B.B., In Interest of

• Decision Date: 25 May 1994
• Docket Number: No. 93-1253,93-1253
• Citation: 516 N.W.2d 874
• Parties: In the Interest of B.B., A Minor Child, B.B., Appellant.
• Court: Iowa Supreme Court

Page 874

516 N.W.2d 874

In the Interest of B.B., A Minor Child B.B., Appellant.

No. 93-1253.

Supreme Court of Iowa.

May 25, 1994.

Mark D. Reed of Bertroche Law Offices, Des Moines, for appellant.

Bonnie J. Campbell, Atty. Gen., John M. Parmeter, Sp. Asst. Atty. Gen., Kathrine S. Miller-Todd, Asst. Atty. Gen., for appellee State of Iowa.

Considered by HARRIS, P.J., and LAVORATO, NEUMAN, ANDREASEN, and TERNUS, JJ.

TERNUS, Justice.

In this case we review the dispositional orders of the juvenile court placing a minor adjudged delinquent in the Iowa State Training School for Boys. The minor, B.B., appeals the orders arguing: (1) the initial dispositional order was not supported by sufficient evidence and was therefore an abuse of discretion; (2) the initial dispositional order went beyond the issues presented by the parties and constituted unfair surprise; and (3) the funding caps placed on group foster care pursuant to Iowa Code section 232.143 (1993) violate his constitutional rights of due process and equal protection. We affirm.

I. Background Facts and Proceedings.

B.B. first came before the juvenile court in 1990 for committing fifth-degree theft. Later that year he committed two simple assaults. Disposition on the theft and the first of the simple assault offenses included informal adjustment agreements requiring B.B. to do community service work. After the second simple assault B.B. was adjudged delinquent. The court ordered him to remain in the custody of his mother under formal probation to the Department of Juvenile Court Services (JCS).

In the first six months of 1992, B.B. was referred to the juvenile court three times, once for the offense of third-degree theft and twice for the offense of simple assault. B.B. was adjudicated on the theft charge. The juvenile court ordered B.B. to remain in his mother's home under the supervision of JCS and comply with a probation contract. The contract required that B.B. participate in family therapy until he was successfully discharged.

In October 1992, the Waterloo police department referred B.B. to JCS for the offense of possession of a counterfeit controlled substance with the intent to deliver in violation of Iowa Code section 204.401(1)(c)(6) (1991). The juvenile court adjudged B.B. delinquent and placed him under the supervision of JCS. The probation contract was continued.

At the dispositional hearing in February 1993, evidence was introduced that B.B. had violated the terms of his probation contract several times and the family had never followed through with the requirement for family counseling. JCS recommended that B.B. be placed in group foster care. The parties stipulated, however, that such a placement would violate the regional plan for group foster care. See 1992 Iowa Acts ch. 1229 § 10 (codified at Iowa Code § 232.143 (1993)).

The juvenile court concluded that the least restrictive placement available under the circumstances was at the Iowa State Training School for Boys in Eldora, Iowa. Accordingly, the court transferred guardianship of B.B. to the Director of the Department of Human Services (Department) for placement at the State Training School.

B.B. appealed to the district court from this order. First, he argued that the cap placed on group foster care by section 232.143 denied him due process and equal protection. Secondly, he claimed the juvenile court abused its discretion in ordering B.B. to be placed in the State Training School. The district court rejected these arguments. B.B. appealed to this court.

At the review hearing in August 1993, the juvenile court decided to continue guardianship of B.B. with the Department but return the care, custody, and control of B.B. to his mother. The court approved a behavioral contract executed by the parties. It also ordered that if B.B. violated the contract, the court should be informed and mittimus would be issued without hearing.

B.B. later violated several conditions of the behavioral contract. After a hearing the juvenile court recommitted B.B. to the State Training School. The court stated B.B. should be placed in highly structured group foster care when an opening became available.

B.B. appealed the order recommitting him to the State Training School. Upon B.B.'s motion we consolidated his two appeals.

II. Scope of Review.

Our scope of review of juvenile court proceedings is de novo. In re D.L.C., 464 N.W.2d 881, 882 (Iowa 1991). We review both questions of law and fact. Iowa Code § 232.133(1) (1993).

