In the Interest of R.H., Minor Child, G.N., Mother

• Court: Court of Appeals of Iowa
• Decided: November 13, 2014
• Docket: 14-1139
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1139 Filed November 13, 2014

IN THE INTEREST OF R.H., Minor Child,

G.N., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Clay County, Charles K. Borth,

District Associate Judge.

A mother appeals the denial of her motion to modify the dispositional order

of the juvenile court, which left her daughter in the care of the child’s maternal

grandmother. AFFIRMED.

Shawna L. Ditsworth, Spirit Lake, for appellant mother.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, Michael J. Houchins, County Attorney, and Kristi Busse, Assistant

County Attorney, for appellee State.

Shannon Sandy of Sandy Law Firm, P.C., Spirit Lake, attorney and

guardian ad litem for minor child.

Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ. 2

POTTERFIELD, J.

A mother appeals the denial of her motion to modify the dispositional order

of the juvenile court, which left her daughter in the care of the child’s maternal

grandmother. We affirm.

I. Factual and Procedural Background

The Department of Human Services (DHS) became interested in the

thirteen year-old child in the summer of 2013 when it received information she

may have been subjected to physical abuse at the hands of her step-father. A

DHS worker visited the family’s house on August 1, 2013. The child was not

there, and the mother and step-father refused the worker entry to the house.

The worker returned on August 8, 2013. The family first attempted to

elude him, but he was eventually able to speak with them and enter the

residence. The child denied the allegations of physical abuse. But the DHS

worker observed stacks of garbage consuming the home and 5-gallon buckets

filled with human waste that had replaced the toilet due to a lack of running

water.

DHS filed a child-in-need-of-assistance (CINA) petition. The mother and

step-father stipulated to the entry of a CINA order as to the child and her two

younger half-siblings on September 11, 2013. Though the child remained in the

mother’s custody, she had moved in with her grandmother during the weekdays

sometime in August.

On November 7, 2013, the juvenile court formally removed the child from

her mother’s custody and placed her in her grandmother’s care after the child

reported her step-father had touched her in a sexual way on two separate 3

occasions. No charges have been filed against the step-father. The child

continues to assert her allegations are true. The step-father denies them, and

the mother does not believe the allegations are truthful. The step-father has

previously been reported for similar conduct regarding another young girl, and

those reports were confirmed. The child has made similar accusations against

her biological father, and those accusations are not confirmed.

The child has continued to have supervised visits with the mother, but she

recently asked for the visits to stop. She is upset that her mother does not

believe her allegations against her step-father or biological father. She is afraid

to return to her mother’s custody because she would again be in the presence of

her step-father. She has told her therapist she would attempt suicide if forced to

live with her mother and step-father. The mother has stated there is no need for

protective measures between her daughter and her husband.

In the meantime, concerns with the grandmother’s supervision of the child

developed. DHS had requested modification of the dispositional order to remove

the child from the grandmother’s care and place her in foster care. However, the

grandmother complied with DHS’s requests and allayed its concerns. DHS has

withdrawn its request for modification. Since moving in with her grandmother,

the child’s performance in school has improved. She is reported to have an

improved attitude and outlook, and her hygiene has improved.

The juvenile court dismissed the State’s CINA petition regarding the

child’s two younger siblings on the State’s motion after the mother and step-

father took the necessary steps to improve living conditions and the care

provided in their home. 4

The mother filed a motion to modify the dispositional order to remove the

child from the grandmother’s care. The mother requested that the child be

returned to her custody or alternatively placed in a residential treatment facility.

The juvenile court denied the motion after an evidentiary hearing during which

the court interviewed the child in chambers, leaving her in her grandmother’s

care. The mother appeals.

II. Standard of Review

We review the juvenile court’s denial of the mother’s motion de novo. In

re K.B., 753 N.W.2d 14, 14 (Iowa 2008). “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.” In re C.D., 509 N.W.2d 509, 511 (Iowa Ct.

App. 1993).

III. Discussion

“A modification of custody or placement requires a material and

substantial change in circumstances.” In re R.F., 471 N.W.2d 821, 824 (Iowa

1991). The juvenile court held, “not only has there not been a substantial and

material change in circumstances since [the order removing the child from the

mother’s custody], there in fact has been essentially no change in circumstances

at all.”

On appeal, the mother asserts the evidence demonstrates a substantial

and material change in circumstances in four ways. First, the child’s allegations

of sexual abuse by the step-father remain unconfirmed. Second, the

grandmother may be influencing the child’s opinion of her mother. Third, the

child has not received adequate care in the grandmother’s home. Fourth, the 5

mother and step-father have cooperated with DHS and participated in relevant

services to work towards reunification.

We agree with the district court that there is no relevant change in

circumstances that necessitates modification of custody. Though the child’s

allegations against the step-father remain unconfirmed, the child’s fears of future

contact with her step-father “appear to [the juvenile] court to be genuine.” We

give weight to the juvenile court’s credibility determination when, as here, the

court was able to observe the child’s demeanor and hear her statements directly.

The fact that the allegations are not confirmed does not constitute a substantial

change where the accuser maintains her claim and continues to demonstrate

real fear of contact with her alleged abuser.

The mother’s second and third claims of a purported substantial change in

circumstances reveal more information regarding the acrimony between the

mother and grandmother than regarding any new circumstances with the child.

We agree with the State that neither of these claims “directly relate to the

mother’s and stepfather’s ability to provide the child with a safe and stable

home.” There is no indication the grandmother is currently providing inadequate

care to the child.

The claims instead highlight the mother’s primary goal: to remove the child

from the grandmother’s care. Further highlighting the mother’s true goal is her

alternative suggestion that the child be placed in a residential treatment facility,

an argument the juvenile court noted is without merit. It is clear from the record

the relationship between the mother and grandmother is strained. The mother 6

may not use the child as tool to manipulate her relationship with the

grandmother.

Lastly, though the mother and step-father have laudably participated in

services that ultimately terminated juvenile court jurisdiction over the child’s

younger siblings, the child’s circumstances have not changed as to the

allegations of sexual abuse—the very reason she was removed from the

mother’s custody in the first place. Therefore the mother’s compliance with some

of DHS’s recommendations is not a relevant change in circumstances to the case

at hand.

None of the mother’s claims constitute substantial or material changes in

circumstances that would justify a modification of custody. We affirm the juvenile

court.

AFFIRMED.