In the Interest of C.D.

509 N.W.2d 509, 1993 Iowa App. LEXIS 152, 1993 WL 562917
Court of Appeals of Iowa·Decided November 29, 1993·No. 93-567·Published·Cited by 28 cases

Opinion

HAYDEN, Judge.

Barbara is the mother of four children: Christina, bom May 30, 1979; Brian, bom June 8, 1981; Elizabeth, born September 23, 1983; and Angela, born September 17, 1986. The mother appeals the juvenile court’s order denying her request to modify the visitation and service provisions of a 1991 permanency order.

In April 1989 the Linn County Juvenile Court adjudicated the four children to be in need of assistance (CINA) and removed them from the custody of their parents. The children were placed in foster care. The adjudication was based on the mother’s history of exposing them to sexual abuse perpetrators, including their father who was found guilty of indecent contact with a child, another man who had a criminal record of abusing children, and Charles LaSage who had an extensive criminal history. In December 1984 a CINA petition had been filed on behalf of Christina. In March 1985 she was adjudicated in need of assistance in Jones County Juvenile Court. Her father was found guilty of indecent contact with a child.

In January 1991 a permanency hearing was held. The juvenile court changed the goal of the permanency order from family reunification to long-term foster care. See Iowa Code § 282.104(2)(d)(4). The court found the children had been in foster care for approximately twenty months and they could not be returned to their mother’s custody. The court noted extensive services had been provided to the mother to assist her in parenting skills and to help her deal with her own behavior patterns which result in her exposing her children to dangerous abusive individuals. The court stated the service providers involved in the ease had gone beyond the normal call of duty in trying to make the case plan work. The parents, however, had been unwilling to accomplish the goals of the plan. Termination of parental rights was not considered because of the oldest child’s bond with the mother. A limited and supervised visitation schedule was ordered. The mother never appealed this order changing the goal of the case plan.

In March 1991 the State sought a transfer of guardianship of the children from the mother to the children’s guardian ad litem and attorney, Crystal Usher. The State claimed the mother had frequently delayed permitting the children to participate in *511 school activities or trips with the foster family. The State also contended the mother on two occasions had delayed in allowing the children to receive medical care. The juvenile court transferred guardianship to Usher. The transfer was affirmed on appeal. In re C.D., 487 N.W.2d 373 (Iowa App.1992). This court concluded the mother had abused her guardianship authority by frequently delaying and expressing reluctance in permitting the children to participate in school activities or trips with the foster family. This court also cited the two occasions on which the mother delayed in allowing the children to receive medical care.

In February 1993 the mother filed her petition for modification of the permanency order. The father’s parental rights have been terminated. In re C.D., 3-288/93-172 (Iowa App. Aug. 6,1993). The mother stated she had complied with all the requirements of the permanency plan. She requests: (1) make-up visits, (2) longer visitations and an opportunity to discuss certain issues with the children including changing their surnames and the termination of the father’s parental rights, (3) payment for a group for nonof-fending parents, (4) quasi-unsupervised visitation, (5) weekly phone calls to the children, and (6) counseling between her and the children. The ages of the children at the time of trial were as follows: Christina was thirteen years and nine months old, Brian was eleven years and nine months old, Elizabeth was nine years and five months old, and Angela was six years and five months old.

At the hearing on the modification petition, an Iowa Department of Human Services (DHS) caseworker, Heidi Schrott, testified. She stated the children had done well in foster care, had already completed necessary counseling, and the two oldest children had expressed no desire to participate in counseling with their mother. Ann Coe, a Tanager Place therapist, testified the oldest child, Christina, had contacted her to say she and Brian wanted no changes in visitation or phone calls from their mother to the foster home.

The mother’s petition was denied in its entirety. The district court stated the mother continued to act against the best interests of the children and continued to view her relationship with the children in view of her own needs rather than the needs of her children.

The mother appeals. She argues case progress reports and other evidence presented at trial show she has made substantial changes since the 1991 permanency order. She also argues the juvenile court erred in failing to separate the roles of guardian ad litem, the children’s guardian, and the children’s attorney.

Our review of an action arising from CINA proceedings is de novo. Iowa R.App.P. 4. We give weight to the fact findings of the juvenile court, especially when considering the credibility of witnesses, but we are not bound by these findings. Iowa R.App.P. 14(f)(7).

I. The mother contends the trial court erred in failing to modify visitation and service provisions of a permanency order.

The modification of a dispositional order is provided for in Iowa Code section 232.103 (1991). We have held a party seeking a modification of the custody provisions of a prior dispositional order must show the circumstances have so materially and substantially changed that the best interest of the child requires such a change in custody. In re J.F., 386 N.W.2d 149, 152 (Iowa App.1986); In re Leehey, 317 N.W.2d 513, 516 (Iowa App.1982). We determine this standard also applies to modifications of other provisions of the dispositional order such as visitation and service.

Before an order in a juvenile proceeding can be modified, petitioner must first prove a substantial change in material circumstances, and must then prove that, under the new conditions, a change is in the best interests of the child.

43 C.J.S. Infants § 74 (1978) (citations omitted).

In a proceeding of this nature the focal point is the best interests of the children. See In re C.G., 444 N.W.2d 518, 520 (Iowa App.1989) (citing In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981)). The children’s best interests are to be determined by *512 looking at the children’s long-range as well as immediate interests. Id. (citation omitted). The parent’s past performance provides insight into this determination. Id. (citation omitted); In re D.C., 436 N.W.2d 644

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In the Interest of C.D., 509 N.W.2d 509, 1993 Iowa App. LEXIS 152, 1993 WL 562917 (iowactapp 1993).

509 N.W.2d 509 (In the Interest of C.D.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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