                      IN THE COURT OF APPEALS OF IOWA

                                     No. 15-1055
                              Filed September 23, 2015


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

M.J., Father,
Appellant.
________________________________________________________________


         Appeal from the Iowa District Court for Butler County, Peter B. Newell,

District Associate Judge.



         A father appeals adjudicatory and dispositional orders entered by the

district court. AFFIRMED.




         Mark Milder, Waverly, for appellant father.

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

General, and Greg Lievens, County Attorney, for appellee State.

         Lucas Jenson, Parkersburg, attorney and guardian ad litem for minor

child.



         Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

          A father appeals the district court’s order adjudicating his child in need of

assistance, claiming clear and convincing evidence did not support the statutory

ground for adjudication. The father also appeals the court’s dispositional order

continuing removal of the child from his custody, claiming continued removal did

not constitute the least restrictive disposition under the circumstances.          We

affirm.

I.        Background Facts and Proceedings

          The father’s parental rights with regard to his seventeen-year-old daughter

T.J. are at issue in this proceeding. T.J. was born in 1998. Her mother is

deceased. She lived with the father, her step-mother, and four step-siblings.

T.J. has been diagnosed with pervasive development disorder, attention deficit

hyperactivity disorder, and mood disorder, and she was evaluated to have mild

intellectual deficiency with a full scale IQ of 60.

          The family most recently came to the attention of the Iowa Department of

Human Services (DHS) in September 2014, upon reports that the father had

struck T.J. causing her nose to bleed. DHS initiated a child abuse assessment,

which resulted in a founded report of physical abuse. There was a prior founded

report of physical abuse to T.J. by the father in 2013, and DHS had also

investigated the family upon reports of abuse by the father in 2011. The father

denied hitting the child; his explanation for T.J.’s injury was that she picked her
                                         3


nose a lot and could have caused her own nose to bleed. The father claimed the

DHS reports were inaccurate, but did not take steps to challenge them.1

       For the next several months, DHS attempted to meet with the family. The

father was not cooperative with service providers. In November 2014, the father

told DHS “not to come back to the home; he did not want services; wasn’t willing

to participate, and [DHS] wasn’t welcome back at his home again.” On one

occasion, the father approached the service providers outside the home “pointing

his finger at the provider, and said, I told you not to show up here again.” The

father did not return phone calls from service providers. The family refused to

sign releases to allow DHS to assist in finding appropriate mental health care for

the child. The child was not enrolled in school.

       The family believed the child should be placed in a residential facility due

to her behavioral and mental health needs. The family reported T.J. had acted

out aggressively toward herself and others. As a service provider explained,

“[T]hey agreed that more supportive placement is in [the child]’s best interests.

[But t]hey would prefer to seek that out themselves.” The family looked into

residential placement options for the child, but the wait lists were too long. In

January 2015, the child’s step mother contacted DHS about the child, stating she

“needed the child out of the home, but [that the father] wouldn’t allow [DHS

involvement].”

       In January 2015, the State filed a petition alleging the child was in need of

assistance (CINA) pursuant to Iowa Code section 232.2(6)(b), (c)(1), and (f)

1
  A service provider had a conversation with the father and step-mother in November
2014, “explaining to them how they could appeal the report; what steps they needed to
take; but [the father] was not willing or wanting to appeal the report.”
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(2015).2    An adjudicatory hearing took place in March, after twice being

rescheduled.3     DHS and the guardian ad litem recommended adjudication.

DHS’s February 2015 case report to the court noted the family’s lack of

cooperation made it unable for service providers to “fully assess [T.J.’s] risk of

maltreatment” and opined the child had a “significant risk of future maltreatment.”

The case report also noted the child “has significant mental health needs that

require additional resources to ensure her safety,” but the family is “unwilling to

allow the DHS into their home.” Finally, the service provider noted the child’s

“educational needs at this time are not being met appropriately.”

       The father’s attorney called the child to testify at the hearing and

questioned the child about the alleged abuse by the father. In her testimony, T.J.

stated, “He did not punch me; he hit me” “us[ing] three fingers and hit my nose.”

