IN THE COURT OF APPEALS OF IOWA
No. 15-1566 Filed November 25, 2015
IN THE INTEREST OF L.S., Minor Child,
S.R., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Floyd County, Karen Kaufman
Salic, District Associate Judge.
A mother appeals from a juvenile court’s order modifying the dispositional
order in a child-in-need-of-assistance proceeding. AFFIRMED.
Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,
Mason City, for appellant.
Thomas J. Miller, Attorney General, and Bruce Kempkes, Assistant
Attorney General, for appellee.
Cynthia Schuknecht of Noah, Smith & Schuknecht, P.L.C., Charles City,
attorney and guardian ad litem for minor child.
Considered by Danilson, C.J., and Mullins and McDonald, JJ. 2
MULLINS, Judge.
A mother appeals from the juvenile court’s order modifying the
dispositional order to transfer custody of her child, L.S., to the Iowa Department
of Human Services (DHS) for placement outside the home. She contends the
State failed to prove a substantial change in circumstances warranting
modification occurred following entry of the dispositional order. She further
contends that the juvenile court erred in determining that continuation of the child
in her home would be contrary to the welfare of the child. We conclude a
substantial change in circumstances warranting modification of the prior court
order has occurred. We further conclude the State presented sufficient evidence
that keeping the child in the mother’s home would be contrary to her welfare.
Upon our review, we affirm.
I. Background Facts and Proceedings
L.S., born in August 2013, is the third child born to the mother. DHS has
been involved with the family for more than five years. The case before us is the
mother’s second appeal from a dispositional order removing L.S. from her care
and custody.
In May 2014, L.S. was adjudicated a child in need of assistance (CINA)
under Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(n) (2013).1 L.S. stayed in
1 Iowa Code section 232.2(6) provides: 6. “Child in need of assistance” means an unmarried child: .... c. Who has suffered or is imminently likely to suffer harmful effects as a result of any of the following: .... 3
her mother’s care and custody until she was removed in June 2014 following the
initial dispositional hearing. The mother appealed and our court affirmed the
juvenile court’s order removing L.S. In re L.S., No. 14-1080, 2014 WL 5252948,
at *4 (Iowa Ct. App. Oct. 15, 2014). We detailed the facts of this case leading up
to the June 2014 hearing in our prior opinion. Id. at *1–3. There, we discussed
the mother’s detrimental “on-again, off-again relationship marred by incidents of
domestic violence” with her middle daughter’s biological father, B.H. Id. at 2. We
noted her limited progress as it related to her substance abuse issues, her
“profound” inability to abstain from alcohol—even while pregnant with L.S., and
her “‘complete denial’ concerning her substance abuse problem.” Id. at 2–3.
In November 2014, L.S. was returned to the mother’s care and custody.
The juvenile court held additional dispositional review hearings in December
2014, July 2015, and September 2015. In August 2015, DHS moved to modify
the dispositional review order. DHS and the guardian ad litem both
recommended L.S. be removed from the mother’s custody and placed in the
custody of DHS.
Following the September 2015 review hearing, L.S. was again removed
from the mother’s care and custody and placed in family foster care with her
(2) The failure of the child’s parent, guardian, custodian, or other member of the household in which the child resides to exercise a reasonable degree of care in supervising the child. .... n. Whose parent’s or guardian’s mental capacity or condition, imprisonment, or drug or alcohol abuse results in the child not receiving adequate care. 4
older sisters.2 In its order, the juvenile court found the mother continued to have
repeated contact with B.H. and his mother, despite a no-contact order between
them.3 It noted the mother’s dishonesty with the court surrounding her
communication with B.H., and her requests to her two older children to lie to their
foster parents and service providers regarding their contact with B.H. and his
mother. The court expressed concerns regarding the on-going contact between
the mother and B.H., and the grave danger he presented to L.S. due to his own
history of substance abuse and violence.
The mother’s therapist testified she was participating in individual therapy
and showing improvement, though she was still in need of continued mental
health treatment. The court acknowledged the mother’s participation in family
therapy with her two older children, but noted her only motivation to attend was to
stay out of jail. The court found the mother was employed, had stable housing,
and had adequate transportation. She was cooperating with Family Safety, Risk,
and Permanency Services for parenting skills and engaging in the Families
Together Two Program.
The DHS worker testified about her concerns regarding the mother’s lack
of supervision of L.S., stating that on one occasion she had gone to visit the
2 The September 2015 hearing was a combined permanency review hearing for the mother’s two older children and dispositional review hearing for L.S. In a separate order following the September 2015 review hearing, the court directed the State to file a second petition for the termination of the mother’s parental rights regarding her two older children. See In re L.S., 2014 WL 5252948, at *7 (reversing the termination of the mother’s parental rights to her two older children because the State’s initial petitions and the juvenile court’s ruling relied on an outdated code section). 3 The court also ordered the mother to serve fourteen days in jail on a contempt charge for repeated violations of a no-contact order between the mother and B.H. 5
family and the mother did not know where L.S. was. The mother had told the
DHS worker L.S. was inside, when instead, she was several houses away at her
maternal aunt’s home. On another occasion, the mother had left L.S. alone in
the apartment. The DHS worker also testified the mother shared a bond with
L.S.
