In the Interest of J.S.-g., Minor Child, R.S., Mother ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0794
Filed August 17, 2016
IN THE INTEREST OF J.S.-G.,
Minor child,
R.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Gary K.
Anderson, District Associate Judge.
A mother appeals the juvenile court’s modification order removing her
child from her care and placing the child with the father. REVERSED AND
REMANDED.
Te’ya T. O’Bannon-Martens of O’Bannon Law, P.C., Council Bluffs, for
appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Roberta J. Megel of the State Public Defender’s Office, Council Bluffs, for
minor child.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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POTTERFIELD, Presiding Judge.
A mother appeals the juvenile court’s modification order removing her
child from her care and placing the child with the father. She argues no clear and
convincing evidence existed to support the juvenile court’s decision—a decision
contrary to the recommendations of both the Iowa Department of Human
Services (DHS) and the child’s guardian ad litem—because there was not clear
and convincing evidence suggesting the child was at risk of harm that could be
avoided only through a change of placement. Furthermore, the mother argues
the evidence presented to the juvenile court did not support the conclusion that
placing the child with the father was in the child’s best interests. We hold the
juvenile court did not have clear and convincing evidence to justify the
modification placing the child with the father. We therefore reverse the juvenile
court’s modification order and remand for further proceedings.
I. Background Facts and Proceedings
In November 2014, DHS received information the mother had committed
an assault in the presence of her two-year-old son, J.S.-G. The reported victim
of the assault was the child’s maternal grandmother. A child abuse assessment
completed by DHS confirmed the assault and also revealed the mother was
using methamphetamine. When DHS became involved, J.S.-G was living with,
and being cared for by, the maternal grandmother. She had taken primary
responsibility for the care of J.S.-G., and she reported the mother’s contact with
the child was intermittent.
On November 14, 2014, the juvenile court found clear and convincing
evidence to justify J.S.-G.’s removal from the care of his mother and placed the
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child with his maternal uncle and aunt. In addition to its inclusion of the DHS
findings regarding the mother, the juvenile court noted several issues regarding
the father—he lived in Nebraska, had recently been arrested on drug charges
and for operating while intoxicated, and had not seen J.S.-G. since May of 2014.
Following an adjudicatory hearing, J.S.-G. was adjudicated to be a child in
need of assistance (CINA) on January 26, 2015, pursuant to Iowa Code section
232.2(6)(c)(2) and (6)(n) (2013). The juvenile court ordered that the child remain
with his maternal uncle and aunt. The court also ordered both the mother and
the father to complete substance abuse evaluations and follow all resulting
recommendations for treatment.
Following the CINA adjudication, the mother sought substance abuse
treatment at an inpatient program at Family Works. In a February 10, 2015
dispositional order, the juvenile court noted the mother’s active participation and
high level of engagement in the program. At the time, J.S.-G. had already been
participating in overnight and weekend visits with his mother at Family Works
with good results. The juvenile court ordered that the child be placed with the
mother at Family Works, subject to DHS supervision. That placement was
continued in a May 1, 2015 review order. The juvenile court noted the mother
continued to make progress in the program, J.S.-G. was acclimating well to the
placement, and all of the child’s needs were being met.
The mother graduated from Family Works in June 2015, and she moved
with J.S.-G. into the maternal grandmother’s home. By August 2015, however,
the mother began to miss her outpatient treatment appointments. She admitted
to relapsing and using methamphetamine twice. The mother was referred to a
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thirty-day treatment program at Prelude in Des Moines, where she was admitted
on October 6, 2015. She was discharged from that program when she left the
facility in order to attend an October 19, 2015 CINA review hearing. As a result
of the mother’s relapse and discharge from the Prelude program, the juvenile
court placed J.S.-G. in the care of the maternal grandmother in its October 26,
2015 order. The mother was allowed to live in the same home with the child
while she obtained further treatment.
The mother then entered intensive outpatient treatment with Heartland
Family Service but was unsuccessfully discharged soon afterward due to a lack
of participation and noncompliance with drug screens. Despite this third setback,
the juvenile court ordered that J.S.-G. remain with the maternal grandmother in
its January 14, 2016 review order.
On March 14, 2016, the mother was admitted into the inpatient women
and children’s facility at the Jackson Recovery Center in Sioux City. DHS placed
J.S.-G. with the mother later the same month without a formal order from the
juvenile court. When the case came up for a review hearing on April 27, 2015,
both the State and the child’s guardian ad litem recommended the court order
that the child remain with his mother in the program. No testimony was
presented by the mother, the State, or the guardian ad litem. The State
summarized its recommendation as follows:
The mother’s done very well in her treatment program. The
child has been with her on a visit for approximately thirty days, and
everything is going well up there in the program, so the
recommendation from DHS is that she—the child continue to be
placed with the mother.
