                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0125
                               Filed April 6, 2016


IN THE INTEREST OF J.S. AND J.S.,
Minor children,

R.M., Mother,
Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Page County, Susan L.

Christensen, Judge.



      A mother challenges the juvenile court’s adjudication of her daughter and

son as children in need of assistance. AFFIRMED.



      Vicki R. Danley, Sidney, for appellant mother.

      Thomas J. Miller, Attorney General, and Janet L. Hoffman, Assistant

Attorney General, for appellee State.

      Justin Wyatt of Woods & Wyatt, P.L.L.C., Glenwood, for minor children.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
                                          2


TABOR, Presiding Judge.

       A mother appeals the juvenile court’s determination that her ten-year-old

daughter J.G.S. and thirteen-year-old son J.C.S. are children in need of

assistance (CINA) under Iowa Code section 232.2(6)(c)(1) (2015). The court

found the State presented clear and convincing evidence J.G.S. suffered, and

J.C.S. was imminently likely to suffer, harmful effects as a result of mental injury

caused by acts of their mother, Rachel. The mother raises due process, prior

bad acts, and sufficiency challenges to the juvenile court’s rulings.           After

reviewing the record anew, we reject the mother’s constitutional and evidentiary

claims and find ample support for the juvenile court’s adjudication and

dispositional orders.

I.     Facts and Prior Proceedings

       Rachel and Matthew are the divorced parents of J.C.S. and J.G.S.1

Matthew is not the biological father of J.G.S., but adopted her in 2008. After a

modification action in 2014, the district court granted Matthew sole legal custody

and physical care of both children. While the modification action was on appeal,

Rachel set up a first-time meeting between J.G.S. and her biological father,

without notice to the girl’s therapist or Matthew. In January 2015, a troubled

J.G.S. told her therapist she wanted to go live with her biological father.

       In February 2015, J.G.S. stayed with Rachel while the Iowa Department of

Human Services (DHS) investigated an allegation that Matthew physically




1
  Rachel also has two younger children who remain in her care and are not involved in
this CINA case.
                                           3


abused their daughter. Although the abuse allegation was not confirmed2 and

the DHS safety plan expired on March 13, 2015, J.G.S. refused to return to her

father’s home. Matthew agreed J.G.S. could stay with Rachel through her spring

break and return to his home on March 22, 2015.

       But on March 17, 2015, Rachel took J.G.S. to the Montgomery County

Memorial Hospital after the girl became “uncontrollable” and reportedly tried to

jump out of a moving car. An ambulance transported J.G.S. to the University of

Iowa Hospitals and Clinics where she was committed to the adolescent and child

psychiatry unit. This occasion marked the third time J.G.S. had undergone a

mental health commitment; at the time of each commitment, the child had been

in her mother’s care.

       During J.G.S.’s hospitalization, Rachel became “verbally aggressive” with

the medical staff and made derogatory comments about them in front of her then

nine-year-old daughter. The girl’s doctors determined Rachel’s interactions with

J.G.S. at the hospital should be supervised. On one occasion, Iowa City police

were asked to escort Rachel out of the hospital. The hospital also enacted their

threat-assessment-team protocol due to the volatility of Rachel’s behavior.

       Rachel also pulled her son J.C.S. into the fray. The twelve-year-old boy

was scheduled for a two-hour visit with Rachel in Red Oak on March 31, 2015.

Instead, the boy left a message for his father that he would be missing a week of

school to spend time with his mother. Matthew enlisted the Red Oak police for

2
   The DHS did confirm a physical-abuse assessment against the girl’s paternal
grandmother, but determined the incident was isolated and unlikely to occur again. The
incident involved the grandmother demanding J.G.S. turn over her cell phone and
grabbing the girl by the wrist while the girl was sending a text message asking Rachel to
come pick her up.
                                         4


help retrieving his son, unaware that J.C.S. was in Iowa City with Rachel and her

boyfriend. During this time, Rachel sent text messages to Matthew telling him

J.C.S. was afraid he would get in trouble with his father for spending time with

her. J.C.S. later denied expressing fear of his father.

       On April 5, 2015, Rachel refused to open her door to the Red Oak police

when they arrived to take J.C.S. back to his father.        The police eventually

arrested Rachel for violating a custodial order.

       On April 16, 2015, Dr. Resmiye Oral, director of the University Hospitals’

child-protection program, sent a letter to the DHS with updated progress notes on

J.G.S. The pediatrician diagnosed the child with oppositional defiant disorder,

anger management problems, and poor mood control. Dr. Oral related the girl’s

difficulties to child abuse.   Dr. Oral opined, “This child has been emotionally

abused by her mother leading to mental injury, which presented itself as

behavioral problems that prevented the child from functioning in her optimal

emotional and physical capacity.”

