                   IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1587
                              Filed August 19, 2020


IN RE THE MARRIAGE OF RICARDO NAVARRO
AND CATHERINE NAVARRO

Upon the Petition of
RICARDO NAVARRO,
      Petitioner-Appellant,

And Concerning
CATHERINE NAVARRO, n/k/a CATHERINE BROWN,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Mills County, Michael D. Hooper,

Judge.



      Ricardo Navarro appeals the denial of his petition to modify the physical

care provisions of a dissolution-of-marriage decree.          REVERSED AND

REMANDED WITH INSTRUCTIONS.




      Jaclyn A. Tackett of Jaci Tackett Law PLLC, Council Bluffs, for appellant.

      Dawn M. Landon of Sell Law, PLC, Glenwood, for appellee.




      Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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MULLINS, Judge.

          Ricardo Navarro appeals the district court’s denial of his petition to modify

the physical care provisions of the decree dissolving his marriage to Catherine

Navarro, now known as Catherine Brown. He claims the district court improperly

relied on the juvenile court’s permanency goal in a child-in-need-of-assistance

(CINA) proceeding of reunifying the parties’ child with Catherine in concluding he

could not provide superior care.         He alternatively argues the court erred in

concluding he did not meet his burden to show he could provide superior care.

I.        Background Facts and Proceedings

          The parties married in 2013.       Domestic violence was present in the

relationship, and the parties separated. Ricardo was convicted of multiple crimes

stemming from domestic violence in the relationship. He has since completed

counseling courses relative to cognitive restructuring, coping with anxiety,

domestic violence, and anger management. Catherine learned she was pregnant

after the separation. The child was born in 2014. Ricardo did not learn of the

child’s existence until more than one year later. The marriage was ultimately

dissolved in 2015. The parties were awarded joint legal custody with physical care

to Catherine and visitation to Ricardo. Because Ricardo lived several hours from

Catherine,1 the court ordered his visitation to be limited to every other Saturday

from 11:00 a.m. to 4:00 p.m. Upon his substantial compliance with attending visits

and completion of a batterer’s education program, his visitation would increase to




1    Ricardo lived in western Illinois, and Catherine lived in western Iowa.
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every other weekend, from Friday afternoon to Sunday evening. Ricardo satisfied

those conditions in March 2016, and his visitation was increased.

       In late 2016, Ricardo was arrested on a warrant. Thereafter, he served

roughly five months in jail before the charges were dismissed. According to his

testimony, after he got out of jail, he was unable to exercise visitation with the child

because Catherine refused to communicate with him and he did not know where

the child was. There was also a no-contact order in place between Ricardo and

Catherine between December 2016 and December 2017. Also in late 2016,

Catherine was charged with child endangerment as to the child in interest. She

pled guilty, received a deferred judgment, and was placed on informal probation,

which she discharged in February 2018.

       In May 2018, the Iowa Department of Human Services (DHS) received

allegations Catherine was using methamphetamine, heroin, and opiates while

caring for the child. DHS met with the child’s maternal grandmother, who reported

“she had been taking care of [the child] a lot since Catherine ‘started having

problems’ in October 2016.” Upon the evidence we find credible, we conclude the

child was essentially living with the grandmother. A safety plan was established,

pursuant to which the child would remain in the grandmother’s care. The mother

underwent drug testing and tested positive for morphine and a heroin metabolite.

Ricardo testified he was largely unable to exercise his visitation with the child until

DHS intervention. The State petitioned for adjudication of the child as a CINA.

Thereafter, the State sought and obtained a formal order for temporary removal

and placement of the child with the grandmother. The child was adjudicated CINA

in August.
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       An Interstate Compact on the Placement of Children (ICPC) study was

completed as to Ricardo’s home in September. It was recommended that the child

be placed with him. By October, each of the parents had been exercising regular

visitation with the child.   At a dispositional hearing that month, Catherine

challenged the accuracy and thoroughness of the ICPC study. The court agreed

that some of Ricardo’s criminal history was omitted from the study and may be

pertinent to the evaluation. Ricardo requested that the child be placed in his care

and that the juvenile court grant the district court concurrent jurisdiction to allow

him to pursue a change of custody in the district court. Given the mother’s

progress toward reunification and the court’s concerns for the ICPC study, the

juvenile court denied Ricardo’s requests.

