                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1158
                            Filed February 10, 2016


IN THE INTEREST OF J.C.,
      Minor Child,

T.C., Father,
       Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Barbara Liesveld,

District Associate Judge.



      A father appeals from the permanency order modifying the permanency

goal from reunification to another permanent planned living arrangement and

ordering another permanent planned living arrangement.       REVERSED AND

REMANDED.



      Ryan P. Tang of Law Office of Ryan P. Tang, P.C., Cedar Rapids, for

appellant.

      Thomas J. Miller, Attorney General, and Bruce Kempkes, Assistant

Attorney General, for appellee.

      Deborah Skelton, Walford, attorney and guardian ad litem for minor child.



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

       Timothy, the father of J.C., appeals from the permanency order changing

the permanency goal from reunification to another planned permanent living

arrangement (“APPLA”). He contends the court erred in finding the State made

reasonable efforts to reunify him with J.C. and in changing the permanency goal

to APPLA.

                                          I.

       J.C., born in 2002, is one of several children adopted by Timothy and

Sandra during their twenty-eight year marriage that ended in 2013. The Iowa

Department of Human Services (“IDHS”) was involved with the family from 2010

to 2012 following allegations of abuse of the children by Timothy. A no-contact

order was entered. The child-in-need-of-assistance (“CINA”) case was closed in

2012. By the time of the dissolution decree in October 2013, the oldest child had

reached majority age, the middle two children had been permanently removed

from the home in the CINA case, and J.C. was the only child left at home. The

decree provided for joint legal custody, with Sandra having physical care and

Timothy having “phased-in” visitation with J.C. “as determined to be in the child’s

best interests by the therapist” Sandra Griffith.

       In December 2013 Sandra had a stroke, leaving her unable to care for

herself or J.C., so she placed him with friends. By February 2014, the friends

were no longer able to care for J.C., and IDHS became involved. In March, IDHS

petitioned to have J.C. adjudicated in need of assistance pursuant to Iowa Code

section 232.2(6)(j) (child without parent) and (k) (parent desires to be relieved of
                                         3



custody) (2013).    At the adjudicatory hearing, Timothy stipulated to J.C.’s

adjudication pursuant to section 232.2(6)(j). The court noted, “Placement of the

child with his father is not appropriate as the father is Court ordered through

District Court to complete therapy to improve their relationship.”       The court

placed J.C. in the custody of IDHS for family foster care placement. The court

further ordered

       that the Court grants discretion to the Department of Human
       Services regarding guided and supported parent/child interaction
       time between father and child as far as increasing the frequency
       and duration of the contact and decreasing the level of supervision
       subject to the supervision guidelines and conditioned upon
       approval of the child’s therapist.

(Bold and italics in original). J.C. was placed in family foster care with his older

brother, where J.C. has remained throughout these proceedings.

       The July 2014 dispositional review order noted the permanency goal

remained reunification and continued J.C.’s custody with IDHS for foster care

placement. Following an in-court review in December 2014, the court ordered

permanency for J.C. be addressed at the next scheduled review hearing, set for

late March 2015. Concerning J.C., the court found IDHS had made reasonable

efforts to reunify the family and no party had requested additional services or

assistance at the review “except for the father is asking for better communication

and to be told whether family counseling will occur. The guardian ad litem wants

individual counseling sessions to resume for [J.C.] with Sandy Griffith.” The court

noted the dissolution decree “requires Sandy Griffith to determine when

regular visitation, pursuant to the Decree may occur between [J.C.] and his

father.”   (Emphasis in original).   The court ordered, “The State and/or the
                                          4



Department of Human Services shall provide by way of testimony or written

report from Sandy Griffith as to her current position.”

      The March 27, 2015 order rescheduled the permanency hearing for J.C. to

June and found the IDHS had made reasonable efforts to reunify the family

during the review period, including “individual counseling with Sandra Griffith who

recommends that visits between Tim and [J.C.] remain supervised for now.”

Following a contested review and permanency hearing in June, the court

observed J.C. was participating in individual counseling with Sandra Griffith, who

“continues to recommend there be no contact between [J.C.] and his father.”

