                    IN THE COURT OF APPEALS OF IOWA

                                     No. 16-1919
                               Filed January 11, 2017


IN THE INTEREST OF S.P. and K.P.,
Minor Children,

D.P., Mother,
       Appellant.
________________________________________________________________


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

District Associate Judge.



       A mother challenges the juvenile court’s finding in its dispositional order

that the Iowa Department of Human Services had made reasonable efforts

toward reunifying her family. REVERSED AND REMANDED.



       David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner P.L.L.C., Charles

City, for appellant mother.

       Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

       Elizabeth A. Batey of Vickers Law Office, Greene, guardian ad litem for

minor children.



       Considered by Vogel, P.J., and Tabor and Mullins, JJ.
                                          2


TABOR, Judge.

       Teenagers S.P. and K.P. refuse to have contact with their mother, Dawn,

who is accused of dealing methamphetamine out of their home. On appeal,

Dawn contends the juvenile court erred in finding the Iowa Department of Human

Services (DHS) had made reasonable efforts at reunification when no visitation

had been scheduled during the five months the children had been removed from

her care.    Although the social workers encouraged the children to see their

mother, the DHS insisted that given their ages, the children could not be forced

to attend visitation.

       In looking at the record anew,1 we conclude the DHS failed to maintain

reasonable efforts toward reunification by delegating the decision regarding

visitation entirely to the children.   At the next scheduled review hearing, the

juvenile court should scrutinize the discretion exercised by the DHS in

establishing or not establishing visitation, which would include securing a

recommendation from the children’s therapist regarding the feasibility of

reinitiating contact with their mother through family counseling.

       I.      Facts and Prior Proceedings

       This child-welfare case opened in May 2016 when the Butler County

Sheriff arrested Dawn for operating while intoxicated (drugged driving) and found

eight grams of methamphetamine in her possession. The State charged Dawn

with possession of methamphetamine with intent to deliver, a class “B” felony.

The DHS placed Dawn’s sixteen-year-old daughter, K.P., and fourteen-year-old

1
 We review child-welfare cases de novo. See In re D.D., 653 N.W.2d 359, 361 (Iowa
2002). We are not bound by the juvenile court’s factual findings, but we give them
weight, especially when credibility is at issue. See id.
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son, S.P.,2 in the care of the mother’s cousin and her husband. The children had

stayed with these relatives on previous occasions and felt secure in their home.

       The May 2016 incident was not the first family upheaval experienced by

these children. In the spring of 2011, S.P. and K.P. were adjudicated as children

in need of assistance (CINA) after authorities discovered their parents were

manufacturing methamphetamine.           In 2012, the children lost their father to

suicide; the children were present in the home when he took his life, and S.P.

found his father’s body. To address their grief, the children participated in mental

health counseling from August 2013 to May 2014. A second CINA adjudication

occurred in September 2013 based on the mother’s drug use; that case was

closed in May 2014.

       At a hearing on August 17, 2016, Dawn stipulated S.P. and K.P. were

CINA under Iowa Code section 232.2(6)(l) (2015) but urged the juvenile court to

establish visitation.3 Her attorney asked the court to “order that visitation take

place. Our concern is that if it’s not court ordered, that the children’s resistance

to have the visitation would prevent them from occurring.”4 The court responded:

       I think that’s something that needs to be looked into a little bit more
       carefully. Again, I think if the children need mental health
       evaluations, we probably want to talk to their counselors about that
       and set up something where—I mean, if the counselors are willing
       to do that and there’s kind of a therapeutic setting, I think that we

2
  The children both have had birthdays in the intervening months and are now ages
seventeen and fifteen.
3
  The children were not personally present at the August 17 hearing despite the
presumption set out in Iowa Code section 232.91(3) that it is in the best interests of a
child who is fourteen years or older to attend all hearings. The children were
represented by guardian ad litem Elizabeth Batey at the hearing, but no record was
made concerning the waiver of their presence. Batey did offer as an exhibit a letter S.P.
had written to his mother asking her to sign a guardianship for his current caregivers.
4
  The mother’s attorney also informed the court that his client had completed a month-
long inpatient substance abuse program.
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       can do that. But I think it’s just a general proposition. It’s not the
       best thing to order that visitation occur.

