                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0141
                                Filed July 9, 2015


IN THE INTEREST OF M.G. AND T.G.,
Minor Children,

S.H., Mother,
Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,

Judge.



       The mother of children adjudicated in need of assistance appeals from a

permanency review order placing two of her children in the legal custody of their

father. REVERSED AND REMANDED.



       Marshall W. Orsini of Carr & Wright, P.L.C., Des Moines, for appellant

mother.

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

General, John Sarcone, County Attorney, and Kailyn Heston, Assistant County

Attorney, for appellee State.

       Erin Mayfield of the Youth Law Center, Des Moines, attorney and guardian

ad litem for minor children.



       Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DOYLE, J.

       S.H. is the mother of three children who were removed from her care after

her paramour assaulted one of her children with a belt. Ultimately, after the

receipt of services, the Iowa Department of Human Services (Department) and

the children’s guardian ad litem recommended the mother’s parental rights be

terminated. At the close of the permanency review hearing, the juvenile court

stated:

                This is a difficult case. Child abuse is a serious matter. And
       it is difficult to determine when a parent has made the change
       necessary to make sure that the child abuse doesn’t happen again.
       There’s no cookie-cutter way. And that’s what I think this case is all
       about and why we’ve gotten to this point here today.
                But given the totality of all the information I have in front of
       me here, I find that both [the mother and her paramour] recognize
       the seriousness of what took place, that both of them understand
       that it is child abuse to discipline a child in the manner in which [one
       of the children] was disciplined, and that it cannot happen again to
       any of these kids.
                But to recommend termination of parental rights based on
       disagreements over the level of accountability taken in this case
       does not meet the burden of proof.

       Following the hearing, the juvenile court entered its order finding it was in

the youngest child’s best interests to be returned to the mother’s care within sixty

days, but her other two children should be placed in the legal custody of their

father, J.G. The mother appeals that placement, asserting (1) the State failed to

prove she was offered or received services to correct the circumstance that led to

the adjudication, and (2) the juvenile court erred in placing her two other children

in the legal custody of their father. Upon our de novo review of the record, we

agree with the mother that the court erred in placing the children in the legal
                                             3


custody of the father and find the issue to be dispositive. We therefore reverse

and remand the case to the juvenile court for further proceedings.

       I. Background Facts and Proceedings.

       S.H. is the mother of M.G., born in 2006, T.G., born in 2007, and A.W.,

born in 2010.1 J.G.2 is the father of M.G. and T.G., and during the summer

months, he and the mother shared physical care of their children. During the

school year, M.G. and T.G. were in the mother’s physical care with visitation with

their father on Wednesdays and every other weekend.

       V.W. is the father of A.W. At the time the Department became involved

with the family, he was the mother’s paramour and lived with the mother and her

children.3 The paramour has a past conviction for child endangerment and a

finding of physical abuse by the Department arising out of an incident in 2004.

       In July 2013, it was reported T.G. was assaulted with a belt, resulting in

bruises on his thighs.       The accounts of the incident given by the children

identified the paramour as the perpetrator of the abuse. However, the mother

and the paramour gave a different account, asserting she assaulted the child not

the paramour.      The children were then removed from the mother and the

paramour’s care. Under the supervision of the Department, the juvenile court

placed A.W. in the temporary legal custody of a family friend and M.G. and T.G.

in the temporary legal custody of their father.