III. Initial Dispositional Order.

We do not reach the merits of the issues arising from the initial order placing B.B. at the State Training School because the subsequent order recommitting B.B. to that institution renders moot the propriety of his prior placement there. "An issue is moot if it no longer presents a justiciable controversy because it has become academic or nonexistent." In re Meek, 236 N.W.2d 284, 288 (Iowa 1975). An opinion by this court that the initial order was inappropriate or unconstitutional would not secure B.B.'s release from the State Training School because he is held there under the authority of the second order. Under these circumstances, our decision with respect to the first dispositional order would be of no effect in the underlying controversy. See id.

We conclude the first two issues raised by B.B. are moot and not reviewable on the merits in this appeal. We proceed to decide whether the cap placed on the number of group foster care placements unconstitutionally limited the juvenile court's power to place B.B. in group foster care at the time the court recommitted B.B. to the State Training School.

IV. Due Process.

B.B. contends that Iowa Code section 232.143, which establishes a cap on the number of children in group foster care, violates his substantive due process rights. He asserts that the State's interest in the public fisc should not outweigh his interest in being placed in the least restrictive setting, here, group foster care.

Section 232.143 provides in part:

A statewide target for the average number of children in group foster care placements on any day of a fiscal year, which placements are a charge upon or are paid for by the state, shall be established annually by the general assembly. The department [of human services] and the judicial department shall jointly develop a formula for allocating a portion of the statewide target established by the general assembly to each of the department's regions.... The number determined in accordance with the formula shall be the group foster care placement target for that region.

Iowa Code § 232.143(1) (1993). The statute requires each region to develop a plan to meet its placement target. Id. § 232.143(2). This plan must include strategies for alternate placements "in order to contain expenditures for services provided to children within the amount appropriated by the general assembly for that purpose." Id. Finally, the statute provides that the state will not pay for group foster care which is not in accordance with the regional plan. Id. § 232.143(3).

Under the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution, the state is forbidden from infringing on certain fundamental liberty interests, regardless of the process provided, unless the infringement is narrowly tailored to serve a compelling state interest. Reno v. Flores, 507 U.S. 292, ----, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1, 16 (1993). Substantive due process analysis requires that we first identify the asserted right and whether it is "fundamental." Id. We then decide whether the action infringing that right is narrowly tailored to serve a compelling state interest. In re C.S., 516 N.W.2d 851, ---- (Iowa 1994).

The right asserted by B.B. here is the right to the least restrictive placement. ¹ B.B. argues that his liberty is less restricted in group foster care than it would be at the State Training School. We accept this premise, although we note that the juvenile court's order designated a "highly structured " group foster care setting. (Emphasis added.) The question then becomes whether B.B. has an absolute right to the least restrictive placement. In other words, is B.B. entitled to a placement that is less restrictive than the placement ordered even though the less restrictive placement is not authorized by the legislature or is otherwise unavailable? We think neither state law nor the constitution gives him this right.

A. State law. Iowa law requires the juvenile court to enter "the least restrictive dispositional order appropriate in view of the seriousness of the delinquent act, the child's culpability ..., the age of the child and the child's prior record." Iowa Code § 232.52(1) (1993). In the same statute, the legislature provides that the court cannot order group foster care placement if the placement is not in accordance with the regional plan established pursuant to section 232.143. Id. § 232.52(2A). We do not consider one portion of a statute in isolation, but rather construe it in context with other portions of the statute. John Deere Dubuque Works of Deere & Co. v. Weyant, 442 N.W.2d 101, 104 (Iowa 1989). Thus, we must read the entire statute to determine the meaning of the requirement that the court enter "the least restrictive dispositional order appropriate."

Certainly the legislature did not intend to give a juvenile the right to be placed in the least restrictive setting despite the unavailability of a less restrictive placement when in the same statute purportedly giving such a right the legislature limits the number of group foster care placements. Cf. Baker v. Webster County, 487 N.W.2d 321, 323 (Iowa 1992) (mentally retarded person's right to services under Iowa Code chapter 222 was limited by state law). We conclude that in deciding which disposition is the least restrictive, the juvenile court is confined to consideration of those facilities which...