IN THE INTEREST OF J.S., Minor Child, L.T.S., Father, Appellant, R.S., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-591 / 08-0873
Filed July 30, 2008
IN THE INTEREST OF J.S.,
Minor Child,
L.T.S., Father,
Appellant,
R.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Stephen C.
Clarke, Judge.
A mother and father appeal separately from the district court’s order
modifying disposition and removing one of their children from their care.
AFFIRMED.
James Peters, Independence, for appellant father.
Emily Carr of Gallagher Law Firm, P.C., Waterloo, for appellant mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Kathleen Hahn, Assistant
County Attorney, for appellee State.
Melissa Anderson-Seeber, Waterloo, for minor child.
Considered by Mahan, P.J., and Zimmer and Vaitheswaran, JJ.
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ZIMMER, J.
A mother and father appeal separately from the district court’s order
modifying disposition and removing one of their children from their care. We
affirm.
I. Background Facts and Proceedings.
Loren1 and Roberta have four children: Zachary, Deanna, Dayna, and
James. James was born in February 2004, and only his placement is at issue in
this appeal.
Loren and Roberta are married, but they are represented by
separate counsel and raise separate issues on appeal.
The parents first came to the attention of the Iowa Department of Human
Services (Department) on August 15, 2006, when the Department received a
report that Loren had struck or bit Dayna, in Roberta’s presence, after both
parents had consumed alcohol to the point of intoxication. At that time, the family
lived in Manly, Worth County, Iowa. The report was determined to be founded.
Subsequently, the State filed a petition alleging the children to be children
in need of assistance (CINA). On October 18, 2006, the court adjudicated the
children CINA pursuant to Iowa Code section 232.2(c)(1) and (2), with the
consent of the parties. The court proceeded to disposition upon the waiver of the
parties, and ordered that Deanna and Dayna be placed in foster care, and that
Zachary and James remain in their parents’ care with supervision by the
Department.2
1
The court further ordered the parents to have psychological
Loren is a member of the Chippewa Indian Tribe (Tribe). As such, the Federal and
Iowa Indian Child Welfare Acts apply to his children. The Tribe was given notice
pursuant to the Acts and intervened in the proceedings before the district court.
2
Zachary is now an adult and does not live in his parents’ home.
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evaluations and follow any subsequent treatment recommendations, and that
James have an evaluation and participate in protective day care.
Thereafter, the parents came before the court for numerous hearings.3
Following a November 2006 modification hearing, the court again ordered Loren
and Roberta to complete substance abuse evaluations. Loren was also ordered
to complete a psychological evaluation. The parents were required to follow any
treatment recommendations made by their evaluators.
Neither Loren nor
Roberta completed substance abuse evaluations following this order, but both
had psychological evaluations. Both evaluations recommended that Loren and
Roberta participate in family therapy and individual therapy; however, the doctor
noted that they would likely resist the referrals.
After another review hearing, the court entered an order on April 18, 2007,
which required Loren and Roberta to complete substance abuse evaluations.
The court also ordered that the parents abstain from using illegal drugs and
alcohol and follow the recommendations of their psychological evaluations.
On June 30, 2007, Loren was arrested for disorderly conduct and given a
preliminary breath test, which showed a blood alcohol level of .260. Following
the arrest, the Department’s caseworker filed a report with the court expressing
concern that Loren continued to drink excessively. The caseworker also reported
that Loren had not completed a substance abuse evaluation or complied with
drug testing as previously ordered by the court. Based upon the Department’s
update, the court then scheduled a modification hearing.
3
Each time the court found that James remained a CINA.
4
Just before the modification hearing commenced in July 2007, Loren and
Roberta submitted to substance abuse assessments.
No substance abuse
treatment was recommended for Roberta. However, Loren’s evaluation stated
that recommendations were pending the receipt of referral documents from the
Department, because Loren was confused about why he was referred for the
evaluation.
Later, Loren was discharged from treatment due to a lack of
readiness on his part to resolve his problems. The discharge recommendations
stated that Loren was to follow the mutually identified recovery plans and make a
mental health appointment with the possibility of medication benefits.
Following the modification hearing, the court found that Loren had
continued to drink, and that both Roberta and Loren had refused to provide
samples for drug and alcohol testing as ordered. The court noted that Loren and
Roberta had completed substance abuse evaluations, but had delayed
compliance.
Additionally, the court found that Loren and Roberta had not
followed recommendations made for the benefit of James. The court ultimately
determined that James should remain in his parents’ care with continuing
supervision by the Department. Loren and Roberta were required to abstain
from the use of illegal drugs and provide samples for drug and alcohol testing
every time they were requested to do so. The order further provided that Loren
and Roberta were to follow the recommendations of their substance abuse
evaluations.
On October 16, 2007, the Department filed an updated report with the
court, again requesting that James be removed from Loren and Roberta’s care.
