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In re D.B.

Court of Appeals of Iowa

September 27, 2017

IN THE INTEREST OF D.B., T.B., A.M., and A.T., Minor Children, STATE OF IOWA, Petitioner-Appellant, JAMI HAGEMEIER, Guardian Ad Litem, Appellant.

         Appeal from the Iowa District Court for Polk County, Susan C. Cox, District Associate Judge.

         The State and guardian ad litem appeal from the dismissal of the child-in-need-of-assistance petitions. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

          Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellant State.

          Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, guardian ad litem for all appellant children, and attorney for A.M. and D.B.

          Sharon M. Wegner of Graham, Ervanian & Cacciatore, L.L.P., Des Moines, attorney for T.B. & A.T.

          Thomas P. Graves of Graves Law Firm, P.C., Clive, for appellee mother.

          Aaron H.R. Ginkens of Ginkens Law Firm, P.L.C., West Des Moines, for appellee father of D.B. & T.B.

          Daniel M. Northfield, Urbandale, for appellee father of A.M.

          Dale D. Mays of Mays and Clausen Law Office, Newton, for father of A.T.

          Tabor and McDonald, JJ.

          DANILSON, Chief Judge.

         The State and the guardian ad litem appeal from the dismissal of the child-in-need-of-assistance (CINA) petitions, which alleged the children were CINA pursuant to Iowa Code section 232.2(6)(b) and (c)(2) (2017). Because the State proved by clear and convincing evidence that A.T., T.B., and D.B. should be adjudicated CINA, we reverse and remand with directions. We affirm the decision of the juvenile court dismissing the CINA petition as to A.M.

         I. Background Facts.

         Alicia and Christopher are married and have five children between them. A.M., age fourteen, is Alicia's child with Michael. M.B., age eleven, is Christopher's child with A.L. (who lives in Florida).[1] A.T., age twelve, is Alicia's child with Randy. T.B., age six, and D.B., age seven months, are Alicia's children with Christopher. Alicia is employed as a certified medical assistant. Christopher is a trucker who is on the road several days a week. Due to Christopher's absence, Alicia was the primary caregiver for all the children.

         Alicia and M.B. have had a difficult relationship. M.B. continued to see a therapist after the previous juvenile court proceedings were closed. In August 2016, Alicia and Christopher had M.B. undergo a psychological examination, which indicated M.B. is mentally lower functioning, has "strong emotional reactions, " and "directs her negative emotions towards others in her life [particularly Alicia, so] that she can then blame them for the loss of her fantasized perfect relationship with her father."

         Also in August 2016, five days after giving birth to D.B., Alicia had a "massive heart attack, " which requires a lifelong need for medication. She is to keep her "stress level down." [2]

         In November 2016, A.M. went to live with his father, Michael.

         On January 25, 2017, by ex parte order, M.B., A.T., T.B., and D.B. were removed from Alicia and Christopher's home based upon a report to DHS that Alicia had hit M.B. and caused a bloody nose.

         Six-year-old T.B. was interviewed and stated that M.B. gets spanked with a spatula, Christopher slapped M.B., and M.B. had a bloody nose. In an interview with a child protective worker, M.B. reported being hit in the face by her father and being consistently grounded or in trouble. She also reported having to eat hot sauce with added cayenne pepper as punishment; not receiving any gifts for Christmas; being told she is "fat, stupid and bad"; being punished for loading the dishwasher wrong; being beaten with a spatula; being forced to perform wall squats or run up and down the stairs for extended periods of time; and being forced to stand at the dinner table while everyone else got to sit.

         The State sought to have D.B., T.B., A.T., and A.M. adjudicated CINA pursuant to Iowa Code section 232.2(6)(b) and (c), asserting they were at risk of physical or emotional harm as a result of abuse or neglect by Alicia and Christopher. After the removal and adjudication hearing had begun, [3] and before the State presented all its evidence, the court issued an order returning D.B. to his parents.[4]

         All parties stipulated to M.B.'s continued removal and CINA adjudication. A.M. remained living with Michael, who stipulated to A.M.'s removal and CINA adjudication. While Alicia agreed with A.M.'s placement with Michael, she contested adjudicating A.M. a CINA.

         Chelyne Cunningham testified she was the therapist for A.T., T.B., and M.B. She starting seeing A.T. in 2015 "because she was having some acting out behaviors at home and at school due to relationship stressors that she had with her father and potential abandonment that she was experiencing with them not having a strong relationship." Ms. Cunningham testified A.T. consistently denied any abuse in Alicia and Christopher's home as to herself or her siblings.

         Ms. Cunningham stated she also started seeing M.B. five or six months after sessions started with A.T.:

[M.B.] was brought to my office because she was having acting out behaviors at home and at school which presented oddly for her age for some of the things she was doing or not doing. So as an example hygiene or lack thereof. Issues were brought up just her not having some of the same interests that children her age generally would have.

         Ms. Cunningham recommended a psychological evaluation be prepared for M.B. She was asked if M.B. is "good at accepting responsibility for her actions?" Ms. Cunningham stated:

Not at all. She-and that was another reason for the request for the psychological evaluation. When I was stating that she seems delayed, she has a very difficult time being accountable, and she-even when you ask her about something that she's done, you would get a very what we call matter of fact a very blank stare almost as if she, you know, went to another place and didn't know what you were talking about.
Q. She denied that behavior that was reported to you?

A. She wouldn't speak, and with continued probing some sessions I would have better luck with her stating, yes, I did that thing whatever that thing was by the end of the session, but the majority of the time especially when ...


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