Opinion
No. 5-725 / 05-1380
Filed November 9, 2005
Appeal from the Iowa District Court for Hancock County, Gerald W. Magee, Associate Juvenile Judge.
The guardians appeal from the district court's order modifying disposition and removing the children from their care. AFFIRMED.
T.J. Braunschweig of Braunschweig Law Firm, Algona, for appellants.
Brian D. Jones of Siegrist Jones, P.C., Britt, for appellees R.S. and E.S.
Mark Laddusaw of Lynch Lynch, Algona, for appellee-mother B.S.
Ted Hovda, Garner, for appellee-father D.S.
Thomas J. Miller, Attorney General, Charles K. Phillips and Bruce Kempkes, Assistant Attorneys General, and Karen Kaufman, County Attorney, for appellee-State.
Timothy Casperson, Clear Lake, guardian ad litem.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Maternal grandparentsappeal the district court's order modifying the dispositional order and changing placement of the children, C.S. and E.S. to the paternal grandparents. We affirm.
Background Facts and Proceedings.
D.M. and K.M . are the maternal grandparents and legal guardians (since October 1999) of two young children, born in 1997 and 1998. The children were adjudicated children in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(n) (parent's mental capacity or condition, or drug or alcohol abuse, results in child not receiving adequate care) in May 2002, and have changed placement several times since adjudication, between foster care and maternal grandparents' home. Throughout the pendency of this case, the children have had visitation with their parents, as well as their paternal grandparents.
To avoid confusion with the multiple parties and their initials, reference in this opinion will be to the generic forms, mother, father, parents, maternal or paternal grandparents etc.
The guardian ad litem filed an application for modification of the dispositional order in April 2005, seeking removal of the children from maternal grandparents. All parties were present and presented evidence at the hearing on the modification over three days in May and June 2005. In addition to maternal grandmother and paternal grandparents, several of the service providers in the case also testified at hearing. The district court entered an order on August 16, 2005, changing placement of the children to the care of the paternal grandparents. Maternal grandparents appeal the modification order.
Maternal grandfather was not present for all days of the termination hearing.
I. Scope of Review.
We review actions arising from CINA proceedings de novo. In re H.G., 601 N.W.2d 84, 85 (Iowa 1999); Iowa R. App. P. 6.4 (2005). In a CINA proceeding, we afford the district court's findings deference, especially concerning matters of witness credibility, but are not bound by them. In re D.S., 563 N.W.2d 12, 14 (Iowa Ct. App. 1997); Iowa R. App. P. 6.14(6)( g) (2005). As in all juvenile proceedings, our fundamental concern is the best interests of the children. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001).
II. Modification of Placement.
Maternal grandparents contend that (1) the district court failed to use the proper standard to review and modify the children's placement with them, and that (2) the evidence presented at the hearing did not support a modification.
A. Standard for Modification.
Maternal grandparents argue that the district court should have used the standard for removal set forth in Iowa Code section 232.102(5)(a), for removal from a guardian. However, their reliance on this statute is misplaced. Section 232.102 allows the district court to enter an order after a dispositional hearing regarding transfer of legal custody of the child for purposes of a placement. Iowa Code § 232.102(1) (2005). However, in this case, the guardian ad litem sought a a change in the placement, not the legal custody, of the children under Iowa Code section 232.103. Such a change is a modification of placement from a dispositional order. In re Leehey, 317 N.W.2d 513, 515 (Iowa Ct. App. 1982). The standards for modification of a dispositional order are provided for in Iowa Code section 232.103 (2005). It is clear that the order entered by the district court changing placement of C.S. and E.S. did not affect the "legal custody" relationship of maternal grandparents as the children's guardians. Rather, the court's order modified the most recent disposition and placement of the children pursuant to section 232.103(4)(b). In fact, the district court's order consistently refers to maternal grandparents as the children's legal guardians, and at the time of appeal there was a pending challenge to maternal grandparents' legal guardianship of the children in district court. We find the district court was correct in applying the standards of section 232.103 to determine whether a modification of placement was warranted in this case.
The district court, granted concurrent jurisdiction with the juvenile proceedings, issued an order on August 30, 2005, removing maternal grandparents as guardians and appointing the children's paternal grandparents as C.S. and E.S.'s legal guardians.
B. Material and Substantial Change to Modify Placement.
Maternal grandparents also argue that the evidence at trial did not support a modification of the dispositional order and the children's placement with them. 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). 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 In re D.S., 563 N.W.2d 12, 14 (Iowa Ct.App. 1997); In re C.D., 509 N.W.2d 509, 511 (Iowa Ct.App. 1993).
