In the Interest of N.M. and A.F., Minor Children, J.M., Mother ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1389
Filed October 14, 2015
IN THE INTEREST OF N.M. AND A.F.,
Minor Children,
J.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Susan F. Flaherty,
Associate Juvenile Judge.
A mother appeals a juvenile court modification-of-dispositional order.
AFFIRMED.
Zachary D. Crowdes, Cedar Rapids, for appellant mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Jerry Vander Sanden, County Attorney, and Lance Heeren, Assistant
County Attorney, for appellee State.
Amy R. Dollash of the State Public Defender’s Office, Cedar Rapids, for
appellee father.
Kimberly Opatz of Linn County Advocate, Cedar Rapids, attorney and
guardian ad litem for minor children.
Considered By Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
2
VAITHESWARAN, Presiding Judge.
A mother appeals a juvenile court modification-of-disposition order
removing her two children from her custody and placing them with the
Department of Human Services. She contends “the State has not met its burden
of proof regarding modification.”
Iowa Code section 232.103(4) authorizes modification of a dispositional
order for several reasons, including when “[t]he purposes of the order cannot
reasonably be accomplished.” Iowa Code § 232.103(4)(b) (2015). Additionally,
this court has required proof of “a material and substantial change in
circumstances.” See In re Leehey, 317 N.W.2d 513, 516 (Iowa Ct. App. 1982).
Our de novo review of the record reveals the following facts. The mother
and father of the younger child lived together with the mother’s two children, born
in 2012 and 2013. The department became involved with the family based on
the condition of the home and concerns the father was abusing the mother. The
department issued a founded child abuse report based on the condition of the
home.
The State filed a child-in-need-of assistance petition but, initially, did not
seek removal of the children from the mother’s custody. The mother stipulated to
having the children adjudicated in need of assistance. The juvenile court
declined to remove the children from the mother’s custody, pending disposition.1
At the time of disposition, the court expressed concern “regarding the
ongoing health, safety and welfare of these children” but allowed the children to
continue in the care of their mother, subject to placement in protective daycare
1
The children’s fathers are not a subject of this appeal.
3
as directed by the department. The court further ordered the mother to obtain a
mental health evaluation.
A little over one week after the dispositional order was entered, the
department learned that the mother had failed to take the younger child to the
day care provider for five of the previous six week days and failed to take the
older child to the center for three of the six preceding week days. The provider
stated the children would be discharged from the facility due to lack of
attendance.
The following day, the department worker and a service provider went to
the mother’s home. According to the department employee, the home was
“messy,” with roaches on the floor and walls, the older child was “very dirty,” and
a pocket knife lay within reach of the young child. The employee highlighted the
mother’s obligations under the order.
A new daycare provider was retained. Within two weeks, the provider
reported concerns with the cleanliness of the children, the mother’s failure to
provide diapers, and a flaring up of the younger child’s eczema.
In the interim, the younger child’s father assaulted the mother. Although a
no contact order was issued, the father repeatedly violated the order on his
release from jail. Fearing for her safety, the mother moved herself and the
children to a domestic violence shelter.
At a hearing on the State’s motion to modify the disposition, a service
provider testified to the mother’s “lack of follow-through with services.” She
noted the children “were not attending day care the way that they were expected
to,” there were safety concerns in the home, and the mother had yet to obtain
4
permanent housing. While she acknowledged she had no concerns about drug
or alcohol abuse by the mother and she agreed the mother was working with the
shelter to obtain long-term housing, she opined the children could not remain in
the mother’s care without risk to their health and safety.
The department case manager seconded this view. She too
acknowledged the mother’s partial compliance with the juvenile court’s order,
including her participation in a mental health evaluation.2 She nonetheless
opined that the mother was less invested in services than she had been prior to
entry of the dispositional order.
We conclude the mother’s non-compliance with the directive to place the
children in protective daycare as well as the deteriorating conditions in her home
amount to material and substantial changes of circumstances justifying
modification of the dispositional order. Although the young mother commendably
sought safety from domestic abuse and took steps to secure independent
housing, her neglect of the children’s daily needs justified removal. As the
juvenile court stated,
I don’t like doing this removal, because I do think that you are doing
some of the right things right now in terms of seeking shelter and
trying to move forward with your life, however, . . . I cannot say that
. . . [the children] can be safe in your care at this time.”
2
The case manager refused to give the mother credit for moving to a domestic violence
shelter of her own accord and, indeed, criticized her for declining to remain in the home,
notwithstanding the father's repeated violations of the no contact order. Given the
mother's very real fear of the father, as recounted to the psychologist who evaluated her,
we discount the case manager's reliance on her move as a basis for seeking
modification of the dispositional order.
5
The juvenile court held out hope the mother would get “things . . . turned
around . . . in a hurry.” To her credit, the mother stated she understood this
admonition.
We affirm the juvenile court’s modification of the dispositional order.
AFFIRMED.