Despite the therapist’s recommendation, the court noted weekly supervised visits

had been occurring since December 2014. The court continued:

      The visits appear to go well and they have fun together. However,
      [J.C.] does not want visits to occur in the father’s home and wants
      [the] visits to continue to be fully supervised. Ms. Griffith does not
      believe that [J.C.] is ready to move toward reunification with his
      father. The department concurs. [J.C.] displays anxiety about the
      possibility. Ms. Vail [the IDHS social worker] testified [] that it is not
      in [J.C.]’s best interests to return home to his father. [J.C.]’s mother
      is not an option due to her health. Therefore, the department is
      recommending another planned permanent living arrangement as
      the permanency outcome for [J.C.]. Ms. Vail believes such a goal
      would alleviate [J.C.]’s anxiety while continuing to allow him some
      supervised contact with his father and to continue to work on his
      issues in counseling and therapy.

The court found the permanency goal should be changed from reunification to

APPLA and that the change was in J.C.’s best interests.             The court found

compelling reasons not to proceed with termination of parental rights, “including

[J.C.]’s ongoing relationship with his mother and budding relationship with his

father in a fully supervised setting.” The court also found services had been
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offered to alleviate the situation leading to [J.C.]’s removal and that J.C. could not

be returned to the parental home.

                                          II.

       Our review of permanency orders is de novo.           See In re A.A.G., 708

N.W.2d 85, 90 (Iowa Ct. App. 2005). We review both the facts and the law and

adjudicate rights anew on the issues properly presented.          See id.   We give

weight to the juvenile court’s findings, but are not bound by them. See id.

       After a permanency hearing, the court has a number of options. See Iowa

Code § 232.104(2)(a)-(d). It can return the child home; continue placement for

six months if it finds the need for removal will no longer exist after six additional

months; direct the State to pursue termination; or, if it finds termination is not in

the child’s best interests, services were offered to correct the circumstances

leading to removal, and the child cannot be returned home, order guardianship

and custody transferred to a suitable person, order sole custody with the other

parent, or order APPLA. See id. § 232.104(2)-(3); see also In re E.B., No. 15-

1384, 2015 WL 5970443, at *4 (Iowa Ct. App. Oct. 14, 2015).

                                         III.

       Timothy contends the court erred in (1) finding reasonable efforts had

been made and (2) changing the permanency goal to APPLA. The State first

responds Timothy did not preserve error on his reasonable-efforts claim because

he did not request other or additional services, or if he did, he made the request

to service providers instead of the court. See In re S.R., 600 N.W.2d 63, 65

(Iowa Ct. App. 1999) (noting that while the State has an obligation to make
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reasonable efforts to preserve the family, it is a parent’s responsibility to demand

other, different, or additional services in order to preserve error); see also In re

C.H., 652 N.W.2d 144, 148 (Iowa 2002) (stating a parent must make the

challenges “at removal, when the case permanency plan is entered, or at later

review hearings” and voicing complaints to a social worker is not sufficient; the

parent must inform the court).

        Timothy requested additional contact with J.C. at least as early as the time

of the June 2014 dispositional review order. We conclude error is preserved.

The State has provided a number of services, including supervised visitation,

individual counseling for J.C., family counseling for Timothy with J.C., family

team meetings, family foster care, FSRP (family safety, risk, and permanency)

services, Four Oaks, and Total Child. What is lacking is any increase in visitation

for Timothy or any progress from fully-supervised visitation to semi-supervised or

unsupervised.    The main stumbling block appears to be IDHS’s and court’s

delegation of decision-making authority on visitation to J.C.’s therapist, Sandra

Griffith.   We recognize the dissolution court ordered a period of phased-in

visitation for Timothy that “shall end when Sandra Griffith determines that regular

visitation can should commence.” The phased-in visitation was designed to give

Timothy and J.C. time to develop a relationship because Timothy had been

absent from J.C.’s life for approximately two years. The delegation of judicial

authority to a third party, in the context of dissolutions of marriage, has been

rejected by Iowa appellate courts and courts around the nation.          See In re

Marriage of Stephens, 810 N.W.2d 523, 530 n.3 (Iowa Ct. App. 2012) (listing
                                             7



decisions from other jurisdictions). It is the court’s “responsibility to make an

impartial and independent determination as to what is in the best interests of the

child, and this decision cannot be controlled by the agreement or stipulation of

the parties.” Id. at 531. Although a court can “seek and consider” a therapist’s

recommendations, it is the court’s responsibility to make the decision. See id.1

       We conclude the same principle regarding therapists should apply here in

a CINA proceeding. Although the parties in the dissolution stipulated to Sandra

Griffith determining how visitation should proceed, the juvenile court is

responsible to act in the child’s best interests, and IDHS is charged with making

reasonable efforts to reunify the family.        See Iowa Code §§ 232.1, 232.102.

