               IN THE SUPREME COURT OF IOWA
                                  No. 09–0716

                               Filed July 9, 2010


JANE DOE,

      Appellant,

vs.

IOWA DEPARTMENT OF HUMAN SERVICES,

      Appellee.


      Appeal from the Iowa District Court for Des Moines County,

Michael J. Schilling, Judge.



      A mother appeals from a district court decision affirming an Iowa

Department of Human Services’ decision to place her name on the child

abuse registry. REVERSED AND REMANDED WITH DIRECTIONS.



      Elizabeth A. Norris, Iowa City, Jessica J. Taylor and Michelle

Mackel-Wiederanders, Des Moines, for appellant.


      Thomas J. Miller, Attorney General, and Paul F. Kraus, Assistant

Attorney General, for appellee.



      Tina L.B. Fisher, Des Moines, for amici curiae Iowa Coalition

Against Domestic Violence, Iowa Coalition Against Sexual Assault,

Minnesota Coalition for Battered Women Family, The Family Violence

Prevention Fund, and the National Coalition Against Domestic Violence.
                                   2

      Thomas W. Foley of Babich, Goldman, Cashatt & Renzo, P.C., Des

Moines, for amicus curiae Children & Families of Iowa.
                                         3
WIGGINS, Justice.
       In this appeal, Jane Doe 1 seeks a ruling reversing the judgment of

the district court affirming the Iowa Department of Human Services’

(DHS) final decision finding Doe had committed child abuse and placing

her name on the central child abuse registry. 2 Specifically, the district
court affirmed DHS’s final decision finding Doe had committed child

abuse by denying her child critical care due to Doe’s failure to provide for

the proper supervision of her child in 2001 and 2002, when she

repeatedly exposed her child to the child’s father, the perpetrator of

numerous incidents of domestic abuse against Doe.

       On appeal, Doe raises three issues as to why her name should not

be on the child abuse registry.        First, she argues substantial evidence

does not support the finding that she committed child abuse. Next, Doe

contends the legislature did not authorize DHS to place her name on the

registry for failing to provide for the proper supervision of her child.

Finally, she asserts DHS’s practice of holding domestic violence victims

responsible for the actions of their perpetrators is against public policy.

Because we agree with Doe’s contention that the legislature did not

authorize DHS to place Doe’s name on the registry for failing to provide
for the proper supervision of her child, we do not consider Doe’s other

arguments on appeal.         Accordingly, we reverse the judgment of the

district court, and remand the case to the agency to remove Doe’s name

from the child abuse registry.




       1We   have changed the name of the appellant pursuant to Iowa Court Rule 21.28
in order to keep the appellant’s identity confidential.
       2DHS   did not contend Doe’s challenge to her placement on the registry was
untimely.
                                            4

      I. Statutory Framework.

      The outcome of this appeal depends on our interpretation of

various statutes and rules dealing with child abuse and the child abuse

registry. The first statute we need to interpret is chapter 232’s definition

of “child abuse.” This statute defines “child abuse,” in part, as:

      The failure on the part of a person responsible for the care of
      a child to provide for the adequate food, shelter, clothing or
      other care necessary for the child’s health and welfare when
      financially able to do so or when offered financial or other
      reasonable means to do so.

Iowa Code § 232.68(2)(d) (2001) 3 (emphasis added).
      DHS refers to this subsection of the definition of “child abuse” in

shorthand by using the term “denial of critical care.” See Iowa Admin.

Code r. 441—175.21 (2001) (defining “denial of critical care”). In Iowa

Administrative Code rule 441—175.21, DHS interprets the meaning of

the “denial of critical care” definition of “child abuse” by enumerating

eight circumstances that constitute a “denial of critical care.” Id. The

rule states in relevant part:

            “Denial of critical care” is the failure on the part of a
      person responsible for the care of a child to provide for the
      adequate food, shelter, clothing or other care necessary for
      the child’s health and welfare when financially able to do so,
      or when offered financial or other reasonable means to do so,
      and shall mean any of the following:

            1. Failure to provide adequate food and nutrition to
      the extent that there is danger of the child suffering injury or
      death.

