Opinion
No. 5-040 / 04-1227
Filed July 13, 2005
Appeal from the Iowa District Court for Dubuque County, Lawrence H. Fautsch, Judge.
Julie Ann Harry appeals from the vacation of the order requiring the Department of Human Services to provide her supervised visitation. AFFIRMED.
David L. Hammer and Angela C. Simon of Hammer, Simon Jensen, Dubuque, for appellant.
Russel A. Neuwoehner of Lange Neuwoehner, Dubuque, for respondent.
Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant Attorney General for appellee.
Heard by Sackett, C.J., and Zimmer and Hecht, JJ.
Julie Ann Harry appeals from the vacation of the order requiring the Department of Human Services (DHS) to provide her supervised visitation. We affirm.
I. Background Facts and Proceedings.
Julie and Jeffery Harry were married in October of 1996, and are the parents of two children, Alicia and Jeffery. The couple separated in February 2001, and a subsequent juvenile action in May of 2001 temporarily removed the children from their parents' care. One of Julie's other children, not the subject of the current appeal, was adjudicated a Child In Need of Assistance (CINA) by the juvenile court. Julie's other children, including Alicia and Jeffery, had CINA adjudications suspended on the condition they were to remain in their respective fathers' care. The juvenile court granted Julie's concurrent jurisdiction request, allowing the district court to resolve matters related to the dissolution action, including custody, child support, and visitation.
A party to a pending CINA action may seek permission to "litigate concurrently in another court a specific issue relating to the custody, guardianship, or placement of the child who is the subject of the action." Iowa Code § 232.3(2) (2001).
During the pendancy of the juvenile action, DHS offered its services to supervise Julie on her visits with Alicia and Jeffery; however it does not appear that Julie fully availed herself of these services. In a service plan prepared by DHS on April 2, 2002, DHS noted "Julie's lack of physical involvement since December 18, 2001." The plan further recommended the juvenile case be closed and the visitation issue resolved in district court, so long as the district court entered an order requiring supervision of Julie's visits with her children until she could demonstrate the ability to appropriately handle unsupervised visits. On April 26, 2002 the district court entered the recommended visitation order clarifying the dissolution decree, requiring all visitations with Julie to be supervised. That order, however, did not explicitly require DHS to provide and pay for the supervision, and similarly did not expressly require Julie to bear the cost of the supervision. The juvenile case was dismissed following the entry of the district court's supervision order.
Some eighteen months after the closure of the juvenile case, Julie sought supervision services from DHS. In a letter dated December 19, 2003, DHS informed Julie that DHS "does not provide supervised visitation for a family unless the juvenile court is involved with the child(ren)." It recommended Julie purchase the services of certain private agencies. Julie contacted each of the agencies indicated, but found the cost of their services prohibitive. Julie then petitioned the district court to modify its supervision order to require DHS to provide supervision of the visits at no cost to Julie. Relying on the inherent power doctrine, and noting its jurisdiction to act in all proceedings involving the custody of minor children, the district court initially agreed with Julie's request. The district court found it inequitable for its prior visitation order to be rendered unenforceable by Julie's indigence, and on June 15, 2004 the district court ordered DHS to provide free supervision for Julie on her visitations with Alicia and Jeffery.
Julie's modification petition alleges Julie subsists on a very limited disability income. The lowest cost for private supervision services that Julie could find was forty-two dollars per hour. At four hours a week, the cost would equal $168 per week, or roughly $672 per month, a sum greater than her entire monthly income.
DHS disagreed with the district court's modification order, and subsequently sought the court's reconsideration of the June 15 order. DHS relied upon Iowa Department of Social Services v. Blair, 294 N.W.2d 567, 579 (Iowa 1980) for the proposition that juvenile courts are given exclusive jurisdiction to order DHS to provide protective supervision, and that the district court lacked similar jurisdiction to order DHS to provide supervised visitation in a private dissolution case. On the strength of this precedent, the district court vacated its June 15 order requiring DHS to provide free supervision services to Julie.
Julie appeals and requests that we reverse the district court and reinstate the June 15 order. The district court, Julie argues, erred in finding itself without authority to order DHS to provide services necessary to enforce its prior visitation order requiring supervision. In arguing that the present supervision order effects a constructive termination of her parental rights given her indigence, Julie contends the district court exercises jurisdiction over those cases involving the custody and visitation of minor children, and therefore possesses the inherent authority necessary to effectuate the exercise of that jurisdiction.
II. Scope and Standard of Review.
Our review in dissolution cases is de novo. Iowa R. App. P. 6.4; In re Marriage of Jones, 653 N.W.2d 589, 592 (Iowa 2002). We review the entire record and adjudicate anew all issues properly presented on appeal. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981).
III. Discussion.
Iowa Code section 598.41(1)(a) (2001) provides in pertinent part:
[t]he court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate . . . unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.
Generally, we have considered liberal visitation rights to be in a child's best interest, and we avoid placing restrictions or conditions on a parent's opportunity for continuing contact with a child following a dissolution. In re Marriage of Rykhoek, 525 N.W.2d 1, 4 (Iowa Ct.App. 1994). However, if a parent behaves irresponsibly during visitation, or if a parent's conduct prior to the dissolution raises concerns that visitation with that parent may cause "direct physical harm or significant emotional harm to the child," courts may reduce or eliminate visitation. Id.; In re Marriage of Fite, 485 N.W.2d 662, 664 (Iowa 1992).
