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IN THE COURT OF APPEALS OF IOWA No. 0-857 / 10-1357 Filed December 22, 2010 IN THE INTEREST OF V.C., Minor Child, V.C., Minor Child, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Buchanan County, Daniel L. Block, Associate Juvenile Judge.

A child appeals the juvenile courts modification order removing him from his mothers home and placing him in group foster care. AFFIRMED.

Linnea Nicol, Waterloo, for appellant. Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Allan W. Vanderhart, County Attorney, and Karl Moorman, Assistant County Attorney, for appellee. Sheila Freerksen, Hazelton, for mother. Steve Ristvedt, Independence, for father.

Considered by Mansfield, P.J., and Danilson and Tabor, JJ.

2 TABOR, J. A thirteen-year-old child appeals the juvenile courts modification order removing him from his mothers home and placing him in group foster care. He argues the juvenile court violated his due process rights by denying his request for a continuance at the modification hearing and further contends the Department of Human Services (DHS) failed to engage in reasonable efforts to reunify him with his mother. Because we conclude the DHS engaged in

reasonable efforts and the juvenile court did not abuse its discretion in denying the childs motion for a continuance, we affirm. I. Background Facts and Proceedings V.C. was born in 1997 and has an extensive history of engaging in negative behaviors including aggression toward others, cruelty to animals, stealing, lying, sexual conduct with a seven-year-old girl, attempted suicide, and setting fires in his mothers home. V.C. has been hospitalized for his behaviors on three occasions. In 2008, police investigated a complaint that then elevenyear-old V.C. had engaged in sexual activity with a seven-year-old girl, which V.C. admitted. On September 15, 2008, a petition alleging V.C. to be a child in need of assistance (CINA) was filed with the juvenile court, citing his sexual abuse of a younger child. At the adjudicatory hearing on October 3, 2008, V.C.s mother, with whom he had resided, requested V.C. be removed from her custody due to his emotional and behavioral problems, "most recently manifesting themselves in inappropriate sexual conduct."

3 The juvenile court adjudicated V.C. a CINA under Iowa Code section 232.2(6)(k) on October 3, 2008, on the ground that the mother "for good cause desires to be relieved of his . . . care and custody." The court also ordered temporary removal of V.C. pursuant to Iowa Code section 232.96(10) concluding removal was necessary to avoid imminent risk to the childs life or health, explaining "[c]ontinuation of the child in the childs home would affect the childs welfare by allowing his mental and behavioral problems to continue resulting in inappropriate sexual actions." The court determined placement in shelter care was necessary "due to his mental disorders and sexually aggressive acts." After a psychological evaluation, which recommended inpatient treatment for V.C., the juvenile court transferred custody to the DHS for placement in a Psychiatric Medical Institute for Children (PMIC). V.C. was admitted to the PMIC program on December 29, 2008, but did not make the "progress that [DHS] had hoped that he would make during his time at the PMIC unit" before being discharged from the program and returned to his mothers care on August 18, 2009. It was the "PMICs belief as well as the [DHSs] that [V.C.] [was] not benefitting from the PMIC program." Both the PMIC and DHS recommended the court return V.C. home, explaining "[t]hese recommendations are not due to the success that [V.C.] has had at PMIC but rather because of the lack of benefits that he is receiving from the program." When V.C. returned to his mothers home, his behavior deteriorated. He was caught stealing from relatives, from others in the community, and from school; he took a knife to school; and on another occasion he physically attacked

4 his older brother. In May 2010, the court expressed reservations about leaving V.C. in his mothers home--citing his harmful behavior and his mothers inability to provide the highly structured environment necessary for V.C.--and scheduled a modification hearing for August 2010. In July 2010, V.C. met with Dr. George Harper for a full psychological evaluation. Dr. Harper diagnosed V.C. with bipolar disorder, attentiondeficit/hyperactivity disorder, conduct disorder, and antisocial and histrionic personality features. Dr. Harper recommended V.C. be referred to a highly

structured treatment program such as the Four Oaks Phase Program to encourage more positive behaviors. He noted that V.C. "has suffered from major emotional and behavioral problems since a very early age" and made the following observations: [V.C.] participated in numerous psychological and/or psychiatric evaluations as well as inpatient and outpatient treatment. These interventions appear to have made little difference in this youngsters development or the frequency and intensity of his inappropriate behaviors. He appears to be capable of behaving himself in a highly structured setting but quickly regresses to prior levels of mental health problems when he is returned home. Thus, it does not appear that he can continue in his home environment without engaging in serious behavioral problems and experiencing rather severe extremes of mood. Unfortunately, the prognosis for this youngster is extremely poor. Dr. Harper described V.C. as "quite prone to exhibit increasingly anti social behavior," and explained he "has failed to develop an effective conscience which can help him regulate his behavior in the absence of external controls. " He noted further that V.C.s mother had open heart surgery in July and was not able to provide the structure and consequences needed for V.C. at that time.

