Opinion
No. 6-045 / 05-0416
Filed February 15, 2006
Appeal from the Iowa District Court for Buena Vista County, Mary L. Timko, Associate Juvenile Judge.
A mother seeks a reversal of the juvenile court's order that authorized the continued removal of her children from her care and modified a dispositional order by transferring custody of the children to their father. AFFIRMED.
Andrew Smith of Mack, Hansen, Gadd, Armstrong Brown, P.C., Storm Lake, for appellant mother.
Carol Hallman of Hudson Law Firm, Pocahontas, for father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Phil Havens, County Attorney, and Rick Kimble, Assistant County Attorney, for appellee State.
Lori Kolpin of Kolpin Law Firm, P.C., Aurelia, for minor children.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Arlis, the mother of three children, seeks a reversal of a juvenile court order that approved the continued removal of her children from her care and modified a dispositional order by transferring custody of the children to their father. We affirm.
I. Background Facts Proceedings
Arlis and Todd are the parents of three children: Donovan, born in 1999; Tyara, born in 1997; and Tequilla, born in 1996. Arlis and Todd never married. When their relationship ended, the children lived with Arlis and exercised visitation with their father.
The juvenile court adjudicated Donovan, Tyara, and Tequilla as children in need of assistance (CINA) in the summer of 2003 pursuant to Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(g) (2003) after finding Arlis failed to exercise a reasonable degree of care in supervising the children and failed to supply the children with adequate food, clothing, or shelter. The court allowed Arlis to retain custody of the children and arranged for social services to assist her with parenting skills in an effort to correct the deplorable conditions in her home. The court also prohibited any contact between the children and Arlis's brother, a convicted sex offender.
Arlis stipulated that her home suffered from unsafe and unsanitary conditions.
Following a disposition hearing in January of 2004, the court adopted the recommendation made by the Iowa Department of Human Services (DHS) and allowed Arlis to keep the children in her home while she continued to attempt to resolve problems that included lack of employment, poor housekeeping skills, and the children's poor hygiene. The court informed Arlis that if she regressed or the children's health, hygiene, or school attendance deteriorated, it might become necessary to transfer custody of the children to Todd.
On March 30, 2004, the court entered an emergency order removing the children from Arlis's home after learning that strangers had been caring for the children in her absence and due to concerns regarding the children's nutrition, medication, hygiene, and school attendance. The court initially placed the children in foster care because Todd had a broken leg and needed time to recuperate before he could care for the children. Sometime later, the court followed the recommendation of the children's guardian ad litem and placed the children in the home of Todd and his wife, Hillary.
One of the children's caretakers had had her own children removed from her custody.
In July of 2004, the guardian ad litem moved to modify the dispositional order that the court had entered in January of 2004 because Arlis had little or no contact with her children, her whereabouts were unknown most of the time, she had failed to follow through with recommendations and services, and she lacked employment and stable housing. At a modification hearing held in December of 2004, the court heard testimony and received reports documenting the mother's lack of progress. Following the hearing, the court adopted the recommendations of the guardian ad litem and DHS and formally transferred custody of the children from Arlis to Todd. Arlis appealed after the court denied her motion for a new trial. II. Scope Standards of Review
Arlis filed a notice of appeal in March of 2005. The record reveals the appeal was delayed because a court reporter was not present at the modification hearing and a tape recording of the hearing was not entirely audible. A substitute record was prepared pursuant to Iowa Rule of Appellate Procedure 6.10(3) and approved by the juvenile court on January 18, 2006. After the record was settled, this appeal was transferred to the court of appeals.
Our scope of review in juvenile 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. We are primarily concerned with the best interests of the children. In re E.H. III, 578 N.W.2d 243, 248 (Iowa 1998). In order to modify the placement or custody of Arlis's children, there must be a showing of a material and substantial change in circumstances. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991).
III. Discussion
Arlis raises four issues on appeal. She contends: (1) insufficient evidence was presented to justify the continued removal of the children from her home, (2) reasonable efforts were not made to prevent or eliminate the necessity of the continued out of home placement, (3) insufficient evidence was presented to establish that return of the children to her home would be contrary to their well being, and (4) the record does not establish a material and substantial change in circumstances sufficient to warrant the modification order transferring custody from her to Todd. For the reasons which follow, we find no merit to any of the mother's appellate claims.
Despite receiving numerous services after her children were adjudicated CINA, Arlis failed to remedy the unsafe and unsanitary conditions in her home. In addition, she allowed strangers to care for the children in her absence even when one of those caretakers had had her own children removed from her custody. As a result, the juvenile court removed the children from their mother's care to protect them. After the removal order was entered, Arlis received additional services, but was arrested and evicted from her home in May or June of 2004. Arlis failed to contact DHS when she changed residences, and her whereabouts were unknown much of the time. Arlis failed to cooperate fully with service providers and did not rectify the unsafe and unsanitary conditions of her home. In addition, she never requested different or additional services. After the children were placed with Todd, Arlis failed to take advantage of the visitation she was offered. She last visited her children in August of 2004. The evidence clearly shows that the children would be subjected to harm if they were returned to Arlis's care. The children have resided with their father since June 3, 2004, and they have adjusted well to the routine and structure in his home. We determine that it is in the children's best interests to continue their placement with their father.
In summary, we conclude ample evidence supports the juvenile court's initial decision to remove the children from their mother's care and its conclusion that continued removal is necessary. We agree with the juvenile court's finding that reasonable efforts were made to prevent or eliminate the necessity of continued out-of-home placement. Finally, the record reveals there has been a substantial change in circumstances since the original disposition order warranting a modification of the order to transfer custody of the children from Arlis to their father. Accordingly, we affirm the juvenile court's decision.