                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1384
                              Filed October 14, 2015

IN THE INTEREST OF E.B., V.B.,
D.B., and M.E.-B.,
       Minor Children

B.B., Mother,
       Appellant,

S.E., Father,
       Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Johnson County, Deborah Farmer

Minot, District Associate Judge.



       A mother and father each appeal from the permanency order changing the

case permanency goal for three of the children from reunification to another

planned permanent living arrangement. AFFIRMED ON BOTH APPEALS.

       Joseph C. Pavelich of Mellon & Spies, Iowa City, for appellant-mother.

       Sally H. Peck, Iowa City, for appellant-father.

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

General, Janet Lyness, County Attorney, and Patricia Weir, Assistant County

Attorney, for appellee.

       Anthony Haughton, Linn County Advocate, guardian ad litem for minor

children.

       Lynn M. Rose of Mears Law Office, Iowa City, for minor children.

       Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.

       Brenda, the mother of the four children in interest, and Stephen, the father

of the youngest child, each appeal from the permanency order changing the case

permanency plan goal for three of the children from reunification to another

planned permanent living arrangement (“APPLA”), denying the parents’ requests

for an additional six months to work toward reunification, and directing the State

and guardian ad litem (GAL) to consider whether termination of parental rights

would be in the best interests of any of the children. The mother also contends

the court abused its discretion in denying her request to reopen the record.

                                             I.

       The mother has four children: E.B. (born 1998), V.B. (born 2002), D.B.

(born 2004), and M.E.-B.1 (born 2007). The family came to the attention of the

Iowa Department of Human Services (“IDHS”) in October 2011 after D.B.

attempted suicide by hanging himself in the back yard. He was removed from

the home in November and placed in a psychiatric medical institute for children

(“PMIC”). The State petitioned to have all four children adjudicated in need of

assistance in December. In March 2012, the court adjudicated E.B. and D.B. in

need of assistance as to their fathers (by default) pursuant to Iowa Code section

232.2(6)(c)(2) and (6)(f) (2011). In May, the court adjudicated all four children in

need of assistance pursuant to section 232.2(6)(c)(2), and E.B. and D.B. also

pursuant to section 232.2(6)(f). The court continued D.B.’s PMIC placement and



1
 Virtually all of the record references to this child give her name as M.E.-B. or just M.B.,
but the challenged permanency order inexplicably reverses the order of the family
names to M.B.-E. For consistency, this opinion uses M.E.-B. when referring to this child.
                                        3



allowed the other three children to remain in the family home under the protective

supervision of the IDHS. The court observed:

      Parental mental illness and medical conditions, lack of follow
      through with recommended services, failure to appropriately
      supervise and discipline the children, resistance to intervention, and
      inability or unwillingness to recognize and acknowledge these
      issues has, over a period of many years, created a stressful,
      chaotic, and unpredictable home which has negatively impacted all
      the children to various degrees. All of the children have received
      mental health diagnoses warranting psychiatric or remedial
      services. The three older children[, including D.B.,] have special
      educational and emotional needs, which are well-documented.
      Without intensive services, the children’s problems, as well as the
      conditions that have prevailed in the home for the past several
      years, will certainly fail to improve and will likely worsen.

The July dispositional order concerning E.B., V.B., and M.E.-B. continued their

placement in the family home.

      In September 2012, Stephen was removed from the home and a no-

contact order entered following an incident of domestic violence. After a review

hearing in November, the court issued a review order in December that

continued the placement of E.B., V.B., and M.E.-B. with their mother. The court

expressed a number of concerns, including the mother’s “well-documented”

instability and parenting deficits “in large part due to her multiple medical and

mental health diagnoses” and the lack of any indication the parents were

complying with the court’s order to “develop and use consistently a system of

behavior management, behavior modification, and discipline for the children.”

