In the Interest of O.H. and P.H., Minor Children, T.H., Father
16-2209
| Iowa Ct. App. | May 17, 2017Background
- On Oct. 1, 2016 DHS removed O.H. and P.H. after the father and P.H.’s mother were arrested for allegedly sexually abusing another child (T.W.); police reports allege the father forced sexual acts while watching, O.H. allegedly witnessed the abuse.
- A criminal court entered a no-contact order (Oct. 2, 2016) prohibiting the father from contacting anyone under 18.
- The State filed a CINA petition Oct. 4, 2016; after removal hearings the children were placed with relatives and the court ordered parents to participate in jail programming and DHS services.
- On Nov. 16, 2016 the juvenile court adjudicated O.H. and P.H. as children in need of assistance.
- At the Dec. 7, 2016 dispositional hearing the incarcerated father requested in-person or video visitation; the juvenile court denied visitation, citing the criminal no-contact order, the father’s lack of sex-offender treatment, and that a child had witnessed the alleged abuse.
- The father appealed, arguing (1) the no-contact order is unconstitutional and (2) denial of visitation is not in the children’s best interests because safeguards (video visits, DHS workers) could protect the children.
Issues
| Issue | Father’s Argument | State / Juvenile Court Argument | Held |
|---|---|---|---|
| Constitutionality of criminal no-contact order | No-contact order is unconstitutional (violates his rights) | Order was entered in separate criminal case; father did not appeal it or raise constitutional claims below so error not preserved | Court refused to consider constitutional challenge (unpreserved/collateral attack) |
| Denial of visitation in CINA dispositional order | Visitation should be allowed (in-person or video) with safeguards (video, DFPS/DHS staff) | Children’s best interests control; criminal charge, no treatment, and child exposure to abuse justify denial; father not entitled to visitation while incarcerated for sex offense | Affirmed: visitation denial is in children’s best interests |
| Whether reasonable services require visitation here | Father: reasonable efforts/visitation facilitate reunification; safeguards suffice | DHS must offer reasonable services but services and visitation depend on case-specific safety and progress; parent must address underlying issues first | Court held services/visitation may be restricted where safety and best interests require it |
| Right to visitation while incarcerated and charged with sex offense | Father: incarceration and charge shouldn’t automatically bar visits if safeguards exist | Statutory and case law limit visitation for parents convicted/charged with sex offenses; children’s safety and the father’s lack of treatment weigh against visitation | Denial upheld; restrictions appropriate given allegations, incarceration, and lack of treatment |
Key Cases Cited
- In re K.B., 753 N.W.2d 14 (Iowa 2008) (standard of de novo review in CINA appeals)
- In re K.N., 625 N.W.2d 731 (Iowa 2001) (weight given to juvenile court fact findings and credibility)
- In re D.D., 653 N.W.2d 359 (Iowa 2002) (best interests of the child is controlling in CINA matters)
- In re C.B., 611 N.W.2d 489 (Iowa 2000) (scope of reasonable efforts and visitation in reunification)
- In re C.H., 652 N.W.2d 144 (Iowa 2002) (reasonable services vary by case)
- In re Augustus, 158 N.W.2d 625 (Iowa 1968) (best-interest standard governs temporary custody and visitation)
- State v. Krogmann, 804 N.W.2d 518 (Iowa 2011) (constitutional issues not preserved if not raised below)
- In re G.A., 826 N.W.2d 125 (Iowa Ct. App. 2012) (parent must accept responsibility for criminal acts; such acts affect parental relationship and visitation)