IN THE COURT OF APPEALS OF IOWA
No. 16-1459
Filed October 26, 2016
IN THE INTEREST OF C.P.,
Minor child,
H.L., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Ringgold County, Monty W.
Franklin, District Associate Judge.
A mother appeals the dispositional review order of the juvenile court
modifying the placement of the child in this child-in-need-of-assistance
proceeding. AFFIRMED.
Bryan J. Tingle of the Tingle Law Office, Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Carol A. Clark, Lamoni, guardian ad litem for minor child.
Considered by Vogel, P.J., and Tabor and Mullins, JJ.
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VOGEL, Presiding Judge.
The mother appeals the juvenile court’s dispositional review order that
removed the child at issue from her care and placed the child in the father’s care.
She claims there has not been a change in circumstances since the time of
adjudication to justify the removal of the child. She also asserts there was no
evidence the child needed to be removed and the evidence established she was
improving in her ability to care for her son. She contends the placement with the
father was improper as the recommendation from the department of human
services (DHS) was conditioned on the father living with his parents and no such
condition was imposed by the juvenile court.
C.P. is eight years old and has special needs. His diagnoses include
epilepsy and seizure disorder, ADHD, ADD, autism, and indicia of bipolar. He is
on multiple medications and has significant behavioral challenges. In December
2014, he came to the attention of DHS when it was discovered the mother was
not consistently ensuring the child took his seizure medication and not following
up on his medical appointments. The child was adjudicated to be in need of
assistance in July 2015 under Iowa Code section 232.2(6)(e) (2015). 1 The child
was allowed to stay with the mother, though she was ordered to, among other
things, “ensure that all of the child’s physical, emotional, and educational needs
are appropriately met,” “ensure that the child is present for all neurologic and
1
Iowa Code section 232.2(6)(e) defines child in need of assistance as an unmarried
child “who is in need of medical treatment to cure, alleviate, or prevent serious physical
injury or illness and whose parent, guardian, or custodian is unwilling or unable to
provide such treatment.”
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psychiatric appointments,” and “participate in Parent/Child Interaction Training
(PCIT) with the child.”
The district court noted in the August 18, 2016 dispositional review order
that over the course of the proceedings the mother had improved in her ability to
get the child to take his medication and in getting him to medical appointments
but “there is still a question whether the mother has been entirely consistent with
the child’s medication management.” The child’s teacher observed bruises,
scratches, and bite marks on the child’s arm in October 2015. The child informed
the teacher that the mother caused the injuries when he would not take his
medication. The DHS worker testified as to her many attempts to show the
mother effective ways to give C.P. his medication. Her efforts were met with little
compliance. The mother also has difficulty addressing the child’s behaviors and
has not shown an ability to provide stability and consistency for the child. In July
2015, the child became disruptive and destructive during a dentist appointment.
The child’s behavior was out of control and he was physically assaulting the staff.
The mother told the dentist office staff to deal with her son and walked out of the
building. The staff resorted to calling police to calm down the child, and the
mother admitted not giving the child his medication before the dentist
appointment. In another incident in June of 2016, after a therapy appointment,
staff of the therapist’s office observed the mother standing over the child who
was on the ground in the parking lot. The mother was yelling at the child and
moving her arms as if she was hitting him, though staff could not observe if she
was making contact with the child. When a vehicle arrived to pick them up, the
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mother left the area on foot, leaving the child to be placed in the car by the driver
of the vehicle.
The juvenile court reported services have been provided to the mother for
over eighteen months, and while the mother has demonstrated some
improvement in her parenting abilities, the improvement has been limited
particularly considering the length of time services have been provided. The
court noted the mother “has been unable to adequately incorporate and utilize
the information she has been taught concerning her parenting of her child.” The
court also stated “the in-home worker testified that there has not been significant
progress made by the child’s mother to implement the parenting skills training
provided to her and that their agency has exhausted available services for the
mother.”
The mother has significant mental health issues and limitations of her
own, and the court determined her difficulties combined with her child’s
significant issues results in the mother being unable to adequately parent the
child and the problem will only become more pronounced as the child gets older
and his needs become more complicated.
The father struggled with his own mental health history in the past, but has
been able to manage his conditions and function normally. The court noted his
support system included his parents, who have “extensive experience with
obtaining and working with services for children with mental health issues and
intellectual limitations.” The court stated the father would move into his parents’
home if the child were placed in his care so the child could receive
comprehensive care and supervision.
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We review child-in-need-of-assistance (CINA) proceedings de novo. In re
K.B., 753 N.W.2d 14, 14 (Iowa 2008). Under Iowa Code section 232.103(4), the
juvenile court can modify a dispositional order 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.
If the court determines the circumstances exist, the court may transfer custody if
it finds clear and convincing evidence: “(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). In addition, the court must find “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). Finally, the court
must also find a material and substantial change in circumstances.2 In re R.F.,
471 N.W.2d 821, 824 (Iowa 1991).
2
The requirement to show a material and substantial change in circumstances was first
adopted by this court in In re Leehey, 317 N.W.2d 513, 516 (Iowa Ct. App. 1982), where
this court reasoned that if such change was needed to be shown in a dissolution
proceeding it should also be required in a CINA proceeding—“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.” There is now some question regarding whether there remains a
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We agree with the juvenile court that the facts in this case satisfy the
required findings to justify modifying the dispositional order and transferring the
child to the father’s care. With more than eighteen months of services, it became
clear that, while the mother had shown some improvement, she was still unable
to medicate the child consistently without using inappropriate means. To keep
the child in the mother’s home would be contrary to his welfare as she has not
shown an ability to absorb and apply the parenting and interaction information
provided to her. As the juvenile court noted, the mother “has been unable to
adequately incorporate and utilize the information she has been taught
concerning her parenting of her child” and the agency “has exhausted available
services for the mother” without any significant progress of the mother
implementing the training and skills provided. The child has extensive needs that
require a caretaker with “special skills and abilities,” and the mother has not
shown an ability to acquire and apply those skills. We agree with the juvenile
court’s conclusion that the purpose of the original disposition order cannot be
accomplished and reasonable efforts have been made and exhausted to keep
the child in the mother’s care. Finally we agree a material and substantial
change in circumstances exists in this case as the mother has been provided
services but still not been able to parent the child adequately and the efforts of
DHS have been unsuccessful in ensuring the child is in a safe and stable
environment considering his special needs. We affirm the court’s transfer of the
requirement for the court to find a material and substantial change in circumstances in
order to transfer custody in a CINA proceeding. See In re V.B., No. 14-0315, 2014 WL
2600318, at *4 n.3 (Iowa Ct. App. June 11, 2014); see also In re M.M., No. 16-0548,
2016 WL 4036246, at *3–4 (Iowa Ct. App. July 27, 2016). However, absent a definitive
decision from the supreme court on this issue, we retain that requirement.
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placement of the child from the mother to the father as it is in the child’s best
interests.
AFFIRMED.
Tabor, J. concurs; Mullins, J., concurs specially.
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MULLINS, Judge (concurring specially).
I concur in the result, but write separately. Based on the reasoning in In re
M.M., No. 16-0548, 2016 WL 4036246, at *3–4 (Iowa Ct. App. July 27, 2016), I
do not believe we must find a material and substantial change in circumstances.
Satisfaction of Iowa Code sections 232.102(5) and 232.103(4)(b) or (c) is all that
is required to modify the dispositional order in this case. See id.