       The juvenile court explained that in some child-welfare cases it had

ordered visits “even though the children don’t want to have visits,” but here the

court believed it was appropriate to “move slowly” and “see how that progresses.”

In its August 17 adjudication ruling, the court ordered that any visitation between

Dawn and her children be at the discretion of the DHS.

       No visitation had been arranged as of October 26, 2016.                   At a

dispositional hearing that day, DHS case manager Julie Sharp testified the

Family Safety, Risk, and Permanency (FSRP) worker had been encouraging

contact between the children and their mother, but the children “did not wish to

have any.”5 In her October 18 report to the court, Sharp relayed the FSRP

worker’s account that the children said they were “done” with their mother.

During FSRP home visits with the children on July 14 and September 1, the

worker placed phone calls to Dawn, but the children refused to talk.            Dawn

reported to the DHS that she and K.P. had contact over Facebook in July, and

K.P. “was going to sneak out to meet her.” K.P. told the workers her mother was

“manipulative”—threatening suicide if K.P. did not meet her and asking K.P. what

her deceased father would think about her refusing to have contact with Dawn.

       At the October 26 hearing, the mother’s attorney engaged in the following

exchange with Sharp regarding the inability of the DHS to establish contact

between Dawn and her children:


5
  The children again were not present at the hearing, despite the presumption under
section 232.91(3) that attending would have been in their best interests, and again, no
record was made as to the waiver of their presence.
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              Q. What is the Department’s position about contact between
      the mother and the children? A. The Department has encouraged
      that contact and we ask them about it every—I ask them about it
      every time I see them. The FSRP provider continues to ask them
      about it during their, well, now biweekly status visits.
              Q. So what steps has the Department done to establish
      contact between mother and the children? A. As I said, we
      encourage that contact and we are supportive of that contact, but
      the children refuse it.
              Q. They are the ones dictating—the children are the ones
      dictating whether or not contact occurs? A.
       At this time, yes.

      Sharp said the DHS permanency goal remained reunification with the

mother but acknowledged that goal would be difficult to obtain if the children

continued to refuse contact: “There is a problem with that, but due to the

children’s ages we cannot force them to have visitation with their mother.” Sharp

said the only plan to reestablish contact was to continue to encourage the

children to see their mother. Sharp testified the children had started counseling,

but the DHS had not received any reports yet because the therapist had only

visited with them once. She said family therapy was “something that could be

attempted” but no immediate plans had been set to schedule it.        Sharp also

testified she did not have safety concerns about Dawn being around the children

other than substance-abuse issues.

      At the close of the October 26 hearing, the mother’s attorney made the

following argument focused on reasonable efforts:

      We do have a problem with contact being at the discretion of DHS.
      As the evidence shows, my client has not seen her kids since May.
      This is going on, pretty soon, six months that she’s been without
      contact. The permanency goal in this matter is reunification. If
      there is not more efforts for visits, phone contact, some sort of
      communication between my client and her children, it’s hard for me
      to imagine how we can say that DHS is making reasonable efforts
      toward reunification if they are not even requiring the meetings
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       between the kids and their mother. These are children and they
       are still children. They shouldn’t be able to make decisions like this
       in this matter. They don’t have authority as children to say they
       don’t want to see their parents. I feel the Court should enter its
       finding that the DHS has not made reasonable efforts to
       reunification.

The    juvenile   court   responded     that   “sometimes     forcing   visitation   is

counterproductive” and could do “more damage to a relationship than it does

help.” The court acknowledged the case workers needed to continue to have the

children participate in therapy and encourage them to have visits with their

mother but concluded it was “still appropriate to leave the discretion the

Department of Human Services.”         The court set the next review hearing for

January 25, 2017.