       1
          The mother also has two older children, O.H., born in 1997, and D.H., born in
1998, who have a different father. D.H. is in her father’s legal custody. These children
are not at issue in this appeal.
        2
          For ease of discussion, we will refer to J.G. as “the father,” though we recognize
he is not father of all of the mother’s children.
        3
          For ease of discussion, we will refer to V.W. as “the paramour,” though the
mother and V.W. are no longer together.
                                          4


       The children were later adjudicated to be children in need of assistance

(CINA), and numerous services were offered to the mother and the paramour for

reunification with the children. At the time of the permanency hearing held in

June 2014, the Department recommended that the mother and the paramour be

given a six-month extension to establish permanency for A.W. and that the

mother and father be granted concurrent jurisdiction to pursue modification

proceedings in district court regarding custody of M.G. and T.G. Following the

hearing, the court entered its permanency order finding:

               The children will be able to return to the mother within six
       months if the following specific factors, conditions and/or expected
       behavioral changes are made, eliminating the need for the
       children’s removal from the home: [The mother] shall: follow all
       recommendations set forth in the updated permanency plan . . . ;
       consistently exercise all visitation and interactions with her children,
       progressing toward the goal of their being placed in her home;
       participate in the children’s therapy as requested and
       recommended by the children’s therapist(s); demonstrate progress,
       insight and accountability into the issues that resulted in the
       removal of her children, and how to prevent such behaviors from
       reoccurring.

Additionally, the court determined “that the primary permanency goal for the

children remain[ed] reunification with their mother under a six-month extension

pursuant to Iowa Code section 232.104(2)(b) [(2013)].” The court also granted

concurrent jurisdiction to the mother and father to pursue modification

proceedings in district court.

       Prior to the permanency review hearing scheduled for December 2014,

the Department provided its report to the court recommending the court direct the

State to file a petition for termination of the mother’s parental rights to M.G., T.G.,

and A.W. The Department’s case worker noted the paramour had pled guilty to
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child endangerment concerning the belt-assault incident and the mother to

providing a false report to the police regarding the incident. The case worker

was concerned that it took more than a year for the matter to be resolved and the

mother and paramour to own up to what had really happened in the incident, but

she also noted the mother’s therapist had explained the mother took

accountability for the paramour because it was a third strike for him. The case

worker noted the mother’s semi-supervised visits were scaled back to fully-

supervised visits after the worker listened to calls made between the mother and

the paramour while the paramour was in jail, explaining it “was clear that [the

mother] was physically disciplining [A.W.] during [her] visits” because A.W. said

on one of the calls “momma whooped me” and on other calls the mother told

A.W. “she was going to ‘whoop her.’”4 The case worker remarked in the report

that this was “very concerning to the Department due to the reason these

children were removed: physical abuse.” Other concerns noted were that the

mother had not engaged with M.G. and T.G.’s therapy as directed, had said

negative things to the children about their father, and had continued to have

“highly manipulative behaviors throughout the life of the case,” such as not

directly informing assisted housing authorities that the children were not in her

care. The case worker concluded the Department could not safely return the

children to their mother’s care at that time “due to [the mother’s] unresolved

parenting issues, lack of progress, continued lying, manipulating, criminal

thinking, and lack to taking accountability in [M.G. and T.G.’s] therapy sessions.”


       4
         The mother explained she used the word “whooping” to refer to spanking the
children with her hand on “their butt.”
                                         6


      A permanency review hearing commenced in December 2014 and

concluded in January 2015. After hearing all of the evidence, the court at the

conclusion of the hearing stated on the record that, in regard to A.W., it was

changing the permanency goal to return the child to the mother, explaining:

      It’s not going to happen today, . . . because we need a transition
      time. But I expect that transition to take place over the next sixty
      days. . . .
              . . . Obviously, based on my ruling with [A.W.],           [The
      mother’s] contact with the child needs to progress rather quickly so
      that this child can be put in her care within the next sixty days.

