IN THE COURT OF APPEALS OF IOWA
No. 15-2046
Filed June 29, 2016
COLE HICKS,
Plaintiff-Appellee,
vs.
AMANDA FOULKS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clay County, Nancy L.
Whittenburg, Judge.
Amanda Foulks appeals from the order denying her petition to modify child
custody. AFFIRMED.
Jill M. Davis of Cornwall, Avery, Bjornstad, Scott & Davis, Spencer, for
appellant.
Matthew T.E. Early of Fitzgibbons Law Firm, L.L.C., Estherville, for
appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.
Amanda Foulks appeals from the order denying her petition to modify child
custody. She claims that circumstances have materially changed since entry of
the 2010 custody decree granting Cole Hicks physical care of the children and
that she can provide the children with superior care. Because Amanda has not
met her burden of proving a substantial change in circumstances, we affirm.
I. Background Facts and Proceedings.
Amanda and Cole have two children together. A custody decree entered
in August 2010 awarded joint legal custody of the children to both parties with
physical care to Cole. This court affirmed the decree on appeal. See Hicks v.
Foulks, No. 10-1497, 2011 WL 3925452, at *1 (Iowa Ct. App. Sept. 8, 2011).
Between the entry of the custody decree and the filing of her modification
action, Amanda made multiple complaints to the Iowa Department of Human
Services (DHS) regarding Cole and his ability to care for the children. These
complaints concern injuries M.H. received while in Cole’s care, as well as
allegations that Cole failed to provide M.H. with proper medical care, Cole’s
girlfriend physically abused K.H., and Cole smoked marijuana in his home with
the children present. Amanda made a fifth complaint two months after she
initiated the modification action, alleging M.H. was being physically abused while
in Cole’s care. In spite of the numerous complaints lodged against Cole and the
claims alleged regarding his ability to care for the children, the DHS does not
share Amanda’s concerns, assessing each of the five complaints as “[n]ot
confirmed” after an investigation.
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Amanda filed her petition to modify custody in February 2015. The
petition sets forth a list of general allegations Amanda claimed constituted
changes in circumstances, including but “not necessarily limited to the
following”: (1) Cole’s inability or unwillingness to support her relationship with the
children, (2) his failure “to meet the children’s basic needs, including medical
care”; (3) Cole’s failure to keep her informed about the children’s health and
“general status” while in his care; (4) his act of denying her “equal participation in
decisions affecting the children’s medical care, education, extra[-]curricular
activities and/or welfare”; (5) Cole’s act of engaging in “a course of conduct which
is detrimental to the mental, physical, and emotional wellbeing of the children”;
and (6) his inability “to communicate effectively” with her regarding the children’s
needs. At the trial, Amanda’s primary focus was Cole’s alleged failure to provide
proper medical care for the children and to communicate with her about the
children’s healthcare needs. The district court disagreed with Amanda’s claim
that Cole failed to address the children’s healthcare needs and determined
Amanda failed to prove the circumstances had substantially changed warranting
modification. Accordingly, the court denied Amanda’s request to modify custody.
Amanda appeals.
II. Scope and Standard of Review.
Our review is de novo. See Iowa R. App. P. 6.907. We give weight to the
district court’s fact findings, though we are not bound by them. See Iowa R. App.
P. 6.904(3)(g). When determining matters of child custody, “our first and
governing consideration” is the best interests of the children. See Iowa R. App.
P. 6.904(3)(o).
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III. Modification of Child Custody.
Child custody may only be modified when a substantial change in
circumstances occurs that was not in the contemplation of the court when the
custody decree was entered. See Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa
Ct. App. 1996). This change in circumstances must be “more or less permanent”
and relate to the welfare of the children. Id. The party seeking modification must
prove the existence of a substantial change in circumstances. See In re
Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). If a substantial change
of circumstances exists, the party seeking modification bears “a heavy burden” of
showing “the ability to offer superior care.” In re Marriage of Mayfield, 577
N.W.2d 872, 873 (Iowa Ct. App. 1998). In other words, here, Amanda must
show “an ability to minister to the children’s needs superior to” Cole. See In re
Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct. App. 1997). “If both parents
are found to be equally competent to minister to the children, custody should not
be changed.” Id.
Amanda alleges Cole’s failure to attend to the children’s medical needs
constitutes a substantial change in circumstances since entry of the custody
decree that was not contemplated when the original decree was entered.
Specifically, she claims Cole has neglected the children’s dental care and eye
care. She also complains he neglected to address concerns regarding K.H.’s
hearing and anxiety, as well as physical injuries received by M.H. and M.H.’s
reactive airway disease.
The district court did not share Amanda’s concerns regarding Cole’s ability
to provide proper care for the children’s health. It found:
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Amanda cited a number of incidents that she believed
supported a finding that Cole has not addressed the children’s
health care needs. The court cannot agree. Cole demonstrated
that he was fully aware of K.H.’s hearing test failures, had
discussed them with Amanda, had taken the child to her primary
care physician over the concern and was following AEA advice on
waiting for re-testing results. Cole also spoke to the dental exam
issue. Originally the children were seen by a pediatric dentist in
Spencer that Cole arranged. When the office called to schedule
follow-up visits, Cole’s telephone number had changed and the
children were terminated as patients per the dentist’s office policy.
Cole was able to speak with the dentist, and the children were seen
again in Spencer and later by a dentist in Spirit Lake. The visits in
Sioux Falls for eye exams and dental exams were made by
Amanda without consulting Cole primarily for the reason that she
feels he makes appointments for them in Iowa without telling her so
she is entitled to do the same when the children are in her care.
Amanda’s rationale to justify her unilateral acts evidences a
continued lack of maturity.
Although the court observed that “both parties have, to different degrees, failed to
communicate fairly and effectively about the children’s needs,” it ultimately
determined that custody should be transferred only for “the most cogent reasons,
and none are presented here.” After reviewing the record de novo, we reach the
same conclusion as the district court: Amanda has failed to show Cole has
neglected the children’s healthcare needs.
Amanda failed to meet her burden of proving that a substantial change in
circumstances occurred since entry of the original custody decree. Accordingly,
we need not determine whether Amanda is better able to minister to the
children’s well-being. The district court properly denied Amanda’s petition to
modify child custody, and we therefore affirm.
AFFIRMED.