IN THE COURT OF APPEALS OF IOWA
No. 15-1245 Filed September 23, 2015
IN THE INTEREST OF P.N., Minor Child,
D.S., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Cheryl Traum,
District Associate Judge.
A father challenges the modification of a dispositional order in a child-in-
need-of-assistance proceeding. AFFIRMED.
Matthew Hatch of Hatch Law Firm, P.C., Bettendorf, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Michael J. Walton, County Attorney, and Julie Walton, Assistant County
Attorney, for appellee.
Jean Capdevila, Davenport, for mother.
Steven Stickle of Stickle Law Firm, P.L.C., Davenport, attorney and
guardian ad litem for minor child.
Considered by Danilson, C.J., and Vogel and Tabor, JJ. 2
TABOR, Judge.
The juvenile court adjudicated eleven-year-old P.N. as a child in need of
assistance in February 2015 and placed him with his maternal grandmother while
his mother completed residential treatment for substance abuse. At the request
of P.N.’s guardian ad litem (GAL), on July 6, 2015, the juvenile court modified the
case disposition to return P.N. to his mother’s care. The court also issued a
protective order against P.N.’s father, limiting their contact to visits supervised by
the Department of Human Services (DHS).
The father appeals, contending (1) the court should have granted his
motion to continue, (2) returning P.N. to his mother’s care was not in the child’s
best interest, and (3) the protective order was not the least restrictive alternative.
Because the father had reason to know the issue of visitation and P.N.’s safety
would be considered at the hearing to modify disposition, we find no abuse of
discretion in the court’s denial of the father’s continuance request. On the
substantive issues of returning P.N. to his mother’s care and restricting the
father’s interactions with him—after independently reviewing the evidence—we
reach the same conclusions as the juvenile court and affirm its order.
I. Factual Background and Proceedings
This family came to DHS attention in November 2014 when P.N. called
police because his mother, who was severely impaired from the consumption of
vodka and anti-anxiety pills, was holding a butcher knife during an altercation
with a man in their apartment. After this incident, the mother started substance 3
abuse and mental health services, and arranged for P.N. to stay with his
maternal grandmother. P.N. returned to his mother’s care two weeks later.
But in December 2014, when a family safety, risk, and permanency
(FSRP) worker stopped by the home, the mother was again under the influence
of alcohol and extremely distraught. According to the removal order, the
mother’s anxiety stemmed from her relationship with P.N.’s father. The mother,
who was born in 1974, reported that the father, who was born in 1945, was her
“crack dealer” and “pimp” when she became pregnant with P.N. The mother
alleged the father had sexually abused P.N. when he was just one year old. She
had sole legal custody of P.N. at the time of the removal and the father had only
seen P.N. a few times during the past several years. The DHS placed P.N. with
his maternal grandmother after the December removal.
The grandmother supervised weekend visitations between P.N. and his
mother. By mid-February, the GAL reported that the mother had completed
residential treatment at Country Oaks Center for Alcohol and Drug Services, was
participating in after care, and taking classes for relapse prevention and co-
occurring disorders. The mother was addressing her mental health needs by
seeing a nurse practitioner for medication management. She also was attending
a twelve-step program and lined up a sponsor.
Also in February, the DHS started one-hour supervised weekly visits
between P.N. and his father. According to a March report from the GAL, during
one of those visits, the father gave P.N. a wetsuit, which the GAL described as a
“body-hugging garment that leaves little to the imagination in terms of body 4
shape.” The father asked P.N. to wear the wetsuit for a subsequent visit so the
father could photograph him in it. The GAL found the request “concerning” in
light of a finding from the parents’ 2006 custody order that the father had been
living with a sex offender.
The juvenile court referred to that 2006 custody order in its March 11,
2015 dispositional order. Specifically, the 2006 order described the father as
“deceptive and manipulative” and concluded he was “a predator who preys on
needy and addicted women.” The juvenile court considered the father’s
inappropriate wetsuit request and found it was not in P.N.’s best interest to have
more frequent or longer visits with the father. The court also continued P.N.’s
out-of-home placement with the maternal grandmother.
During the spring of 2015, the father engaged in what the GAL described
as “stalking” of P.N. and his mother. The father was seen photographing them
from a distance, and showed up at an event called “Celebrate Recovery” that the
mother and P.N. had been attending for several months. P.N. became anxious
and tried to hide to avoid contact with his father.
