January 11, 2017
IN THE INTEREST OF S.P. and K.P., Minor Children, D.P., Mother, Appellant.
from the Iowa District Court for Butler County, Peter B.
Newell, District Associate Judge.
mother challenges the juvenile court's finding in its
dispositional order that the Iowa Department of Human
Services had made reasonable efforts toward reunifying her
family. REVERSED AND REMANDED.
A. Kuehner of Eggert, Erb, Mulcahy & Kuehner P.L.L.C.,
Charles City, for appellant mother.
J. Miller, Attorney General, and Mary A. Triick, Assistant
Attorney General, for appellee State.
Elizabeth A. Batey of Vickers Law Office, Greene, guardian ad
litem for minor children.
Considered by Vogel, P.J., and Tabor and Mullins, JJ.
S.P. and K.P. refuse to have contact with their mother, Dawn,
who is accused of dealing methamphetamine out of their home.
On appeal, Dawn contends the juvenile court erred in finding
the Iowa Department of Human Services (DHS) had made
reasonable efforts at reunification when no visitation had
been scheduled during the five months the children had been
removed from her care. Although the social workers encouraged
the children to see their mother, the DHS insisted that given
their ages, the children could not be forced to attend
looking at the record anew,  we conclude the DHS failed to
maintain reasonable efforts toward reunification by
delegating the decision regarding visitation entirely to the
children. At the next scheduled review hearing, the juvenile
court should scrutinize the discretion exercised by the DHS
in establishing or not establishing visitation, which would
include securing a recommendation from the children's
therapist regarding the feasibility of reinitiating contact
with their mother through family counseling.
Facts and Prior Proceedings
child-welfare case opened in May 2016 when the Butler County
Sheriff arrested Dawn for operating while intoxicated
(drugged driving) and found eight grams of methamphetamine in
her possession. The State charged Dawn with possession of
methamphetamine with intent to deliver, a class "B"
felony. The DHS placed Dawn's sixteen-year-old daughter,
K.P., and fourteen-year-old son, S.P.,  in the care of
the mother's cousin and her husband. The children had
stayed with these relatives on previous occasions and felt
secure in their home.
2016 incident was not the first family upheaval experienced
by these children. In the spring of 2011, S.P. and K.P. were
adjudicated as children in need of assistance (CINA) after
authorities discovered their parents were manufacturing
methamphetamine. In 2012, the children lost their father to
suicide; the children were present in the home when he took
his life, and S.P. found his father's body. To address
their grief, the children participated in mental health
counseling from August 2013 to May 2014. A second CINA
adjudication occurred in September 2013 based on the
mother's drug use; that case was closed in May 2014.
hearing on August 17, 2016, Dawn stipulated S.P. and K.P.
were CINA under Iowa Code section 232.2(6)(l) (2015)
but urged the juvenile court to establish
visitation. Her attorney asked the court to
"order that visitation take place. Our concern is that
if it's not court ordered, that the children's
resistance to have the visitation would prevent them from
occurring." The court responded:
I think that's something that needs to be looked into a
little bit more carefully. Again, I think if the children
need mental health evaluations, we probably want to talk to
their counselors about that and set up something where-I
mean, if the counselors are willing to do that and
there's kind of a therapeutic setting, I think that we
can do that. But I think it's just a general proposition.
It's not the best thing to order that visitation occur.
juvenile court explained that in some child-welfare cases it
had ordered visits "even though the children don't
want to have visits, " but here the court believed it
was appropriate to "move slowly" and "see how
that progresses." In its August 17 adjudication ruling,
the court ordered that any visitation between Dawn and her
children be at the discretion of the DHS.
visitation had been arranged as of October 26, 2016. At a
dispositional hearing that day, DHS case manager Julie Sharp
testified the Family Safety, Risk, and Permanency (FSRP)
worker had been encouraging contact between the children and
their mother, but the children "did not wish to have
any." In her October 18 report to the court,
Sharp relayed the FSRP worker's account that the children
said they were "done" with their mother. During
FSRP home visits with the children on July 14 and September
1, the worker placed phone calls to Dawn, but the children
refused to talk. Dawn reported to the DHS that she and K.P.
had contact over Facebook in July, and K.P. "was going
to sneak out to meet her." K.P. told the workers her
mother was "manipulative"-threatening suicide if
K.P. did not meet her and asking K.P. what her deceased
father would think about her refusing to have contact with
October 26 hearing, the mother's attorney engaged in the
following exchange with Sharp regarding the inability of the
DHS to establish contact between Dawn and her children:
Q. What is the Department's position about contact
between the mother and the children?
A. The Department has encouraged that contact and we ask
them about it everyâI ask them about it every time I see
them. The FSRP provider continues to ask them about it
during their, well, now biweekly status visits.
Q. So what steps has the Department done to establish contact
between mother and the children?
A. As I said, we encourage that contact and we are
supportive of that contact, but the children refuse it.
Q. They are the ones dictatingâthe children are the ones
dictating whether or not contact occurs?