The court noted the mother’s parenting skills had not improved. The
mother laughed at L.S. when she misbehaved rather than disciplining or
correcting her behavior. The mother also brought L.S. to the family therapy
sessions with the two older children, despite being told to not to do so, and failed
to redirect or soothe her when she screamed for forty-five minutes. The court
questioned L.S.’s own emotional stability, citing her screaming and temper
tantrums during fits of jealousy when others would talk to the mother. The court
also noted the mother permitted the two older girls, ages seven and four, to have
social media accounts, and that the seven-year-old communicated with many
people through these accounts, some of whom she did not know.
The mother filed an application for interlocutory appeal, which our
supreme court granted.
II. Standard of Review
We review CINA proceedings de novo. In re J.S.,
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IN THE COURT OF APPEALS OF IOWA
No. 15-1566 Filed November 25, 2015
IN THE INTEREST OF L.S., Minor Child,
S.R., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Floyd County, Karen Kaufman
Salic, District Associate Judge.
A mother appeals from a juvenile court’s order modifying the dispositional
order in a child-in-need-of-assistance proceeding. AFFIRMED.
Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,
Mason City, for appellant.
Thomas J. Miller, Attorney General, and Bruce Kempkes, Assistant
Attorney General, for appellee.
Cynthia Schuknecht of Noah, Smith & Schuknecht, P.L.C., Charles City,
attorney and guardian ad litem for minor child.
Considered by Danilson, C.J., and Mullins and McDonald, JJ. 2
MULLINS, Judge.
A mother appeals from the juvenile court’s order modifying the
dispositional order to transfer custody of her child, L.S., to the Iowa Department
of Human Services (DHS) for placement outside the home. She contends the
State failed to prove a substantial change in circumstances warranting
modification occurred following entry of the dispositional order. She further
contends that the juvenile court erred in determining that continuation of the child
in her home would be contrary to the welfare of the child. We conclude a
substantial change in circumstances warranting modification of the prior court
order has occurred. We further conclude the State presented sufficient evidence
that keeping the child in the mother’s home would be contrary to her welfare.
Upon our review, we affirm.
I. Background Facts and Proceedings
L.S., born in August 2013, is the third child born to the mother. DHS has
been involved with the family for more than five years. The case before us is the
mother’s second appeal from a dispositional order removing L.S. from her care
and custody.
In May 2014, L.S. was adjudicated a child in need of assistance (CINA)
under Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(n) (2013).1 L.S. stayed in
1 Iowa Code section 232.2(6) provides: 6. “Child in need of assistance” means an unmarried child: .... c. Who has suffered or is imminently likely to suffer harmful effects as a result of any of the following: .... 3
her mother’s care and custody until she was removed in June 2014 following the
initial dispositional hearing. The mother appealed and our court affirmed the
juvenile court’s order removing L.S. In re L.S., No. 14-1080, 2014 WL 5252948,
at *4 (Iowa Ct. App. Oct. 15, 2014). We detailed the facts of this case leading up
to the June 2014 hearing in our prior opinion. Id. at *1–3. There, we discussed
the mother’s detrimental “on-again, off-again relationship marred by incidents of
domestic violence” with her middle daughter’s biological father, B.H. Id. at 2. We
noted her limited progress as it related to her substance abuse issues, her
“profound” inability to abstain from alcohol—even while pregnant with L.S., and
her “‘complete denial’ concerning her substance abuse problem.” Id. at 2–3.
In November 2014, L.S. was returned to the mother’s care and custody.
The juvenile court held additional dispositional review hearings in December
2014, July 2015, and September 2015. In August 2015, DHS moved to modify
the dispositional review order. DHS and the guardian ad litem both
recommended L.S. be removed from the mother’s custody and placed in the
custody of DHS.
Following the September 2015 review hearing, L.S. was again removed
from the mother’s care and custody and placed in family foster care with her
(2) The failure of the child’s parent, guardian, custodian, or other member of the household in which the child resides to exercise a reasonable degree of care in supervising the child. .... n. Whose parent’s or guardian’s mental capacity or condition, imprisonment, or drug or alcohol abuse results in the child not receiving adequate care. 4
older sisters.2 In its order, the juvenile court found the mother continued to have
repeated contact with B.H. and his mother, despite a no-contact order between
them.3 It noted the mother’s dishonesty with the court surrounding her
communication with B.H., and her requests to her two older children to lie to their
foster parents and service providers regarding their contact with B.H. and his
mother. The court expressed concerns regarding the on-going contact between
the mother and B.H., and the grave danger he presented to L.S. due to his own
history of substance abuse and violence.
The mother’s therapist testified she was participating in individual therapy
and showing improvement, though she was still in need of continued mental
health treatment. The court acknowledged the mother’s participation in family
therapy with her two older children, but noted her only motivation to attend was to
stay out of jail. The court found the mother was employed, had stable housing,
and had adequate transportation. She was cooperating with Family Safety, Risk,
and Permanency Services for parenting skills and engaging in the Families
Together Two Program.