On cross-examination, the child explained:

              Q. [H]e did hit you? A. Yup.
              Q. Okay. And that made your nose bleed? A. Uh-huh.
              Q. Okay. Has your dad hit you before? A. Yes, he has.
              Q. Okay. About how many times? A. I do not know.
              Q. Like, too many to count? A. (Witness nodded head
       affirmatively.)
              Q. So, he hit you so many times you can’t count them all?
       A. Right.


2
  Section 232.2(6)(b) involves a child “[w]hose parent, guardian, other custodian, or other
member of the household in which the child resides has physically abused or neglected
the child, or is imminently likely to abuse or neglect the child.” Section 232.2(6)(c)(1)
involves a child “[w]ho has suffered or is imminently likely to suffer harmful effects as a
result of . . . [m]ental injury caused by the acts of the child’s parent, guardian, or
custodian.” Section 232.2(6)(f) involves a child “[w]ho is in need of treatment to cure or
alleviate serious mental illness or disorder, or emotional damage as evidenced by
severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or
others and whose parent, guardian, or custodian is unwilling to provide such treatment.”
3
  The hearing in January was continued upon the court being advised the family was
attempting to address T.J.’s mental health needs without DHS intervention. The
February hearing was continued to due weather concerns.
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          The child’s step-mother testified T.J. lied regularly and hurt herself “every

day. It’s a daily occurrence.” She further explained, “At least once a week she

makes herself bleed, but she hurts herself every day.” The father did not testify.

          On March 9, 2015, the court entered an order adjudicating the child in

need of assistance under Iowa Code section 232.2(6)(b) and (f). In reaching its

conclusion, the court noted the child’s testimony that the father “had hit her many

times”; the step-mother’s testimony that the child was not being schooled; the

child’s unaddressed mental health needs; the parents’ failure to find a residential

treatment facility for the child on their own since 2014; and the parents’

unwillingness to cooperate with DHS.                 The court ordered DHS “to begin to

immediately seek an out-of-home placement for this child,” and stated it would

“authorize this child’s removal from the parental home” “upon being notified that

an out-of-home placement is available for this child.”

          DHS’s next contact with the family was on March 13, at the family home.

The father was “very rude and disrespectful,” and he refused to communicate

except to tell service providers “he was not willing to work with DHS as ‘they

have done nothing but lied.’”

          On March 23, the father took the child to the Waverly Health Center and

made an application for emergency hospitalization. The father did not contact

DHS, and he refused to sign release forms to allow DHS to learn the child’s

condition.4 Separate hospitalization proceedings were initiated and a magistrate

authorized the child’s placement in a hospital. The father did not tell his attorney



4
    The father later agreed to sign the forms.
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or DHS about the hospitalization or his newly-appointed attorney about the

juvenile proceedings.

       On March 27, a hospitalization review hearing was held. DHS appeared

and advised the court of the pending juvenile proceedings and requested the

child be removed from the home.          The court dismissed the hospitalization

proceedings and authorized removal of the child from the parental home, finding

removal “necessary based upon a determination that continuation in the home

would be contrary to the welfare of this Child.” See Iowa Code § 232.78(1)(b)

(authorizing the court to enter an ex parte removal order if the child’s immediate

removal is necessary to avoid imminent danger to the child’s life or health). The

father did not appeal from that order.

       A dispositional hearing took place on April 22, 2015. Meanwhile, the child

was placed in family foster care, where she “thrived.” She began attending high

school and grew attached to her foster parents and their children. The child

reported to service providers that she felt “happy” and “safe” with her foster

family. She further reported that she “loved” school, had made new friends, liked

all her teachers, and was able to attend the prom. The child was pleased her

foster mother had nicknamed her “grasshopper.” Exhibit A presented to the court

by the guardian ad litem was a letter from the child stating in part, “I want the

Judge to know . . . That I want to stay at [foster parents] house because they are

nice and they love me and they care about me.” DHS recommended T.J. remain

in family foster care, as opposed to being placed in residential treatment.

       The child declined visitation with the father “after she attempted to [hug

him] and he didn’t hug her back.” The father was unresponsive to the child
                                             7


during visits. The father requested the child be returned home with no services

provided of any kind.

       On June 3, 2015, the court entered a dispositional order finding the father

“has been uncooperative with [DHS] and their service providers” and “has

refused to communicate” with DHS. The court further found the father “has been

physically, emotionally and verbally abusive” to the child, who once out of his

home, had thrived. The court ordered the child to remain in family foster care

and participate in mental health services as recommended by DHS.

