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IN THE COURT OF APPEALS OF IOWA No. 2-349 / 11-2031 Filed June 13, 2012 STATE OF IOWA, Petitioner, vs. IOWA DISTRICT COURT FOR WARREN COUNTY, Respondent. ______________________________________________________________ Certiorari to the Iowa District Court for Warren County, Richard B. Clogg, District Associate Judge.

The State in a certiorari action challenges a consent decree issued by the juvenile court in a delinquency proceeding. WRIT SUSTAINED.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Criswell, County Attorney, and Douglas A. Eichholz and Karla Fultz, Assistant County Attorneys, for petitioner. Jane M. White of Pargulski, Hauser & Clarke, P.L.C., Des Moines, for minor child. J.R., Guthrie Center, father. D.R., Norwalk, mother. Considered by Vogel, P.J., Tabor, J., and Schechtman, S.J.*
*Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2011).

2 TABOR, J. This certiorari action calls us to interpret the consent decree provision in the juvenile justice chapter of the Iowa Code. The precise question is whether the juvenile court may order a juvenile to be placed in residential treatment as a term or condition of granting a consent decree under Iowa Code section 232.46 (2011). The State alleges the court acted illegally in withholding the adjudication of the juvenile as a delinquent, but ordering his placement in a residential treatment facility. Because we find that the consent decree statute does not contemplate placement outside of the juvenile's home, we sustain the writ of certiorari. I. Background Facts & Proceedings On March 31, 2011, the State filed a petition alleging that John, at age fifteen, committed the delinquent acts of sexual abuse in the third degree, in violation of Iowa Code section 709.4(2)(b) (2009); and incest, in violation of section 726.2. The petition asserted that John had sexual contact with his sister, who was then twelve years old. The girl told forensic interviewers that John and another brother, then age thirteen, would masturbate in front of her and "made her" have oral sex with them. She also told investigators that John forcibly tried to have intercourse with her. On October 19, 2011, John entered an Alford plea1 to the allegation of incest, and in exchange, the State agreed to dismiss the charge of third-degree sexual abuse.

1

An Alford plea permits a defendant to plead guilty to a crime without admitting to the underlying facts that establish the crime. See North Carolina v. Alford, 400 U.S. 25, 37 (1970).

3 Mental health professionals have diagnosed John with Asperger's syndrome, which is a type of pervasive developmental disorder (PDD). Core symptoms of this disorder are impairment in social interactions and a failure to develop peer relationships at an appropriate developmental level. At an adjudicatory hearing, the juvenile court officer recommended that John be adjudicated a delinquent and placed in a residential treatment program specifically for sex offenders. The juvenile court officer based his

recommendation, in large part, on Dr. David Beeman's evaluation of John. Dr. Beeman reviewed police investigation records and interviewed John. John

initially denied any inappropriate behavior with his siblings; when he eventually acknowledged performing some of the sex acts alleged by his younger sister, he insisted she was the instigator. Dr. Beeman also employed extensive inventories and questionnaires to determine John's risk to the community and appropriate treatment options. Dr. Beeman concluded that John was "highly in need of

ongoing treatment with skilled providers." His recommendation continued: John is likely to need a residential treatment facility for sex offenders. His treatment will likely need to be individualized to address concerns related to his Asperger's, which will increase the complexity of his treatment. In addition to addressing sexual boundaries and healthy sexuality, more general social skills and boundaries need to be addressed. Dr. Beeman did not consider John to be "safe in the community given his level of accepted responsibility, his impulsivity, and his general denial." Dr. Kevin Took testified on John's behalf. The child psychiatrist opined that because of John's impaired social functioning, placing him in a facility that specializes in treating "sexual predators" would likely increase his risk for