Reasonable efforts “covers both the efforts to prevent and eliminate the need for

removal.” In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). While the focus is on

efforts to improve parenting, it also “includes visitation designed to facilitate

reunification while providing adequate protection for the child.” Id.

       At the permanency hearing, Charli Vail, an APPLA case manager with

IDHS, testified concerning visitation between Timothy and J.C. and Sandra

Griffith’s involvement.




1
  We also note that the juvenile court has exclusive jurisdiction over the child in child in
need of assistance proceedings. See Iowa Code § 232.61(1). The grant of exclusive
jurisdiction empowers the juvenile court to enter     orders for the child's best interests
even if contrary to the terms of a dissolution decree. See Iowa Code §232.1. The
authority includes the determination of visitation rights of parents. See In re K.R., 537
N.W.2d 774, 777 (Iowa 1995). Once the juvenile court assumes exclusive jurisdiction, it
is not bound by the visitation terms fixed in the dissolution decree even to the point of
terminating parental rights. See Iowa Code § 232.109 (granting the juvenile court
exclusive jurisdiction of termination of parental right actions under Iowa Code chapter
232); In re Warren, 178 N.W.2d 293, 297 (Iowa 1970).
                                          8



              Q. Now, according to your testimony, since those [visits]
       seem to be going okay, and the Department has discretion subject
       to the therapist’s recommendation, why have we not made any
       progress, or why have visits not progressed past semi-supervised
       visits? A. I have made contact with Sandra Griffith, the individual
       therapist for [J.C.], and I have had conversations with her as far as
       what her recommendations are for moving forward, the type of
       things that her and [J.C.] talk about, and it’s my understanding from
       this courtroom that Sandra is to give a recommendation as far as
       whether or not the contact is to go from there. And so her
       recommendation remains that they continue to have fully
       supervised contact.

Vail then spoke about a letter to the court from Griffith that was attached to a

March report.    Vail indicated the letter recommended continuing supervised

visits. The court then inquired about the letter and the report, noting it did not

have it. We also are unable to find the March letter from Griffith in the record.

       When asked about her last contact with Griffith, Vail testified it was after

the March hearing, but at least two months before the June permanency hearing.

On cross examination, Timothy’s attorney questioned Vail about giving Griffith

control over visitation and Griffith’s lack of contact with the IDHS.

              Q. Let’s talk a little about Sandra Griffith. If I understand
       correctly, you are basically leaving it up to Sandra Griffith as to
       what level of visit [J.C.] have with his father? A. Yes, I have been
       told that.
              Q. You yourself haven’t spoken with Sandra for a couple of
       months? A. Yes.
              Q. You are leaving it up to Sandra Griffith to contact you
       with her position changes? A. Correct, that is our agreement.
              Q. I realize that you have not been with this case since its
       inception, but are you aware that Sandra Griffith historically is not
       good about staying in contact with the Department and the other
       parties in this case? A. I understand that is the history. Since I
       have had this case, I have talked to Sandra on multiple occasions.
              ....
              Q. Did you ever consider that maybe coming into a
       permanency hearing it would be a good idea to touch base with
       Sandra Griffith again just to see if her position has changed? A. I
                                        9



      believe if Sandra’s position had changed that she would have
      contacted me.
             Q. Despite her track record to the contrary? A. Like I said,
      my track record with her has been she has returned my calls.

      At the close of the State’s evidence, the court also questioned Vail.