Regarding M.G. and T.G., the court stated it was changing their permanency

plan to “a transfer of custody” from the mother to the father, noting the father

already had “custody of these children and [would continue] to pending his

getting a district court order that addresses custody and visitation of parenting

time with the mother.” As to visitation between the mother and M.G. and T.G.,

the court stated it saw “absolutely no reason why that visitation cannot be, frankly

unsupervised,” explaining:

             Let’s treat this case for what it is. [The mother and the
      paramour] are in therapy. I think that therapy shall continue. It
      needs to continue. But [their] relationships with their children need
      to be addressed in custody orders in district court, and we need to
      get out of their lives.
             But we’re not going to get out of their lives until, (a), that’s
      done and, (b), we’ve had some time for transition and we’ve had
      some time for these parents to continue to engage in individual
      therapy and the mother to continue to engage in therapy with the
      children’s current therapist, the two older ones.
             ....
             So I want to have a review hearing in sixty days. I’ve
      already granted concurrent jurisdiction with regard to the [G.]
      children . . . so that [the mother and father] can initiate some kind of
      custody order in district court.
                                         7


       Thereafter, the court entered its permanency review order finding that

M.G. and T.G. could not be returned to the mother’s care at that time “due to still

unresolved issues between the mother and children related to the physical abuse

that happened to [T.G.] in the mother’s home and the continued effect that has

had upon both children.” However, the court found A.W.’s return to the mother’s

care was in that child’s best interests. The court ordered A.W. be placed with the

mother within sixty days and that M.G. and T.G. be placed in their father’s legal

custody under the Department’s supervision pursuant to Iowa Code section

232.104(2)(d)(2).

       The mother now appeals the court’s placement of M.G. and T.G. in their

father’s legal custody, arguing that the State failed to prove it provided to her

reasonable services for reunification and that the juvenile court erred in placing

M.G. and T.G. in their father’s legal custody.        Because we find the latter

argument dispositive, we do not address her former contention.

       II. Scope and Standards of Review.

       We review permanency orders de novo, sorting through both the facts and

law and adjudicating rights anew on the issues properly presented on appeal. In

re A.T., 799 N.W.2d 148, 150-51 (Iowa Ct. App. 2011). We give weight to the

factual findings of the juvenile court, but are not bound by them. Id.

       III. Discussion.

       The parent-child relationship is constitutionally protected. See Quilloin v.

Walcott, 434 U.S. 246, 255, (1978); Wisconsin v. Yoder, 406 U.S. 205, 233

(1972); State v. Iowa Dist. Ct., 828 N.W.2d 607, 615 (Iowa 2013); In re K.L.C.,

372 N.W.2d 223, 226 (Iowa 1985). Notwithstanding:
                                         8


              The protection of children is one of the most well-established
       duties and public policies of the State of Iowa. The State has a
       duty to assure that every child within its borders receives proper
       care and treatment, and must intercede when parents fail to provide
       it. Both [the] DHS and the juvenile court have the important
       function of protecting children who are in need of assistance.

In re A.M., 856 N.W.2d 365, 376 (Iowa 2014) (alterations, internal citations, and

quotation marks omitted).

       In light of these competing interests, the legislature has directed chapter

232 be “liberally construed to the end that each child under the jurisdiction of the

court . . . receive, preferably in the child’s own home, the care, guidance and

control that will best serve the child’s welfare and the best interest of the state.”

Iowa Code § 232.1 (emphasis added); see also A.M., 856 N.W.2d at 373. Thus,

“[w]e afford a rebuttable presumption that the best interest of a child is served

when custody is with the natural parents,” In re N.M., 491 N.W.2d 153, 156 (Iowa

1992), and “[w]henever possible the court should permit the child to remain at

home.” Iowa Code § 232.102(5)(a). Consequently, while “[i]t is the duty of the

juvenile court when necessary to intervene and remove a child from the care and

custody of parents, either temporarily or permanently,” the court must first

determine

       that “continuation of the child in the child’s home would be contrary
       to the welfare of the child, and [it] shall identify the reasonable
       efforts that have been made.” [Iowa Code] § 232.102(5)(b); see
       also [Iowa Code] § 232.102(10)(a) (defining “reasonable efforts”).
       These determinations, required by law, are essential to the juvenile
       court’s role as the arbiter of both temporary and permanent custody
       for children in need of assistance.