       In its October 26 dispositional order, the court found removal continued to

be necessary and “reasonable efforts have been made to prevent or eliminate

the need of this removal of the children” from their home.

       The mother appeals that dispositional order, seeking a reversal of the

court’s finding “that reasonable efforts have been made by the Iowa Department

of Human Services towards the goal of reunification and denying the mother’s

request to order visitation with her children.” In response, the State requests an

opinion affirming the dispositional order of the juvenile court.

       II.    Analysis

       Before initiating an action to terminate parental rights, the State must

make reasonable efforts to provide services to a parent whose children have

been removed from her care. Iowa Code § 232.102(7), (10)(a); In re C.H., 652

N.W.2d 144, 147 (Iowa 2002). The concept of reasonable efforts includes a
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visitation agreement designed to facilitate reunification while protecting the

children from the harm prompting the removal. See In re M.B., 553 N.W.2d 343,

345 (Iowa Ct. App. 1996) (emphasizing “[v]isitation between a parent and child is

an important ingredient to the goal of reunification”).

       In this case, the juvenile court left visitation up to DHS discretion. In turn,

the DHS admittedly allowed K.P. and S.P. to dictate whether visitation occurred.

Because the children told the FSRP worker they were “done” with their mother,

no visitation occurred between the time of the children’s removal in mid-May and

the dispositional hearing in late October. While continuing to encourage S.P. and

K.P. to have contact with Dawn, the DHS did not believe it could force teenagers

to attend visitation against their expressed desire.

       In her petition on appeal, the mother poses the following rhetorical

question: “Is allowing the children to dictate the terms of visitation reasonable?”

The State counters with its own question: “How exactly [is] DHS supposed to

force these teens, one of whom is nearly an adult, to have contact with their

mother against their will . . .?” Neither party cites case law directly addressing

such a conundrum.

       Our court did address the question whether termination of parental rights

was appropriate when a thirteen-year-old girl had been “adamantly against

visitation” with her father. See In re K.M., No. 11-1732, 2012 WL 642880, at *2

(Iowa Ct. App. Feb. 29, 2012). In that case, “the parties agreed that any possible

visitation should be taken slowly and in a therapeutic setting.” Id. In addition, the

parties, as well as the professionals, supported a plan that allowed K.M. to

maintain control over the contact with her father to allow her to build trust that he
                                        8


was making changes that could provide her with a safe and stable home

environment. Id. The DHS arranged for supervised phone calls and filtered

email communication between K.M. and her father. Id. Our court noted we were

“highly concerned when a child refuses to participate in visitation with a parent,”

but we found the State met its burden to show reasonable efforts, in part

because the father admitted he could not win back K.M.’s trust. Id. at *6.

      The instant case is distinct from In re K.M. in two ways. First, the DHS

took more comprehensive and active steps to facilitate communication and

rebuild trust between K.M. and her father.      See id. at *3 (chronicling K.M.’s

participation in individual therapy and remedial services aimed at repairing the

relationship with her father).   In this case, during more than five months of

removal, the service providers did little more than “encourage” the children to

have contact with their mother during FSRP visits. At Dawn’s request, the FSRP

workers twice tried to place phone calls but could not convince the children to

participate in the conversation. At the time of the October 26 hearing, the DHS

case manager had not made any plans for reinitiating contact in a therapeutic

setting because the children had just started counseling.

      Second, this case differs from In re K.M. because Dawn did not support a

plan that allowed her teenaged children to control if and when visitation occurred.

Right out of the gate, the mother’s attorney urged the juvenile court to order

visitation, knowing the children were resistant to contact with Dawn. When the

court declined to do so in the August 17 order of adjudication, the mother’s

attorney asked again at the October 26 hearing.         Despite hearing Sharp’s

testimony that the DHS was leaving the visitation decision exclusively up to the
                                          9


children, the juvenile court stuck with its belief the DHS was properly exercising

its discretion regarding visitation and was making reasonable efforts toward

reunification.

