineteen and had not completed high school at the time of their birth. The children initially lived with Kristian in the home of appellant grandparents. Kristian moved with the children to the home of her cousin in February of 2002. Later that month Brady, who was then about seven weeks old, was hospitalized after Kristian allegedly shook him resulting in his experiencing swelling in his brain, retinal hemorrhages, and seizures. The injuries were determined to have caused permanent brain damage. Kristian did not immediately seek medical care for the child after the injuries occurred. When she did, a temporary order issued removing the twins from Kristian’s care. They were initially placed with appellant grandparents. Kristian was ordered to have no contact with the children. Kristian also was charged with child endangerment, a class D felony, in Clinton County. At the time of the CINA dispositional hearing in July 2002, the charge was still pending, but Kristian had not been convicted.
The children were removed from appellant grandparents’ care when it was discovered there was a founded report in 1996, based on David allegedly sexually abusing the eldest of his three daughters. Criminal charges were never filed against David. However he did not appeal the finding, saying that at the time he did not know that it would make any difference. The daughter who claimed to be abused continues to contend it happened. Appellants contend it did not happen but the oldest daughter continues to affirm it because she feels if appellant grandparents have the twins, they will be less interested in her children. The report of the incident in the file indicates that David did admit some inappropriate touching on top of the clothing of his oldest daughter. After the report the oldest daughter was placed in foster care but the younger two daughters remained with their parents. Both younger daughters were questioned, and they both denied that their father had acted inappropriately with them or that they had observed any inappropriate conduct between their father and their sister.
We first address Kristian’s contention the State failed to show aggravated circumstances existed allowing the waiver of reasonable efforts under Iowa Code section 232.102(12) (2001).
The State is required to make reasonable efforts to seek to have children returned home. See Iowa Code § 232.102(7). The norm is to provide services designed to reunify the family. The goal of a child-in-need-of-assistance proceeding is to improve parenting skills and maintain the parent-child relationship. In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct.App. 1997). However, reasonable efforts can be waived in limited specified circumstances set forth in Iowa code section 232.102(12). This section provides as follows:
If the court determines by clear and convincing evidence that aggravated circumstances exist, with written findings of fact based upon evidence in the record, the court may waive the requirement for making reasonable efforts. The existence of aggravated circumstances is indicated by any of the following:
a. The parent has abandoned the child.
b. The court finds the circumstances described in section 232.116, subsection 1, paragraph “i”, are applicable to the child.[2]
c. The parent’s parental rights have been terminated under section 232.116 with respect to another child who is a member of the same family, and there is clear and convincing evidence to show that the offer or receipt of services would not be likely within a reasonable period of time to correct the conditions which led to the child’s removal.
d. The parent has been convicted of the murder of another child of the parent.
e. The parent has been convicted of the voluntary manslaughter of another child of the parent.
f. The parent has been convicted of aiding or abetting, attempting, conspiring in, or soliciting the commission of the murder or voluntary manslaughter of another child of the parent.
g. The parent has been convicted of a felony assault which resulted in serious bodily injury of the child or of another child of the parent.
Kristian concedes that the State has showed that the circumstances provided for in section 232.102(12)(b) statute exist as to Brady but contends they do not apply to Bradley. She contends, however, that there is not clear and convincing evidence that the offer of receipt of services would not correct the conditions which led to the abuse and neglect within a reasonable period of time. She contends the State has failed to show her conduct provides a sufficient risk to Bradley, and the court incorrectly found that a risk to one child was a risk to the other. Therefore, she contends that reasonable efforts should not have been waived as to Bradley.
The State argues there is evidence that Kristian shook both children and that by injuring Brady she injured Bradley emotionally. The State also contends that because the children are of the same age, Kristian presents the same risk to Bradley as she does to Brady and that Kristian has unresolved mental problems.
The evidence shows that Brady had injuries consistent with being shaken. Kristian admitted she shook the child both when holding him and when he was in a jumper seat because he was constantly screaming. Kristian has been charged with a class D felony as a result of the child’s injury. At the time of the dispositional hearing, the felony charge was pending but there had been no disposition.
