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(Cite
as: 500 N.W.2d 9)
Supreme
Court of Iowa.
In
the INTEREST OF B.B., A Child,
A.B.
and A.B., Father and Mother, Appellants,
State
of Iowa, Appellee.
No.
91-1610.
May
19, 1993.
Supreme
Court reviews evidence in a child in need of assistance
(CINA) proceeding de novo.
In
a child in need of assistance (CINA) proceeding, the Supreme
Court gives weight to trial court's finding of fact, especially
those regarding credibility of witnesses, but Supreme Court is not
bound by them.
In
a child in need of assistance (CINA) proceeding, welfare and
best interests of child are the governing concerns; although parents
have legitimate interest in
integrity of the family unit, that interest is not absolute.
When
determining best interests of child in a child in need
of assistance (CINA) proceeding, court must consider what future likely
holds for child if he or she is returned to
parental custody; thus, court may look at parents' past performance
of caring for their child as past performance is indicative
of future care.
Mildly
mentally retarded child who was not receiving adequate care was
properly determined to be a child in need of assistance
(CINA) where his mother was obsessed with child's health and
continuously claimed child vomited several times a day and could
not go to school when in fact child was healthy,
and father refused to intercede on child's behalf. I.C.A. § 232.2,
subd. 6, par. n.
State
has burden of proving its allegations that child is in
need of assistance by clearing and convincing evidence. I.C.A. § 232.2,
subd. 6, par. n.
For
purposes of determining whether child who was son of Native
American was child in need of assistance (CINA), requirements of
the Indian Child Welfare Act were fulfilled by the state's
burden of proof in its CINA petition. I.C.A. § 232.96;
Indian Child Welfare Act of 1978, §§ 2-403,
25 U.S.C.A. §§ 1901-1963.
Trial
court properly ordered that mildly mentally retarded child, who was
determined
to be child in need of assistance (CINA), remain in
foster care for the
two years left before child turned 18 years old where
child was benefitting from foster placement and was attending and
enjoying school whereas his mother would repeatedly convince child he
was sick and refused to send him to school.
Parents
of child who was determined to be child in need
of assistance (CINA) and was to remain in foster care
until age 18 were properly allowed visitation subject to court's
guidelines, including condition that neither parent originate any discussion of
vomiting or stomach problems and that they stay at least
arm's length away from visitation supervisor, where mother was irrational,
repeatedly tried to convince child he was sick, and sometimes
became violent.
*10
Patrick L. Wilson of Wilson Law Office, Marshalltown, for appellants.
Bonnie J. Campbell, Atty. Gen., John M. Parmeter, Sp. Asst.
Atty. Gen., Judy A. Sheirbon, Asst. Atty. Gen., and Brent
Heeren, County Atty., for appellee.
Stephen A. Kenkel of Mickelson, Roan, Appelgate & Kenkel, Toledo,
guardian ad litem for the child, B.B.
Considered by McGIVERIN, C.J., and HARRIS, CARTER, LAVORATO and ANDREASEN,
JJ.
McGIVERIN, Chief Justice.
The parents, Anna and Archie, appeal from district court rulings
finding their child, Barry, a child in need of assistance
under Iowa Code section 232.2(6)(n) (1991), continuing Barry's placement in
foster care, and placing restrictions upon their visitation privileges.
The court of appeals reversed the district court's rulings regarding
the child in need of assistance petition and ordered Barry
to be placed with his parents. We vacate the court
of appeals decision and affirm the district court judgment.
I. Background
facts and proceedings.
This very protracted case involves a mildly, mentally retarded child,
Barry, born in June 1977. Archie, Barry's father, is a
Native American, and Anna, Barry's mother, is not.
The State originally filed a petition to find Barry a
child in need of assistance in 1988, pursuant to Iowa
Code sections 232.2(6)(b), 232.2(6)(c)(2), and 232.2(6)(f) (1987), because his parents
refused to send him to school. Upon appeal, we concluded
that Barry was indeed a child in
need of assistance under section 232.2(6)(c)(2). In
re B.B.,
440 N.W.2d 594 (Iowa 1989). We ordered Anna and Archie
to send Barry to school; if they failed to do
so, we ordered the district court to place Barry in
foster care. Id.
at 598. Much has happened in this case since our
decision.
In October 1989, Barry's parents were held in contempt of
court for failing to send Barry to school. The district
court consequently placed Barry in the custody of the Department
of Human Services (DHS) and ordered foster care placement so
he could be sent to school.
In May 1990, the parents appealed continued foster care placement.
In an unpublished opinion, the court of appeals affirmed *11
continued foster care and additionally ordered unsupervised visitation in the
parental home during weekends and school holidays.