            2. Failure to provide adequate shelter to the extent
      that there is danger of the child suffering injury or death.

            3. Failure to provide adequate clothing to the extent
      that there is danger of the child suffering injury or death.



      3All   references to the Iowa Code are to the 2001 Code unless otherwise noted.
                                     5
             4. Failure to provide adequate health care to the
      extent that there is danger of the child suffering injury or
      death. A parent or guardian legitimately practicing religious
      beliefs who does not provide specified medical treatment for
      a child for that reason alone shall not be considered abusing
      the child and shall not be placed on the child abuse registry.
      However, a court may order that medical service be provided
      where the child’s health requires it.

            5. Failure to provide the mental health care necessary
      to adequately treat an observable and substantial
      impairment in the child’s ability to function.

            6. Gross failure to meet the emotional needs of the
      child necessary for normal development.

             7. Failure to provide for the proper supervision of the
      child to the extent that there is danger of the child suffering
      injury or death, and which a reasonable and prudent person
      would exercise under similar facts and circumstances.

             8. Failure to respond to the infant’s life-threatening
      conditions (also known as withholding medically indicated
      treatment) by providing treatment (including appropriate
      nutrition, hydration and medication) which in the treating
      physician’s reasonable medical judgment will be most likely
      to be effective in ameliorating or correcting all conditions,
      except that the term does not include the failure to provide
      treatment (other than appropriate nutrition, hydration, or
      medication) to an infant when, in the treating physician’s
      reasonable medical judgment any of the following
      circumstances apply: the infant is chronically and
      irreversibly comatose; the provision of the treatment would
      merely prolong dying, not be effective in ameliorating or
      correcting all of the infant’s life-threatening conditions, or
      otherwise be futile in terms of the survival of the infant; the
      provision of the treatment would be virtually futile in terms
      of the survival of the infant and the treatment itself under
      the circumstances would be inhumane.

Id. (emphasis added). For the purposes of this opinion, we will assume,

without deciding, substantial evidence supports DHS’s finding that Doe

committed child abuse under Iowa Code section 232.68(2)(d) for her

failure to provide for the proper supervision of her child as defined in rule

441—175.21.
                                    6

      We must also consider the statute that governs placement on the

child abuse registry providing:

            2. If the alleged child abuse meets the definition of
      child abuse under section 232.68, subsection 2, paragraph
      “a” or “d”, and the department determines the injury or risk
      of harm to the child was minor and isolated and is unlikely
      to reoccur, the names of the child and the alleged
      perpetrator of the child abuse and any other child abuse
      information shall not be placed in the central registry as a
      case of founded child abuse.
            3. Except as otherwise provided in section 232.68,
      subsection 2, paragraph “d”, regarding parents legitimately
      practicing religious beliefs, the names of the child and the
      alleged perpetrator and the report data and disposition data
      shall be placed in the central registry as a case of founded
      child abuse under any of the following circumstances:
            ....
             f. The department determines the acts or omissions of
      the alleged perpetrator meet the definition of child abuse
      under section 232.68, subsection 2, paragraph “d”, involving
      failure to provide care necessary for the child’s health and
      welfare, and any injury to the child or risk to the child’s
      health and welfare was not minor or was not isolated or is
      likely to reoccur, in any of the following ways:

            (1) Failure to provide adequate food and nutrition.

            (2) Failure to provide adequate shelter.

            (3) Failure to provide adequate health care.

            (4) Failure to provide adequate mental health care.

            (5) Gross failure to meet emotional needs.

            (6) Failure to respond to an infant’s life-threatening
      condition.

Iowa Code § 232.71D(2), (3)(f).