The children were about seven weeks old at the time of Brady’s injury. Prior to that time the children had not presented any significant medical problems. Bradley went to appellant grandparents but that placement was short lived. Kristian’s application for supervised visitation was resisted by the State and denied by the juvenile court. The State alleges Kristian does not fully understand the seriousness of Brady’s injuries.
Brady is a child found to be physically abused due to the action of his mother. Bradley was subject to the same treatment from his mother. The abuse put Brady in danger as he suffered serious injuries which are projected to leave him disabled. The abuse put Bradley in serious danger, as it was the same type of abuse that disabled his twin. The only question then, is whether there is clear and convincing evidence that services would not correct the problem within a reasonable time. Kristian is an immature, nineteen-year-old woman. She loses her temper easily. By the time of the dispositional hearing, she had not fully understood the nature and extent of Brady’s injuries and the specialized care he would require. Giving the required deference to the credibility findings of the juvenile court, we find the necessary elements were proved by clear and convincing evidence to justify the waiver of reasonable efforts as to Brady under section 232.102(12)(b).
Kristian contends the same finding should not be made as to Bradley. We agree with arguments advanced by the State that the fact the children are the same age would make it appear that it should apply to both children.[3] The children are both vulnerable infants and were subject to the same treatment and same danger as a result of the treatment. There is clear and convincing evidence to support a finding that the statutory provisions for waiver of reasonable efforts are met as to both Brady and Bradley, and we affirm on this issue.
We next address appellant grandparents’ claim that the custody of the children should be with them. The only evidence is that the children were well taken care of while in their care. The removal was because of the earlier founded sexual abuse charge.
The State did not do a home study of appellant grandparents’ home. The State tells us a founded child abuse report is an automatic disqualification for a home study. The State does not cite statute or departmental rules to support this conclusion but cites the testimony of a social worker who has worked for the department for four years who said, “Due to the founded abuse report on David in light to the fact that it’s sexual in nature, that automatically is a disqualification for a home study.” Without a home study both the juvenile court’s and our review of this placement issue is limited.
The juvenile court, in rejecting the grandparent’s petition, found that the sexual abuse allegation was a red flag and the court would generally end the inquiry. The court found without specifying what it was, that there was sufficient information in the report to raise considerable concern. The court also found it would be difficult to place the children with their grandparents and expect them to forbid the children from having contact with Kristian. The court found the parents were supportive of Kristian and had difficulty believing she had done such a bad thing. The court further found placing the children with the grandparents would cause tension with the Department of Human Services.
Julian Burn, Ph.D. and licensed clinical psychologist who practices in areas of issues with family dysfunction and mental well-being in the family setting met with appellant grandparents on three occasions and administered the Minnesota Multiphasic Personality Inventory. He gave the opinion that “David was what I sometimes roughly call completely normal.” He said all of David’s clinical scales were within the range and the validity scales were there also. He further indicated David was cooperative. He further indicated that the fact that at the time the charge of sexual abuse was made there were children in his home suggested to him that the “foundedness of the allegation was weak and was not followed through on in an aggressive manner.” Burn found the validity scales of Kathy “somewhat normal” and said he generally interpreted this as stress and anxiety sometimes resulting in some somatic symptoms and that she may have some health problems of various sorts. He was to further testify:
“Well, they simply love the children and they are a stable couple married a long time, they are financially capable, and they want very much to care for the children.”
Burn also was to indicate that he saw nothing in the grandparents’ makeup that would make them inappropriate caretakers for the two grandchildren. While he admitted it was possible David sexually abused Patti, from his contact with the family his judgment was that “it would not occur.”
The current record is insufficient to support placement with the grandparents at this time and we affirm on this issue.
AFFIRMED.
i. The court finds that all of the following have occurred:
(1) The child meets the definition of child in need of assistance based on a finding of physical or sexual abuse or neglect as a result of the acts or omissions of one or both parents.
(2) There is clear and convincing evidence that the abuse or neglect posed a significant risk to the life of the child or constituted imminent danger to the child.
(3) There is clear and convincing evidence that the offer or receipt of services would not correct the conditions which led to the abuse or neglect of the child within a reasonable period of time.