       On April 24, 2015, the State filed a petition alleging J.G.S. and J.C.S. were

CINA under section 232.2(6)(c)(1), (6)(c)(2), and (6)(f). On August 7, 2015, the

mother filed a motion to dismiss the State’s petition alleging section

232.2(6)(c)(1) was unconstitutionally vague and overbroad, the State’s petition

failed to provide her sufficient notice, and the State’s experts suffered from

“conformational bias.” The State amended the petition on August 10, 2015, to

add more-detailed factual allegations and later moved to dismiss paragraph (6)(f)

as a ground for adjudication. The juvenile court held the adjudication hearing

across four days: August 25, October 1, October 9, and October 15, 2015.
                                         5


      The State called Dr. Oral to testify regarding her evaluation of J.G.S.

during the girl’s hospitalization. The pediatrician testified J.G.S. was a “highly

burdened child”—an emotional state that came from both parents.              Dr. Oral

explained that Rachel engaged in “parental alienation”—which the doctor

described as one parent “brainwashing” a child against the other parent, usually

in the context of a custody battle. The doctor further explained the father and

paternal grandmother probably didn’t understand the “pathophysiology of the

child’s behaviors” when she rebelled against them; “when they don’t understand

parental alienation, they may start feeling this child hates me.” Dr. Oral also

expressed concern about Rachel’s behavior toward her daughter’s medical

providers at University Hospitals.    Dr. Oral offered the following observations

about the mother:

      [W]e’re talking about an intelligent woman here, the mother, who is
      a therapist herself, and she would know much better than any lay
      person to compose herself and display herself as a totally
      functional individual to providers at a hospital setting; but she didn’t.
      She was acting like an adolescent in that setting just to win the love
      or gain the love of her child and to prove to her child that she’s the
      only person that she can trust and she can’t trust anybody else.

Dr. Oral attributed the behavioral problems displayed by J.G.S. to the emotionally

abusive conduct of the mother. Dr. Oral ultimately determined J.G.S. suffered a

mental injury “caused by parental alienation and corruption of the child by her

mother.”

      In its adjudicatory order issued November 11, 2015, the juvenile court took

judicial notice of the appeal decision issued by our court in June 2015 in the

modification action between Rachel and Matthew.            Our court affirmed the

placement of physical care with Matthew, noting the following:
                                          6


       Neutral witnesses described the child’s severe tantrums in Rachel’s
       presence and Rachel’s aggravation of the tantrums. They stated
       the behaviors only occurred around Rachel. These uncontrolled
       episodes placed the child’s safety at risk. Rachel conceded as
       much, testifying the child made “herself unsafe and other people
       around her unsafe as well.”

       The juvenile court found Dr. Oral’s testimony was “compelling and

persuasive” and concluded the State proved by clear and convincing evidence

that both children should be adjudicated CINA under section 232.2(6)(c)(1). The

mother filed a motion under Iowa Rule of Civil Procedure 1.904(2) on November

26, 2015, asking the court to reconsider its adjudication and re-examine the

evidence.   On January 26, 2016, the juvenile court denied the rule 1.904(2)

motion and issued a dispositional order, continuing the CINA adjudication and

placing both children in the care of their father with protective supervision by the

DHS.

       The mother challenges the adjudication and dispositional orders.

II.    Scope and Standards of Review

       We review CINA cases de novo. In re D.D., 653 N.W.2d 359, 361 (Iowa

2002). While we are not bound by the juvenile court’s factual findings, we give

them weight, especially when witness credibility is at issue. Id. We also review

constitutional claims de novo. In re C.M., 652 N.W.2d 204, 209 (Iowa 2002).

Because the mother is claiming a statute is unconstitutional, she must “negate

every reasonable basis upon which the statute could be upheld.” See id. We

generally review evidentiary rulings for an abuse of discretion. Interest of E.H. III,

578 N.W.2d 243, 245 (Iowa 1998). To the extent the mother’s claims rest on

statutory interpretation, we review for correction of legal error. Id.
                                            7


III.   Analysis of Mother’s Issues

       The mother advances five issues in support of her request to dismiss the

CINA cases.3 First, the mother alleges she was denied due process because the

State’s petition failed to provide notice of how her acts or omissions cause

mental injury to her children. She also complains the court “allowed the proof

offered by the State to exceed the scope of the allegations.”               Second, she

contends the State did not prove by clear and convincing evidence the statutory

basis for adjudication.       Third, she attacks the constitutionality of section

232.2(6)(c)(1). Fourth, she alleges the court violated Iowa Rule of Evidence

5.404(b) in considering her prior bad acts. And fifth, she alleges the court’s

reliance on testimony from the State’s expert was the product of “tunnel vision”

and denied the mother due process. We will address each issue in turn.