       In December, Ricardo filed a motion for an emergency hearing on

placement and concurrent jurisdiction, citing Catherine and the grandmother’s

efforts to alienate the child from Ricardo.     DHS investigated the matter and

essentially learned the child did not want to have visitation with Ricardo, which was

largely a result of Catherine and the grandmother saying negative things about

Ricardo to the child, including that he does not love her. The child’s guardian ad

litem met with the child, who reported Catherine and the grandmother told her to

say, “My daddy hits me on the head and my forehead.” The grandmother also

made allegations of sexual abuse of the child against Ricardo.            The child

underwent a forensic interview and physical examination. There was nothing to

substantiate the claims of physical or sexual abuse. Illinois law enforcement

declined to pursue criminal charges. The permanency goal remained reunification

with Catherine, but her visitation was reverted to fully supervised.
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         In March 2019, the juvenile court granted Ricardo’s motion for concurrent

jurisdiction in the district court. Shortly thereafter, Ricardo filed a petition to modify

the custodial provisions of the parties’ dissolution decree. Sometime thereafter,

Catherine progressed to semi-supervised visitation.               By May, Catherine

progressed to unsupervised and overnight visitation with the child. Following a

review hearing the same month, the permanency goal remained reunification with

Catherine. Then, in early June, according the testimony of the child’s guardian ad

litem (GAL), things began to unravel again. According to the GAL, Catherine

reinitiated her campaign of talking negatively about Ricardo, and the child again

began exhibiting disinterest in spending time with him.

         The modification matter proceeded to hearing in July. In its ensuing ruling,

the court concluded a substantial and material change in circumstances had

occurred since the entry of the dissolution decree. However, the court was not

convinced Ricardo proved a superior ability to more effectively minister to the

child’s well-being. The court denied Ricardo’s modification petition on that basis

and this appeal followed.2

II.      Standard of Review

         An action to modify a decree of dissolution of marriage is an equitable

proceeding, which we review de novo. Iowa R. App. P. 6.907; In re Marriage of

Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). We give weight to the factual findings

of the district court, especially when considering the credibility of witnesses, but

we are not bound by them. Iowa R. App. P. 6.904(3)(g). The best interests of the



2   Catherine did not file a brief in this appeal.
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child is our primary consideration. Iowa R. App. P. 6.904(3)(o); Hoffman, 867

N.W.2d at 32.

III.   Analysis

       On appeal, Ricardo claims the district court improperly relied on the juvenile

court’s permanency goal in the CINA proceeding of reunifying the child with

Catherine in concluding he could not provide superior care. He alternatively

argues the court erred in concluding he did not meet his burden to show he could

provide superior care. We simply consider whether Ricardo met his burden to

provide superior care.

       To change a custodial provision of a dissolution decree, the applying
       party must establish by a preponderance of evidence that conditions
       since the decree was entered have so materially and substantially
       changed that the child[ ]’s best interests make it expedient to make
       the requested change. The changed circumstances must not have
       been contemplated by the court when the decree was entered, and
       they must be more or less permanent, not temporary. They must
       relate to the welfare of the child[ ]. A parent seeking to take custody
       from the other must prove an ability to minister more effectively to
       the child[ ]’s well being. The heavy burden upon a party seeking to
       modify custody stems from the principle that once custody of children
       has been fixed it should be disturbed only for the most cogent
       reasons.

In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).

       The district court concluded Ricardo met his burden to prove a material and

substantial change in circumstances since the entry of the dissolution decree.