      Finally, we must consider DHS’s rule interpreting the meaning of

section 232.71D stating:

      Reports of child abuse where abuse has been confirmed shall
      be placed on the central abuse registry as founded child
      abuse for ten years under any of the circumstances specified
      by Iowa Code Supplement subsection 232.71D(3). Reports of
                                      7
      denial of critical care by failure to provide adequate clothing
      or failure to provide adequate supervision and physical
      abuse where abuse has been confirmed and determined to
      be minor, isolated, and unlikely to reoccur shall not be
      placed in the central abuse registry as a case of founded
      child abuse as specified by Iowa Code Supplement
      subsections 232.71D(2) and (3). The confirmed abuse shall
      be placed on the registry unless all three conditions are met.
      Minor abuse shall be placed on the registry if there is a prior
      confirmed abuse.

Iowa Admin. Code r. 441—175.39 (emphasis added).

      II. Scope of Review.

      Rule 441—175.39 is DHS’s interpretation of Iowa Code section

232.71D. DHS’s interpretation requires that it must place all confirmed

child abusers who fail to provide adequate supervision of their children

on the registry unless the abuse is determined to be minor, isolated, and

unlikely to reoccur. Id. This interpretation appears to conflict with Iowa

Code section 232.71D(3)(f). Section 232.71D(3)(f) does not list failure to

provide for the proper supervision of the child as a ground to include a

confirmed child abuser on the registry. See Iowa Code § 232.71D(3)(f)

(listing six grounds for placement on the registry).

      To determine the scope of review, we must first determine whether

the legislature, by a provision of law, clearly vested DHS with the

authority to interpret Iowa Code section 232.71D. Id. § 17A.19(10)(l). If

the legislature has clearly vested DHS with the authority to interpret the

statute, we can only reverse if DHS’s interpretation is irrational, illogical,

or wholly unjustifiable. Id. On the other hand, if the legislature did not

clearly vest DHS with the authority to interpret the statute, our review is

for correction of errors at law. Id. § 17A.19(10)(c); accord Iowa Land Title

Ass’n v. Iowa Fin. Auth., 771 N.W.2d 399, 401–02 (Iowa 2009).             The

legislature has not explicitly given DHS the authority to interpret section
                                      8

232.71D. Therefore, in order for us to find the legislature clearly vested

DHS with the authority to interpret the statute, we

      must have a firm conviction from reviewing the precise
      language of the statute, its context, the purpose of the
      statute, and the practical considerations involved, that the
      legislature actually intended (or would have intended had it
      thought about the question) to delegate to the agency
      interpretive power with the binding force of law over the
      elaboration of the provision in question.

Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act,

Report on Selected Provisions to Iowa State Bar Association and Iowa

State Government 63 rptr. cmt. (1998).

      The legislature has granted DHS rulemaking authority to adopt

rules and regulations necessary to carry into practice the programs of

the department.      Iowa Code §§ 217.3(6), .6.     The legislature has also

granted DHS the authority to “organize and staff the registry and adopt

rules for its operation.”    Id. § 235A.14(1).    Finally, the legislature has

explicitly granted DHS the authority to place a founded child abuse

report on the registry if the report meets the requirements of section

232.71D.        From these statutes authorizing DHS to act, we must

determine if the legislature clearly vested DHS with the authority to

interpret section 232.71D.

      Section 17A.19(10)(c) became effective July 1, 1999.         1998 Iowa

Acts ch. 1202, § 46. At the time section 17A.19(10)(c) became effective,

the legislature required all agencies to adopt rules regarding the

programs implemented by the agency.              Iowa Code § 17A.3 (1999).

Therefore, if we were to hold the legislature’s general grant of rulemaking

authority in and of itself gives an agency interpretive powers over the

statutes   it    administers,   we   would   make      section   17A.19(10)(c)

superfluous. See Zimmer v. Vander Waal, 780 N.W.2d 730, 734 (Iowa
                                          9

2010)    (recognizing    one   of   the       fundamental   rules   of   statutory

interpretation is we will not interpret a statute to make any part of it

superfluous unless no other interpretation is reasonably possible).

