In the Interest of V.B., Minor Child, B.B., Mother

IN THE COURT OF APPEALS OF IOWA
No. 14-0315
Filed June 11, 2014
IN THE INTEREST OF V.B.,
Minor Child,
B.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Deborah Farmer
Minot, District Associate Judge.
A mother appeals from the juvenile court order modifying the dispositional
order in a child-in-need-of-assistance proceeding. AFFIRMED.
Jean Lawrence of the University of Iowa College of Law Clinical Law
Program, Iowa City, for appellant mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Janet M. Lyness, County Attorney, and Patricia Weir, Assistant County
Attorney, for appellee State.
Anthony Haughton, Cedar Rapids, for minor children.
Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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DANILSON, C.J.
A mother appeals from the juvenile court order modifying the dispositional
order to transfer custody of her child, V.B., to the Iowa Department of Human
Services (DHS) for placement outside of the home.1 She contends the State
failed to prove a substantial change in circumstances warranting modification
occurred following entry of the dispositional order. She also contends the
transfer of custody was not in the child’s best interests. Considering the mother’s
disregard of the directives set forth in the dispositional order and the continued
and worsened physical and emotional abuse suffered by the child, we conclude a
substantial change in circumstances warranting modification of the prior court
order has occurred. We further conclude it is in the child’s best interests to be
removed from her mother’s care. Accordingly, we affirm the court order
modifying the dispositional order to transfer custody of V.B. to DHS for placement
outside of the home.
I. Background Facts and Proceedings.
DHS became involved with the mother and her four children in October
2011, after one of V.B.’s brothers was hospitalized for psychiatric evaluation and
1
Three of the mother’s four children were adjudicated as children in need of
assistance on May 30, 2012. The mother appeals the court’s modification order, which
only modified the custody and placement of V.B. The family originally became involved
with DHS when one of V.B.’s siblings was hospitalized for psychiatric evaluation and
treatment. The child subject to psychiatric treatment was removed from the mother’s
care in November 2011 and spent over a year in a psychiatric medical institution for
children (PMIC). At the time of the modification, and after two foster home placements,
the child was back in a PMIC facility with a permanency goal of another planned,
permanent living arrangement.
The other two children remain in the mother’s home. One of these two siblings
was originally also subject to the petition for modification, but the GAL withdrew his
recommendation regarding this child after the hearing, so only V.B.’s custody was
modified.
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treatment. The brother was removed from the mother’s care in November 2011.
The State filed child-in-need-of-assistance (CINA) petitions for each of the three
remaining children, including V.B., in December 2011.
V.B. was adjudicated a CINA pursuant to Iowa Code 232.2(6)(c)(2)
(2011)2 on May 30, 2012. In the written ruling, the juvenile court stated:
It is abundantly clear that each of these children is in need of
assistance. Parental mental illness and medical conditions, lack of
follow through with recommended services, failure to appropriately
supervise and discipline the children, resistance to intervention, and
inability or unwillingness to recognize and acknowledge these
issues has, over a period of many years, created a stressful,
chaotic, and unpredictable home which has negatively impacted all
the children to various degrees. . . . Without intensive services the
children’s problems, as well as the conditions that have prevailed in
the home for the past several years, will certainly fail to improve
and will likely worsen.
....
[V.B.] is already suffering ill effects as a result of the home
environment. She, like [her siblings], has frequently missed school
and is significantly behind. While truancy alone is not a legal basis
for adjudication, it is but one symptom of the lack of structure and
supervision in this home. . . . [The mother] and [the stepfather]
have no system of discipline in their home and they cannot agree
on one. They frequently argue about discipline in front of the
children, sometimes for hours. [The stepfather] favors [the
youngest child] and regularly defends her or blames the other
children for her behavior. In his eyes, [the youngest child] can do
no wrong. This appears to be a frequent source of disagreement
with [the mother], who has a similar attitude toward [V.B.]. This
chaos has lasted for years and is steadily worsening.
The juvenile court held a dispositional hearing on July 18, 2012. The
resulting order allowed V.B. to remain in the home of her mother and stepfather
2
Iowa Code section 232.2(6)(c)(2) provides:
A “child in need of assistance” means an unmarried child:
(c) Who has suffered or is imminently likely to suffer harmful effects as a
result of . . . .
(2) The failure of the child’s parent, guardian, custodian, or other
member of the household in which the child resides to exercise a
reasonable degree of care in supervising the child.
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but set expectations the parents would (1) develop and use a system of behavior
management, behavior modification, and discipline for the children; (2) continue
to participate in marital therapy; and (3) obtain mental health and parenting
evaluations and follow through with any recommendations.
