Opinion
No. 2-940 / 02-0996
Filed January 29, 2003
Appeal from the Iowa District Court for Marshall County, Carl D. Baker, Judge.
A mother appeals from the provisions of an order modifying the custody and visitation provisions of the parties' dissolution decree. AFFIRMED.
Norma Meade of Harrison, Brenneke, Moore, Smaha McKibben, L.L.P., Marshalltown, for appellant.
Brian Danielson of Hinshaw, Danielson, Kloberdanz Haney, P.C., Marshalltown, for appellee.
Heard by Vogel, P.J., and Miller and Eisenhauer, JJ.
A mother appeals from the provisions of an order modifying the custody and visitation provisions of the parties' dissolution decree. She contends the district court erred in limiting her contact with the children to letters and weekly phone calls during her incarceration. She also contends the court erred in awarding sole legal custody of the children to the father. We affirm.
I. Background Facts and Proceedings. Todd and Tiffany are the parents of four children; triplets born in 1997, and a daughter, Madison, born in 1999. In June 2000, Todd moved to Indiana. The parties' marriage was dissolved in July 2000. The parties agreed and the decree provided that Todd should have physical care of the triplets, and Madison should reside with Tiffany.
Prior to the finalization of the divorce, Todd requested assistance from the Department of Human Services (DHS) because he was concerned about Tiffany's relationship with a man who had a criminal history. Todd had noticed what he believed to be drug-related bruises on Tiffany's arms and ankles, and Tiffany admitted to using drugs. Tiffany had also asked Todd to care for her fourteen year old son from a previous marriage for three or four days because "he was out of control."
A Child in Need of Assistance (CINA) petition was filed in June 2000. The following day, Tiffany was arrested on two charges of possession of precursor substances with intent to use them to manufacture controlled substances, two counts of driving under suspension, and one count of no insurance. These charges were later dismissed pursuant to a plea agreement.
The day the dissolution decree was entered, Tiffany made an initial appearance on a citation for driving under suspension. She was taken into custody and a bond was set. When she was taken into custody, Tiffany requested her boyfriend's sister to take Madison to Omaha, Nebraska to live with her maternal grandparents. Tiffany and her boyfriend refused to tell the guardian ad litem with whom Madison had been placed. The juvenile court entered an order removing Madison from Tiffany's care. The removal order placed legal custody with DHS and provided she could reside in her father's home. Madison was located in Omaha, however, Todd was living in Indiana and the juvenile court wanted Madison to stay in the central Iowa area for visitation with Tiffany. As a result, Madison was placed in foster care.
While Madison was in foster care, Todd made frequent trips from Indiana for visitation. Tiffany was given visitation with Madison, but did not always attend. Tiffany missed visitation on August 24, 2000, instead committing several felony offenses after using methamphetamine over a nine-day period. Tiffany was given one week of visitation with the triplets in September 2000, but employed a babysitter to look after the children for long periods of time, including overnight.
Tiffany was charged with a total of twenty-one criminal felony offenses between June 20 and December 1, 2000, which resulted in three forgery convictions, as well as a two convictions for possession of precursor substances, and one conviction for manufacture of a schedule II controlled substance. She received four five-year sentences which were to run concurrently with consecutive ten and five-year sentences. She has been in jail or prison continuously since November 2, 2000. Tiffany thinks she will be paroled in February 2003.
On November 13, 2000, the juvenile court adjudicated all four children to be in need of assistance and placed custody with Todd. At a dispositional hearing held in January 2001, the parties' agreed the custody of all four children should continue with Todd under DHS supervision.
On August 15, 2001, Todd filed a petition to modify the dissolution decree, requesting physical care and legal custody of Madison. On May 29, 2002, Todd amended his petition to request sole legal custody of all four children, and to provide restricted visitation to Tiffany. Following trial in June 2002, the district court modified the original decree. Physical care of Madison was transferred to Todd, and Todd was granted sole legal custody of all four children. The court also limited Tiffany's contact with the children to weekly telephone calls and cards or letters until Tiffany's release from prison.
II. Standard of Review. We review the record de novo in proceedings to modify the custodial provisions of a dissolution decree. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996). We give weight to the findings of the trial court, although they are not binding. Id. III. Modification of Custody. Tiffany contends the court erred in modifying the parties' dissolution decree to grant Todd sole legal custody of the children.
Modification of the custody provisions of a dissolution decree is only permissible when there has been a substantial change in circumstances since the time of the decree that was not contemplated when the decree was entered. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). The change must be more or less permanent and relate to the welfare of the child. Id. When there has been a failure of communication and cooperation between parents under a joint legal custody arrangement, a modification of custody status is appropriate. In re Marriage of Rolek, 555 N.W.2d 675, 677 (Iowa 1996).
Tiffany does not dispute a substantial change in circumstance exists. Instead, she contends sole legal custody is not in the best interest of the children. Iowa Code section 598.41(3) (2001) sets forth the factors the court must consider in determining which custody arrangement is in the best interest of a child. These factors include whether each parent would be a suitable custodian, whether the parents can communicate with each other regarding the child's needs, whether both parents have actively cared for the children before and after the separation, and whether each parent can support the other parent's relationship with the child. Iowa Code §§ 598.41(3)( a), ( c), ( d) ( e).
We conclude granting Todd sole legal custody of the children is in their best interest. Tiffany has shown an inability to put the needs of the children before her own needs. Her actions have caused her incarceration and necessitated Madison's removal to foster care. Tiffany also chose to secretly send her child to her grandparents' home, rather than place Madison with her father. Meanwhile, Todd has shown himself to be a responsible and capable parent. We affirm the district court's order granting Todd sole legal custody of the children.
IV. Visitation. Tiffany also claims the district court erred in restricting her visitation with the children while she is incarcerated. The court left open the issue of future visitation until Tiffany is released and has established a new residence. She argues this change is not in the children's best interest.
The trial court merely concluded "prison visitation is not in the children's best interests." While we cannot approve a blanket prohibition against "prison" visitation, we agree it is not appropriate in this case. The children have not seen their mother since November 2000. They live in Indiana. She is anticipating a release from prison soon. Having granted sole legal custody to Todd based largely on Tiffany's criminal and drug abusing behavior, the appropriate level of visitation should be based on whether she has made the necessary changes in her behavior and lifestyle when she is released. Accordingly, we affirm the district court's order denying Tiffany visitation.
AFFIRMED.
Miller, J., concurs; Vogel, P.J., partially dissents.
I respectfully dissent from the majority's denial of visitation for the mother while she is imprisoned. Her release date is uncertain, but from all indications, it is in the near future. She will then need to renew her relationship with the children. To maintain the current fragile bond between her and the children, I would grant the mother's minimal request of one visitation while she is imprisoned. In all other respects, I concur.