In June 1991, the district court held a review hearing
regarding Barry's trial placement in the parental home, supervised by
DHS, for the summer. DHS was to retain custody. Continued
placement in the parental home beyond the summer months was
conditioned upon Barry being registered for and attending school in
the fall.
In September, the court held another hearing to review continued
placement in the parental home. Barry's parents had not yet
registered Barry for school. The district court ordered that Barry
become registered for school.
To no one's surprise, Anna and Archie failed to register
Barry for school. In October
1991 the district court ordered the DHS to maintain custody
of Barry and place him in a foster home unless
Archie and Anna registered Barry for school and he attended
school. Anna and Archie did not and instead appealed this
order.
Shortly thereafter, the State filed a motion to amend the
child in need of assistance (CINA) petition to allege new
grounds for the CINA adjudication. The State alleged Barry was
a child in need of assistance under Iowa Code section
232.2(6)(n) (1991), which allows a CINA adjudication where the mental
capacity or condition of the parents results in the child
not receiving adequate care.
In the meantime, Anna and Archie had one visitation with
Barry. Barry was extremely upset both before and after the
visit. Barry was hostile towards his foster parents and felt
ill the entire week following this visit. As a result,
Barry's guardian ad litem filed a motion to terminate the
parents' visitation rights.
The court consolidated these two motions for hearing. We stayed
the parents' appeal proceedings on the district court judgment ordering
Barry's registration for school and foster care placement until after
the district court ruled on the hearing proceedings and entered
a dispositional order.
After a hearing, the district court found Barry's parents to
be mentally unstable. As a result, Barry had suffered both
emotionally and physically, and
had received inadequate care. The court accordingly granted the State's
motion to amend the CINA petition to include the grounds
under section 232.2(6)(n). The court found the State had proven
its allegations. The court refused to terminate Barry's visitations with
his parents but placed conditions on such visitation.
The district court held a dispositional hearing on the amended
CINA petition and made substantially similar findings.
Archie and Anna also appealed the dispositional order.
We transferred the case to the court of appeals. The
court of appeals reversed the district court's judgment and placed
Barry back with his parents.
We granted the State's application for further review.
We initially note that two themes have pervaded this entire
litigation: Anna's obsession with Barry's health and her resulting failure
to send him to school despite repeated opportunities and court
orders to do so. We refuse to abandon Barry to
her irrationality.
II. CINA
amendment.
The district court sustained the State's motion to amend its
CINA petition to allege additional grounds under Iowa Code section
232.2(6)(n). The court found that Anna's obsession with Barry's health
resulted in emotional and physical harm to Barry. The court
stated Barry had been hindered in his social and educational
development. We agree.
We review the evidence in CINA
proceedings de novo. In
re J.R.H.,
358 N.W.2d 311, 317 (Iowa 1984). We give weight to the trial
court's findings of fact, especially those regarding the credibility of
witnesses, but we are not bound by them. Iowa R.App.P. 14(f)(7).
The welfare and best interests
of the child are the governing concerns. In
*12
re J.R.H.,
358 N.W.2d at 317; In
re Henderson, 199 N.W.2d
111, 120 (Iowa 1972). Although the parents have a legitimate
interest in the integrity of the family unit, that interest is not absolute.
In re Dameron,
306 N.W.2d 743, 745 (Iowa 1981). In determining the best interests
of the child, we must consider what the future likely holds for a child
if he is returned to parental custody. Id.
As a result, we may look at the parents' past performance of caring
for their child, as their past performance is indicative of their future
care. Id.
Finally,
the State has the burden of proving its CINA petition allegations by clear
and convincing evidence. Iowa Code § 232.96. [FN1]
FN1.
We agree with the district court that Barry is also
subject to the Indian Child Welfare Act (ICWA), 25 U.S.C.
sections 1901-1963. We conclude, however, that the ICWA requirements have
been fulfilled by the State's burden of proof in its
amended CINA petition.
Throughout this litigation, Anna has insisted Barry is too sick
to attend school. She claims he vomits several times a
day and rarely feels well enough to concentrate on school
work.
During one supervised visit with Barry while he lived with
foster parents, Anna persistently asked Barry if his stomach hurt
until he stated that it did. She asked him whether
he had been vomiting. She poked, prodded, and physically examined
him until the social worker supervising the visit asked her
to stop. As Anna was leaving, she told Barry to
vomit on his teachers or foster parents if he needed
to vomit.
Anna maintains Barry is severely ill despite all evidence to
the contrary. [FN2]
Various doctors have examined Barry and declared him healthy. One
doctor did prescribe medication for possible stomach problems but did
not state Barry was too ill to attend school. Barry's
foster parents reported that Barry remained healthy even when this
medication was discontinued.
FN2.
One physician testified that Anna is a Munchausen syndrome by
proxy type person. This means Anna repeatedly convinces Barry he
is ill, and Barry exhibits corresponding symptoms, even though no
real illness exists.