Also during this time period, the FSRP worker was concerned about the
father’s intentions in bringing unusual items to visitations and using them as the
basis for conversations with P.N. laced with “sexual double entendre.” The GAL
reported the father “brought horns, trombones, and trumpets to the visits.
Bringing these instruments has then led to [the father] having conversations with
[P.N.] about blowing (where blowing and blow are words used extensively in the
conversation). [The father] has also brought screws, nuts, and bolts to the visits 5
so that the conversation between [the father] and [P.N.] contains repetitive use of
the words screw and screwing and nuts.”
In a May 28, 2015 report to the court, the DHS recommended P.N. remain
as a CINA, but be returned to his mother’s care. The DHS report also
recommended P.N.’s visitation with the father be suspended.
On June 11, 2015, the GAL filed a motion to modify disposition. The
motion asserted the mother had “demonstrated sufficient progress toward the
case plan goals to justify return of the child to her care and custody.” The GAL
also stated the child desired to live full-time with his mother. The juvenile court
set the motion for hearing on June 19, 2015. The day before the hearing, the
GAL filed a report recommending the court: (1) place P.N. in the care of his
mother, subject to DHS supervision; (2) affirm the DHS decision to suspend visits
between the father and P.N.; and (3) impose a protective order requiring the
father not contact nor stalk nor photograph P.N.
The juvenile court issued a modification of the dispositional order and a
protective order on July 6, 2015. The father now appeals.
II. Standard of Review
Our review is de novo. In re K.B., 753 N.W.2d 14, 14 (Iowa 2008). We
accord weight to the juvenile court’s fact findings, especially when considering
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IN THE COURT OF APPEALS OF IOWA
No. 15-1245 Filed September 23, 2015
IN THE INTEREST OF P.N., Minor Child,
D.S., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Cheryl Traum,
District Associate Judge.
A father challenges the modification of a dispositional order in a child-in-
need-of-assistance proceeding. AFFIRMED.
Matthew Hatch of Hatch Law Firm, P.C., Bettendorf, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Michael J. Walton, County Attorney, and Julie Walton, Assistant County
Attorney, for appellee.
Jean Capdevila, Davenport, for mother.
Steven Stickle of Stickle Law Firm, P.L.C., Davenport, attorney and
guardian ad litem for minor child.
Considered by Danilson, C.J., and Vogel and Tabor, JJ. 2
TABOR, Judge.
The juvenile court adjudicated eleven-year-old P.N. as a child in need of
assistance in February 2015 and placed him with his maternal grandmother while
his mother completed residential treatment for substance abuse. At the request
of P.N.’s guardian ad litem (GAL), on July 6, 2015, the juvenile court modified the
case disposition to return P.N. to his mother’s care. The court also issued a
protective order against P.N.’s father, limiting their contact to visits supervised by
the Department of Human Services (DHS).
The father appeals, contending (1) the court should have granted his
motion to continue, (2) returning P.N. to his mother’s care was not in the child’s
best interest, and (3) the protective order was not the least restrictive alternative.
Because the father had reason to know the issue of visitation and P.N.’s safety
would be considered at the hearing to modify disposition, we find no abuse of
discretion in the court’s denial of the father’s continuance request. On the
substantive issues of returning P.N. to his mother’s care and restricting the
father’s interactions with him—after independently reviewing the evidence—we
reach the same conclusions as the juvenile court and affirm its order.
I. Factual Background and Proceedings
This family came to DHS attention in November 2014 when P.N. called
police because his mother, who was severely impaired from the consumption of
vodka and anti-anxiety pills, was holding a butcher knife during an altercation
with a man in their apartment. After this incident, the mother started substance 3
abuse and mental health services, and arranged for P.N. to stay with his
maternal grandmother. P.N. returned to his mother’s care two weeks later.
But in December 2014, when a family safety, risk, and permanency
(FSRP) worker stopped by the home, the mother was again under the influence
of alcohol and extremely distraught. According to the removal order, the
mother’s anxiety stemmed from her relationship with P.N.’s father. The mother,
who was born in 1974, reported that the father, who was born in 1945, was her
“crack dealer” and “pimp” when she became pregnant with P.N. The mother
alleged the father had sexually abused P.N. when he was just one year old. She
had sole legal custody of P.N. at the time of the removal and the father had only
seen P.N. a few times during the past several years. The DHS placed P.N. with
his maternal grandmother after the December removal.