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Those sentiments were echoed by the recommendation from J.S.-G.’s guardian
ad litem:
Your Honor, no evidence or testimony. If this hearing was
twenty days ago, I might have a different recommendation, but at
this point in time, I am in agreement with the recommendation that
[the child] stay with his mother at Jackson Recovery, and I would
ask that the parties be granted concurrent jurisdiction to settle
matters of custody and support . . . .
No additional services are being requested.
The mother’s attorney also informed the court of her accomplishments
As stated by [the State], [the mother] is doing extremely well
right now. She’s been in Jackson Recovery for—I believe it’s forty-
six days, and she is already I believe they call it a senior mentor.
She’s doing extremely well in the program.
[J.S.-G.] is doing extremely well with her, and all reports
coming out of Jackson [Recovery] right now are glowingly positive
on both of them, so we would be in agreement with the
recommendations as they are set forth right now.
We would resist the recommendation of concurrent
jurisdiction as my client would like to have the opportunity to
complete her treatment and continue following through with the
recommendations of the court.
The father was present and testified at the hearing. He also presented
testimony from the child’s paternal grandmother. The father and paternal
grandmother asked that J.S.-G. be placed with the father in Nebraska. They
testified to their belief that J.S.-G.’s placement with the mother in a treatment
program was negatively affecting the child’s behavior and development.
However, the father was confronted on cross-examination with documents from a
daycare facility showing J.S.-G. was on track developmentally.
At the conclusion of the testimony of the father and paternal grandmother,
the juvenile court made the following oral ruling:
This is always a difficult situation. The court would note that
there’s no specific order from this court placing [the child] with [the
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mother] in Jackson Recovery and that [DHS] did that. The last
order from this court was that [the child is] placed in the custody of
his maternal grandmother.
Certainly, [the mother]’s progress at Jackson Recovery is—
is—the court’s pleased by that, but she does have a history of not
completing those treatments, and at this point [the father] has a job.
He has a place to live. He’s doing well on probation. It’s not this
court’s intention nor will the court interfere or add to his adult
probation and requirements in the state of Nebraska. I don’t have
the power to do that nor do I think—I think they’re addressing those
issues satisfactorily to my way of thinking. Certainly, his list of
[Alcoholics Anonymous] meetings is impressive. The [urinalysis
tests] indicate that he’s not using.
I understand [DHS]’s requirements and the [Iowa] Code
requires that [DHS] return the child to the person the child was
taken from.
There apparently is no current—there’s no custody order.
The court feels that at this particular time, it’s more important
for the child to be with the parent who is not in some kind of facility.
Certainly, I understand that—that [the mother]’s doing well in
Jackson Recovery, and I’d certainly commend that, but I think at
this point the recommendation of concurrent jurisdiction is
appropriate.
I think at this point the court feels that the most appropriate
placement for the child is with his father. The home study has been
approved, and I understand that we’re moving [the child] again, but
at a certain point that’s just the way it is.
The court’s going to order that the care, custody, and control
of the minor child be placed with his father subject to the Iowa
Department of Human Services. The court’s going to adopt the
other recommendations from [DHS]. The court’s not going to add—
the court’s going to grant the parents concurrent jurisdiction for
child support and child custody through district court. The court—
At this point it would appear that even when [the mother] is
discharged from Jackson Recovery, she may have another halfway
house to go to. She does not have any employment or any housing
on her own.
The juvenile court issued a written order on April 28, 2015.
The mother appeals.
II. Standard of Review
Our review of CINA proceedings is de novo. In re K.B., 753 N.W.2d 14,
15 (Iowa 2008). “In reviewing the proceedings, we are not bound by the juvenile
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court’s fact findings; however, we do give them weight.” In re J.S., 846 N.W.2d
36, 40 (Iowa 2014). “Our primary concern is the [child]’s best interests.” Id.CINA determinations must be based upon clear and convincing evidence. Iowa
Code § 232.96(2) (2015). Evidence is clear and convincing when there are no
serious or substantial doubts as to the correctness of conclusions drawn from it.
In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).