Consequently, we must look elsewhere to determine if the legislature

clearly vested DHS with the authority to interpret section 232.71D.

        In granting DHS rulemaking authority regarding the registry, the

legislature used the following language: “organize and staff the registry

and adopt rules for its operation.” Iowa Code § 235A.14(1). “Operation”

means “performance of a practical work or of something involving the

practical application of principles or processes.”            Merriam-Webster’s

Collegiate Dictionary 869 (11th ed. 2003).          The practical application of

principles and processes regarding the registry requires DHS to interpret

section 232.71D when it makes rules regarding the operation of the

registry.    Thus, we have a firm conviction the legislature actually

intended to delegate to DHS interpretive power with the binding force of

law over the elaboration of Iowa Code section 232.71D. Accordingly, we

will examine DHS’s interpretation of the statute to determine if its

interpretation is irrational, illogical, or wholly unjustifiable. Iowa Code

§ 17A.19(10)(l).

        III. Analysis.

        Rule 441—175.39 interprets section 232.71D as mandating that

abuse categorized as denial of critical care, including failure to provide

adequate supervision, must be placed on the child abuse registry unless

the abuse is minor, isolated, and unlikely to reoccur. Iowa Admin. Code

r. 441—175.39.      Thus, this interpretation begins with a presumption

that DHS is required to place all founded reports of denial of critical care
                                       10

child abuse on the registry unless the abuse is minor, isolated, and

unlikely to reoccur.

      To determine if DHS’s interpretation of section 232.71D is

irrational, illogical, or wholly unjustifiable, we must apply our rules of

statutory interpretation.   The purpose of statutory interpretation is to

determine the legislature’s intent. State v. McCoy, 618 N.W.2d 324, 325

(Iowa 2000).    We give words their ordinary and common meaning by

considering the context within which they are used, absent a statutory

definition or an established meaning in the law. Midwest Auto. III, LLC v.

Iowa Dep’t of Transp., 646 N.W.2d 417, 426 (Iowa 2002).          We also

consider the legislative history of a statute, including prior enactments,

when ascertaining legislative intent. State v. Allen, 708 N.W.2d 361, 366

(Iowa 2006). When we interpret a statute, we assess the statute in its

entirety, not just isolated words or phrases. Rojas v. Pine Ridge Farms,

L.L.C., 779 N.W.2d 223, 231 (Iowa 2010). We may not extend, enlarge, or

otherwise change the meaning of a statute under the guise of

construction.   Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590

(Iowa 2004).

      Prior to 1997 the legislature required DHS to place all confirmed

reports of child abuse on the registry.           See, e.g., Iowa Code

§§ 232.70(4)(b), (c), .71(8) (1993).    On May 3, 1995, the legislature

amended chapter 232 by adding section 71A, a pilot program mandating

DHS to develop an assessment-based approach for responding to child

abuse reports. 1995 Iowa Acts ch. 147, § 5. Under this pilot program,

upon receipt of a child abuse report, DHS was required to perform an

assessment. Iowa Code § 232.71A(3) (Supp. 1995). After performing the

assessment, if DHS determined “the child suffered significant injury or

was placed in great risk of injury,” then DHS was required to place the
                                      11

founded child abuse report on the registry. Id. § 232.71A(7)(a). The pilot

program provided, “In any other case, the child abuse information in an

assessment shall not be placed in the central registry . . . .”            Id.

§ 232.71A(7)(b) (emphasis added).       It is clear the legislature initially

sought, at least on a pilot project basis, to limit placement on the registry

to those cases where the child suffered significant injury or was placed in

great risk of injury.

      Effective July 1, 1998, the legislature expanded this assessment-

based approach statewide by adopting Iowa Code section 232.71D. 1997

Iowa Acts ch. 176, §§ 5, 43. In the legislative summary of this provision,

the legislature explained that prior to the enactment of this provision it

had “enacted provisions for utilization of an assessment-based approach

on a pilot project basis.”     1997 Summary of Legislation, Children &

Youth, H.F. 698, http://www.legis.state.ia.us/GA/77GA/Session.1/Sum

mary/chil.htm (last visited July 2, 2010). The summary explained that

unlike   the   past     investigation-based   approach,     under   the   new

assessment-based approach, “if child abuse was determined to have

occurred, only serious cases were placed in the registry.”                 Id.

