In re Interest of B.E.

• Decision Date: 05 August 2015
• Docket Number: No. 15–0794.,15–0794.
• Citation: 875 N.W.2d 181
• Parties: In the Interest of B.E., Minor Child, B.E., Father, Appellant.
• Court: Iowa Court of Appeals

875 N.W.2d 181

In the Interest of B.E., Minor Child, B.E., Father, Appellant.

No. 15–0794.

Court of Appeals of Iowa.

Aug. 5, 2015.

Karl Knudson of Knudson Law Office, Decorah, for appellant.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Andrew Van Der Maaten, County Attorney, and Barrett M. Gipp, Assistant County Attorney, for appellee.

Laura J. Parrish of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C., Decorah, for mother.

Whitney L. Schiller of Shafer & Shafer, Waukon, attorney and guardian ad litem for minor child.

Considered by VAITHESWARAN, P.J., and POTTERFIELD and McDONALD, JJ.

McDONALD, J.

The father appeals the adjudication and disposition orders in this child-in-need-of-assistance (CINA) proceeding regarding his child, B.E. The father contends the petition was constitutionally deficient and deprived him of due process as guaranteed by the United States and Iowa Constitutions.

I.

The nature of the father's claim requires an extensive recitation of the procedural posture of this case. The father and the mother divorced in May 2014. Three children were born to the marriage. The mother was granted physical care of the children, subject to the father having liberal visitation with all three children. It is only B.E.—born in 2005 and the youngest of the three children—who is the subject of this proceeding.

In August 2014, the Iowa Department of Human Services ("IDHS") began a child abuse investigation after receiving information the father caused physical and mental injury to B.E. In September 2014, the State filed an application for temporary removal of B.E. pursuant to Iowa Code section 232.78 (2013) (authorizing ex parte removal of child under certain conditions). In support of the application for removal, the State alleged removal from the father's care was necessary to avoid imminent danger to B.E.'s life or health. Specifically, B.E. had been diagnosed with posttraumatic stress disorder (PTSD), ADHD, oppositional defiant disorder, and enuresis (involuntary urination ). A licensed mental-health provider opined the PTSD and enuresis were caused by stress associated with ongoing physical and emotional abuse by B.E.'s father. It was reported B.E. had been physically aggressive toward others, threatened to kill himself or hurt his father, had nightmares regarding his father hurting him, wetted the bed, refused to sleep alone, and expressed a desire to not affiliate with his father. On September 12, 2014, the juvenile court granted the application for temporary removal.

On September 15, the State filed its CINA petition, alleging B.E. was in need of assistance pursuant to Iowa Code section 232.2(6)(c)(2). This provision defines a child in need of assistance as one "[w]ho has suffered or is imminently likely to suffer harmful effects as a result of ... [t]he failure of the child's parent ... to exercise a reasonable degree of care in supervising the child." Iowa Code § 232.2(6)(c)(2). The petition merely quotes the statutory language without identifying any conduct at issue. The exhibit filed with and in support of the petition does not identify any acts or omissions relating to the father's failure to supervise the child. Instead, the exhibit sets forth B.E.'s mental-health conditions and behaviors and an opinion from a mental-health professional that the conditions were caused by the father's abuse. The mental-health professional's opinion was based on history provided by the mother and obtained in several sessions with B.E. As will be discussed in more detail below, the mental-health professional did not conduct any independent testing prior to reaching this conclusion and was completely unaware of significant medical-history information.

In September 2014, IDHS concluded its abuse investigation. IDHS concluded the allegations of physical abuse were not confirmed. IDHS founded a child-abuse complaint for mental injury. The father filed an administrative appeal challenging the founded complaint. On May 1, 2015, after the adjudication and disposition hearings were held and the corresponding orders were filed, IDHS changed its findings in the abuse investigation, concluding the mental injury was not confirmed. The father's administrative appeal challenging the finding was dismissed.