On September 10, 2012, the mother and stepfather became involved in an
argument that ultimately resulted in the stepfather pleading guilty to domestic
abuse assault causing bodily injury and being placed on probation. During the
argument, V.B. tried to intervene and was pushed to the floor by the stepfather.
A criminal no contact order was entered but later dropped at the request of the
mother.
The juvenile court held another review hearing on March 22, 2013, after
receiving the first report of the court appointed special advocate. Shortly before
the hearing, there was an incident on a city bus where the stepfather hit V.B. in
the arm and called her names, including racial slurs. The DHS worker’s report,
submitted at the hearing, stated, “While none of the concerns have individually
warranted an emergency removal, this worker feels the combination of concerns
puts the children at very high risk and this worker is concerned for the long term
well being of the children.”
The court set a modification hearing for July 2, 2013, to consider whether
the children should be removed from the home. By the time the hearing date
arrived, all parties were in agreement the prior orders should be continued. The
mother had made concerted efforts to follow through with case plan expectations;
however, there was no consensus that any significant or lasting progress had
been made. In the ruling following the hearing, the juvenile court stated, “The
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Court continues to find that the situation at home is tenuous, that minimal
progress is being made, and that these children are at high risk for not having
their needs met, for physical and emotional abuse, and for denial of critical care.”
At the recommendation of the mother’s psychiatrist, the court ordered her to
participate in the Systems Training for Emotional Predictability and Problem
Solving (STEPPS) program. The court also considered a recommendation from
DHS that a no-contact order should be entered to prohibit the stepfather from
contacting V.B., but the GAL expressed concern that such an order would isolate
V.B. from her other family members. The court declined to enter the order but
stated, “[I]f further reports of physical, verbal, or emotional abuse are received,
the Court will reconsider this decision. [The stepfather] is encouraged to pursue
a positive relationship with [V.B.] in the best interests of all the children.”
On November 4, 2013, the juvenile court held another hearing for in-court
review. At the hearing, the GAL submitted a report recommending the prior
orders be modified for V.B. “because the GAL fears for her health and safety and
her mother’s inability to protect her from her husband and siblings.” The court’s
order, filed November 14, 2013, summarizes the findings from the hearing:
Both the mother and [stepfather] provided information about the
incident [that occurred on September 10, 2013]. It is clear that
[V.B.] and [her youngest sibling] were arguing and name-calling
and, as usual, neither parent was able or willing to properly redirect
or discipline the children. When [V.B.] called him names, [the
stepfather] felt “disrespected” and slapped her in the mouth.
Afterward, he ordered her out of her home. [The mother]
accompanied [V.B.] outside, whereupon [the stepfather] locked
them out of the home despite the fact that [the mother and V.B.]
lives in the home, but [the stepfather] lives elsewhere. Based upon
this information, a review of the court files, the documents
submitted, the testimony presented, and the statements of the
parties, the Court finds that [V.B.] can no longer remain safely in
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the family home and that remaining in the home would be contrary
to her best interests due to repeated episodes of physical, verbal
and emotional abuse, and that her mother is unable and/or
unwilling to protect her.
The court then ordered V.B. to be temporarily placed in foster care and
scheduled a modification hearing for January 14, 2014.
At the modification hearing, the mother admitted she had not complied
with court order to enter the STEPPS program. She also testified that she and
the stepfather were separated and going through a divorce. Although the mother
claimed the stepfather had not been allowed in the family home since September
10, 2013, when the stepfather slapped V.B. on the mouth and locked her out of
the home, but other statements she made belied this testimony. In the written
order, the court stated:
The files, reports, and orders of the Court document a well-
established pattern of [V.B.] being a target of resentment, anger,
and abuse by [the stepfather]. She appears to be a convenient
scapegoat. She is often caught in the crossfire between [the
stepfather] and [the mother]. She has repeatedly been the victim of
physical, emotional and verbal abuse. [The stepfather’s] treatment
of [V.B.] has been nothing short of abysmal. His emotional maturity
appears to be at the level of a child, not an adult. He lacks the
resources to manage his anger and frustration, and he takes it out
on [V.B.]. As was evident from his statements in November, he
clearly feels completely justified in his actions because he is
“disrespected” by [V.B.]. To be sure, [V.B.] is disrespectful,
disobedient, and insulting to [the stepfather], but the blame for her
behavior can be laid squarely at the feet of the adults. [The mother]
cannot or will not protect [V.B.]. While she is not to blame for [the
stepfather’s] words and actions, she most certainly is responsible
for failing to use the tools that are available to her, such as no
contact orders. She is also responsible for minimizing [the
stepfather’s] behaviors and blaming [V.B.] for the abuse, which was
very much in evidence during her testimony at the hearing.