As noted above, several of the service providers in this case testified at the modification hearing. The Iowa Department of Human Services (DHS) caseworker Dawn Moore testified that she recommended removal of the children and placement in foster care. She testified that the home study completed in May 2005 on maternal grandparents recommended against certifying them as a foster or adoptive home placement. The home study was conducted on a more in-depth scale than maternal grandparents' previous post-placement report for the adoption of another child. Leah Weber, who conducted the first post-placement adoptive study, stated that had the newly revealed information been known for the prior adoption, she would not have approved the home. Moore testified that the home study revealed some concerns with maternal grandparents, including past animal cruelty charges and convictions, financial concerns, and negative references from family members and unrelated parties. Some family members related that they do not allow maternal grandparents to care for their children due to unsanitary conditions of the home. One of maternal grandfather's children stated that maternal grandparents had fraudulently obtained credit cards and incurred debt in his name while he was stationed with the military in Iraq. Moore further testified that she recommended foster care placement over placement with other family members, due to the family's inability to maintain neutrality amongst themselves and keep the children away from family conflict.
Christine Gardener, the family therapist from Alternative Services for Youth and Families, also testified and recommended a neutral, non-relative placement for the children. She stated that the emotional chaos between the parties negatively affected the children, as C.S. and E.S. have been displaying physically and verbally aggressive behaviors. She testified the children also show "confusion as to what's going on around them, fear as to where are they going to stay, where are they going to end up." Gardener stated that although the children may be improving academically, they are not progressing emotionally. She testified that C.S. and E.S.'s lack of behavioral and emotional improvement is due to the conflict among family members and their tendency to place the children amidst that conflict.
The children's individual therapist, Tom Lang of the Mental Health Center of North Iowa, also testified at the modification hearing. Lang recommended that the children remain with maternal grandparents, but conceded that he would recommend against removal no matter where C.S. and E.S. were currently placed. His primary concern was the children's lack of permanency considering their many removals and placements during the pendency of the case. Lang testified as to the children's mental health diagnoses: E.S. has disruptive disorder NOS (not otherwise specified) in remission, and C.S. has major depressive disorder and "recurrent versus bipolar disorder NOS versus attention deficit hyperactivity disorder NOS." He also believed that the adult family members had put the children in the middle of their conflict by discussing reconciliation of the children's parents, reunification of the children with their parents, and otherwise discussing or disparaging other family members in front of C.S. and E.S. Lang testified that, due to their current placement, he believed the children were aware of the court proceedings in this case and exhibited anxiety surrounding the proceedings.
Karla Holtz from the Avalon Center also testified at the modification hearing, recommending removal of the children from maternal grandparents' care. She conducted the foster/adoptive home study for DHS completed in May 2005 that recommended against approval of maternal grandparents as a foster or adoptive home. Her concerns involved apparent deception by maternal grandparents in previous contacts as to their financial condition and criminal records. Holtz also testified that the negative community and family member references for the home study troubled her greatly — "just in general that . . . to have so many comments come from family members attesting to concerns, significant concerns about how [the] children are treated, about emotional stability, about financial issues." She testified that although some home study cases may be "close calls" on a positive recommendation, the maternal grandparents were a "for sure no" in her professional opinion.
Cathy Brown, the children's CASA worker, testified also and recommended a neutral non-relative placement in foster care. She stated that the best interest of these children is to be in a neutral setting and to avoid the current chaos in their lives so they can be nurtured and grow. Brown also had continuing concerns over sleeping arrangements at maternal grandparents' that predated the last review hearing — C.S. sleeps on the couch not in his own bed, and E.S. sleeps with her maternal grandmother instead of in her bed. She also testified that the children demonstrated signs that they were instructed not to talk to her about maternal grandparents. The children's parents and paternal grandparents also testified at the hearing, all requesting that the district court place C.S. and E.S. with paternal grandparents. Paternal grandparents have also been approved as a licensed foster home by a formal home study.
The district court's order made the following findings:
[T]here have been changes in circumstances that justify Modification of Disposition and particularly because the purposes of the Dispositional Order cannot reasonably be accomplished at this time, to wit: the children continue to have behavior problems, the children continue to be placed in the midst of family conflict, the living accommodations for the children at times are inappropriate, and other relatives have been approved for foster placement while current guardians have not been so approved.
4. The court may modify a dispositional order, vacate and substitute a dispositional order, or terminate a dispositional order and release the child if the court finds that any of the following circumstances exist:
b. The purposes of the order cannot reasonably be accomplished. Iowa Code § 232.103(4)(b) (2005).
We find that clear and convincing evidence demonstrated a material and substantial change in circumstances and supported removal of C.S. and E.S. from maternal grandparents' care. Since the last permanency review hearing in November 2004, the children have been subjected to inappropriate behavior including the founded abuse incident against C.S. in January 2005 involving the maternal grandfather and the March 2005 confrontation with the children's parents, resulting in mother's removal from maternal grandparents' home. In addition, several of the service providers testified as to their continuing concerns regarding maternal grandparents placing the children in the middle of the family conflicts and inappropriate and disparaging comments regarding other family members or the court proceedings. Furthermore, the home study completed in May 2005 highlighted other concerns with maternal grandparents, such as their criminal records, financial problems, and extremely negative references from family members. We agree with the district court that the best interests of the children necessitate removal from maternal grandparents' care and placement with paternal grandparents. We affirm the district court's modification of the original dispositional order.