IN THE INTEREST OF J.J.R., Minor Child, J.D.R., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-862 / 06-1446
Filed November 16, 2006
IN THE INTEREST OF J.J.R., Minor Child,
J.D.R., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Butler County, Gerald W. Magee,
Associate Juvenile Judge.
A father appeals from the juvenile court’s adjudication and dispositional
orders concerning his daughter. AFFIRMED.
Kelly J. Smith of Kelly J. Smith, P.C., Waterloo, for appellee.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Gregory M. Lievens, County Attorney, and Martin Peterson, Assistant
County Attorney, for appellee.
Linda Hall of Gallagher, Langlas & Gallagher, P.C., Waterloo, for mother.
Patrick Vickers of Vickers Law Office, Greene, guardian ad litem for minor
child.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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SACKETT, C.J.
A father appeals from his daughter’s adjudication as a child in need of
assistance and the juvenile court’s dispositional order placing her with her
mother. He contends (1) the child’s ex parte removal was improper, (2) the court
erred in finding she was a child in need of assistance, (3) the court erred in not
finding the assistant county attorney and guardian ad litem had a conflict of
interest, (4) the court should have ordered services as requested by the father,
and (5) reasonable reunification efforts were not made since the child’s removal.
We affirm.
I. Background
The child, born in October of 2001, was placed in her mother’s primary
physical care following her parents’ divorce. Her father had visitation. In 2003
the child was suffering from nightmares and wetting the bed following visits with
her father. The child’s play therapist reported indications the child had been
abused sexually.
In January of 2006, the Department of Human Services
investigated and issued a founded report naming the father as the perpetrator.
The juvenile court ordered the child’s removal ex parte, placed the child in the
custody of the department, and issued a no-contact order prohibiting contact
between the father and child. At the hearing on the temporary removal, the court
was advised the father was in agreement with the continued removal of the child
and was not contesting the continued entry of a no-contact order. The court
found the removal was necessary without the implementation of services,
ordered that the child’s custody remain with the department, and left the no-
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contact order in effect. The department placed the child in her mother’s care,
where she had been before the removal.
The adjudication hearing was scheduled for the beginning of March. The
father complained the assistant county attorney and guardian ad litem both had
potential conflicts of interest. 1 The adjudicatory hearing was rescheduled for the
end of June.
At the hearing, the father denied sexually abusing the child.
Following the contested adjudicatory hearing, the juvenile court entered an order
in mid-August, finding the father sexually abused the child, ordering the child’s
adjudication as a child in need of assistance, continuing her placement with her
mother, and continuing the suspension of visitation by the father until
recommended by the department or the child’s therapist. The court denied all of
the father’s pending motions.
A contested dispositional hearing was held in late August.
The court
denied the father’s request for family-centered services and a family
psychosocial evaluation until his contact with the child was reestablished and the
department recommended the evaluation.
The court continued the child’s
placement with her mother, continued the suspension of visitation, ordered the
father to complete a psychosocial evaluation and any recommended treatment,
and issued a no-contact order between the father and the mother. The father
appeals.
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The child’s mother works at a local bank. The assistant county attorney’s wife works
for the same bank, but in a different area. The guardian ad litem has provided legal
services to the bank, but had not met the mother before these proceedings.
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II. Claims on appeal
The father claims (1) the child’s ex parte removal was improper, (2) the
court erred in finding she was a child in need of assistance, (3) the court erred in
not finding the county attorney and guardian ad litem had a conflict of interest, (4)
the court should have ordered services as requested by the father, and (5)
reasonable reunification efforts were not made since the child’s removal.
III. Scope of review
Our review of child-in-need-of-assistance proceedings is de novo. In re
H.G., 601 N.W.2d 84, 85 (Iowa 1999). We give weight to the fact findings of the
juvenile court, but are not bound by them. Iowa R. App. P. 6.14(6)(g).
