In re E.C.

• Court: Court of Appeals of Iowa
• Decided: December 6, 2017
• Docket: 17-1431
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-1431 Filed December 6, 2017

IN THE INTEREST OF E.C., Minor Child,

J.C. Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Stephanie F.

Parry, District Associate Judge.

A mother appeals a juvenile court dispositional-review order in a child-in-

need-of-assistance proceeding modifying the custody of her child. AFFIRMED.

Theresa Rachel and Dean A. Fankhauser of Fankhauser Rachel, P.L.C.,

Sioux City, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Matthew R. Metzgar of Rhinehart Law, P.C., Sioux City, for appellee father

Meret Thali of Juvenile Law Center, Sioux City, guardian ad litem for minor

child.

Considered by Danilson, C.J., and Doyle and Mullins, JJ. 2

MULLINS, Judge.

A mother appeals a juvenile court dispositional-review order in a child-in-

need-of-assistance (CINA) proceeding modifying the custody of her child, E.C.,

born in 2013. She contends the custody modification (1) hinders future

reunification efforts and (2) is not in the best interests of the child.1

The mother has a long history with the Iowa Department of Human

Services (DHS) concerning her inability to properly care for her children. In

January 2017, as a result of concerns regarding physical abuse and continuous

inadequate care, E.C. and her three half-siblings were removed from the

mother’s care and placed in a shelter. They were subsequently placed in foster

care. At the time of removal, the children had developmental delays and

numerous medical and dental needs the mother was not addressing. In March,

the juvenile court adjudicated E.C. and her siblings to be CINA pursuant to Iowa

Code section 232.2(6)(c)(2) and (g) (2017). In the adjudication order, the court

noted its intention to explore E.C.’s father, who lives in Missouri, as a potential

placement.

In May, the father requested extended visitation with the child over the

summer. The mother did not object to such visitation. Following the dispositional

hearing less than a week later, the juvenile court ordered the details of any

extended visitation to be agreed upon between the father, DHS, and the child’s

guardian ad litem. The father was ultimately allowed visitation on Memorial Day

1 The mother also argues the modification is unsupported by a substantial change in circumstances. We reject this argument due to our prior holding that “the juvenile court need not find a substantial change in circumstances as a prerequisite to modification of a dispositional order pursuant to Iowa Code section 232.103(4).” In re A.J., No. 16- 1954, 2017 WL 1278366, at *3 (Iowa Ct. App. Apr. 5, 2017) (citation omitted). 3

weekend, two weeks in July, and approximately three weeks in August. It was

reported that E.C. became upset when she was required to leave her father’s

care after periods of visitation and return to her foster parents.

In July, the father moved for a modification of custody and concurrent

jurisdiction. The Missouri Department of Social Services conducted a home

study of the father and his significant other and ultimately recommended them for

placement of E.C. A dispositional-review and modification hearing was held in

August. Following the hearing, the juvenile court concluded “the least restrictive

placement that is in [the child’s] best interest is with her father” and accordingly

transferred the care, custody, and control of the child to her father. 2 The court

additionally ordered DHS to develop a plan of contact between the mother and

the child and also ordered the father to be supportive of such contact.

On appeal, the mother contends the custody modification (1) hinders

future reunification efforts and (2) is not in the best interests of the child.3 Our

review of CINA proceedings is de novo. In re J.S., 846 N.W.2d 36, 40 (Iowa

2014). Our primary concern is the best interests of the child. Id.

First and foremost, the mother’s argument that the modification will hinder

reunification efforts is speculative at best. Her argument appears to rest solely

upon her premature assumption that she will be disallowed from having any

physical contact with the child. It is true that the father’s residence is located

several hours away, but visitation can be had by other means. In fact, DHS

2 The juvenile court did not rule upon the father’s motion for concurrent jurisdiction. A review of the record reveals that motion is still pending. 3 We specifically note the mother does not argue on appeal that grounds for modifying the dispositional order under Iowa Code section 232.103(4) are lacking. 4

created a “plan of contact” allowing the mother phone or video contact two times

per week and potentially supervised visitation. The plan noted the father is

willing to meet the mother at a halfway point to allow future visits to occur. In any

event, the mother has historically declined to utilize all of her visitation time with

her children and has exhibited a general lack of interest in having her children

returned to her. Simply stated, the transfer of custody to the father does not

hinder future reunification efforts any more than has the mother’s behavior

throughout this case. The evidence does not support the mother’s contention

that the order hinders her chance at reunification due to a lack of visitation.

With regard to whether the custody modification was in the child’s best

interests, we note from the outset that “chapter 232 favors relative placements

over nonrelative placements.” In re N.M., 528 N.W.2d 94, 97 (Iowa 1995); see

Iowa Code § 232.99(4) (“[T]he court shall make the least restrictive disposition

appropriate considering all the circumstances of the case.”). Furthermore, at the

time of the dispositional-review hearing, the father was working a full-time job

earning $14.90 per hour and receiving dental and health benefits, and he had

recently added E.C. to his health insurance and signed her up for preschool. He

was tending to the child’s medical ailments and setting up appointments to get

her treatment. This is more than the mother has done for her child in the more

than three years between the child’s birth and the removal. A DHS

representative testified the father has gone “above and beyond” what DHS has

requested of him, E.C. has developed a bond with her father, and placement with

him would be appropriate. 5

Considering the exemplary job the child’s father has done in stepping in

and caring for the child, and the court’s requirement that DHS develop a plan of

contact between mother and child, we agree with the juvenile court’s conclusion

that the child’s placement in her father’s care and custody is in her best interests.

We affirm the juvenile court’s order transferring the care, custody, and

control of the child to her father.

AFFIRMED.