In the Interest of R.H., Minor Child, G.N., Mother ( 2014 )

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.
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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.
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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
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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.
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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
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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
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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.