Because that conclusion is not challenged by Catherine, we do not disturb it. We

turn to whether Ricardo met his burden to show he has a superior ability to minister

to the child’s well-being. See In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa

2016); Frederici, 338 N.W.2d at 158. Our primary consideration in making this

determination is the long-term best interests of the child. See In re Marriage of
                                             7

Zabecki, 389 N.W.2d 396, 395 (Iowa 1986). “Prior cases are of little precedential

value, except to provide a framework for our analysis, and we must ultimately tailor

our decision to the unique facts and circumstances before us.” In re Marriage of

Kleist, 538 N.W.2d 273, 276 (Iowa 1995).

       The criteria for determining child custody are applied in both dissolution and

modification proceedings. See In re Marriage of Hubbard, 315 N.W.2d 75, 80

(Iowa 1982); In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct. App. 1996).

“The factors the court considers in awarding custody are enumerated in Iowa Code

section 598.41(3)” (2019). Courtade, 560 N.W.2d at 37. “Although Iowa Code

section 598.41(3) does not directly apply to physical care decisions, . . . the factors

listed here as well as other facts and circumstances are relevant in determining”

physical care. In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007). “In

determining which parent serves the child’s best interests, the objective is to place

the child in an environment most likely to bring the child to healthy physical, mental,

and social maturity.” Courtade, 560 N.W.2d at 38. The following factors are

relevant to the determination of which parent can more effectively minister to the

child’s long-term well-being in this case:

                (a) Whether each parent would be a suitable custodian for the
       child.
              (b) Whether the psychological and emotional needs and
       development of the child will suffer due to lack of active contact with
       and attention from both parents.
              (c) Whether the parents can communicate with each other
       regarding the child’s needs.
              (d) Whether both parents have actively cared for the child
       before and since the [decree].
              (e) Whether each parent can support the other parent’s
       relationship with the child.
              ....
              (h) The geographic proximity of the parents.
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              ....
              (j) Whether a history of domestic abuse . . . exists. . . .
              ....

Iowa Code § 598.41(3)(a)–(e), (g), (h), (j).3

       We first consider “[w]hether the parties would be suitable custodians for the

child.” Id. § 598.41(3)(a). Both parties have physical limitations that prevent them

from doing regular activities with a five-year old child. The child reported to the

GAL that, when she is with Catherine, “her mom can’t do much and she sits kind

of in a chair and watches TV.” The child reported Ricardo takes her outside a lot

and to the park, which she loves. The GAL also noted her concern for the disparity

in the parties’ employment circumstances, with Catherine being unemployed

throughout the CINA proceeding, while Ricardo maintained a full-time job. We

have no concerns for Ricardo’s suitability as a custodian. Catherine on the other

hand, has a recent history of instability in her ability to serve as a suitable

custodian. The maternal grandmother has largely carried the load for Catherine.

We find this factor weighs in favor of Ricardo.

       We turn to “[w]hether the psychological and emotional needs and

development of the child will suffer due to lack of active contact with and attention

from both parents.” Id. § 598.41(3)(b). The child is bonded to both parents and

will suffer regardless of which parent has physical care. Upon our de novo review,

we determine this factor to be a wash.


3We also note our consideration of the characteristics of the child and parents, the
child’s needs and the parents’ capacity and interests in meeting the same, the
relationships between the parents and child, the effect of continuing or disrupting
an existing physical care arrangement, the nature of each proposed environment,
and any other relevant matter disclosed by the evidence. See In re Marriage of
Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).
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       Next, we consider “[w]hether the parents can communicate with each other

regarding the child’s needs.”     Id. § 498.41(3)(c).   We have no concerns for

Ricardo’s abilities on this point.   We hold concerns for Catherine’s ability to

communicate with Ricardo. We find Ricardo’s lack of involvement in the child’s life

prior to DHS intervention to largely be a result of Catherine’s refusal to

communicate with him. This factor also weighs in favor of Ricardo.

