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In re J.D.

Court of Appeals of Iowa

June 20, 2018

IN THE INTEREST OF J.D. and B.D., Minor Children, T.D., Mother, Appellant.

          Appeal from the Iowa District Court for Monona County, Timothy T. Jarman (adjudication) and Mark C. Cord (disposition), District Associate Judges.

         A mother appeals a juvenile court order adjudicating her children to be children in need of assistance and the subsequent dispositional order.

          Zachary S. Hindman of Mayne, Arnseon, Hindman, Hisey & Daane, Sioux City, for appellant mother.

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

          Marchelle M. Denker of Juvenile Law Center, Sioux City, guardian ad litem for minor children.

          Considered by Danilson, C.J., and Mullins and McDonald, JJ.

          MULLINS, Judge.

         A mother appeals a juvenile court order adjudicating her children to be children in need of assistance (CINA) and the subsequent dispositional order.[1]She contends the CINA adjudication is unsupported by clear and convincing evidence or, alternatively, the juvenile court erred in declining to return the children to the parents' care at the time of disposition.

         I. Background Facts and Proceedings

         The following facts can be gleaned from the adjudication record. The children in interest, B.D. and J.D., were born in 2004 and 2005, respectively. The parental rights of the children's biological parents were terminated in 2007, after which the children were adopted by their paternal grandparents.[2] B.D. has been diagnosed with autism and ADHD and has a history of self-harming behavior. Both children regularly attend therapy. The mother is sixty-one years old and the father is sixty-two. The father is diabetic and has heart issues. The mother is "delicate diabetic" and has high blood pressure; COPD, which requires her to be on oxygen "24/7"; and a host of other health issues. The parents do not work, but they receive disability benefits.

         In May 2016, B.D. reported to a friend through social media that the father physically and sexually assaulted her, but the child later retracted these allegations during an interview with a child protective worker from the Iowa Department of Human Services (DHS). In a subsequent interview at a child advocacy center, B.D. denied any inappropriate touching occurred. J.D. reported the father has hit her in the past but similarly denied she was ever the subject of any inappropriate touching. DHS determined the allegations to be "not confirmed" and concluded the children could be safely returned to the parents' care.

         In early September 2017, DHS received allegations that B.D. reported the father recently "put his hands down her pants and touched her privates." B.D. consistently related this allegation to law enforcement, a school nurse, a DHS worker, and during an interview at a child advocacy center. Both parents denied the allegation. J.D. denied the veracity of B.D.'s allegations during her interviews with DHS and the child advocacy center. Law enforcement became involved in the case, but the adjudication record is devoid of any indication that criminal charges were pursued against the father. DHS determined the children could not be safely returned to the home, and an emergency removal order was entered by the juvenile court placing the children in the care, custody, and control of DHS for suitable placement. The children were placed with T.D. and his wife.[3]

         The State filed petitions alleging the children were CINA pursuant to Iowa Code section 232.2(6)(c)(2) and (d) (2017).[4] An adjudication hearing was held in October and December. In its subsequent adjudication ruling, the juvenile court noted its "serious concerns and a degree of doubt related to the alleged sexual assault" and concluded "the State failed to prove the assault by clear and convincing evidence." The court therefore declined to adjudicate the children CINA pursuant to section 232.2(6)(d).

         However, the court concluded the children "are 'imminently likely' to suffer harmful effects because of a determination that their adoptive parents have failed and are likely to continue to fail to exercise a reasonable degree of ...


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