      Proceedings concerning D.B., the only child not in the home at that time,

followed a separate track.    The court held a contested permanency hearing

concerning D.B. on November 5, 2012, and January 2 and 13, 2013, and issued
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its permanency order on March 19.         His disruptive behaviors had escalated

significantly in direct correlation to the amount of time he spent with his mother.

After the first day of the hearing, D.B. ran in front of a moving school bus

because he wanted to kill himself. The court found D.B. could not be returned

home “now or at any time in the foreseeable future,” but the court also found

termination was not in his best interest because of the strong familial identity, his

relationship with his siblings, and his age. The court changed the permanency

goal for D.B. from reunification to APPLA. This court affirmed on appeal. In re

D.A.B., No. 13-0513, 2013 WL 3458148, at *4 (Iowa Ct. App. July 10, 2013).

The permanency goal for D.B. has remained APPLA since then.

       Following a review hearing in April 2013, the court noted a continued lack

of progress despite extensive services.      The court scheduled a modification

hearing in May “to determine whether one or more of the children need a

different placement and/or whether other services should be offered or changes

should be made to the Case Permanency Plan.” Following a hearing on July 2,

the court issued its review order on August 8. The court noted the State and the

GAL were not recommending modification.            The court continued the prior

dispositional orders that E.B., V.B., and M.E.-B. remain with their mother under

the protective supervision of the IDHS. The court observed, however:

       The Court continues to find that the situation at home is tenuous,
       that minimal progress is being made, and that these children are at
       high risk for not having their needs met, for physical and emotional
       abuse, and for denial of critical care. Further, their emotional health
       is clearly in jeopardy. The family is well-intentioned, they love each
       other, they are bonded to each other, and Brenda is perhaps
       functioning to the best of her ability. However, it remains an open
                                       5



      question as to whether this will be enough to preserve the physical,
      mental, and emotional health of these vulnerable children.

      On November 4, the court held a review hearing and received evidence

V.B. should be removed from the home and placed in foster care after an

incident of domestic violence between her and her stepfather, Stephen. The

court ordered V.B.’s placement in temporary shelter care pending foster-care

placement. This court affirmed the modification order on appeal. In re V.B., No.

14-0315, 2014 WL 2600318, at *5 (Iowa Ct. App. June 11, 2014).          She has

remained out of the home since her removal.

      A February 11, 2014 review order concerning E.B. and M.E.-B. continued

their placement with their mother and their permanency goal as “maintain family

unification.” An April 14 order following an updated progress report from the

IDHS continued V.B.’s placement in foster care and scheduled a modification

hearing concerning E.B. and M.E.-B. to determine whether they should be

removed from the mother’s care. On May 20, after the scheduled modification

hearing was not completed, the court entered a temporary shelter/modification

order placing E.B. and M.E.-B. in temporary shelter care, based on a finding the

children

      cannot any longer remain safely in the family home and that
      remaining in the home would be contrary to the children’s best
      interests due to repeated episodes of physical violence between
      family members, failure of the mother to meet the need of the
      children for appropriate supervision and discipline, and that the
      children’s mother has demonstrated, over an extended period of
      time, a complete failure to manage the behavior of the children in
      such a way as to ensure even their basic physical safety.

The court further found:
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       [The IDHS] has made reasonable efforts to prevent the removal of
       the children from the home. In fact, the panoply of services that
       have been provided to this family can only be described as
       extraordinary. Virtually every conceivable service has been made
       available to the family. None of these services have resulted in
       anything more than temporary improvement in some of the
       expectations of the Case Permanency Plan. Further, there is
       overwhelming evidence that the home life of these children has
       continued to deteriorate over the past several months to the point
       whether their physical and emotional health and safety are at
       imminent risk.

The court ordered E.B.’s placement in a youth shelter so he could finish the

school year in the same school. The court ordered M.E.-B.’s placement in foster

care “in light of [her] young age.” Following completion of the evidentiary hearing

in late May, the court filed its order modifying disposition of E.B. and M.E.-B. to

place them in the guardianship of the IDHS for placement in foster family care.