5 On August 16, 2010, V.C. and his mother appeared before the juvenile court for a modification-of-disposition hearing. At the hearing, the State

recommended the juvenile court modify the custodial order and transfer custody from the mother to DHS for purposes of group foster care and that the family continue to receive child-welfare services. The mother agreed with the States recommendations, expressing her increased frustration with V.C.s defiance of rules and expectations in her home.1 V.C. resisted, requesting a continuance so "evidence could be heard on the issue of whether or not there is a true safety concern for [V.C.] in the home or whether a less restrictive placement would be in family foster care." He also requested placement in family foster care. In addition, V.C. argued DHS failed to make reasonable efforts to achieve permanency and reunify him with his mother, as evidenced by the fact he had not received mental health counseling for the two months preceding the hearing because the counseling center through which he obtained services had closed in June. V.C.s mother placed him on a waiting list for counseling and medication management at an alternative center and was awaiting a return phone call. The juvenile court denied V.C.s requested continuance, concluded the DHS continued to exercise all reasonable efforts to achieve permanency for the child, and modified V.C.s placement to group foster care. The court explained group placement was "the least restrictive placement" and was "in the childs best interests." The court concluded that placing V.C. with either parent would be contrary to V.C.s welfare "[b]ecause of concerns regarding the childs willful
V.C.s father, who did not appear personally but had counsel at the hearing, took no position on the recommendations.
1

6 verbal and physical aggression, refusal to comply with parental rules and history of mental health concerns." The court also explained, "[a] family foster home is not a suitable option for the court because of the childs aggressive and manipulative behaviors." The court noted V.C. had a history of antisocial and aggressive behaviors and noted that although V.C. completed PMIC

programming and intensive behavioral modification treatment, V.C.s behaviors had deteriorated since returning to his mothers home as evidenced, in part, by the fact he made "numerous suicidal ideations and threatened serious bodily harm upon his siblings." The court explained V.C. is "openly defiant to caregivers . . . willfully violates parental rules and engages in behaviors which place himself and those unable to avoid contact with him at risk." The court also noted the mother was unable to provide adequate supervision because of her work schedule. V.C. returned home temporarily after the hearing and was

subsequently placed in group foster care at the Four Oaks Phase program on August 23, 2010. V.C. appeals, arguing the juvenile court violated his due process rights by denying his request for a continuance at the modification hearing. He also

argues the DHS failed to engage in reasonable efforts to reunify him with his mother. V.C. asks us to reverse the juvenile court order and remand the case for further evidentiary proceedings on the issues of the least restrictive placement and the DHSs reasonable efforts.

7 II. Scope and Standard of Review We engage in de novo review of CINA proceedings. N.W.2d 731, 733 (Iowa 2001). In re K.N., 625

We give weight to the juvenile courts fact

findings, especially when considering the credibility of witnesses, but we are not bound by those findings. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990). Our paramount concern remains the best interests of the child. K.N., 625 N.W.2d at 733. The child alleges a due process violation. If that constitutional challenge were preserved, our review would be de novo. See In re N.N.E., 752 N.W.2d 1, 6 (Iowa 2008). We review a courts ruling on continuance motions for abuse of discretion. Michael v. Harrison County Rural Elec. Coop., 292 N.W.2d 417, 419 (Iowa 1980); In re C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996). We note a courts ruling on a continuance motion is "presumptively correct and [a] complainant has a heavy burden to overcome the presumption of regularity." Michael, 292 N.W.2d at 419. With respect to rulings on motions for continuance, ",,trial courts are accorded broad discretion and absent clearly shown abuse thereof we will not interfere." Id. (citation omitted). To establish abuse of

discretion, the complainant must show the courts action was unreasonable under the circumstances and "[o]rdinarily, an abuse is found to exist only where there is no support in the record for the trial judges determination." Id.

8 III. Analysis A. Denial of Continuance V.C. asserts the juvenile court violated his federal and state constitutional due process rights when it denied his request for a continuance at the modification hearing, thereby failing to hear evidence that would mitigate his placement to the less restrictive family foster-care option.2 V.C. argued a

continuance would have allowed him to present evidence supporting placement in family foster care rather than group care. He asks us to reverse the juvenile court order and remand the case for an evidentiary proceeding on the issue of the least restrictive placement. The State contends V.C. failed to preserve error on his constitutional argument because he "never alluded to any federal or state constitutional right in support of the continuance motion." Alternatively, the State argues V.C. failed to show an abuse of discretion or prejudice. We decline to reach V.C.s due process claim, because it was not raised in the juvenile court. See In re K.C., 660 N.W.2d 29, 38 (Iowa 2003) ("Even issues implicating constitutional rights must be presented to and ruled upon by the district court in order to preserve error for appeal."). Reviewing the juvenile courts ruling under an abuse -of-discretion standard, we conclude the juvenile court did not abuse its discretion when it denied V.C.s motion to continue the modification hearing. V.C. has not satisfied his heavy burden of showing the denial was unreasonable under the

We note that V.C.s challenge does not involve Iowa Code Chapter 232s requirement that "the court shall make the least restrictive disposition appropriate considering all the circumstances of the case." Iowa Code

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