In re Interest of C.F.-H., No. 16-0918

CourtUnited States State Supreme Court of Iowa
Writing for the CourtAPPEL, Justice.
Citation889 N.W.2d 201
Parties IN the INTEREST OF C.F.-H., Minor Child, C.H., Father, Appellant.
Decision Date16 December 2016
Docket NumberNo. 16-0918

889 N.W.2d 201

IN the INTEREST OF C.F.-H., Minor Child,

C.H., Father, Appellant.

No. 16-0918

Supreme Court of Iowa.

Filed December 16, 2016
Rehearing Denied February 10, 2017
Amended March 23, 2017


Jared R. Weber, Orange City, for appellant.

Thomas J. Miller, Attorney General, Kathryn K. Lang, Assistant Attorney General, and Lori Kolpin, Assistant County Attorney, for appellee.

Tisha M. Halverson of Klay, Veldhuizen, Bindner, DeJong, Halverson & Winterfeld, PLC, Paullina, for minor child.

APPEL, Justice.

In this case, we are asked to consider when a child has been "removed from the physical care" of parents for at least twelve of the last eighteen months, thereby establishing a necessary element for termination of parental rights under Iowa Code section 232.116(1)(e ) and (f ) (2015). According to the parties on appeal, the father at no time had actual physical custody of the child. Nonetheless, the district

889 N.W.2d 202

court determined that for purposes of the statute, the child should be considered "removed" from the father's physical care for the requisite time period to support a termination of parental rights. The father appealed and we transferred the case to the court of appeals. The court of appeals affirmed. We granted further review. For the reasons expressed below, we vacate the decision of the court of appeals and reverse the district court.

I. Factual and Procedural Background.

The child in this case, C.F.-H., was born in 2007. The mother and father were never married. Prior to November 2012, no custodial order existed for C.F.-H.

In 2011, the Iowa Department of Human Services (DHS) investigated an incident of domestic violence involving the mother and the father. As a result of the investigation, DHS made a founded child abuse assessment against the father. The parents participated in voluntary services after which the case was closed in June 2012.

In August, DHS investigated a second incident of domestic violence involving the parents. This time, the investigation resulted in DHS making a founded child abuse assessment against both parents.

In November, the juvenile court adjudicated C.F.-H. a child in need of assistance under Iowa Code section 232.2(6)(c )(1) (2011), concluding that C.F.-H. was suffering or imminently likely to suffer harmful effects as a result of mental injury caused by the acts of C.F.-H.'s parents.

The district court agreed that C.F.-H. was a child in need of assistance on November 30, 2012. The district court order placed C.F.-H. in the physical custody of the mother under the supervision of DHS and granted the father visitation rights at the discretion of DHS. In December, the district court continued custody of the child with the mother with visitation for the father.

In June 2013, the mother moved for concurrent jurisdiction in order to obtain a permanent custodial order with respect to C.F.-H. The juvenile court granted the motion. On June 23, 2014, the district court ordered temporary joint legal custody of C.F.-H. On March 4, 2015, the district court entered a final decree of custody, granting joint legal custody to both parents. Primary physical care was placed with the mother and visitation with the father.

In a report filed on August 10, DHS filed a request to dismiss further juvenile court proceedings. DHS later rescinded the recommendation, however, but the father moved the district court to dismiss the proceedings. The juvenile court denied the dismissal on October 9.

In February 2016, DHS filed a petition to terminate the father's parental rights. After a hearing, the district court entered an order terminating the father's parental rights under Iowa Code section 232.116 (1)(e ) and (f ) (2015).1

889 N.W.2d 203

The father appealed, raising three issues. First, the father argued that because physical custody of the child had never been "removed" from him, the district court erred in granting termination of his parental rights under section 232.116(1)(e ) and (f ). Second, the father argued that the district court failed to consider the best interest of the child. Third, the father challenged admission of a therapist report.

The court of appeals affirmed the district court. The father sought further review, which we granted. For the reasons expressed below, we now reverse the decision of the district court.