On October 8, 2014, the juvenile court issued its prehearing conference order. The order directed the State to amend the CINA petition to include as an additional ground for adjudication section 232.2(6)(c)(1) (defining CINA as one "[w]ho has suffered or is imminently likely to suffer harmful effects as a result of any ... [m]ental injury caused by the acts of the child's parent"). The order set forth the adjudicatory issues as section 232.2(6)(c)(1) and (2) and provided a definition of relevant terms. The prehearing conference order did not provide any additional information regarding the acts or omissions at issue. The State filed the amended petition on October 29. The amended petition included only the statutory language without identifying any conduct at issue.

The matter came on for an adjudication hearing in February 2015. Prior to entry of the adjudication order, the father filed a post-hearing motion to dismiss. The father raised several issues in the motion to dismiss. The father challenged the application for temporary removal and CINA petition on due process grounds. Specifically, he contended the CINA petition was never amended to include mental injury; the petition never made reference to any specific acts or omissions alleged to have caused mental injury, thereby depriving him of notice; and the petition did not allege any acts or omissions regarding the failure to supervise, thereby depriving him of notice. The father also contended the State failed to carry its burden of proof at the hearing. Finally, the father contended section 232.2(6)(c)(1) (mental injury) was unconstitutionally vague on its face and as applied to him.

On February 16, 2015, the juvenile court filed its adjudicatory order, concluding the State failed to establish B.E. was in need of assistance pursuant to section 232.2(6)(c)(1) (mental injury). The juvenile court found on July 22, 2009, while under the mother's supervision, B.E. fell from a second story window in his home and landed on his head on a concrete pad. As a result of the fall, the child suffered traumatic brain injury. The parents were advised the brain injury could "effect every area of a child's life, including thinking, behavior, emotions, communication, physical abilities, and personal relationships.... Ongoing lifestyle and relationship adjustment may be necessary." The juvenile court continued,

Sadly, many of the maladies that commonly accompany a traumatic brain injury are present in [B.E.] The attention and behavioral issues shown by [B.E.] ... preceded any alleged physical or emotional abuse of the child by his father and could just as well been the result of [B.E.'s] fall and resultant brain injury.

The juvenile court discredited the mental-health professional's opinion that the child's behaviors were caused by the father's abuse. The juvenile court noted the mental-health professional had not done any psychological or independent testing of B.E. and based her opinion on the medical history provided by the mother. Significantly, the mother did not inform the professional of B.E.'s traumatic brain injury. The mental-health professional was also unaware the child's bedwetting was genetic, as the father and paternal uncle suffered from the same. The professional was also unaware of when B.E.'s behaviors began and did not know they began significantly prior to the time of the parents' dissolution of marriage and prior to the allegations of abuse.

The juvenile court did conclude, however, the child was in need of assistance pursuant to section 232.2(6)(c)(2) (failure to supervise). The court noted that visitation between the father and the older children was progressing without any issue. Nonetheless, the juvenile court was troubled by the father's attitude regarding domestic violence and corporal punishment. "The court also found problematic the cavalier manner in which the child's father dismissed any potential harm to the child by taking jumps on his bicycle when not wearing a helmet." Although the court identified certain acts of intimidation, those acts were not identified in the petition and did not support the court's conclusion, "As the court's aid is necessary to improve the child's relationship with his father, the court will intervene and adjudicate the child in need of assistance...."

The father filed a Iowa Rule of Civil Procedure 1.904(2) motion, requesting the district court amend, among other things, certain findings regarding the incident involving B.E. jumping his bicycle off ramps. The father requested the juvenile court modify its earlier ruling and end the temporary removal of the minor child from the custody of the father. The juvenile court denied the motion but then made an additional finding that unsupervised contact with the father would pose an imminent risk to the child. The juvenile court did not address the father's post-trial motion to dismiss.

In April 2015, the matter came before the juvenile court for dispositional hearing pursuant to Iowa Code section 232.99. The juvenile court found the father had sought services for anxiety and depression arising out the parents' difficult dissolution proceedings. The court found the father and B.E. had begun supervised visitation in a therapeutic setting, although the commencement of the visitation had been significantly delayed since the entry of the adjudicatory order for various reasons not attributable to the father. The juvenile court concluded that it would be in the best interests of B.E. to remain in the custody of his mother under the protective supervision of IDHS and that the father should continue to have visitation with the child in a therapeutic setting subject to the...