In the Interest of A.S., Minor Child, T.S., Mother

• Court: Court of Appeals of Iowa
• Decided: June 21, 2017
• Docket: 17-0663
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-0663 Filed June 21, 2017

IN THE INTEREST OF A.S., Minor Child,

T.S., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Susan F. Flaherty,

Associate Juvenile Judge.

A mother appeals the juvenile court’s modification of a dispositional order.

AFFIRMED.

Ellen R. Ramsey-Kacena, Cedar Rapids, for appellant mother.

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

General, for appellee State.

Kimberly A. Opatz of Linn County Advocate, Cedar Rapids, guardian ad

litem for minor child.

Considered by Vogel, P.J., and Doyle and McDonald, JJ. 2

DOYLE, Judge.

A mother appeals from the juvenile court’s modification of a dispositional

order to remove her child from her care pursuant to Iowa Code section

232.103(4)(c) (2017) (providing the court may modify a dispositional order if “[t]he

efforts made to effect the purposes of the order have been unsuccessful and

other options to effect the purposes of the order are not available”). She argues

removal is not in the child’s best interests.1 We review her claim de novo. See In

re J.S., 846 N.W.2d 36, 40 (Iowa 2014).

The family came to the attention of the Department of Human Services

(DHS) in February 2016 when the child tested positive for exposure to marijuana

at birth. The family appeared to be doing well after one month of participation in

voluntary services, and the DHS closed the case. However, in August 2016, the

mother tested positive for benzodiazepines, opiates, and marijuana after the car

she was driving collided with a large truck, causing her car to flip several times.

Because the child was in the car with the mother at the time and not properly

restrained in a child safety seat, the State charged the mother with child

endangerment with injury in addition to operating while intoxicated. The State

filed a petition to adjudicate the child in need of assistance (CINA), and the

juvenile court adjudicated the child to be a CINA in November 2016.

1 The mother also argues the juvenile court “erred in finding the State had established a substantial and material change for modification of the dispositional order by clear and convincing evidence.” Her argument is based on a line of cases adopting this standard for modification of the custody provisions of a prior dispositional order. See In re J.F., 386 N.W.2d 149, 152 (Iowa 1986). However, we have recently recognized this precedent was superseded by legislative amendment that no longer requires the juvenile court find a substantial change in circumstances as a prerequisite to modifying a dispositional order. See, e.g., In re A.J., No. 16-1954, 2017 WL 1278366, at *3 (Iowa Ct. App. Apr. 5, 2017). 3

The juvenile court entered a dispositional order in December 2016.

Because the mother had failed to follow through with drop-in services following

the CINA adjudication, the juvenile court ordered the mother to enroll the child in

protective daycare. When the mother failed to enroll the child in protective

daycare, the State moved to modify the dispositional order. The mother’s

participation in services and drug testing also failed to improve, and in February

2017, the mother again tested positive for opiates, as well as hydrocodone.

Following a hearing, the juvenile court entered its order modifying the

previous dispositional order. The court found that modification was warranted

because: (1) the child is at ongoing risk of imminent harm based on the parents’

use of opiates and marijuana, (2) the reasonable efforts made to prevent the

removal have been unsuccessful, and (3) allowing the child to remain in the

home would be contrary to the child’s best interests. As a result, the juvenile

court ordered the child’s removal from the home.

Clear and convincing evidence supports the determination that removal

from the home is in the child’s best interests. The DHS has provided reasonable

efforts to address the risk posed to the child by the mother’s substance abuse.

The mother has failed to take advantage of these services, and she continues to

struggle with her drug dependency. The mother cannot safely parent the child

while abusing substances. Even after the serious collision she was involved in

while under the influence of controlled substances, the mother continues to lack

awareness of the danger she poses to her child. The juvenile court found the

mother’s claims she was now going to follow through with services were not

credible. See J.S., 846 N.W.2d at 40 (noting that although we are not bound by 4

the juvenile court’s fact findings, we give them weight, especially those

concerning witness credibility). Removal is necessary to protect the child and is

therefore in the child’s best interests.