              Q. Are you basing your recommendation on the sole fact of
      [J.C.] being out of care for the past fifteen months or for other
      reasons. A. For other reasons.
              Q. And if you would articulate that for me one more time?
      A. For one reason, Sandra Griffith, who he sees in individual
      therapy, has expressed that in her private conversations with [J.C.],
      he is not ready to move forward to reunification with Tim. She
      doesn’t feel that [J.C.] is ready to move forward to unsupervised or
      semi-supervised visits, and I also base that on my conversations
      with [J.C.] when he meets with me each month, and we talk about
      what he wants and what his feelings are in his relationship and
      where he lives.
              Q. Then what harm would it be to leave the goal as currently
      set as reunification and continue to move slowly? A. I think in
      [J.C.]’s mind, the goal is reunification and he hears people talk
      about that permanency goal and what that is going to be. [J.C.] has
      a constant anxiety of when that is going to happen, is it going to be
      next week or two months, I think it creates anxiety for [J.C.].

The court asked whether guardianship or termination of parental rights had been

considered. Vail said she had not talked to anyone about guardianship. She

also said termination was not in J.C.’s best interests. The court then asked about

the practical effect of changing the permanency goal from reunification to

APPLA.

             Q. If the court follows your recommendation and changes
      the permanency goal to APPLA, how will that impact the services
      that are provided directly to Tim or Sandra? A. Visitation would still
      continue to occur. . . .
             Q. How often do you envision visits to continue to occur? A.
      Between [J.C.] and Tim?
             Q. Yes. A. I don’t see any reason that the visits couldn’t
      continue to occur at least twice a month, if not more, just depending
      on scheduling and working things out.
                                         10



               Q. So, in fact, the change in permanency goal would
       decrease the contact between Tim and [J.C.]? A. It’s possible. I
       think that it could also be maintained as it is now. I know that [J.C.]
       is really enjoying the time that he is spending with him now.

       In addition to letting the counselor, Sandra Griffith, control visitation and

not having any recent information or report from her in the file, IDHS stopped

family counseling with J.C. and Timothy because it thought the counselor was

too “pro” Timothy. The family counseling was the only opportunity for J.C. and

Timothy to work on resolving issues from past abuse.

       The district court found Sandra Griffith “continues to recommend there be

no contact between [J.C.] and his father, Tim.” We are unable to make any

finding concerning what the counselor recommends because the record does not

contain any report from her and she did not testify at the permanency hearing.

We also do not find the letter the court mentioned in the file. As shown from the

testimony of Vail, she had not contacted Griffith for at least two months before

the hearing. Although she acknowledged Griffith was not good about contacting

the IDHS, she testified she thought Griffith would contact her if there was any

change in recommendation. Vail did not take the initiative to contact Griffith for

an update or to request a report for the court.

       Instead of increasing visitation or moving toward semi-supervised or

unsupervised visitation, IDHS has cut family counseling, and likely intends to

reduce visitation if the permanency goal is changed to APPLA. We conclude the

State did not fulfill its mandate to make reasonable efforts to reunify J.C. with

Timothy.
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       Following a permanency hearing, the district court has a limited number of

options under section 232.104. See section 232.104(2) (“After a permanency

hearing the court shall do one of the following:”) The court can (a) return the

child to the child’s home; (b) continue placement for six months if it determines

the need for removal will no longer exist after six months; (c) order the county

attorney to pursue termination of parental rights; or (d) enter an order

(1) transferring guardianship and custody to a suitable person, (2) transferring

sole custody from one parent to another, (3) transferring custody to a suitable

person for long-term care, or (4) if compelling reasons exist for not choosing (1),

(2), or (3) order APPLA. See Iowa Code § 232.104(2)(a)-(d). In order to enter a

permanency order pursuant to section 232.104(2)(d), such as is the case here

where the court ordered APPLA, the court must find convincing evidence of all of

the following: (a) termination is not in the child’s best interest, (b) services were

offered to correct the circumstances leading to the child’s removal, and (c) the

child cannot be returned home. Id. § 232.104(3). Because we have concluded

IDHS did not make reasonable efforts to reunify J.C. with his father, we also

conclude there is not convincing evidence services were offered to correct the

circumstances leading to the child’s removal. Consequently, it is not proper to

order any of the options set forth in section 232.104(2)(d), including APPLA.

Accordingly, we reverse the permanency order and remand for further

proceedings.

       REVERSED AND REMANDED.