The DHS worker testified about her concerns regarding the mother’s lack
of supervision of L.S., stating that on one occasion she had gone to visit the
2 The September 2015 hearing was a combined permanency review hearing for the mother’s two older children and dispositional review hearing for L.S. In a separate order following the September 2015 review hearing, the court directed the State to file a second petition for the termination of the mother’s parental rights regarding her two older children. See In re L.S., 2014 WL 5252948, at *7 (reversing the termination of the mother’s parental rights to her two older children because the State’s initial petitions and the juvenile court’s ruling relied on an outdated code section). 3 The court also ordered the mother to serve fourteen days in jail on a contempt charge for repeated violations of a no-contact order between the mother and B.H. 5
family and the mother did not know where L.S. was. The mother had told the
DHS worker L.S. was inside, when instead, she was several houses away at her
maternal aunt’s home. On another occasion, the mother had left L.S. alone in
the apartment. The DHS worker also testified the mother shared a bond with
L.S.
The court noted the mother’s parenting skills had not improved. The
mother laughed at L.S. when she misbehaved rather than disciplining or
correcting her behavior. The mother also brought L.S. to the family therapy
sessions with the two older children, despite being told to not to do so, and failed
to redirect or soothe her when she screamed for forty-five minutes. The court
questioned L.S.’s own emotional stability, citing her screaming and temper
tantrums during fits of jealousy when others would talk to the mother. The court
also noted the mother permitted the two older girls, ages seven and four, to have
social media accounts, and that the seven-year-old communicated with many
people through these accounts, some of whom she did not know.
The mother filed an application for interlocutory appeal, which our
supreme court granted.
II. Standard of Review
We review CINA proceedings de novo. In re J.S., 846 N.W.2d 36, 40
(Iowa 2014). “In reviewing the proceedings, we are not bound by the juvenile
court’s fact findings; however, we do give them weight.” Id. “Our primary
concern is the children’s best interests.” Id. “CINA determinations must be
based upon clear and convincing evidence.” Id. Evidence is clear and 6
convincing when there is no serious or substantial doubt as to the correctness of
the conclusions of law drawn from the evidence. In re D.W., 791 N.W.2d 703,
706 (Iowa 2010).
III. Analysis
The juvenile court may modify a dispositional order upon good cause if the
court finds any of the following circumstances exist:
(a) The purposes of the order have been accomplished and the child is no longer in need of supervision, care, or treatment. (b) The purposes of the order cannot reasonably be accomplished. (c) The 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. (d) The purposes of the order have been sufficiently accomplished and the continuation of supervision, care, or treatment is unjustified or unwarranted.
Iowa Code § 232.103(4). If the court finds there is good cause, the court must
take a second step in the analysis before it may transfer custody.
A transfer of custody shall not be ordered unless the court finds there is
clear and convincing evidence that, “(1) the child cannot be protected from
physical abuse without transfer of custody; or (2) the child cannot be protected
from some harm which would justify the adjudication of the child as a child in
need of assistance and an adequate placement is available.” Iowa Code
§ 232.102(5)(a). Further, the court “must make a determination that continuation
of the child in the child’s home would be contrary to the welfare of the child, and
identify the reasonable efforts that have been made.” Iowa Code
§ 232.102(5)(b). Finally, in order to modify custody or placement, there must 7
also be a material and substantial change of circumstances. In re R.F., 471
N.W.2d 821, 824 (Iowa 1991).
The mother argues the State failed to prove by clear and convincing
evidence that L.S. could not be protected from some harm that would justify the
CINA adjudication. She contends she has made significant progress as it relates
to her substance abuse issues and there is no evidence that she has consumed
alcohol or used an illegal substance in years. She also contends there is no
evidence that her relationship with B.H. has ever had any negative impact on
L.S., and that the repeated violations of the no-contact order are not a reason for
removing L.S. from her care. The mother claims no mental health professional
has recommended that L.S. be removed from her mother’s care due to emotional
instability. She further contends she has never placed L.S. in imminent danger,
because even when the mother did not know where L.S. was on the occasion
when the DHS worker visited, she was still in the care of a family member.
We find the mother’s continued contact with B.H., her dishonesty with the
court, her lack of supervision of L.S., her unresolved substance abuse and
mental health issues, her limited progress in therapy, and her lack of
improvement regarding her parenting skills, constitute a material and substantial
change of circumstances.
The mother next contends the juvenile court erred in determining that
continuation of the child in her home would be contrary to the welfare of the child.
See Iowa Code § 232.102(5)(b) (2013). She asserts L.S. is safe in her care,
their interactions are positive and warm, and they share a close bond. “The 8
court’s determination regarding continuation of the child in the child’s home . . .
must be made on a case-by-case basis. . . . [P]reserving the safety of the child is
the paramount consideration.” Id. For the reasons stated above, we find the
juvenile court was correct and affirm its determination that leaving the child in her
home would be contrary to the child’s welfare.
Accordingly, we affirm the juvenile court’s order modifying the dispositional
order to transfer custody of the child to DHS for placement outside the home.
AFFIRMED.