B.B., In Interest of, 91-1610

• Decision Date: 19 May 1993
• Docket Number: No. 91-1610,91-1610
• Parties: In the INTEREST OF B.B., A Child, A.B. and A.B., Father and Mother, Appellants, State of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 9

500 N.W.2d 9

In the INTEREST OF B.B., A Child,

A.B. and A.B., Father and Mother, Appellants,

State of Iowa, Appellee.

No. 91-1610.

Supreme Court of Iowa.

May 19, 1993.

Patrick L. Wilson of Wilson Law Office, Marshalltown, for appellants.

Bonnie J. Campbell, Atty. Gen., John M. Parmeter, Sp. Asst. Atty. Gen., Judy A. Sheirbon, Asst. Atty. Gen., and Brent Heeren, County Atty., for appellee.

Stephen A. Kenkel of Mickelson, Roan, Appelgate & Kenkel, Toledo, guardian ad litem for the child, B.B.

Considered by McGIVERIN, C.J., and HARRIS, CARTER, LAVORATO and ANDREASEN, JJ.

McGIVERIN, Chief Justice.

The parents, Anna and Archie, appeal from district court rulings finding their child, Barry, a child in need of assistance under Iowa Code section 232.2(6)(n) (1991), continuing Barry's placement in foster care, and placing restrictions upon their visitation privileges.

The court of appeals reversed the district court's rulings regarding the child in need of assistance petition and ordered Barry to be placed with his parents. We vacate the court of appeals decision and affirm the district court judgment.

I. Background facts and proceedings. This very protracted case involves a mildly, mentally retarded child, Barry, born in June 1977. Archie, Barry's father, is a Native American, and Anna, Barry's mother, is not.

The State originally filed a petition to find Barry a child in need of assistance in 1988, pursuant to Iowa Code sections 232.2(6)(b), 232.2(6)(c)(2), and 232.2(6)(f) (1987), because his parents refused to send him to school. Upon appeal, we concluded that Barry was indeed a child in need of assistance under section 232.2(6)(c)(2). In re B.B., 440 N.W.2d 594 (Iowa 1989). We ordered Anna and Archie to send Barry to school; if they failed to do so, we ordered the district court to place Barry in foster care. Id. at 598. Much has happened in this case since our decision.

In October 1989, Barry's parents were held in contempt of court for failing to send Barry to school. The district court consequently placed Barry in the custody of the Department of Human Services (DHS) and ordered foster care placement so he could be sent to school.

In May 1990, the parents appealed continued foster care placement. In an unpublished opinion, the court of appeals affirmed continued foster care and additionally ordered unsupervised visitation in the parental home during weekends and school holidays.

In June 1991, the district court held a review hearing regarding Barry's trial placement in the parental home, supervised by DHS, for the summer. DHS was to retain custody. Continued placement in the parental home beyond the summer months was conditioned upon Barry being registered for and attending school in the fall.

In September, the court held another hearing to review continued placement in the parental home. Barry's parents had not yet registered Barry for school. The district court ordered that Barry become registered for school.

To no one's surprise, Anna and Archie failed to register Barry for school. In October 1991 the district court ordered the DHS to maintain custody of Barry and place him in a foster home unless Archie and Anna registered Barry for school and he attended school. Anna and Archie did not and instead appealed this order.

Shortly thereafter, the State filed a motion to amend the child in need of assistance (CINA) petition to allege new grounds for the CINA adjudication. The State alleged Barry was a child in need of assistance under Iowa Code section 232.2(6)(n) (1991), which allows a CINA adjudication where the mental capacity or condition of the parents results in the child not receiving adequate care.

In the meantime, Anna and Archie had one visitation with Barry. Barry was extremely upset both before and after the visit. Barry was hostile towards his foster parents and felt ill the entire week following this visit. As a result, Barry's guardian ad litem filed a motion to terminate the parents' visitation rights.

The court consolidated these two motions for hearing. We stayed the parents' appeal proceedings on the district court judgment ordering Barry's registration for school and foster care placement until after the district court ruled on the hearing proceedings and entered a dispositional order.

After a hearing, the district court found Barry's parents to be mentally unstable. As a result, Barry had suffered both emotionally and physically, and had received inadequate care. The court accordingly granted the State's motion to amend the CINA petition to include the grounds under section 232.2(6)(n). The court found the State had proven its allegations. The court refused to terminate Barry's visitations with his parents but placed conditions on such visitation.

The district court held a dispositional hearing on the amended CINA petition and made substantially similar findings.

Archie and Anna also appealed the dispositional order.

We transferred the case to the court of appeals. The court of appeals reversed the district court's judgment and placed Barry back with his parents.

We granted the State's application for further review.

We initially note that two themes have pervaded this entire litigation: Anna's obsession with Barry's health and her resulting failure to send him to school despite repeated opportunities and court orders to do so. We refuse to abandon Barry to her irrationality.

II. CINA amendment. The district court sustained the State's motion to amend its CINA petition to allege additional grounds under Iowa Code section 232.2(6)(n). The court found that Anna's obsession with Barry's health resulted in emotional and physical harm to Barry. The court stated Barry had been hindered in his social and educational development. We agree.

We review the evidence in CINA proceedings de novo. In re J.R.H., 358 N.W.2d 311, 317 (Iowa 1984). We give weight to the trial court's findings of fact, especially those regarding the credibility of witnesses, but we are not bound by them. Iowa R.App.P. 14(f)(7).

The welfare and best interests of the child are the governing concerns. In re J.R.H., 358 N.W.2d at 317; In re Henderson, 199 N.W.2d 111, 120 (Iowa 1972). Although the parents have a legitimate interest in the integrity of the family unit, that interest is not absolute. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). In determining the best interests of the child, we must consider what the future likely holds for a child if he is returned to parental custody. Id. As a result, we may look at the parents' past performance of caring for their child, as their past performance is indicative of their future care. Id.

Finally, the State has the burden of proving its CINA petition allegations by clear and convincing evidence. Iowa Code § 232.96. ¹

Throughout this litigation, Anna has insisted Barry is too sick to attend school. She claims he vomits several times a day and rarely feels well enough to concentrate on school work.

During one supervised visit with Barry while he lived with foster parents, Anna persistently asked Barry if his stomach hurt until he stated that it did. She asked him whether he had been vomiting. She poked, prodded, and physically examined him until the social worker supervising the visit asked her to stop. As Anna was leaving, she told Barry to vomit on his teachers or foster parents if he needed to vomit.

Anna maintains Barry is severely ill despite all evidence to the contrary. ² Various doctors have examined Barry and declared him healthy. One doctor did prescribe medication for possible stomach problems but did not state Barry was too ill to attend school. Barry's foster parents reported that Barry remained healthy even when this medication was discontinued.

Anna has thrown a saucepan of vomit at a DHS social worker, threatened various social workers and school staff, and claims Barry has been drugged, hypnotized, and brainwashed by his social workers and foster parents. Anna also made an unsubstantiated allegation of sexual abuse against a prior foster parent and made verbally abusive phone calls to that house.

After the parent's first visitation with Barry while he lived with his foster parents, the DHS imposed guidelines on all future visitations. For example, Anna was prohibited from asking Barry about vomiting or illness. In refusing to comply with this guideline, Anna testified that if she could not physically examine Barry...