II. Standard of Review.

We review issues of statutory construction for correction of errors at law. In re J.C. , 857 N.W.2d 495, 500 (Iowa 2014) ; In re G.J.A. , 547 N.W.2d 3, 5 (Iowa 1996). We are required to construe provisions in Iowa Code chapter 232 liberally "to the end that each child under the jurisdiction of the court shall receive, preferably in the child's own home, the care, guidance and control that will best serve the child's welfare and the best interest of the state." Iowa Code § 232.1 ; In re A.M. , 856 N.W.2d 365, 373 (Iowa 2014).

III. Discussion.

A. Relevant Statutory Provisions.

We begin with a review of the relevant statutory provisions. Chapter 232 of the Iowa Code is a comprehensive chapter which generally addresses juvenile justice. This case involves the potential relationship between statutory provisions related to removal and statutory provisions related to termination of parental rights. Therefore, we review the statutory provisions related to removal and termination in some detail.

1. Provisions related to removal. Chapter 232 contains four provisions relating to removal of the child from the home. The first provision involves removal of the child prior to court intervention under certain extraordinary situations. Iowa Code § 232.79. The second section relates to temporary removal before or after the filing of a petition on an ex parte basis. Id. § 232.78. A third section authorizes the removal of the child from the home after the filing of a petition but prior to a determination of whether a juvenile is a child in need of assistance. Id. § 232.95. A fourth section relates to removal of the child from the home upon an adjudication that the juvenile is a child in need of assistance (CINA). Id. § 232.96.

Iowa Code section 232.79 authorizes peace officers, juvenile court officers, and physicians to take a child into custody when there is imminent danger to the child and when there is not enough time to apply for a court order under Iowa Code section 232.78. A person authorized to remove the child must immediately orally inform the court of the emergency removal and follow up with a written explanation of the emergency removal and the circumstances surrounding the removal. Id. § 232.79(2)(d ). Upon being notified of the emergency removal, the court is required to direct DHS or the juvenile probation department to make every effort to communicate with the child's parents. Id. § 232.79(4)(a ). After the court is informed of an emergency removal, the court may enter an ex parte order pursuant to Iowa Code section 232.78. Id. § 232.79(4)(c ).

Iowa Code section 232.78 authorizes the juvenile court to enter an ex parte order directing a peace officer or juvenile court officer to take custody of a child before the filing of a CINA petition. Before an ex parte order may be issued, it must generally be demonstrated that the person responsible

889 N.W.2d 204

for the care of the child is absent, or though present, was asked and refused to consent to the removal of the child. Id. § 232.78(1)(a ). Ex parte removal may occur only when it appears that "the child's immediate removal is necessary to avoid imminent danger to the child's life and health." Id. § 232.78(1)(b ).

Any order entered under Iowa Code section 232.78 must include findings on a case-by-case basis unless imminent danger exists at the time of the court's consideration. Id. § 232.78(7)(a ). The ex parte removal order is further required to include "[a] statement informing the child's parent that the consequences of a permanent removal may include termination of the parent's rights with respect to the child." Id. § 232.78(7)(b ).

Iowa Code section 232.95 provides for hearings concerning temporary removal of a child from the home after a CINA petition is filed but prior to adjudication. After a section 232.87 petition to determine whether a child is in need of assistance has been filed, the court on its own motion or any person entitled to file a CINA petition may seek a hearing to determine whether the child should be temporarily removed from the home. Id. § 232.95(1).

Upon a hearing, the court may remove the child from the home. Id. § 232.95(2)(a ). If a child is removed from the home, the juvenile court is required to make "a determination that continuation of the child in the child's home would be contrary to the welfare of the child" and that reasonable efforts have been made "to prevent or eliminate the need for removal of the child from the child's home." Id. § 232.95(2)(a )(1).

The juvenile court is generally required to make removal determinations on a case-by-case basis, with the grounds explicitly documented and stated in the court's order. Id. § 232.95(2)(a )(2). An...

