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In the Interest of S.M.D.

January 9, 2013

IN THE INTEREST OF S.M.D., E.D.D., S.L.D., AND T.L.D., MINOR CHILDREN, T.D., MOTHER, APPELLANT.


Appeal from the Iowa District Court for Adams County, Monty W. Franklin, District Associate Judge.

The opinion of the court was delivered by: Eisenhauer, C.J.

A mother appeals from the orders adjudicating her children as children in need of assistance.

AFFIRMED AS TO S.M.D.; REVERSED AS TO E.D.D., S.L.D., AND T.L.D.

Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ.

A mother appeals from the order adjudicating her children as children in need of assistance. She contends the court erred in finding S.M.D. a child in need of assistance under Iowa Code section 232.2(6)(d) (2011), and in finding her three other children in need of assistance under section 232.2(6)(c). We affirm as to S.M.D. and reverse as to E.D.D., S.L.D., and T.L.D.

The family has been involved with the Iowa Department of Human Services since April 2012 based on S.M.D.'s report her father sexually abused her. S.M.D. stayed with the family of a friend temporarily until she was removed and placed in foster care. A family safety plan was created providing for the father to leave the family home and have no contact with the children. The family followed the safety plan. The child protective assessment resulted in a founded report as to the father in May. In June the State petitioned to have all four children adjudicated in need of assistance under Iowa Code section 232.2(6)(d). The petitions later were amended to add section 232.2(6)(c). Neither the amendments nor the original petitions included a "clear and concise summary of the facts which bring the child within the jurisdiction of the court" as required by section 232.87(5). The amendments also generally referenced section 232.2(6)(c) without distinguishing between the two alternatives.

"Child in need of assistance" means an unmarried child:

c. Who has suffered or is imminently likely to suffer harmful effects as a result of any of the following:

(1) Mental injury caused by the acts of the child's parent, guardian, or custodian.

(2) The failure of the child's parent, guardian, custodian, or other member of the household in which the child resides to exercise a reasonable degree of care in supervising the child.

Iowa Code § 232.2(6)(c)

A contested hearing on the petitions took place in late August. The State presented evidence concerning the abuse of S.M.D. and that her mental health evaluation indicated some emotional harm from the abuse, from being separated from her family, and from feeling abandoned. Mental health evaluations of the other three children indicated some emotional issues resulting from the father's absence from the home. The court found clear and convincing evidence supported the allegations under both code sections as to S.M.D. It found clear and convincing evidence under section 232.2(6)(c) as to the other three children, finding "all family members have suffered emotional damage as a result of the abuse." It also made an oral finding there was not clear and convincing evidence to adjudicate the three other children under section 232.2(6)(d). The court adjudicated all four children in need of assistance-S.M.D. under section 232.2(6)(c) and (d), and the other three children under section 232.2(6)(c). S.M.D.'s placement outside the home was continued, and the other three children were ordered to remain in the mother's custody. The father was ordered to have no contact with S.M.D. and only supervised phone calls with the other three children.

The mother filed a motion to amend or enlarge, contending clear and convincing evidence did not support the court's conclusions. The motion noted the court found the family members had suffered "emotional damage," but did not make any finding they had suffered "mental injury" as required in section 232.2(6)(c)(1). The motion also alleged the emotional damage found ...


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