A.M., 856 N.W.2d at 376.

       Following a permanency hearing, a juvenile court has four options:
                                        9


              a. Enter an order pursuant to section 232.102 to return the
      child to the child’s home.
              b. Enter an order pursuant to section 232.102 to continue
      placement of the child for an additional six months at which time the
      court shall hold a hearing to consider modification of its
      permanency order. An order entered under this paragraph shall
      enumerate the specific factors, conditions, or expected behavioral
      changes which comprise the basis for the determination that the
      need for removal of the child from the child’s home will no longer
      exist at the end of the additional six-month period.
              c. Direct the county attorney or the attorney for the child to
      institute proceedings to terminate the parent-child relationship.
              d. Enter an order . . . to . . .
              ....
              (2) [t]ransfer sole custody of the child from one parent to
      another parent.

Iowa Code § 232.104(2). However, prior to entering a permanency order under

section 232.104(2)(d), the State must establish by convincing evidence that the

children cannot be returned to their home, among other things.                 Id.

§ 232.104(3)(c).

      Here, the juvenile court ordered A.W. be returned to the mother’s care

within sixty days, a hybrid of the options found in 232.104(2)(a) and (b).

However, it went with the option found in 232.104(2)(d)(2) in regards to M.G. and

T.G. without explaining why A.W. could be returned to the mother’s care in sixty

days but not the other two children.

      There is no question the mother initially failed to be honest regarding who

struck T.G.    However, the mother has since pled guilty to providing false

information to law enforcement officials—that she perpetrated the abuse—and

admitted it was the paramour that struck T.G.        Though the Department is

concerned with her using the word “whooping” with the children as a prelude to a

possible punishment, there was no evidence that she physically abused her
                                        10


children. Moreover, parents in Iowa have the right to use corporal punishment as

a means of correcting their children’s misbehavior, circumscribed by the

requirements of moderation and reasonableness with the aim of modifying the

behavior of the child rather than satisfying the passions of an enraged parent.

See State v. Arnold, 543 N.W.2d 600, 603 (Iowa 1996). There is no evidence the

mother’s punishment ever exceeded these boundaries.

      The Department noted the mother’s “failure” to participate in all three

children’s therapy sessions; yet, the juvenile court found A.W., the youngest

child, should be transitioned into placement with the mother within sixty days,

while finding the other two children should be placed in their father’s custody.

Moreover, the evidence presented at the hearing was that although the mother in

2013 had had one bad therapy session with the children, she had since re-

engaged in therapy with the children. Additionally, the court found M.G. and T.G.

could have unsupervised visitation with the mother; clearly it did not find the

children were in danger in her care. Actually, it appears the court did not have

any concerns regarding the mother’s parenting, concluding at the close of the

permanency review hearing:

             Have [the mother and the paramour’s] progress [from the
      date of the prior permanency hearing] to this point been perfect?
      No. Should their parental rights be terminated? Absolutely not.
             This came from a serious event that took place not two years
      ago. Just because it was in 2013 doesn’t make it two years ago.
      Eighteen months ago would be a more accurate description.
             All the indications are is that [the paramour], his discipline of
      children who are not his own got out of hand, that it got out of hand,
      I believe, more than once; that the event that occurred in June
      2013, leaving bruises, was a serious matter and resulted in serious
      consequences eventually.
             ....
                                       11