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10 practice notes
  • In re Erpelding, No. 16-1419
    • United States
    • United States State Supreme Court of Iowa
    • July 6, 2018
    ...of errors at law. Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep’t of Transp. , 891 N.W.2d 220, 224 (Iowa 2017) ; In re C.F.-H. , 889 N.W.2d 201, 203 (Iowa 2016) ; accord Iowa R. App. P. 6.907.III. Analysis.A. Relevant Statutory Provisions . Under Iowa law, premarital agreements are s......
  • Erpelding v. & Concerning Timothy John Erpelding, No. 16-1419
    • United States
    • United States State Supreme Court of Iowa
    • March 2, 2018
    ...of errors at law. Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep't of Transp., 891 N.W.2d 220, 224 (Iowa 2017); In re C.F.-H., 889 N.W.2d 201, 203 (Iowa 2016); accord Iowa R. App. P. 6.907.Page 5 III. Analysis. Under Iowa law, premarital agreements are subject to the IUPAA, codified i......
  • United Elec. v. Iowa Pub. Emp't Relations Bd., No. 18-0505
    • United States
    • United States State Supreme Court of Iowa
    • May 17, 2019
    ...Iowa Code § 20.9(1) ). When the legislature issues this kind of directive on statutory interpretation, it binds us. See In re C.F.-H. , 889 N.W.2d 201, 203 (Iowa 2016) (noting that we are "required [by Iowa Code section 232.1 ] to construe provisions in Iowa Code chapter 232 liberally"); De......
  • In re Erpelding, No. 16-1419
    • United States
    • United States State Supreme Court of Iowa
    • March 2, 2018
    ...of errors at law. Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep't of Transp., 891 N.W.2d 220, 224 (Iowa 2017); In re C.F.-H., 889 N.W.2d 201, 203 (Iowa 2016); accord Iowa R. App. P. III. Analysis. Under Iowa law, premarital agreements are subject to the IUPAA, codified in Iowa Code c......
  • Request a trial to view additional results
10 cases
  • In re Erpelding, No. 16-1419
    • United States
    • United States State Supreme Court of Iowa
    • July 6, 2018
    ...of errors at law. Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep’t of Transp. , 891 N.W.2d 220, 224 (Iowa 2017) ; In re C.F.-H. , 889 N.W.2d 201, 203 (Iowa 2016) ; accord Iowa R. App. P. 6.907.III. Analysis.A. Relevant Statutory Provisions . Under Iowa law, premarital agreements are s......
  • Erpelding v. & Concerning Timothy John Erpelding, No. 16-1419
    • United States
    • United States State Supreme Court of Iowa
    • March 2, 2018
    ...of errors at law. Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep't of Transp., 891 N.W.2d 220, 224 (Iowa 2017); In re C.F.-H., 889 N.W.2d 201, 203 (Iowa 2016); accord Iowa R. App. P. 6.907.Page 5 III. Analysis. Under Iowa law, premarital agreements are subject to the IUPAA, codified i......
  • United Elec. v. Iowa Pub. Emp't Relations Bd., No. 18-0505
    • United States
    • United States State Supreme Court of Iowa
    • May 17, 2019
    ...Iowa Code § 20.9(1) ). When the legislature issues this kind of directive on statutory interpretation, it binds us. See In re C.F.-H. , 889 N.W.2d 201, 203 (Iowa 2016) (noting that we are "required [by Iowa Code section 232.1 ] to construe provisions in Iowa Code chapter 232 liberally"); De......
  • In re Erpelding, No. 16-1419
    • United States
    • United States State Supreme Court of Iowa
    • March 2, 2018
    ...of errors at law. Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep't of Transp., 891 N.W.2d 220, 224 (Iowa 2017); In re C.F.-H., 889 N.W.2d 201, 203 (Iowa 2016); accord Iowa R. App. P. III. Analysis. Under Iowa law, premarital agreements are subject to the IUPAA, codified in Iowa Code c......
  • Request a trial to view additional results

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