The grandmother supervised weekend visitations between P.N. and his
mother. By mid-February, the GAL reported that the mother had completed
residential treatment at Country Oaks Center for Alcohol and Drug Services, was
participating in after care, and taking classes for relapse prevention and co-
occurring disorders. The mother was addressing her mental health needs by
seeing a nurse practitioner for medication management. She also was attending
a twelve-step program and lined up a sponsor.
Also in February, the DHS started one-hour supervised weekly visits
between P.N. and his father. According to a March report from the GAL, during
one of those visits, the father gave P.N. a wetsuit, which the GAL described as a
“body-hugging garment that leaves little to the imagination in terms of body 4
shape.” The father asked P.N. to wear the wetsuit for a subsequent visit so the
father could photograph him in it. The GAL found the request “concerning” in
light of a finding from the parents’ 2006 custody order that the father had been
living with a sex offender.
The juvenile court referred to that 2006 custody order in its March 11,
2015 dispositional order. Specifically, the 2006 order described the father as
“deceptive and manipulative” and concluded he was “a predator who preys on
needy and addicted women.” The juvenile court considered the father’s
inappropriate wetsuit request and found it was not in P.N.’s best interest to have
more frequent or longer visits with the father. The court also continued P.N.’s
out-of-home placement with the maternal grandmother.
During the spring of 2015, the father engaged in what the GAL described
as “stalking” of P.N. and his mother. The father was seen photographing them
from a distance, and showed up at an event called “Celebrate Recovery” that the
mother and P.N. had been attending for several months. P.N. became anxious
and tried to hide to avoid contact with his father.
Also during this time period, the FSRP worker was concerned about the
father’s intentions in bringing unusual items to visitations and using them as the
basis for conversations with P.N. laced with “sexual double entendre.” The GAL
reported the father “brought horns, trombones, and trumpets to the visits.
Bringing these instruments has then led to [the father] having conversations with
[P.N.] about blowing (where blowing and blow are words used extensively in the
conversation). [The father] has also brought screws, nuts, and bolts to the visits 5
so that the conversation between [the father] and [P.N.] contains repetitive use of
the words screw and screwing and nuts.”
In a May 28, 2015 report to the court, the DHS recommended P.N. remain
as a CINA, but be returned to his mother’s care. The DHS report also
recommended P.N.’s visitation with the father be suspended.
On June 11, 2015, the GAL filed a motion to modify disposition. The
motion asserted the mother had “demonstrated sufficient progress toward the
case plan goals to justify return of the child to her care and custody.” The GAL
also stated the child desired to live full-time with his mother. The juvenile court
set the motion for hearing on June 19, 2015. The day before the hearing, the
GAL filed a report recommending the court: (1) place P.N. in the care of his
mother, subject to DHS supervision; (2) affirm the DHS decision to suspend visits
between the father and P.N.; and (3) impose a protective order requiring the
father not contact nor stalk nor photograph P.N.
The juvenile court issued a modification of the dispositional order and a
protective order on July 6, 2015. The father now appeals.
II. Standard of Review
Our review is de novo. In re K.B., 753 N.W.2d 14, 14 (Iowa 2008). We
accord weight to the juvenile court’s fact findings, especially when considering
witness credibility, but we are not bound by these findings. In re C.D., 509
N.W.2d 509, 511 (Iowa Ct. App. 1993). The modification of a dispositional order
is provided for in Iowa Code section 232.103 (2015). Before the juvenile court
may modify a dispositional order, the party seeking modification must prove a 6
substantial change in material circumstances, and that under the new conditions,
a change is in the child’s best interests. In re D.G., 704 N.W.2d 454, 458 (Iowa
Ct. App. 2005).
III. Discussion of Father’s Claims
We begin with the father’s contention the juvenile court should have
rescheduled the June 19, 2015 modification hearing. The father’s counsel asked
for a continuance because he believed the hearing “was strictly to determine
whether or not the child should be placed to live full-time with his mother.”
Counsel said he was not prepared to address the GAL’s recommendation to limit
the father’s ongoing contact with P.N.
