IN THE INTEREST OF D.W., Minor Child, A.W.P., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-523 / 07-0966
Filed August 8, 2007
IN THE INTEREST OF D.W., Minor Child,
A.W.P., Father,
Appellant.
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Appeal from the Iowa District Court for Fayette County, Alan D. Allbee,
Associate Juvenile Judge.
A father appeals from the juvenile court’s order in a child in need of
assistance case. AFFIRMED.
John W. Hofmeyer III, Oelwein, for appellant-father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, W. Wayne Saur, County Attorney, and Nathan Lein, Assistant County
Attorney, for appellee.
Richard Buffington, Oelwein, for mother.
John Sullivan, Oelwein, guardian ad litem for minor child.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
2
EISENHAUER, J.
A father appeals from the juvenile court’s order in a child in need of
assistance (CINA) case. He contends the court erred in refusing his request to
modify a dispositional order by placing the child in his custody. We review his
claim de novo. In re C.H., 652 N.W.2d 144, 147 (Iowa 2002).
The child, born in January 2006, was adjudicated in need of assistance in
September 2006. The child had been voluntarily placed by his mother in the
custody of the Department of Human Services (DHS) in June 2006. After the
adjudication, the child was placed with the mother on the condition she
participate in a residential parenting program. The mother was discharged from
the program in March 2007 and the child was returned to the DHS for foster care.
Paternity of the child was initially in doubt, but A.P. was later determined
to be the child’s father. After the CINA adjudication, he sought and received
visitation.
The child suffers from life-threatening respiratory problems that
prohibit him from being around cigarette smoke or even second-hand smoke on
clothing or other material. In April 2007, the DHS investigated allegations that
the child had been exposed to smoke during visitations with the father.
On May 18, 2007, a hearing was held to consider the father’s motion to
modify the last dispositional order and place the child with him. In its May 23,
2007 order, the court found, “Placement of the child in family foster care
continues to be necessary because the child cannot be protected from a smoking
environment which causes him respiratory problems that could be lifethreatening.” Custody of the child was ordered continued with the DHS.
3
The father appeals, arguing the court’s order is not supported by the
evidence. The modification of a dispositional order is provided for in Iowa Code
section 232.103 (1995). A party seeking a modification of a prior dispositional
order must show the circumstances have so materially and substantially changed
that a modification is in the best interest of the child. In re D.S., 563 N.W.2d 12,
14 (Iowa Ct. App. 1997). Our primary concern in a proceeding of this nature is
the best interests of the children. Id.
We consider the children’s long-range as
well as immediate interests. Id. The parents’ past performance provides insight
into this determination. Id. Part of our focus may be on parental change, but the
overwhelming bulk of the focus is on the children and their needs. Id. at 15.
We conclude the father failed to show a substantial change in
circumstances to justify modifying the dispositional order to grant him custody of
the child. He did not show significant interest in his son until March 2007. He
has failed to be vigilant in protecting the child from exposure to cigarette smoke,
which could be dire for the child. The trial court found the father to be capable of
safely raising his son if smoking was not an issue and we agree. In the trial
court’s words: “[H]e must choose his son over his smoking habit.”
The father argues Iowa Code section 232.102(5) should apply to this
situation as the child was not removed from his care as a result of his conduct
and therefore has done nothing to forfeit his custodial rights. However, as the
noncustodial parent, this section does not apply to him. See In re D.L., 460
N.W.2d 343, 345-46 (Iowa 1991) (holding a noncustodial parent stands as just
another relative under section 232.102. We affirm the juvenile court order.
AFFIRMED.
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