       A. Due Process and Notice

       Rachel first argues she was denied due process because the CINA

petition did not afford her proper notice of the State’s allegations concerning her

acts or omissions. Both the federal and state constitutions provide no person

shall be deprived of life, liberty, or property without due process of law. See U.S.

Const. amends. V, XIV, § 1; Iowa Const. art. I, § 9. “[F]reedom of personal

choice in matters of family life is a fundamental liberty interest protected by the

Fourteenth Amendment.” Santosky v. Kramer, 455 U.S. 745, 753 (1982).                     A


3
  The mother’s petition on appeal also asks us to rule that the child abuse finding against
her is unfounded and order it expunged from the central abuse registry under Iowa Code
section 235A.18(2). We have previously decided a juvenile court has discretion under
that statutory provision to grant parents a hearing concerning expungement of
information from the central registry. In re A.J., 821 N.W.2d 280, 284-85 (Iowa Ct. App.
2012).    Because we affirm the CINA adjudication, we decline to address the
expungement issue.
                                          8

parent has due process rights relating to a CINA proceeding. See In re A.M.H.,

516 N.W.2d 867, 870 (Iowa 1994).

       The State filed its original petition on April 24, 2015, alleging generally that

J.G.S. and J.C.S. were CINA. On August 7, 2015, the mother moved to dismiss

the petition, arguing, among other things, that the petition failed to specify what

acts she committed that caused or were imminently likely to cause mental injury

to the children. The State amended the petition on August 10, 2015, specifically

referencing Rachel’s “uncontrolled and manipulative behavior toward University

of Iowa hospital staff” where she “had [J.G.S.] placed on a mental health

committal.” The amended petition also alleged Rachel had attempted to “poison”

her daughter’s relationship with Matthew, who had sole custody of the children.

As for J.C.S., the amended petition recounted the incidents in late March and

early April 2015 when the mother failed to return her son to Matthew’s care,

refused the police request to do a welfare check, and locked herself in the house

with the boy.

       We believe the amended petition adequately informed the mother of the

factual basis for the State’s allegations that her children were being harmed or

were at imminent risk of harm from her efforts to manipulate them and create an

estrangement from their father. See Interest of Hewitt, 272 N.W.2d 852, 857

(Iowa 1978) (noting “a general statement of the facts relied on to support the

petition must be stated as a minimum”).           The mother’s attorney was well

prepared for the adjudication hearing and provided vigorous representation. On

this record, we find no lack of notice resulting in the denial of due process.
                                          9


       Rachel also alleges the proceedings were “fundamentally unfair” because

the juvenile court failed to limit the evidence presented at the hearing to matters

alleged in the State’s petition and because her daughter’s troubling behaviors

were explained by previous mental health diagnoses.          Rachel does not fully

develop these evidentiary claims. Accordingly, we find neither allegation rises to

the level of a due process violation.   See generally A.M.H., 516 N.W.2d at 870

(listing due process rights as including (1) notice of hearing, (2) confrontation and

cross-examination of adverse witnesses, (3) representation by counsel, (4) an

impartial decision maker, and (5) a decision based solely on legal rules and the

evidence presented at the hearing).       We conclude the mother received due

process in the juvenile court proceedings.

       B. Clear and Convincing Evidence of Mental Injury

       The juvenile court based its CINA adjudication on the following provision:

       “Child in need of assistance” means an unmarried child:
       .....
       c. Who has suffered or is imminently likely to suffer harmful effects
       as a result of any of the following:
       (1) Mental injury caused by the acts of the child’s parent, guardian,
       or custodian.

Iowa Code § 232.2(6)(c)(1).

       Rachel contends the State fell short of proving her daughter suffered a

mental injury, or her son was imminently likely to suffer a mental injury, or that

Rachel’s behavior was the source of the abuse. Rachel also argues the court

should require proof that she intentionally inflicted injury on her children and

require proof of substantial mental injury.
                                          10


       The State counters that if the Iowa legislature had intended to require

proof of a parent’s intentional infliction of substantial mental injury it would have

included those terms in the CINA definition at section 232.2(6)(c)(1). The State

further explains the purpose of the child welfare provisions in chapter 232: “The

statutes focus on the best interests of children and recognize that parents might

not always know what acts or omissions are causing their child harm. Yet, the

fact remains that the act or omission is indeed causing physical or mental harm

to the child.” We agree with the State’s statutory interpretation. Appellate courts

may not add modifying words to a statute under the guise of judicial construction.