They have remained out of the home since their removal.

       All of the children’s cases came on for permanency review in March 2015,

but because Brenda requested an evidentiary hearing, the court scheduled a

contested permanency hearing in May. After various motions and continuances,

the court heard evidence on June 19 and 23 and issued the permanency order

giving rise to this appeal on July 31.

       The court’s order carefully and thoroughly reviews the history of this family

and IDHS’s efforts to keep this family intact. The court noted Brenda’s lack of

progress in dealing with her mental and physical health issues, in completing the

goals of the case permanency plan, or in remedying her parenting deficiencies.

It also noted Stephen was “technically homeless” and unemployed. The court

concluded:
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      There is no evidence that shows that the children can be returned
      home now or in the foreseeable future, or ever. Nothing has
      changed from the observations made by the Court in its July 7,
      2014 ruling regarding modification of prior dispositional orders for
      [E.B. and M.E.-B.]. Nothing has really changed since the beginning
      of these cases, except that the futility of pursuing the goal of
      reunification has now been established beyond all doubt. Brenda
      and Stephen are profoundly disabled adults. They cannot take
      care of themselves. They cannot take care of the children. There
      is virtually no chance this will ever change.

      The court expressed optimism for the children, however, noting their

“remarkable capacity for change.”     Once removed from Brenda’s care, “the

children began to make notable physical, medical, and developmental progress,”

to the point that “almost all their medical problems have been resolved and their

medications have been reduced or even eliminated.”         Despite the children’s

emotional needs being “much more complex and much less easily resolved, the

outlook is more promising than ever.” The court found termination was not in the

children’s best interests, “due to their strong familial identity, and their

relationship with each other and the other siblings.” It further found termination

was not in E.B.’s or V.B.’s interest because of their age, but termination and

adoption should be considered as a permanency option for D.B. and M.E.-B.

      The court, “pursuant to stipulation of the parties,” continued both E.B. and

D.B. in the custody and guardianship of the IDHS, left D.B.’s APPLA permanency

goal unchanged, and changed E.B.’s permanency goal to APPLA. “Based on the

findings and conclusion” the court made, it continued V.B. and M.E.-B. in the

custody and guardianship of the IDHS and changed their permanency goals to

APPLA. It also directed the IDHS, county attorney, and GAL to consider whether
                                          8



termination would be in the best interests of any of the children and, if so, to file

termination petitions or reports and recommendations.

                                         II.

       Review of permanency orders is de novo. 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. Id. We give weight to the juvenile

court’s findings, but are not bound by them. Id.

                                         III.

       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).

                                         A.

       Stephen contends clear and convincing evidence does not support the

court’s finding he had not made any progress since the adjudication hearing,

resulting in (1) the court’s denial of his request for additional time and (2) the

court’s order changing the permanency goal to APPLA and directing investigation

whether termination was in M.E.-B.’s best interest. He argues he has complied

with requests for training, has completed his training as a chef, and has been
                                         9



receiving regular care for his psychological and physical ailments. He disagrees

with the court’s findings he has not made sufficient progress on IDHS

expectations, his job seeking attempts are only recent, he declined parent-

partner services, and M.E.-B. was regularly abused by V.B.

      From our review of the record, we conclude M.E.-B. could not have been

placed in Stephen’s care at any time since he left the family home following the

domestic violence incident. In order to extend the time for reunification, clear and

convincing evidence would have to support a finding the need for removal would

no longer exist at the end of the six-month extension.            See Iowa Code

§ 232.104(2)(b).   A year before the challenged permanency order, the court

stated, “Steve will need to demonstrate the ability to maintain a safe and stable

home, to participate in and benefit from parenting and other services, and to be

honest. To date, there is no evidence indicating any of these changes can or will