       Considering Dawn’s penchant for exposing her children to the underworld

of illegal drugs and the traumatic events the children have weathered, it is neither

surprising nor irrational that S.P. and K.P. would be fed up with her behavior and

figure it was in their best interests to sever contact with her. But the ultimate

supervision of the efforts made to reunify the family must remain with the juvenile

court. See Iowa Code § 232.99(3) (requiring juvenile court at disposition hearing

to “inquire of the parties as to the sufficiency of the services being provided and

whether additional services are needed to facilitate the safe return of the child to

the child’s home” and “[i]f the court determines such services are needed,”

requiring the court to “order the services to be provided”).

       The juvenile court may not delegate its judicial function to any third party,

including the children adjudicated in need of assistance. Cf. In re Marriage of

Stephens, 810 N.W.2d 523, 530 n.3 (Iowa Ct. App. 2012) (holding dissolution

court may not delegate its judicial power to determine visitation or custody

arrangements to the parties or a third party). We find appellate decisions from

California persuasive on this point. See, e.g., In re Korbin Z., 207 Cal. Rptr. 3d

525, 530 (Cal. Ct. App. 2016) (holding that when the juvenile court “abdicates its

discretion and permits a third party, including the dependent child, to determine

whether any visitation will occur, the court impermissibly delegates its authority

over visitation and abuses its discretion”); In re Hunter S., 48 Cal. Rptr. 3d 823,

828 (Cal. Ct. App. 2006) (“In no case may a child be allowed to control whether
                                          10

visitation occurs.”); In re Nicholas B., 106 Cal. Rptr. 2d 465, 475 (Cal. Ct. App.

2001) (holding “visitation may not be dictated solely by the child involved

although the child’s desires may be a dominant factor”).

       Here, the juvenile court improperly allowed the DHS to give the children

veto power over an essential reunification service. The issue before us is not

whether teenagers can be forced to attend a scheduled visitation against their

will. Instead, the pending question is whether the DHS satisfied the reasonable-

efforts requirement when the case manager took no meaningful steps to set up a

visitation plan for these children. The children’s preferences do not relieve the

DHS of its duty to provide reasonable efforts. We conclude the court erred in

finding reasonable efforts were satisfied when the DHS impermissibly delegated

the visitation decision to the dependent children. To establish reasonable efforts,

the DHS must either present a definitive plan with the ultimate goal of visitation or

make a showing that visitation is not in the children’s best interests.

       In addressing the reasonable-efforts question at the review hearing, the

court may appropriately rely on an evaluation by the children’s therapists

regarding the children’s emotional conditions and the feasibility of reinitiating

contact with their mother through family therapy. The court may also consider

requiring the children’s attendance at the hearing so that the court can hear their

concerns firsthand.6 The court may consider the children’s opposition to contact

with their mother in deciding if visitation is in their best interests. See In re N.B.,

No. 04-1100, 2004 WL 1900007, at *1 (Iowa Ct. App. Aug. 26, 2004) (agreeing it

6
  In the context of dissolution cases, Iowa courts have considered the age and
educational level when deciding the weight to give the custody preferences of a minor
child. See In re Marriage of Ellerbroek, 377 N.W.2d 257, 258–59 (Iowa Ct. App. 1985).
                                        11

was not in the child’s best interest that visitation with the father be forced); see

also In re Brittany C., 120 Cal. Rptr. 3d 338, 347 (Cal. Ct. App. 2011) (noting

“child’s input and refusal and the possible adverse consequences if a visit is

forced against the child’s will are factors to be considered in administering

visitation” (citation omitted)).

       We reverse the portion of the dispositional order finding the DHS made

reasonable efforts toward reunification and remand for further proceedings

consistent with this opinion.

       REVERSED AND REMANDED.