See City of Asbury v. Iowa City Dev. Bd., 723 N.W.2d 188, 197 (Iowa 2006).

       When we apply the record evidence to the actual language of the statute,

we find clear and convincing proof in support of the CINA adjudication. In the

context of section 232.2(6)(c), “harmful effects” relate to “the physical, mental or

social welfare of a child.” In re J.S., 846 N.W.2d 36, 41 (Iowa 2014). A “mental

injury” is defined as a “nonorganic injury to a child’s intellectual or psychological

capacity as evidenced by an observable and substantial impairment in the child’s

ability to function within the child’s normal range of performance and behavior.”

Iowa Code § 232.2(35). We have previously affirmed a CINA adjudication based

on the “mental injury” alternative where the parents placed their children in the

middle of continued hostilities following their divorce, resulting in all three children

attempting to harm themselves due to the emotional distress. In re J.S., No. 14-

1014, 2014 WL 4938012, at *2-3 (Iowa Ct. App. Oct. 1, 2014); see also In re

E.R., No. 14-0850, 2014 WL 4937999, at *5 (Iowa Ct. App. Oct. 1, 2014)

(suggesting “mental injury” alternative would protect children whose parents’
                                        11


behaviors toward each other and in the presence of the children have created

harm).

         Dr. Oral opined that J.G.S. was an “emotionally highly burdened child.”

The pediatrician linked the child’s behavioral problems to Rachel’s manipulation

and pattern of interactions intended to alienate the girl from both medical

providers and her father.    The juvenile court found Dr. Oral’s opinions to be

persuasive, and we defer to that credibility finding. See In re L.G., 532 N.W.2d

478, 480 (Iowa Ct. App. 1995) (explaining we are “influenced by the favorable

vantage point” of the juvenile court). In addition, experienced child-protection

worker Dan Dorrance had concerns about the emotional well-being of J.C.S.,

who “was exposed to Rachel being arrested for failure to comply with the

custodial order, was taken out of school for approximately a week, and not

returned to Matt’s care after what should have been a two-hour visit.” The record

showed J.C.S. did not display behavioral problems, but struggled in school and

had “ADHD tendencies.” After reviewing anew the evidence presented by the

State, we find clear and convincing proof that J.G.S. suffered and J.C.S. was

imminently like to suffer harmful effects as a result of mental injury caused by

Rachel’s misguided efforts to win the devotion of the children and alienate them

from Matthew.

         C. Vagueness and Overbreadth Challenge to Mental-Injury Statute

         Rachel next attacks section 232.2(6)(c)(1) as “unconstitutionally vague”

both on its face and as applied to her, and alternatively as “unconstitutionally

overbroad.” Vagueness challenges are generally directed toward penal statutes,

which “must give a person of ordinary intelligence fair warning of what is
                                         12


prohibited, and, in order to avoid arbitrary and discriminatory enforcement . . . it

must provide an explicit standard for those who apply [them].” See State v.

Pilcher, 242 N.W.2d 348, 353 (Iowa 1976). Where the statute under attack is

remedial or civil rather than penal in nature, courts require “a less strict standard

of definiteness.” See Miller v. Iowa Real Estate Comm’n., 274 N.W.2d 288, 292

(Iowa 1979).     An overbreadth analysis is confined to alleged denials of First

Amendment rights. State v. Armstrong, 787 N.W.2d 472, 477 (Iowa Ct. App.

2010).      Because Rachel does not allege the statute infringes on her First

Amendment rights, we do not find the overbreadth doctrine applies here.

         In arguing her vagueness claim to the juvenile court, Rachel posed the

following rhetorical questions:

         What sort of mental injury is meant? Temporary acts of anger or
         sadness because of acts of parent in punishing a child? A serious
         tantrum when the child fails to get her way? What is the child’s
         normal range of performance? How is that determined and by
         whom?

Rachel ultimately argued the statute provided "too much opportunity for selective

enforcement.”