The GAL said he believed he would not be doing his job if he did not alert
the court to “some additional issues going on in the background.” The GAL
mentioned the allegations that the father was stalking P.N. and the mother and
was “not respectful of personal boundaries of [P.N.]” The mother’s attorney
objected to a continuance, stating: “We have the motion to modify disposition on
the table, visitation’s always an issue, so is the safety of the child.” The State
also resisted a continuance, noting the goal was for P.N.’s reunification with his
mother to be successful and the father’s actions were “thwarting those efforts.”
The juvenile court denied the father’s motion to continue, citing the May DHS
report recommending the suspension of visits.
Under Iowa Court Rule 8.5, part of the Iowa Rules of Juvenile Procedure,
“A motion for continuance shall not be granted except for good cause.” See In re
R.B., 832 N.W.2d 375, 378 (Iowa Ct. App. 2013). We review a juvenile court’s 7
ruling on a motion to continue for an abuse of discretion. In re C.W., 554 N.W.2d
279, 281 (Iowa Ct. App. 1996). We will “only reverse if injustice will result to the
party desiring the continuance.” Id.
We do not find the father suffered an injustice from the court’s denial of his
motion to continue the modification hearing. The father was on notice of the
DHS recommendation to limit his contact with P.N. for more than a month before
the hearing. The GAL’s proposal to modify the case plan to return P.N. to his
mother’s care likewise opened up the question of the father’s visitation. The GAL
requested a protective order in a report filed the day before the hearing. The
father’s attorney was not specific regarding what additional preparation would
have allowed him to better address the question of his client’s supervised
visitation. As it happened, the father took the opportunity to testify about his own
behavior. Given these circumstances, the juvenile court did not abuse its
discretion in denying the father’s motion to continue.
We now turn to the father’s argument that returning to the mother’s care
was not in P.N.’s best interests.1 He contends P.N. remains at risk because of
the mother’s mental health issues and history of substance abuse.
As the party seeking the modification, the GAL had the burden to show the
circumstances had materially and substantially changed since P.N.’s removal
from his mother’s care and that his best interest required a return to her custody.
1 Generally in child welfare proceedings, one parent cannot assert facts or legal positions pertaining to the other parent. See In re D.G., 704 N.W.2d at 460. In response to the petition on appeal, the State assumes error was preserved on this claim and makes no argument concerning the father’s standing to raise it. We will make the same assumptions and proceed to the merits. 8
See In re C.D., 509 N.W.2d at 511. The juvenile court found the GAL met his
burden, summarizing the evidence as follows:
The mother completed residential treatment at County Oaks on January 22nd, 2015. She remains fully engaged in substance abuse treatment and attends classes at CADS one day a week. Her counselor reports that she is doing very well, and the mother’s UA’s have been negative. The mother also attends weekly therapy and is taking prescribed medications. [P.N.] has been having weekly contact with his mother and has been spending weekends in her care. There have not been safety concerns during those visits.
After reviewing the record for ourselves, we agree with the juvenile court’s
assessment. The mother’s circumstances substantially changed between
December 2014 and July 2015. Based on the evidence presented at the
modification hearing, returning to his mother’s home was in P.N.’s best interest.
See In re D.S., 563 N.W.2d 12, 14 (Iowa Ct. App. 1997) (considering child’s
“long-range as well as immediate interests” and focusing on parental change as
well as child’s needs).
Finally, the father contends that issuing the protective order and limiting
his contact with P.N. to supervised visits was not the least restrictive disposition
considering the circumstances, as mandated by Iowa Code section 232.99(4).
The State responds that assuming visitation issues fall within the ambit of section
232.99(4), the evidence demonstrated the necessity of limiting the father’s
contact with P.N. to supervised visits. We agree with the State.
The father has been diagnosed with narcissistic personality disorder. The
DHS found him to be controlling and inappropriate during visits. He stalked the
mother and P.N. outside of the visits. During his testimony, the father provided 9
an excuse for showing up at the Celebrate Recovery event, which the juvenile
court did not find credible. The court also highlighted its ability to observe the
father in the courtroom, and described his behaviors as “erratic” and noted he
had “several rambling outbursts.” We find the juvenile court’s disposition to be
entirely appropriate in light of the father’s behavior.
AFFIRMED.