Anna has thrown a saucepan of vomit at a DHS
social worker, threatened various social
workers and school staff, and claims Barry has been drugged,
hypnotized, and brainwashed by his social workers and foster parents.
Anna also made an unsubstantiated allegation of sexual abuse against
a prior foster parent and made verbally abusive phone calls
to that house.
After the parent's first visitation with Barry while he lived
with his foster parents, the DHS imposed guidelines on all
future visitations. For example, Anna was prohibited from asking Barry
about vomiting or illness. In refusing to comply with this
guideline, Anna testified that if she could not physically examine
Barry and ask him about illness, then she had no
reason to visit Barry. In fact, Anna and Archie have
apparently not visited Barry since November 1991.
Barry's social workers and foster mother testified that Barry enjoys
school very much. He has made new friends. When Barry's
foster mother, Linda, took him to a doctor after Barry
had complained about not feeling well before the first visit
with Archie and Anna, the doctor told Barry he was
perfectly healthy. Linda testified that Barry then smiled and danced
and sang, apparently being very happy that he was not
sick.
Linda also testified that in foster care Barry has learned
to take care of his personal hygiene. He has learned
to read a little and can do his own laundry.
We have already determined that Anna's and Archie's failure to
send Barry to school and to special education classes is
sufficient grounds for a CINA adjudication.
See
In re B.B.,
440 N.W.2d 594. We now conclude the district court correctly
found the State proved by clear and convincing evidence that
Anna's obsession with Barry's health, and Archie's failure to intercede
on Barry's behalf, is a mental capacity or condition which
has resulted in Barry not receiving adequate care under section
232.2(6)(n). We affirm the district court's *13
ruling that the State had proved that Barry was a
child in need of assistance under the additional ground in
section 232.2(6)(n) due to his parents' mental condition.
III. Continued
placement in foster care.
Anna and Archie appeal the district court order continuing
Barry's placement in foster care. The court of appeals reversed the district
court judgment. We agree with the district court.
As already discussed, we conclude Anna's and Archie's behavior has
resulted in inadequate care for Barry. Barry's educational and social
well-being has suffered. We do not doubt that Anna's continuous
obsession with Barry's supposed illnesses has resulted in at least
some physical harm to Barry.
Even though Barry will likely return to his parents' home
when he becomes 18 years old, and Anna will return
to convincing Barry he is ill, we cannot abandon Barry
during these final two years when he still has opportunities
for education and socialization. If Barry had not left the
parental house in October 1991, he would not have received
any public schooling thereafter. By all
accounts, Barry enjoys school and has benefited from foster placement.
We cannot in good conscience take these benefits away from
him. Therefore, we affirm the district court's order that Barry
remain in foster care.
IV. Parental
visitation.
Barry's parents also appealed the district court's visitation guidelines order.
We agree with the district court and affirm its guidelines
for visitation.
After the first visit between
Barry and his parents, the DHS wrote out four guidelines that Anna and
Archie would have to follow during future visits. After a
hysterical and loud yelling scene, Anna, and apparently Archie, refused
to sign and abide by the guidelines. Subsequently, Barry's
guardian ad litem petitioned the district court to terminate visitation
because the first visit so upset Barry. Apparently, Anna and
Archie have not visited Barry since refusing to abide by the guidelines
in November 1991.
After a hearing on the matter, the district court refused
to terminate visitation between Barry and his parents, but did
condition all future visitations upon Anna's and Archie's compliance with
four guidelines, which were in substance: 1) visitation is restricted
to family members only; 2) both parents are to stay
at least an arm's distance from the visitation supervisor, with
no limitation placed upon the distance between the parent and
the child; 3) neither parent is allowed to originate any
discussion of vomiting or stomach problems, with all other inquiries
about Barry's health being
limited to general inquiries which are positive in focus; and
4) the parents will refrain from any negative comments about
the foster home, foster parents, or service providers while Barry
is present.
We believe these guidelines are quite reasonable in light of
Anna's irrational and sometimes violent behavior. If Barry is to
gain any benefit from foster care and schooling, these guidelines
must be followed. We therefore affirm the district court's order
allowing visitation subject to the court's guidelines.
V. Disposition.
We do not believe the court system can give in
to Anna and Archie to the detriment of Barry, whose
parents will probably not be around his entire life to
care for him. Barry has two years yet in which
to benefit from foster care and schooling. We refuse to
deny him this opportunity. We therefore vacate the court of
appeals decision and affirm the district court judgment adjudicating Barry
a child in need of assistance under section 232.2(6)(n), continuing
foster care placement, and allowing visitation subject to the district
court's guidelines.
DECISION
OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
500 N.W.2d 9
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