         The juvenile court rejected her vagueness claim, as do we. In assessing

whether a statute is void-for-vagueness, we presume constitutionality and give

the provision any reasonable construction to uphold it. State v. Showens, 845

N.W.2d 436, 441 (Iowa 2014).          Rachel’s argument fails to overcome the

presumption of constitutionality. The description of a child in need of assistance

in section 232.2(6)(c)(1), coupled with the definition of “mental injury” in section

232.2(35), gives sufficient notice to parents as to the type of harm—caused by

their actions—that will trigger juvenile-court intervention. The definition of mental
                                         13


injury includes the phrase “observable and substantial impairment in the child’s

ability to function.” Those specific standards dispense with the mother’s concern

that a child’s temporary anger or occasional tantrum could be mistaken for a

mental injury.   The definition of “mental injury” does not require parents or

professionals to guess at its meaning.

        Moreover, we are mindful that it is not only the mother’s rights at issue

here; chapter 232 is premised on best serving the welfare of each child under the

jurisdiction of the court.   Iowa Code § 232.1.       “An ‘impossible standard of

statutory clarity’ would be inappropriate in cases involving child care and

custody.” In re Clark, 281 S.E.2d 47, 56 (N.C. 1981). A certain amount of

flexibility in the CINA definition is necessary to protect children from a wide range

of abusive conduct. We find the provisions at issue provide sufficient guidance

for juvenile courts to administer them uniformly. Accordingly, we reject Rachel’s

void-for-vagueness argument.

        D. Prior Bad Acts Evidence

        The rules of evidence generally apply in adjudicatory hearings.         Iowa

Code § 232.96(3).      Rachel contends the juvenile court erred in relying on

evidence of her “prior bad acts” in contravention of Iowa Rule of Evidence

5.404(b).   She contends the juvenile court “seems to find Rachel is a bad

person.” She specifically mentions objecting to three exhibits accepted by the

juvenile court at the CINA hearing: two documents showing a settlement

regarding the suspension of Rachel’s counseling license in Nebraska and the

appellate decision involving the modification of child custody in her dissolution

case.    She objected on grounds of relevance, rules 5.401 and 5.402, and that
                                              14


the exhibits were more prejudicial than probative, rule 5.403. Rachel does not

assert she raised a prior-bad-acts objection at the adjudicatory hearing.

       The mother’s general relevancy objections did not preserve error on her

appellate argument alleging these documents constituted improper evidence of

her prior bad acts under rule 5.404(b). See State v. Mulvany, 603 N.W.2d 630,

633 (Iowa Ct. App.1999). Moreover, the mother’s invocation of rule 5.404(b) for

the first time in her rule 1.904(2) motion came too late to preserve error. See

Mitchell v. Cedar Rapids Cmty. Sch. Dist., 832 N.W.2d 689, 694 (Iowa 2013)

(“[A] party fails to preserve error on new arguments or theories raised for the first

time in a post-trial motion.”).

       Even if Rachel had preserved error on her prior-bad-acts argument, the

juvenile court did not emphasize the disputed exhibits in reaching its decision.

The juvenile court did not find J.C.S. and J.G.S. were CINA because their mother

was a “bad person.” Instead, the court properly determined the children needed

DHS supervision and it would be contrary to their welfare to have unsupervised

visitation with their mother at this time.4

       E. Due Process and “Tunnel Vision”

       Finally, Rachel argues Dr. Oral, the State’s expert—and the juvenile court

in crediting the doctor’s testimony—fell victim to “tunnel vision” and thereby

denied Rachel a fair hearing.       Rachel cites a law review article that defines

“tunnel vision” as a phenomenon of the criminal justice system where authorities

4
  In the dispositional order, the juvenile court quoted J.G.S.’s counselor as reporting:
“Rachel has expressed desire to do what is best for her children, she admits to her over
the top actions that led them to where they are today.” We are hopeful that Rachel’s
expressed desire will translate into affirmative progress in her relationship with the
children.
                                         15


will “focus on a suspect, select and filter the evidence that will ‘build a case’ for

conviction, while ignoring or suppressing evidence that points away from guilt.”

See Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel

Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 292 (2006). We find Rachel’s

argument unconvincing in the child-welfare context. Rachel is not a criminal

defendant in this case. Neither the pediatrician, nor the DHS, nor the juvenile

court concerned themselves with building a prosecution against the mother.

Rather, the question was whether her children needed state assistance because

their physical, mental, or social welfare was endangered by the mother’s actions

or omissions.      See generally In re A.M., 856 N.W.2d 365, 376 (Iowa 2014)

(reiterating that the State bears “a duty to assure that every child within its

borders receives proper care and treatment, and must intercede when parents

fail to provide it”).

        Finding no merit to the mother’s challenges, we affirm the juvenile court’s

orders.

        AFFIRMED.