A. At this time, yes.
said the DHS permanency goal remained reunification with the
mother but acknowledged that goal would be difficult to
obtain if the children continued to refuse contact:
"There is a problem with that, but due to the
children's ages we cannot force them to have visitation
with their mother." Sharp said the only plan to
reestablish contact was to continue to encourage the children
to see their mother. Sharp testified the children had started
counseling, but the DHS had not received any reports yet
because the therapist had only visited with them once. She
said family therapy was "something that could be
attempted" but no immediate plans had been set to
schedule it. Sharp also testified she did not have safety
concerns about Dawn being around the children other than
close of the October 26 hearing, the mother's attorney
made the following argument focused on reasonable efforts:
We do have a problem with contact being at the discretion of
DHS. As the evidence shows, my client has not seen her kids
since May. This is going on, pretty soon, six months that
she's been without contact. The permanency goal in this
matter is reunification. If there is not more efforts for
visits, phone contact, some sort of communication between my
client and her children, it's hard for me to imagine how
we can say that DHS is making reasonable efforts toward
reunification if they are not even requiring the meetings
between the kids and their mother. These are children and
they are still children. They shouldn't be able to make
decisions like this in this matter. They don't have
authority as children to say they don't want to see their
parents. I feel the Court should enter its finding that the
DHS has not made reasonable efforts to reunification.
juvenile court responded that "sometimes forcing
visitation is counterproductive" and could do "more
damage to a relationship than it does help." The court
acknowledged the case workers needed to continue to have the
children participate in therapy and encourage them to have
visits with their mother but concluded it was "still
appropriate to leave the discretion the Department of Human
Services." The court set the next review hearing for
January 25, 2017.
October 26 dispositional order, the court found removal
continued to be necessary and "reasonable efforts have
been made to prevent or eliminate the need of this removal of
the children" from their home.
mother appeals that dispositional order, seeking a reversal
of the court's finding "that reasonable efforts have
been made by the Iowa Department of Human Services towards
the goal of reunification and denying the mother's
request to order visitation with her children." In
response, the State requests an opinion affirming the
dispositional order of the juvenile court.
initiating an action to terminate parental rights, the State
must make reasonable efforts to provide services to a parent
whose children have been removed from her care. Iowa Code
§ 232.102(7), (10)(a); In re C.H., 652 N.W.2d
144, 147 (Iowa 2002). The concept of reasonable efforts
includes a visitation agreement designed to facilitate
reunification while protecting the children from the harm
prompting the removal. See In re M.B., 553 N.W.2d
343, 345 (Iowa Ct. App. 1996) (emphasizing "[v]isitation
between a parent and child is an important ingredient to the
goal of reunification").
case, the juvenile court left visitation up to DHS
discretion. In turn, the DHS admittedly allowed K.P. and S.P.
to dictate whether visitation occurred. Because the children
told the FSRP worker they were "done" with their
mother, no visitation occurred between the time of the
children's removal in mid-May and the dispositional
hearing in late October. While continuing to encourage S.P.
and K.P. to have contact with Dawn, the DHS did not believe
it could force teenagers to attend visitation against their
petition on appeal, the mother poses the following rhetorical
question: "Is allowing the children to dictate the terms
of visitation reasonable?" The State counters with its
own question: "How exactly [is] DHS supposed to force
these teens, one of whom is nearly an adult, to have contact
with their mother against their will . . .?" Neither
party cites case law directly addressing such a conundrum.
court did address the question whether termination of
parental rights was appropriate when a thirteen-year-old girl
had been "adamantly against visitation" with her
father. See In re K.M., No. 11-1732, 2012 WL 642880,
at *2 (Iowa Ct. App. Feb. 29, 2012). In that case, "the
parties agreed that any possible visitation should be taken
slowly and in a therapeutic setting." Id. In
addition, the parties, as well as the professionals,
supported a plan that allowed K.M. to maintain control over
the contact with her father to allow her to build trust that
he was making changes that could provide her with a safe and
stable home environment. Id. The DHS arranged for
supervised phone calls and filtered email communication
between K.M. and her father. Id. Our court noted we
were "highly concerned when a child refuses to
participate in visitation with a parent, " but we found
the State met its burden to show reasonable efforts, in part
because the father admitted he could not win back K.M.'s
trust. Id. at *6.
instant case is distinct from In re K.M. in two
ways. First, the DHS took more comprehensive and active steps
to facilitate communication and rebuild trust between K.M.
and her father. See id. at *3 (chronicling
K.M.'s participation in individual therapy and remedial
services aimed at repairing the relationship with her
father). In this case, during more than five months of
removal, the service providers did little more than
"encourage" the children to have contact with their
mother during FSRP visits. At Dawn's request, the FSRP
workers twice tried to place phone calls but could not
convince the children to participate in the conversation. At
the time of the October 26 hearing, the DHS case manager had
not made any plans for reinitiating contact in a therapeutic
setting because the children had just started counseling.
this case differs from In re K.M. because Dawn did
not support a plan that allowed her teenaged children to
control if and when visitation occurred. Right out of the
gate, the mother's attorney urged the juvenile court to
order visitation, knowing the children were resistant to
contact with Dawn. When the court declined to do so in the
August 17 order of adjudication, the mother's attorney
asked again at the October 26 hearing. Despite hearing
Sharp's testimony that the DHS was leaving the visitation
decision exclusively up to the children, the juvenile court
stuck with its belief the DHS was properly exercising its
discretion regarding visitation and was making reasonable
efforts toward reunification.