occur.” Nothing changed in the ensuing year. Stephen has not had a home for

M.E.-B. nor means of supporting her. Neither we nor the district court could

make the required finding the need for removal would no longer exist after an

additional six months.. See id. § 232.104(2)(c); In re J.E., 723 N.W.2d 793, 798

(Iowa 2006) (stating we look to a parent’s past performance “because it may

indicate the quality of care the parent is capable of providing in the future”). We

agree with the court’s determination termination was not in the children’s best

interest at the time of the permanency hearing, and we affirm the order changing

the permanency goal for M.E.-B. to APPLA. Stephen’s challenge to that portion

of the order directing continued consideration whether termination would be
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appropriate is without merit. See id. § 232.104(2)(c) (providing the court can

direct that termination proceedings be instituted). We affirm the permanency

order on Stephen’s appeal.

                                        B.

       Brenda challenges the court’s modification of the permanency goal for

V.B. and M.E.-B from reunification to APPLA. Alternatively, she seeks a six-

month extension of time for reunification with V.B. and M.E.-B.

       Over the four-year course of these proceedings, Brenda has repeatedly

demonstrated her inability to parent her four children, either as a single parent or

while married to Stephen. The court and IDHS worked extremely diligently to

keep the children in the family home. One year prior to the order challenged in

this appeal, the court explained, “With the benefit of hindsight, it seems that the

fierce devotion to the goal of family unification, pursued with the best and noblest

of intentions, has resulted in substantial harm to these children. Whether that

harm can be addressed, ameliorated, or healed is an open question.” At that

time, D.B. and V.B. were already out of the home, and the court removed E.B.

and M.E.-B. In the ensuing year, the record shows the children were healing

both emotionally and physically in large part because they were out of Brenda’s

care. Brenda has mental and physical issues that affect her ability to manage all

the children. Clear and convincing evidence supports a finding the children could

not be returned to Brenda’s care at the time of the permanency hearing.

Considering both her past performance and the lack of any significant change in

the year prior to the permanency hearing, we conclude neither the court nor we
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could make the required finding the need for removal “would no longer exist” at

the end of an additional six months.          See Iowa Code § 232.104(2)(c).

Consequently, there is no basis to extend the time for permanency by six

months.

      Considering E.B.’s and V.B.’s age, the children’s familial identity, their

continued bond with Brenda (with perhaps the exception of D.B.), and with each

other, we agree termination was not in the children’s best interests at the time of

the permanency hearing. The resulting modification of the permanency goals for

E.B., V.B., and M.E.-B. to APPLA was appropriate. We affirm the change in

permanency goals.

                                        C.

      Brenda contends the court abused its discretion in denying her request to

reopen the record and allow testimony and evidence concerning changing E.B.’s

permanency goal to APPLA and continuing D.B.’s goal as APPLA. The district

court denied the request to reopen the record after Brenda had changed her

position on the issue several times resulting in delay of these proceedings.

      In considering an application to reopen the record, the district court is in

the best position to determine what is “necessary and appropriate to achieve

substantial justice.” State v. Long, 814 N.W.2d 572, 576 (Iowa 2012). To that

end, the district court has broad discretion to reopen the record and consider

additional evidence, and its “decision will ordinarily not be interfered with by a

reviewing court.” Id. (citation omitted); see also In re J.R.H., 358 N.W.2d 311,

318 (Iowa 1984).
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      The permanency order sets forth in detail the events surrounding the

multiple permanency hearings.        Based on Brenda’s initial stipulation of

agreement concerning E.B. and D.B., the State did not present evidence

concerning them because their permanency was uncontested.                At the next

hearing, E.B. was no longer present and the hearing concerned Stephen’s

challenge to the proposed change in M.E.-B.’s permanency goal.               Brenda

reversed her decision to stipulate and sought to introduce evidence to contest the

permanency goals for E.B. and D.B. Under the circumstances, we cannot say

the court abused its broad discretion in denying Brenda’s application.

                                       IV.

      For the foregoing reasons, we affirm the permanency order and the court’s

denial of Brenda’s request to reopen the record.

      AFFIRMED ON BOTH APPEALS.