The court found V.B. could not remain in the family home and maintained her
placement with a foster family. The court also granted custody to DHS so that
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V.B.’s medical and medication needs could be met. Finally the court found it was
in V.B.’s best interest to enter a no-contact order prohibiting the stepfather from
contacting V.B. The mother appeals.
II. Standard of Review.
We review CINA proceedings de novo. In re K.B., 753 N.W.2d 14, 14
(Iowa 2008).
The juvenile court may modify a dispositional order upon good cause if the
court finds 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.
Iowa Code § 232.103(4). If the court finds there is good cause, the court must
take a second step in the analysis before it may transfer custody.
A transfer of custody shall not be ordered unless the court finds there is
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). Further, the 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
identify the reasonable efforts that have been made.” Iowa Code
§ 232.102(5)(b). Finally, in order to modify custody or placement, there must
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also be a material and substantial change of circumstances. In re R.F., 471
N.W.2d 821, 824 (Iowa 1991).3
III. Discussion.
The mother contends the State failed to prove circumstances have
changed since entry of the dispositional order because the issues that existed at
the time of modification were the same that led to the CINA adjudication. We
disagree.
The mother’s refusal or inability to limit the stepfather’s contact with the
child and the escalation of the stepfather’s violent and abusive behavior towards
3
The mother contends the State must show a substantial change of circumstances to
modify the dispositional order granting custody of the child to DHS and cites in support
of this proposition the case of In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). In R.F., our
supreme court recited this principle without any analysis citing In re J.F., 386 N.W.2d
149, 152 (Iowa App. 1986). Our case of J.F. relied upon the analysis and this principle
espoused in In re Leehey, 317 N.W.2d 513, 516 (Iowa Ct. App. 1982). We propounded
that because our supreme court has:
consistently taken the position it is highly desirable the status of children
should be fixed as quickly as possible, be thereafter disturbed as little as
possible, and then only for the most cogent reasons. In dissolution of
marriage cases, a noncustodial parent seeking custody must establish by
a preponderance of the evidence that the conditions since the court
decree have so materially and substantially changed that the child's best
interests make the change in custody expedient. This principle is
premised on the concept that once custody is fixed it should be disturbed
only for the most cogent reasons. Since a child’s need for a stable and
continuing environment is no less important in custody cases arising
under the juvenile code, we believe that the requirement of a material and
substantial change in circumstances is equally applicable to modification
of custody and placement orders pursuant thereto.
(Internal citations omitted.) However, since Leehey, our juvenile code has evolved.
Stability of the child’s placement remains a concern but our code now includes a
provision for permanency orders and hearings that did not exist at the time Leehey was
decided. See Iowa Code § 232.104. To impose the additional requirement of showing a
substantial change of circumstances, where our legislature has made provisions for
permanency and created a two step process to modify a dispositional order to remove a
child from a parent’s care and transfer custody to DHS, is overly burdensome. However,
because our supreme court has approved the principle, we defer to the supreme court
whether case precedent should still be followed. See State v. Miller, 841 N.W.583, 584
n.1 (Iowa 2014). (“Generally, it is the role of the supreme court to decide if case
precedent should no longer be followed.”).
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V.B. constitutes a material and substantial change of circumstances. Although
the mother claimed she was limiting the stepfather’s access to V.B., the juvenile
court did not believe her testimony. Especially since the mother claimed the
stepfather had not been allowed in the home since the day he slapped V.B. on
the mouth and locked her out of the home, but later admitted he had been in the
home at least two times. She also refused to use the tools available to her to
protect V.B. from her stepfather. Furthermore, the mother’s disregard of the
directives set forth in the dispositional order and the effect it had on V.B. is a
substantial change in circumstances that warrants modification of the prior court
order. The STEPPS program was recommended by her psychiatrist and clearly
intended to aid her parenting abilities or skills, yet the mother disregarded the
order and never completed the program.
The mother next contends modification is not in the child best interests. In
modification of a dispositional order relating to child custody, the focal point is the
best interests of the child. In re C.D., 509 N.W.2d 509.511 (Iowa Ct. App. 1993).
The children's best interests are to be determined by looking at their long-range
as well as immediate interests. Id. at 511–12. A parent’s past performance
provides insight into this determination. Id.
We conclude it is in the child’s best interests to be removed from the
mother’s care. As the district court found, “[C]ontinuation of the child in the family
home would be contrary to the welfare of the child because of the high degree of
chaos in the home, lack of appropriate supervision, parenting deficiencies, and
because the risk of physical and emotional abuse is unacceptably high.” The risk
for abuse is higher for V.B. than the other children because of the stepfather’s
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past history of assaulting her. Accordingly, we affirm the district court order
modifying the dispositional order to transfer custody of the child to DHS for
placement outside the home.
AFFIRMED.