The report noted that Loren had been arrested for public intoxication on
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September 16, 2007. The report further stated that at a family team meeting,
Loren accused Roberta of having a drinking problem. The report noted that the
Department caseworker had asked Roberta to complete a second substance
abuse evaluation, but she refused. The court then set the matter for another
modification hearing.
On November 7, 2007, following the modification hearing, the court
ordered that James be removed from his parents’ care and be placed in foster
care. However, the court ordered that James’s removal would be deferred if
Loren and Roberta met several conditions, including that Loren immediately
arrange and keep his appointments for his mental health evaluation, that he
follow all recommendations for treatment, that the parents abstain from the use of
alcohol and illegal drugs, and that Roberta arrange for substance abuse
evaluation and follow its recommended treatment. The court order stated that if
Loren or Roberta failed to meet any of these conditions, James would be
removed from their care.
On November 14, 2007, Loren submitted to a second psychiatric
evaluation.
His doctor diagnosed him as having adjustment disorder with
depression and anxiety, and alcohol abuse. The doctor’s plan of care stated that
the doctor wanted to see Loren in two weeks as an outpatient, and he also
referred Loren to another doctor for counseling. Loren did not follow-up with his
doctor or go to counseling as recommended.
On November 30, 2007, Roberta submitted to second substance abuse
evaluation. The counselor recommended that Roberta abstain from all mood
altering substances not prescribed by a physician and that she participate in a
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substance abuse education program. She did not participate in any program
immediately following the evaluation.
Thereafter, Loren and Roberta moved to Waterloo. As a result, their case
was transferred to Black Hawk County and the court there set the matter for a
dispositional review hearing. On December 31, 2007, the Department filed a
report to the court again recommending that James be placed in foster care.
After the hearing, the court entered its permanency review order on March 17,
2008, finding that James should remain in his parents’ care with supervision by
the Department. The court noted that Loren stated a willingness to be further
evaluated by a mental health provider and that he would follow any
recommendations for treatment. The court further noted that Roberta stated she
was also willing to comply with the recommendations for substance abuse
aftercare. The court then ordered Loren to cooperate and comply with mental
health treatment, Roberta to comply with recommended substance abuse
aftercare, and both parents to cooperate with random drug testing and participate
in a family team meeting.
On April 24, 2008, the Department filed a motion for modification of
disposition, requesting that James be removed from Loren and Roberta’s care
and placed in foster care. The motion essentially asserted that the parents had
not complied with the court’s March 17, 2008 permanency review order. The
motion stated that Loren did not participate in the scheduled family team
meeting, and that Loren had told the Department’s caseworker that he was
unwilling to follow through with mental health services as recommended.
Additionally, the motion stated that Loren initially refused to provide a sample for
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drug and alcohol testing, but consented two hours later and then failed to
produce enough sample to be tested. The motion stated concerns remained
regarding Loren’s unwillingness to address his mental health issues and the
impact this had on his ability to safely parent James.
The matter came on for hearing on May 9, 2008. Roberta appeared at the
hearing with counsel and Loren appeared pro se. James’s guardian ad litem and
Loren’s
Tribe’s
representative
both
agreed
with
the
Department’s
recommendation that James be removed from his parents’ care. In support of
removal, the State offered into evidence an updated case report completed by
the Department. Roberta’s counsel indicated that she had received the report
prior to the hearing, but objected to the report based upon alleged omissions,
misrepresentations, and factual errors contained in the report. Loren testified
that he received the report just prior to the hearing and did not voice any
objections to the report, though he testified that he disagreed with the report’s
statements regarding James’s schooling, and consequently went to the school
prior to the hearing to confront James’s teachers about it.
In addition to the Department’s report, the State introduced into evidence
the recent report by the court appointed special advocate (CASA), without any
objection by the parties. The CASA’s report stated that James was in need of six
caps on his teeth, and that Roberta had been aware of this problem for three
months but had not done anything to correct the problem.
Additionally, the
CASA’s report stated that Loren had missed the family team meeting and there
were concerns that Loren had failed to go to counseling. The report did note that
Loren did see a counselor on May 1, 2008.
Similarly, the report stated that
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Roberta had not attended substance abuse counseling.
The CASA’s report
recommended that Loren and Roberta be given extensive parenting counseling
and that any further failure to follow Department and court ordered directions
should result in James’s removal from their care.
Roberta testified that she had learned of James’s dental problems in
January or February of 2008, but did not schedule the appointment until the day
of the hearing. Additionally, Roberta testified she went to a substance abuse
aftercare program a few days prior to the hearing and would be going back the
following week. Loren testified he had seen a mental health counselor once, and
had an appointment to return the following week.
On May 14, 2008, the juvenile court entered its order modifying
disposition. The court ordered that James be removed from Loren and Roberta’s
custody. The court noted that Loren had not obtained mental health treatment as
previously ordered.