              We get into the issue of whether the mother eventually took
      accountability. She did. We get into parsing terms of taking
      accountability. And we examine this accountability session that she
      had with her children [in December of 2013], which she
      acknowledges didn’t go particularly well, but I sure would like to
      have heard from the therapist with regard to that as well.
              Both [the mother and the paramour] are participating in
      individual therapy.       Both . . . have consistently exercised their
      visitations with the children. [The mother] has attempted to
      participate in therapy with her children.
              We get into the typical communication issues that occur
      between parents and the Department. We get into the typical
      situations where we have one side saying attempts were made to
      communicate and the other saying either I don’t know or
      disagreeing. We have visitations which had progressed to semi-
      supervised and then were retracted.
              ....
              With regard to [the mother], her visits were pulled back to
      where she now has one visit a week fully supervised because she
      may have had [A.W.] in her care on a day or two or three or four or
      five that she was not supposed to.
              I, frankly, don’t understand that. We’ve got a custodian who
      would certainly be able to address that issue.
              We’ve got another situation where [the mother] was seen at
      the mall with the child. And, again, I’m not seeing that any harm
      came from that, and I find her discussion of it credible.
              These children, obviously, have a close bond with their
      mother. . . . We have, in the case of the [G.] children, a father who
      has been able to care for these children.
              We have [the mother and father] who have already been
      through a custody determination in district court. This court has
      granted concurrent jurisdiction for that to be modified, and it
      certainly can be. But I’m seeing no reason why [the mother’s]
      parental rights to these children need to be terminated.
              As for [A.W.], again, [the mother], though she wanted to take
      the blame for abusing one of her children, didn’t abuse the child.
      And we want to terminate her parental rights because of her failure
      to appropriately take accountability for her actions. That alone is
      not a ground to terminate someone’s parental rights, and that’s
      really what we’ve been left with here.
              [The mother and the paramour], from all I can gather from
      the evidence that’s been presented, don’t present any substance
      abuse issues, don’t present any domestic violence issues.

Upon our de novo review of the record, we whole-heartedly agree with the

juvenile court’s sentiments. The record shows the children are closely bonded
                                         12


with the mother. M.G. and T.G. have asked to go home—with their mother,

where they have resided until the Department became involved with the family.

       Although the juvenile court noted custody of M.G. and T.G. had previously

been fixed, it opted to transfer that custody to the father in the CINA proceedings.

We agree with the mother that under the circumstances of the case and findings

of the juvenile court, that transfer was not warranted. This is not to say that a

modification cannot take place in district court, should that court determine under

the appropriate modification considerations it is necessary, though we take no

position one way or another. Moreover, M.G. and T.G. can certainly continue in

their father’s temporary legal custody until they can be transitioned into the

mother’s care. However, we agree with the mother the court erred in placing

M.G. and T.G. in the father’s legal custody, given that the court found A.W. could

be returned to the mother’s care within sixty days.               See Iowa Code

§ 232.104(3)(c).

       The State points to Iowa Code section 232.104(2)(6) as a justification for

keeping M.G. and T.G. from the mother’s care. That section provides:

       Subsequent to the entry of a permanency order pursuant to this
       section, the child shall not be returned to the care, custody, or
       control of the child’s parent or parents, over a formal objection filed
       by the child’s attorney or guardian ad litem, unless the court finds
       by a preponderance of the evidence, that returning the child to such
       custody would be in the best interest of the child.

Id. § 232.104(6) (emphasis added); see also In re of A.S.T., 508 N.W.2d 735,

737 (Iowa Ct. App. 1993) (discussing same subsection, then numbered

232.105(5)). The juvenile court did not make any express findings as to M.G.

and T.G.’s best interests other than termination of the mother’s parental rights
                                        13


was not in their best interests. Nevertheless, upon our de novo review, we may

make the determination concerning best interests. See A.S.T., 508 N.W.2d at

737.

       Here, there is no reason M.G. and T.G. cannot be returned to their

mother’s care within sixty days like A.W. We find it is in their best interests to

return to her care.

       IV. Conclusion.

       Because we conclude the juvenile court erred in placing M.G. and T.G. in

the father’s legal custody under the unique facts and circumstances of this case

and find this issue to be dispositive, we remand the case to the juvenile court for

further proceedings consistent with this opinion. We do not address the mother’s

failure-to-provide-reasonable-services argument, nor do we retain jurisdiction.

       REVERSED AND REMANDED.