A careful reading of section 598.41(1)(a) reveals an emphasis on the child's best interests over the right of a particular parent to exercise visitation free from reasonable conditions. The district court is therefore justified in imposing reasonable restrictions on visitation where the record indicates visitation with a parent may place the children at risk of physical or emotional abuse. Iowa Code § 598.41(1)(a); Rykhoek, 525 N.W.2d at 4. A review of the record in this case provides ample support for the district court's decision to require all visits with Julie to be supervised until such time as she can prove she can handle unsupervised contact with her children.
Despite the district court's authority to impose reasonable conditions on the visitation rights of a parent, Julie maintains the district court's requirement of supervised visitation effects a constructive termination of her parental rights due to Julie's indigence. Although we find no exhibit in the record attesting to Julie's indigence or her inability to secure funds to pay for private supervision services, we take her assertion at face value for purposes of our analysis. We note the district court is without authority to make a child in need of assistance adjudication or to order the termination of parental rights. In re Marriage of Carrico, 284 N.W.2d. 251, 255 (Iowa 1979). The proper authority to make those determinations lies exclusively with the juvenile court. Iowa Code § 232.61(1). We believe, however, that the imposition of the supervised visits by the district court does nothing more than restrict the type of contact Julie may have with her children, and has no legal bearing on the other broad rights a parent may exercise. We also note the April 26, 2002 order does not explicitly require Julie to prove "she can appropriately handle unsupervised contact" through participation in supervised visitation with her children alone, and there may be creative ways in which Julie may convince DHS to relieve her of the supervised visitation requirement. As such, we disagree with Julie's contention that the April 26, 2002 order worked a constructive termination of her parental rights.
The record reveals Julie, through her attorney, agreed by way of written stipulation to the district court's decision to impose the supervision restriction on her visitation in an order clarifying the district court's dissolution decree. We have previously upheld a condition on visitation, stipulated to by the parent, which would require the parent to pay all expenses incurred from the visitation. In re Marriage of Hatzievgenakis, 434 N.W.2d 914, 916 (Iowa Ct.App. 1988). In rescinding its order requiring DHS to provide cost-free services, the district court effectively required Julie to pay the cost necessary to minimize the risk to the children resulting from her exercise of visitation. In both cases, the exercise of visitation rights by the parent carried with it a built-in cost. Julie's stipulation to both the closure of the juvenile action and the entry of the April 26, 2002 order we believe renders inapt her characterization of the district court's disposition as a constructive termination of her parental rights.
We further conclude the district court correctly rescinded its June 15, 2004 order requiring DHS to provide supervision services to Julie. Our analysis of this issue is guided by the holding In Iowa Department of Social Services v. Blair, 294 N.W.2d 567, 569 (Iowa 1980), where our supreme court concluded the district court was without authority to order DHS to provide supervision services pursuant to a decree of dissolution. Referencing Iowa Code section 232.101(1), and noting state agencies like DHS only exercise "such power as is specifically conferred or necessarily implied from the statute creating them," the court concluded "[t]he legislature has provided that [DHS] may exercise protective supervision over children only as the result of a chapter 232 proceeding, not a dissolution pursuant to chapter 598." Blair, 294 N.W.2d at 570. Our review of the record reveals that while the juvenile court and the district court exercised concurrent jurisdiction over the custodial disposition of Jeffery and Alicia for a time, Julie agreed by stipulation to the dismissal of the juvenile action and the entry of the April 26, 2002 order by the district court. The termination of the juvenile action ended the district court's exercise of chapter 232 authority.
Julie, however, argues the concurrent jurisdiction exercised by the district court at the time the supervision order was issued provided the court with continuing authority to now order DHS to provide that supervision notwithstanding the dismissal of the juvenile court proceeding. Julie in essence contends the authority of the juvenile court attaches to a decree entered by the district court during its exercise of concurrent jurisdiction, and may be exercised in modifying the dissolution decree even after concurrent jurisdiction has terminated. In furtherance of her position on appeal, Julie notes the Blair court's statement that "[p]rotective supervision [through DHS] is allowed only after a dispositional hearing before the juvenile court." Id. We do not, however, take this language to mean that a district court deciding a private custody dispute may order DHS to provide supervised visitation services to parents simply because their children have been the subject of a previously closed chapter 232 proceeding in juvenile court. Though there were CINA adjudications made by the juvenile court regarding Jeffery and Alicia, these actions were dismissed long before the filing of Julie's petition for modification of the dissolution decree, and therefore the district court's exercise of concurrent jurisdiction with the juvenile court had long since terminated. Without a pending juvenile action, the district court no longer exercised chapter 232 jurisdiction over DHS at the time Julie filed her petition, and therefore it was without authority, inherent or otherwise, to order DHS to do anything other than perform a home study. Iowa Code § 598.12(2); see also Iowa Department of Human Services v. Dist. Ct., 446 N.W.2d 794, 796 (Iowa 1989) (holding a district court exercising jurisdiction pursuant to Iowa Code chapter 598 may only require DHS to provide home studies).
We conclude the district court's order for supervised visitation was well within the district court's discretion. Because we further conclude the district court could only exercise its chapter 598 authority when addressing Julie's petition for modification, the district court was without authority to grant the modification requiring DHS to provide the supervision services requested by Julie. The district court therefore correctly withdrew its order directing DHS to provide supervision of visitation.