IN THE INTEREST OF L.B., Minor Child, J.R., Father, Appellant.
from the Iowa District Court for Clinton County, Phillip J.
Tabor, District Associate Judge.
father appeals from the dispositional order entered in an
assistance proceeding under Iowa Code chapter 232 (2018).
L. Cox, Bettendorf, for appellant father.
J. Miller, Attorney General, and Charles K. Phillips,
Assistant Attorney General, for appellee State.
J. Arnold, Davenport, guardian ad litem for minor child.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
Tabor, J., takes no part.
appeals from the dispositional order entered in this
child-in-need-of-assistance proceeding arising under Iowa
Code chapter 232 (2018). The dispositional order placed the
child at issue in the custody of the Iowa Department of Human
Services ("IDHS") for placement in family foster
care. Johnathon contends the juvenile court should have
placed the child in the custody of Johnathon's mother,
the child's paternal grandmother, who is a licensed
review child-in-need-of-assistance proceedings de novo.
See In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). We
examine both the facts and law, and we "adjudicate
[anew] those issues properly preserved and presented."
See In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App.
1995). "Although our review is de novo, we afford
deference to the district court for institutional and
pragmatic reasons." Hensch v. Mysak, 902 N.W.2d
822, 824 (Iowa Ct. App. 2017).
a dispositional hearing, Iowa courts are required to
"make the least restrictive disposition appropriate
considering all the circumstances of the case." Iowa
Code § 232.99(4). "The dispositions which may be
entered . . . are listed in sections 232.100 to 232.102 in
order from least to most restrictive." Iowa Code §
232.99(4). Suspending judgment is the least restrictive
alternative. See Iowa Code § 232.100.
"[W]hen there is a suspended judgment, the child remains
with the parent." See State v. Iowa Dist. Ct.,
828 N.W.2d 607, 615 (Iowa 2013). Transfer of legal custody
and placement away from the parent is the most restrictive.
See Iowa Code § 232.102. Our court has
concluded that, until the parent can establish the ability to
parent the child safely, the least restrictive disposition is
for the child to be placed with others. See In re
L.F., No. 13-1409, 2013 WL 5949653, at *4-5 (Iowa Ct.
App. Nov. 6, 2013) (affirming dispositional order placing
child outside home where evidence established child abuse,
mother undoubtedly lied about the child abuse, and mother
recruited child's sibling to take responsibility for
injury); In re J.C., No. 13-0597, 2013 WL 3291867,
at *3 (Iowa Ct. App. June 26, 2013) (affirming dispositional
order placing child with another where mother failed to
demonstrate the ability to safely care for the child); In
re M.O., No. 06-0405, 2006 WL 1280481, at *2 (Iowa Ct.
App. May 10, 2006) (affirming juvenile court order of
continued placement with another where mother had
substantially addressed mental-health and parenting issues
but she had not yet completed all remedial services intended
to improve her parenting skills).
contends the juvenile court should have placed the child in
the custody of his mother. On de novo review, we disagree.
The mother was a less preferable custodian for the child when
compared with IDHS because of the risk she might allow the
child to have future unsupervised contact with the father. At
the time of the dispositional hearing, Johnathon was
incarcerated and unable to care for the child at issue. This
is a recurrent issue for Johnathon. He has nine children, but
he has been unable to care for his children due to his
frequent periods of incarceration arising from his numerous
criminal convictions, including convictions for crimes of
violence. Johnathon has had his rights terminated with
respect to several of those children due to the risk of harm
he poses to his children. See In re E.B., No.
18-0486, 2018 WL 2727843, at *1 (Iowa Ct. App. June 6, 2018)
(affirming termination of father's parental rights);
In re C.R., No. 18-0592, 2018 WL 2725411, at *1
(Iowa Ct. App. June 6, 2018) (same). Granting IDHS custody of
the child for placement in foster care would allow the child
at issue to be distanced from the paternal family. This
distance would alleviate the potential risk of harm caused by
continued association with the father in an unsupervised
setting in the event the father is released from prison.
See In re L.S., 483 N.W.2d 836, 840 (Iowa 1992)
("It is in the children's best interests to remove
them from the detrimental influence of their parents and
provide a custodian who is free from the assertion by the
parents of their legal rights.").
extent Johnathon is challenging only the physical placement
of the child and not the custodial decision, his challenge
fails. Once the juvenile court selected IDHS to serve as the
child's custodian, it was not the juvenile court's
place to select the particular physical placement of the
child. Instead, IDHS, as legal custodian of the child, was
vested with the authority to select the particular foster
care placement subject to the juvenile court's review.
See Iowa Code §
(providing the custodian has the right to "maintain or
transfer to another the physical possession of that
child"). Even if the juvenile court could have directed
the particular placement of the child at issue, the physical
placement was in the best interest of the child. Here, IDHS
placed the child in a proven foster home with the child's
sibling and half-sibling. There is a preference for continued
sibling contact. See Iowa Code § 232.108. In
contrast, Johnathon has not identified any benefit to the
child of placing the child in the physical care of
the circumstances of this case, for these reasons, we affirm