Dawn's penchant for exposing her children to the
underworld of illegal drugs and the traumatic events the
children have weathered, it is neither surprising nor
irrational that S.P. and K.P. would be fed up with her
behavior and figure it was in their best interests to sever
contact with her. But the ultimate supervision of the efforts
made to reunify the family must remain with the juvenile
court. See Iowa Code § 232.99(3) (requiring
juvenile court at disposition hearing to "inquire of the
parties as to the sufficiency of the services being provided
and whether additional services are needed to facilitate the
safe return of the child to the child's home" and
"[i]f the court determines such services are needed,
" requiring the court to "order the services to be
juvenile court may not delegate its judicial function to any
third party, including the children adjudicated in need of
assistance. Cf. In re Marriage of Stephens, 810
N.W.2d 523, 530 n.3 (Iowa Ct. App. 2012) (holding dissolution
court may not delegate its judicial power to determine
visitation or custody arrangements to the parties or a third
party). We find appellate decisions from California
persuasive on this point. See, e.g., In re
Korbin Z., 207 Cal.Rptr.3d 525, 530 (Cal.Ct.App. 2016)
(holding that when the juvenile court "abdicates its
discretion and permits a third party, including the dependent
child, to determine whether any visitation will occur, the
court impermissibly delegates its authority over visitation
and abuses its discretion"); In re Hunter S.,
48 Cal.Rptr.3d 823, 828 (Cal.Ct.App. 2006) ("In no case
may a child be allowed to control whether visitation
occurs."); In re Nicholas B., 106 Cal.Rptr.2d
465, 475 (Cal.Ct.App. 2001) (holding "visitation may not
be dictated solely by the child involved although the
child's desires may be a dominant factor").
the juvenile court improperly allowed the DHS to give the
children veto power over an essential reunification service.
The issue before us is not whether teenagers can be forced to
attend a scheduled visitation against their will. Instead,
the pending question is whether the DHS satisfied the
reasonable-efforts requirement when the case manager took no
meaningful steps to set up a visitation plan for these
children. The children's preferences do not relieve the
DHS of its duty to provide reasonable efforts. We conclude
the court erred in finding reasonable efforts were satisfied
when the DHS impermissibly delegated the visitation decision
to the dependent children. To establish reasonable efforts,
the DHS must either present a definitive plan with the
ultimate goal of visitation or make a showing that visitation
is not in the children's best interests.
addressing the reasonable-efforts question at the review
hearing, the court may appropriately rely on an evaluation by
the children's therapists regarding the children's
emotional conditions and the feasibility of reinitiating
contact with their mother through family therapy. The court
may also consider requiring the children's attendance at
the hearing so that the court can hear their concerns
firsthand. The court may consider the children's
opposition to contact with their mother in deciding if
visitation is in their best interests. See In re
N.B., No. 04-1100, 2004 WL 1900007, at *1 (Iowa Ct. App.
Aug. 26, 2004) (agreeing it was not in the child's best
interest that visitation with the father be forced); see
also In re Brittany C., 120 Cal.Rptr.3d 338, 347
(Cal.Ct.App. 2011) (noting "child's input and
refusal and the possible adverse consequences if a visit is
forced against the child's will are factors to be
considered in administering visitation" (citation
reverse the portion of the dispositional order finding the
DHS made reasonable efforts toward reunification and remand
for further proceedings consistent with this opinion.
 We review child-welfare cases de
novo. See In re D.D., 653 N.W.2d 359, 361 (Iowa
2002). We are not bound by the juvenile court's factual
findings, but we give them weight, especially when
credibility is at issue. See id.
 The children both have had birthdays
in the intervening months and are now ages seventeen and
 The children were not personally
present at the August 17 hearing despite the presumption set
out in Iowa Code section 232.91(3) that it is in the best
interests of a child who is fourteen years or older to attend
all hearings. The children were represented by guardian ad
litem Elizabeth Batey at the hearing, but no record was made
concerning the waiver of their presence. Batey did offer as
an exhibit a letter S.P. had written to his mother asking her
to sign a guardianship for his current caregivers.
 The mother's attorney also
informed the court that his client had completed a month-long
inpatient substance abuse program.
 The children again were not present at
the hearing, despite the presumption under section 232.91(3)
that attending would have been in their best interests, and
again, no record was made as to the waiver of their
 In the context of dissolution cases,
Iowa courts have considered the age and educational level
when deciding the weight to give the custody preferences of a
minor child. See In re Marriage of Ellerbroek, 377
N.W.2d 257, 258-59 (Iowa Ct. App. 1985).