Furthermore, it explained that section 232.71D specified in greater detail

than the original pilot project, the criteria for placement of information

on the registry if there is a finding of child abuse. Id.

      In addition, the summary described the interplay between

subsections (2) and (3) of section 232.71D.       First, it explained section

232.71D(2) provides if DHS determines an incident of alleged child abuse

was minor, isolated, and unlikely to reoccur, the alleged abuser shall not

be placed on the registry.      Id.   The summary then explained section

232.71D(3) is based on the statutory definition of child abuse and

includes a list “of the specific incidents and determinations that would
                                    12

result in the placement of names and other child abuse information in

the central registry.” Id. Finally, the summary explained that a person

currently listed on the registry “for a circumstance that would not require

placement in the registry under the new criteria,” may request DHS to

review the case. Id.    This summary evidences a legislative intent that

DHS is not required to place all founded cases of child abuse on the

registry.

      Moreover, at the time the legislature enacted section 232.71D(3),

rule 441—175.21 listed eight different criteria under which a person can

be deemed a child abuser for a “denial of critical care.” One of the eight

criteria includes “failure to provide for the proper supervision of the

child.”     Iowa Admin. Code r. 441—175.21 (1995).        The other seven

criteria are nearly identical to the criteria contained in the present rule.

Id. However, when the legislature enacted section 232.71D(3)(f), it only

included six of those criteria for placing a person on the child abuse

registry. “Failure to provide for the proper supervision of the child” was

one of the criteria the legislature chose not to include in section

232.71D(3)(f) for placing a person on the child abuse registry.         The

legislature may express its intent by the omission, as well as the

inclusion of terms.    In other words, when the legislature expressly

mentions one thing, it implies the exclusion of other things not

specifically mentioned. Kucera v. Baldazo, 745 N.W.2d 481, 487 (Iowa

2008).

      We conclude when the legislature failed to list “failure to provide

for the proper supervision of the child” in section 232.71D(3)(f) as a

ground for placement of a person’s name on the registry, the legislature

intended that DHS shall not place a person on the child abuse registry
                                           13

who has failed to provide for the proper supervision of his or her child. 4

Accordingly, DHS’s interpretation of Iowa Code section 232.71D in rule

441—175.39, requiring that all “confirmed abuse shall be placed on the

registry unless all three conditions are met” is irrational, illogical, and

wholly unjustifiable because DHS’s interpretation extends, enlarges, and

otherwise changes the legislative intent of section 232.71D. Therefore,

DHS acted without authority in placing Doe on the registry contrary to

the provisions of section 232.71D(3). Consequently, even if we assume

substantial evidence supports DHS’s finding that Doe committed child

abuse under Iowa Code section 232.68(2)(d) for her failure to provide for

the proper supervision of her child as defined in rule 441—175.21, Doe’s

name should not have been placed on the child abuse registry.

       IV. Disposition.

       We conclude DHS should not have placed Doe on the child abuse

registry because Iowa Code section 232.71D does not permit DHS to

place on the registry a person found to have committed child abuse by

failing to provide for the proper supervision of a child, as defined in rule

441—175.21, solely for that reason. DHS and the district court erred in

holding otherwise. Therefore, we reverse the decision of the district court
upholding DHS’s decision to place Doe’s name on the registry and

remand the case to the district court, which must then return the case to

DHS and order DHS to remove Doe’s name from the registry and purge

any record that her name was on the registry.

       REVERSED AND REMANDED WITH DIRECTIONS.




       4Our  decision today does not preclude the placement of a person who has failed
to provide for the proper supervision of a child on the central child abuse registry if the
requirements of another subsection of Iowa Code section 232.71D(3) have been met.