IV. Discussion
A. Ex parte removal. The father first contends the child’s removal did not
meet the requisites of section 232.95 for an ex parte removal. He does not
explain in what particulars the removal does not follow section 232.95. There is
no indication in the ruling on the removal hearing that the father raised this claim
at that hearing. The court notes it was informed the father did not object to the
child’s continued removal. In reviewing counsel’s written closing argument to the
June adjudicatory hearing, we find a procedural claim that the petition was not
filed within three days of the removal. The State argues that once disposition is
ordered, it is too late to raise alleged errors in the removal. See In re A.M.H.,
516 N.W.2d 867, 871 (Iowa 1994) (“Any error committed in granting the
temporary ex parte order cannot now be remedied. We cannot go back in time
and restore custody based on alleged errors in the initial removal order.”). We
conclude this claim was not preserved for our review. See Benavides v. J.C.
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Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995); In re C.D., 508 N.W.2d
97, 100 (Iowa Ct. App. 1993).
B. Finding the child in need of assistance. The father next contends there
was insufficient evidence to find his daughter was in need of assistance.
Although we are not bound by the juvenile court’s findings, we give them weight
because of the court’s opportunity to hear and see the witnesses and evaluate
their demeanor and credibility. See In re S.J.M., 539 N.W.2d 496, 500 (Iowa Ct.
App. 1995). From the child’s statements and actions and the opinion of the
experts we find clear and convincing evidence supports a finding the child is in
need of assistance. Although the father continues to deny abusing his daughter,
the evidence is that she has been abused and he is the only one she identified
as the perpetrator.
C. Conflicts of interest. The father contends the juvenile court should
have found the assistant county attorney and guardian ad litem had a conflict of
interest because they both have some connection to the bank where the child’s
mother works.
The assistant county attorney told the court he did not know the mother
before these proceedings, but could have spoken to her if she answered the
telephone at the bank when he was calling to talk to his wife. He also said his
wife and the mother do not see each other socially or have other than incidental
contact at work. The guardian ad litem does collection work for the bank. He
said he did not know the mother before these proceedings and had no conflict of
interest representing the child.
The juvenile court concluded the alleged
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connections between the mother and the attorneys were too attenuated to
present any conflict of interest.
The challenges do not involve lawyers representing two clients with
potentially adverse interests. See Iowa Rs. Prof. Conduct 32:1.7, 1.8. The father
argues there is an appearance of impropriety. From our review of the record
“through the perspective of a reasonable layperson,” we agree there was no
conflict of interest. Doe v. Perry Cmty. Sch. Dist., 650 N.W.2d 594, 599 (Iowa
2002).
We also conclude the alleged conflicts do not present even an
appearance of impropriety warranting disqualification.
See id. (“[T]he mere
possibility of impropriety is insufficient to warrant disqualification.”).
D.
Refusal to order services.
The father requested family-centered
services, family psychosocial evaluations, and sibling visitation; the juvenile court
denied his requests.
The court determined the services requested were
inappropriate in part because this is not an intact family, the father needed to
comply with court-ordered evaluation and treatment first, and the child could be
harmed by another evaluation. The record also reveals there are some services
provided through a pending juvenile case involving the father’s son, a half-sibling
to the child in this case. We conclude the juvenile court properly refused the
father’s requests.
E.
Reasonable efforts.
The father contends the State has not made
reasonable efforts at reunification. The court considered the father’s request for
certain services.
None of the services he requested would have aided
reunification efforts. The court properly evaluated the services requested before
denying the father’s requests. The child has been “reunified” with her mother.
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She is receiving therapy. The court ordered the father to undergo a psychosocial
evaluation and any recommended treatment. The father consented to the nocontact order between himself and his daughter.
sexually abused his daughter.
He continues to deny he
The continued denial precludes certain
reunification efforts. See In re H.R.K., 433 N.W.2d 46, 50 (Iowa Ct. App. 1988)
(noting the requirement that a parent acknowledge and recognize the abuse
before meaningful change can occur). Under the circumstances before us, we
find the State has made reasonable efforts at reunification.
AFFIRMED.
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