III. Discussion
The mother argues the juvenile court improperly modified its prior
dispositional and review orders to place custody of J.S.-G. with the father. Her
argument is twofold. First, she argues the juvenile court did not have clear and
convincing evidence that the child was at risk of harm that could be avoided only
through a change of placement. Second, she argues the juvenile court did not
have clear and convincing evidence the best interests of J.S.-G. would be
furthered by transferring placement of the child to the father. Because DHS had
recommended to the juvenile court that J.S.-G. should be placed with the mother,
the State has filed no brief in opposition to the mother’s position.
A transfer of custody requires a finding by the juvenile court, by 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).
Furthermore, the juvenile 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
shall identify the reasonable efforts that have been made.” Id. § 232.102(5)(b).
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Iowa Code section 232.103 was amended in 2004 by an act “expanding
the circumstances by which the juvenile court may modify, vacate and substitute,
or terminate a child in need of assistance dispositional order.” 2004 Iowa Acts
ch. 1154, §§ 1, 2. Following the 2004 amendment, subsection (4) now provides:
The [juvenile] court may modify a dispositional order . . . if
the court finds that 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.
In addition to these statutory requirements, our supreme court stated in 1991 that
“[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).1
We find the juvenile court did not have the evidentiary support necessary
to justify its modification of disposition and transfer of custody of J.S.-G. to the
father. Although it is true that the juvenile court engaged in a recitation of the
necessary statutory findings under section 232.102(5), those findings are not
supported by the record.
In its April 28, 2016 order modifying placement, the juvenile court stated:
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At least two panels of our court noted in previous cases that the final requirement of a
material and substantial change in circumstances may no longer be necessary since the
2004 changes to Iowa Code section 232.103(4). In re M.M., No. 16-0548, 2016 WL
______, at *9 (Iowa Ct. App. July 27, 2016); In re V.B., No. 14-0315, 2014 WL 2600318,
at *4 n.3 (Iowa Ct. App. June 11, 2014).
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The court finds there is clear and convincing evidence that
unless there is a transfer of custody, the child could not be
protected from some harm that would justify the adjudication of the
child as a child in need of assistance. Removal from the family
home is the result of a determination that continuation therein
would be contrary to the welfare of the child and reasonable efforts
have been made to prevent or eliminate the need for removal of the
child from the child’s home.
The court finds that reasonable efforts were made to avoid
the necessity of continued out-of-home placement and that return
of the child to a parental home would be contrary to the well-being
of the child.
On our de novo review, we find the record does not reveal any indication that a
transfer of custody was necessary to protect J.S.-G. from physical abuse at the
hands of the mother or any other person. Nor does the record contain reference
to a need to protect J.S.-G. from any specific, articulable harm that would befall
the child without a transfer of custody. Section 232.102(5)(a) requires that one of
those two circumstances be established by clear and convincing evidence to
justify a transfer of custody.
Furthermore, on our de novo review, we do not find the evidence before
the juvenile court supports the conclusion that continuing J.S.-G.’s existing
placement was contrary to the child’s best interests as required by section
232.102(5)(b). Both DHS and the child’s guardian ad litem recommended he
remain with the mother at the Jackson Recovery Center. The father and paternal
grandmother’s objections notwithstanding, there was no concrete evidence
suggesting J.S.-G. had suffered any negative effects from the existing placement
or that placement with the father would be a better option. The father has been
on probation since the outset of this case. The state of Nebraska conducted a
home study in the spring of 2015 but denied placement of J.S.-G. with the father
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because the father was facing a felony strangulation charge stemming from an
April 2015 incident involving his girlfriend. The father had to complete anger
management classes as a result of the charge. Finally, like the mother, the
father also has a reported history of substance abuse that included both
methamphetamine and alcohol, though the court noted he had engaged in
treatment with Lutheran Family Services and attended Alcoholics Anonymous
meetings to address the issue. J.S.-G. has not lived with the father since August
2013.
Finally, we note the juvenile court’s reference to the fact it had last ordered
that J.S.-G. remain placed in the care, custody, and control of the maternal
grandmother. Although the juvenile court noted no party was recommending that
J.S.-G. remain placed there, it did not explain why, if the court did not believe
placement with the mother at the inpatient treatment program was in the child’s
best interests, it did not maintain the status quo by again ordering J.S.-G. remain
placed with the maternal grandmother. In the absence of the clear and
convincing evidence required by Iowa Code section 232.102(5)(a) and (b), the
juvenile court should have continued the existing placement of J.S.-G.
For these reasons, we reverse the juvenile court’s April 28, 2016 order
modifying placement of J.S.-G. and remand this case for further proceedings.
REVERSED AND REMANDED.