The court also pointed out that Loren had not sought
counseling until after the motion to modify had been filed and had only been to
one appointment. The court further found that neither parent was participating in
any substance abuse aftercare programming as recommended. The court also
found that James’s dental hygiene had been neglected, finding that James had
significant dental problems which Loren and Roberta did not attempt to remedy
until the day of the hearing. The court then concluded:
The State has presented clear and convincing evidence that the
child will continue to suffer adjudicatory harm if left in the custody of
his parents. Their failure to provide a proper degree of care in
supervising and caring for the child has produced harmful effects,
including but not limited to poor dental health. The court agrees
with the [CASA], who states in part as follows: “While James is not
in any danger of physical abuse, he does face a degree of neglect
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that I, as a CASA, find unacceptable.” Both the child’s guardian ad
litem and the social worker representing the tribe asked the court to
act to protect the child and remove him from his parents’ care. The
court now concludes that the court is left with no other alternatives.
Loren and Roberta appeal, but assert separate claims. Loren contends
that he was deprived of due process because he was not provided adequate
notice of the May 9, 2008 modification hearing and because he was not provided
any notice of the contents of the Department’s last report presented to the court
at the hearing. Roberta asserts that there was no evidence that a material and
substantial change in circumstances existed justifying change in custody since
there was no evidence of physical abuse and the parents had substantially
complied with the court’s requirements. Additionally, Roberta contends that the
State failed to offer the mother reasonable efforts to preserve the family unit,
such as referrals for programs that would address her parenting skills.
II. Scope and Standards of Review.
Our scope of review in CINA proceedings is de novo. In re K.N., 625
N.W.2d 731, 733 (Iowa 2001). We give weight to the juvenile court’s findings of
fact, but we are not bound by them. Id. Our overriding concern is the best
interest of the child. In re E.H. III, 578 N.W.2d 243, 248 (Iowa 1998).
III. Claims on Appeal.
A. Loren’s Claims.
Loren first contends he was deprived of due process because he was not
provided adequate notice of the hearing on the State’s motion to modify
disposition. However, Loren appeared at the modification hearing, and he did
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not raise this issue before the court at the hearing. Consequently, we conclude
that this issue was not preserved for our consideration on appeal.
Loren next asserts that he was not provided any prior notice of the
contents of the Department’s report submitted to the court the day of hearing. At
hearing, Loren did not raise this issue before the court. In fact, Loren testified he
had received the report prior to the hearing, and as a result of the report’s
contents, he confronted James’s school teachers regarding the statements in the
report. Consequently, we conclude that this issue was also not preserved for our
consideration on appeal.
B. Roberta’s Claims.
Roberta asserts that there was no evidence that a material and substantial
change in circumstances existed justifying change in custody since there was no
evidence of physical abuse and the parents had substantially complied with the
court’s requirements. Additionally, Roberta contends that the State failed to offer
the mother reasonable efforts to preserve the family unit, such as referrals for
programs that would address her parenting skills. For the reasons that follow, we
disagree.
Iowa Code section 232.103(1) (2007) provides for modification of a
dispositional order prior to its expiration. The party seeking modification of a
dispositional order must show that 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). If clear and convincing evidence
shows a substantial change in circumstances since a dispositional order, the
child’s best interests may require a change in placement. See id.; In re C.D., 509
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N.W.2d 509, 511 (Iowa Ct. App. 1993). We consider the child’s long-range as
well as immediate interests. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981).
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 child and his needs. In the Interest of A.S.T., 508 N.W.2d 735, 737
(Iowa Ct. App. 1993).
On our de novo review, we find that clear and convincing evidence
establishes there has been a substantial change in circumstances which
necessitates removing James from the home.
In December 2006 and on
numerous occasions thereafter, the district court warned the parents that James
might be removed if they did not participate in treatment and follow any treatment
recommendations as ordered. Since the commencement of this case, Loren and
Roberta have only taken steps to comply with the court’s orders after the State
sought to remove James from their home because of their lack of cooperation.
The record demonstrates the parents have persistently failed to follow the
treatment recommendations of their counselors. The parents’ failure to follow the
court’s earlier admonitions clearly constitutes a substantial change in
circumstances. The record also reveals that James has significant dental health
issues, which his parents have ignored. Roberta acknowledged that she had
known James’s dental problems for some time, but she did not schedule a dental
appointment until the day of the modification hearing. The record also reveals
that James suffers from a variety of developmental delays. Loren and Roberta’s
failure to follow court orders and attend to James’s dental heath and other needs
establishes James would be at risk if left in his parents’ home. Consequently, we
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agree with the district court that there has been a substantial change in
circumstances which necessitated removing James from the home.
Roberta also asserts that the State failed to offer her reasonable efforts to
preserve the family unit, such as referrals for programs that would address her
parenting skills. However, Roberta did not assert this issue before the court at
the modification hearing. Consequently, we conclude that this issue was not
preserved for our consideration on appeal.
IV. Conclusion.
Because we find that clear and convincing evidence establishes there has
been a substantial change in circumstances and that the parents’ other claims
were not preserved, we affirm the district court’s decision to modify the
dispositional order and remove the child from Loren and Roberta’s care.
AFFIRMED.
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