4 inappropriate sexual behavior in the future. The psychiatrist recommended that John be returned to the custody of his parents or family members and would benefit from outpatient therapy to help him with socialization skills. At the hearing, John requested a consent decree under section 232.46. The State argued that a consent decree was not a statutorily available alternative if John was placed outside the home, asserting that John should instead be adjudicated as a delinquent and placed in a residential treatment program. On October 21, 2011, the juvenile court entered an order, concluding "[w]hile the child in interest did engage in delinquent conduct, an adjudication that the child did commit a delinquent act should be withheld at this time." The court placed John under the supervision of juvenile court services, upon its terms and conditions, to include mental health treatment. placement at a youth shelter. The order continued John's

The court determined that entry of a consent

decree for a period of twelve months would be in the child's best interests. The State filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), reiterating its position that a consent decree precluded John's placement outside the home. The court granted the motion in part, but rejected the State's premise. The reconsideration order stated: "p lacement outside of the family home is an option which should be considered at the disposition, including placement in a P.M.I.C. [psychiatric medical institute for children]." The juvenile court held a dispositional hearing on December 5, 2011. A behavioral report reflected that John was doing "very well," earned the highest level of performance, offered assistance to others, and assumed extra chores.

5 The juvenile court issued a consent decree, which provided that residential treatment was warranted and in the child's best interests. The court stated: "The child requires consistent supervision and monitoring while receiving specialized treatment to protect himself and others. This form of supervision is not possible in the parental home while allowing distance from the victim." The court

acknowledged that reasonable efforts were made, including detention, psychological evaluation, and shelter care. The court directed John to be "placed in the temporary legal custody of Juvenile Court Services, with the Department of Human Services as payment agent, for the purposes of placement in residential treatment," and ordered that he remain in shelter care pending that placement. The State filed a petition for writ of certiorari, claiming the juvenile court could not properly place the child in residential treatment as a condition of a consent decree given the language and previous interpretations of section 232.46. The Iowa Supreme Court granted the writ of certiorari. The supreme court transferred the matter to this court for disposition. II. Standard of Review A party may commence a certiorari action when it claims a court exceeded its proper jurisdiction or otherwise acted illegally. Iowa R. Civ. P. 1.1401; French v. Iowa Dist. Ct., 546 N.W.2d 911, 913 (Iowa 1996). The court is considered to have acted illegally if it has "not acted in accordance with a statute; if its decision was not supported by substantial evidence; or if its actions were unreasonable, arbitrary, or capricious." Perkins v. Bd. of Supervisors, 636 N.W.2d 58, 64 (Iowa 2001) (citation omitted).

6 We consider a writ of certiorari for the correction of legal error. Dep't of Pub. Safety v. Iowa Dist. Ct., 801 N.W.2d 544, 547 (Iowa 2011). We also review statutory construction issues for errors at law. Reilly v. Iowa Dist. Court, 783 N.W.2d 490, 493 (Iowa 2010). In determining the propriety of the juvenile court's underlying decision to enter a consent decree, our review is de novo, "but only to the extent of examining all the evidence to determine whether the juvenile court abused its discretion." See In re J.J.A., 580 N.W.2d 731, 737 (Iowa 1998). III. Merits The State contends the juvenile court overstepped its authority under chapter 232 by granting a consent decree to John and then ordering that he be placed in residential treatment. The State interprets section 232.462 as providing for release of a juvenile into the community with "supervision"--but precluding placement outside the community in a residential treatment facility. 3 For its

position that section 232.46(1) precludes an out-of-home placement, the State

2

Iowa Code section 232.46 provides, in relevant part:

1. At any time after the filing of a petition and prior to entry of an order of adjudication pursuant to section 232.47, the court may suspend the proceedings on motion of the county attorney or the child's counsel, enter a consent decree, and continue the case under terms and conditions established by the court. These terms and conditions may include prohibiting a child from driving a motor vehicle for a specified period of time or under specific circumstances, or the supervision of the child by a juvenile court officer or other agency or person designated by the court, and may include the requirement that the child perform a work assignment of value to the state or to the public or make restitution consisting of a monetary payment to the victim or a work assignment directly of value to the victim. . . .
3

The State suggests that residential treatment is also known as "group foster care." See In re C.S., 516 N.W.2d 851, 858

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