       We turn to “[w]hether both parents have actively cared for the child before

and since the [decree].” Id. § 598.41(3)(d). Only Catherine actively cared for the

child before the entry of the dissolution decree in November 2015. She continued

to do so for a year thereafter, with the help of the grandmother. But, in late 2016,

the grandmother began actively caring for the child while Catherine was less

involved. This dynamic continued until DHS intervention in May 2018. Thereafter,

both parents exercised visitation, but the grandmother continued as the active

caregiver. We determine this factor to weigh in favor of Catherine, but only slightly

given her lack of caregiving for the last few years.

       We next consider “[w]hether each parent can support the other parent’s

relationship with the child.” Id. § 598.41(3)(e). The GAL testified she would have

no ongoing concerns about Ricardo preventing the child’s contact with Catherine

if he were the primary care parent. She stated she would have ongoing concerns

about Catherine preventing the child’s contact with Ricardo if modification did not

occur. We agree with the GAL’s assessment. Catherine and her mother have

campaigned against Ricardo. They have said negative things about Ricardo to the

child, which affected the child’s desire to spend time with Ricardo and

unquestionably damaged their relationship.         While things got better when
                                           10


Catherine’s visitation reverted to fully supervised, the dynamic reemerged shortly

before the modification trial, when Catherine was allowed unsupervised visits. This

factor unquestionably weighs in favor of Ricardo.

       Without question, the geographic proximity of the parents is problematic.

See id. § 598.41(3)(j). As it has in the past, it will continue to result in difficulties

with visitation for the non-physical-care parent.       Either way, the child will be

required to spend long amounts of time traveling to see her parents. We do not

find this factor to weigh in favor of either parent.

       It is true a history of domestic abuse exists in the parties’ relationship, with

Ricardo being the perpetrator. See id. § 598.41(3)(j). While we do not condone

that history, Ricardo has since completed counseling courses relative to cognitive

restructuring, coping with anxiety, domestic violence, and anger management.

And, when asked if she had concerns with the child being placed in Ricardo’s

physical care, the GAL testified as follows:

       No. Ricardo’s done everything that the department has asked of him.
       He comes, he drives all the way from Illinois despite sometimes not
       getting the child. And any services or recommendations that he was
       asked to do, whether ordered or not, it’s my understanding he’s done
       those, and I’ve seen the proofs to show that he’s done those.

We do find this factor to weigh in favor of Catherine, but only slightly given

Ricardo’s meaningful steps toward reformation.

       Unfortunately, “[d]etermining what custodial arrangement will best serve the

long-range interest of a child frequently becomes a matter of choosing the least

detrimental available alternative for safeguarding the child’s growth and

development.” Winter, 223 N.W.2d at 167. While both parents share a bond with

the child, and there is a potential for a negative effect on the child resulting from a
                                          11


disruption of the existing arrangement, we conclude, based on the parties’

characteristics, Ricardo has a superior capacity and interest in meeting the child’s

needs and placement in his physical care is in her best interests. See id. at 166–

67. We hold absolutely no concerns for the child’s well-being if placed in Ricardo’s

physical care. As to Catherine, we share the GAL’s concern that, based on past

behavior, if the child were returned to her care, it would only be a matter of time

before re-involvement of the juvenile court. Upon our de novo review of the record

and considering the statutory and Winter factors, we find Ricardo met his burden

to show he has a superior ability to minister most effectively to the child’s well-

being. We commend Catherine for the progress she has made, but conclude

placement of the child in Ricardo’s physical care is “most likely to bring the child to

healthy physical, mental, and social maturity.” See Courtade, 560 N.W.2d at 38.

IV.    Conclusion

       We reverse the district court’s denial of Ricardo’s petition to modify the

physical care provisions of the decree. We remand the matter to the district court

for establishment of a visitation schedule, determination of child support, and

consideration of any ancillary matters based upon the parties’ present

circumstances. See Harris, 877 N.W.2d at 445.

       REVERSED AND REMANDED WITH INSTRUCTIONS.