       The father now appeals from the adjudicatory and dispositional orders

entered by the district court.5

II.    Adjudication

       The father contends the court erred in adjudicating T.J. a CINA pursuant

to section 232.2(6)(b) and (f) because “there was not clear and convincing

evidence that the child had been physically abused nor clear and convincing

evidence that the father was unwilling or unable to meet the child’s mental health

needs.”

       We conduct a de novo review of CINA proceedings.                   In re J.S., 846

N.W.2d 36, 40 (Iowa 2014). “In reviewing the proceedings, we are not bound by

the juvenile court’s fact findings; however, we do give them weight.” Id. Our



5
  We limit our review to the father’s challenges with regard to the adjudicatory and
dispositional orders entered by the district court (Issues I and IV). The father also raises
several challenges with regard to the child’s removal at the hearing following her
emergency hospitalization (Issues II and III), but he never appealed the child’s removal
and that issue is moot. See In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994) (“Custody of
the child was placed with DHS under the dispositional order. Any error committed in
granting the temporary ex parte order cannot now be remedied. We cannot go back in
time and restore custody based on alleged errors in the initial removal order.”).
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primary concern is the best interests of the child. Id. “CINA determinations must

be based upon clear and convincing evidence.” Id. at 41.

       We may affirm if either of the grounds found by the court support the

adjudication. See In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). Upon

our de novo review of the record, we find clear and convincing evidence supports

adjudicating the child in need of assistance on the grounds that the father has

physically abused or neglected the child, or is imminently likely to abuse or

neglect the child. The child reported to service providers that the father hit her

and made her bleed. The child testified at the adjudicatory hearing that father

has hit her more times than she could count. Between 2011 and 2014, DHS

initiated several child abuse assessments on the family, which resulted in two

separate founded reports of physical abuse to T.J. by the father. The father did

not challenge those reports, but denied having abused the child. DHS believed

the child was at risk for future harm in the family home. We affirm the juvenile

court order adjudicating the child in need of assistance (CINA) pursuant to

section 232.2(6)(b).

III.   Disposition

       The father contends “[t]here was insufficient evidence to warrant

continued removal of the child at the disposition hearing and the Court erred in

failing to return the child to the parental home.”

       We review this issue de novo. In re K.N., 625 N.W.2d 731, 733 (Iowa

2001). The court must make the least restrictive disposition that is appropriate

considering all the circumstances of the case.       See Iowa Code § 232.99(4).

Custody of a child should not be transferred from the child’s home unless the
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court finds there is clear and convincing evidence “the child cannot be protected

from some harm which would justify the adjudication of the child as a child in

need of assistance and an adequate placement is available.”                  See id.

§ 232.102(5)(a)(2).

         “[T]he court must make a determination that continuation of the child in the

child’s home would be contrary to the welfare of the child, and shall identify the

reasonable efforts that have been made.”          Id. § 232.102(5)(b).   The court’s

determination “must be made on a case-by-case basis.” Id. Upon our de novo

review of the record, we agree with the court’s decision. The record is replete

with evidence that would justify the child’s adjudication as CINA if she were to

remain in the family home. Aside from the obvious concerns about the father’s

refusal to cooperate in finding mental health treatment for the child, or the fact

that at the time DHS began the instant investigation the child was not being

schooled, the fact remains that child was at risk for future physical harm by the

father in the family home. The father’s attempts to conceal the family from DHS

intervention, his denial of physical abuse, and his aggression toward

caseworkers are also troubling. Under these facts, if the child were ordered to

return to the custody of the father, we are not convinced the father would follow

through to address the child’s mental health concerns or discontinue hitting the

child.

         Our ultimate concern is with the best interests of the child. In re J.E., 723

N.W.2d 793, 800 (Iowa 2006). T.J. has thrived since her removal from the family

home and placement in family foster care. She has expressed her desire to

remain in her current placement; DHS agrees she should remain in family foster
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care. Here, we are convinced it is in T.J.’s best interests to be in a placement

free from physical, emotional, and verbal abuse and neglect.     We affirm the

dispositional order entered by the court.

       AFFIRMED.
