                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1566
                             Filed November 25, 2015

IN THE INTEREST OF L.S.,
      Minor Child,

S.R., Mother,
       Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Floyd County, Karen Kaufman

Salic, District Associate Judge.



       A mother appeals from a juvenile court’s order modifying the dispositional

order in a child-in-need-of-assistance proceeding. AFFIRMED.



       Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,

Mason City, for appellant.

       Thomas J. Miller, Attorney General, and Bruce Kempkes, Assistant

Attorney General, for appellee.

       Cynthia Schuknecht of Noah, Smith & Schuknecht, P.L.C., Charles City,

attorney and guardian ad litem for minor child.



       Considered by Danilson, C.J., and Mullins and McDonald, JJ.
                                           2



MULLINS, Judge.

          A mother appeals from the juvenile court’s order modifying the

dispositional order to transfer custody of her child, L.S., to the Iowa Department

of Human Services (DHS) for placement outside the home. She contends the

State failed to prove a substantial change in circumstances warranting

modification occurred following entry of the dispositional order.       She further

contends that the juvenile court erred in determining that continuation of the child

in her home would be contrary to the welfare of the child.         We conclude a

substantial change in circumstances warranting modification of the prior court

order has occurred. We further conclude the State presented sufficient evidence

that keeping the child in the mother’s home would be contrary to her welfare.

Upon our review, we affirm.

I.        Background Facts and Proceedings

          L.S., born in August 2013, is the third child born to the mother. DHS has

been involved with the family for more than five years. The case before us is the

mother’s second appeal from a dispositional order removing L.S. from her care

and custody.

          In May 2014, L.S. was adjudicated a child in need of assistance (CINA)

under Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(n) (2013).1 L.S. stayed in




1
     Iowa Code section 232.2(6) provides:
                6. “Child in need of assistance” means an unmarried child:
                ....
                        c. Who has suffered or is imminently likely to suffer
          harmful effects as a result of any of the following:
                        ....
                                        3



her mother’s care and custody until she was removed in June 2014 following the

initial dispositional hearing. The mother appealed and our court affirmed the

juvenile court’s order removing L.S. In re L.S., No. 14-1080, 2014 WL 5252948,

at *4 (Iowa Ct. App. Oct. 15, 2014). We detailed the facts of this case leading up

to the June 2014 hearing in our prior opinion. Id. at *1–3. There, we discussed

the mother’s detrimental “on-again, off-again relationship marred by incidents of

domestic violence” with her middle daughter’s biological father, B.H. Id. at 2. We

noted her limited progress as it related to her substance abuse issues, her

“profound” inability to abstain from alcohol—even while pregnant with L.S., and

her “‘complete denial’ concerning her substance abuse problem.” Id. at 2–3.

      In November 2014, L.S. was returned to the mother’s care and custody.

The juvenile court held additional dispositional review hearings in December

2014, July 2015, and September 2015. In August 2015, DHS moved to modify

the dispositional review order.      DHS and the guardian ad litem both

recommended L.S. be removed from the mother’s custody and placed in the

custody of DHS.

      Following the September 2015 review hearing, L.S. was again removed

from the mother’s care and custody and placed in family foster care with her




                           (2) The failure of the child’s parent, guardian,
      custodian, or other member of the household in which the child
      resides to exercise a reasonable degree of care in supervising the
      child.
             ....
                    n. Whose parent’s or guardian’s mental capacity or
      condition, imprisonment, or drug or alcohol abuse results in the
      child not receiving adequate care.
                                             4



older sisters.2 In its order, the juvenile court found the mother continued to have

repeated contact with B.H. and his mother, despite a no-contact order between

them.3      It noted the mother’s dishonesty with the court surrounding her

communication with B.H., and her requests to her two older children to lie to their

foster parents and service providers regarding their contact with B.H. and his

mother. The court expressed concerns regarding the on-going contact between

the mother and B.H., and the grave danger he presented to L.S. due to his own

history of substance abuse and violence.

         The mother’s therapist testified she was participating in individual therapy

and showing improvement, though she was still in need of continued mental

health treatment. The court acknowledged the mother’s participation in family

therapy with her two older children, but noted her only motivation to attend was to

stay out of jail. The court found the mother was employed, had stable housing,

and had adequate transportation. She was cooperating with Family Safety, Risk,

and Permanency Services for parenting skills and engaging in the Families

Together Two Program.

         The DHS worker testified about her concerns regarding the mother’s lack

of supervision of L.S., stating that on one occasion she had gone to visit the



2
  The September 2015 hearing was a combined permanency review hearing for the
mother’s two older children and dispositional review hearing for L.S. In a separate order
following the September 2015 review hearing, the court directed the State to file a
second petition for the termination of the mother’s parental rights regarding her two older
children. See In re L.S., 2014 WL 5252948, at *7 (reversing the termination of the
mother’s parental rights to her two older children because the State’s initial petitions and
the juvenile court’s ruling relied on an outdated code section).
3
  The court also ordered the mother to serve fourteen days in jail on a contempt charge
for repeated violations of a no-contact order between the mother and B.H.
                                         5



family and the mother did not know where L.S. was. The mother had told the

DHS worker L.S. was inside, when instead, she was several houses away at her

maternal aunt’s home. On another occasion, the mother had left L.S. alone in

the apartment. The DHS worker also testified the mother shared a bond with

L.S.

       The court noted the mother’s parenting skills had not improved.         The

mother laughed at L.S. when she misbehaved rather than disciplining or

correcting her behavior. The mother also brought L.S. to the family therapy

sessions with the two older children, despite being told to not to do so, and failed

to redirect or soothe her when she screamed for forty-five minutes. The court

questioned L.S.’s own emotional stability, citing her screaming and temper

tantrums during fits of jealousy when others would talk to the mother. The court

also noted the mother permitted the two older girls, ages seven and four, to have

social media accounts, and that the seven-year-old communicated with many

people through these accounts, some of whom she did not know.

       The mother filed an application for interlocutory appeal, which our

supreme court granted.

II.    Standard of Review

       We review CINA proceedings de novo. In re J.S., 846 N.W.2d 36, 40

(Iowa 2014). “In reviewing the proceedings, we are not bound by the juvenile

court’s fact findings; however, we do give them weight.”         Id.   “Our primary

concern is the children’s best interests.”    Id.   “CINA determinations must be

based upon clear and convincing evidence.”           Id.   Evidence is clear and
                                         6



convincing when there is no serious or substantial doubt as to the correctness of

the conclusions of law drawn from the evidence. In re D.W., 791 N.W.2d 703,

706 (Iowa 2010).

III.   Analysis

       The juvenile court may modify a dispositional order upon good cause if the

court finds any of the following circumstances exist:

              (a) The purposes of the order have been accomplished and
       the child is no longer in need of supervision, care, or treatment.
              (b) The purposes of the order cannot reasonably be
       accomplished.
              (c) The efforts made to effect the purposes of the order have
       been unsuccessful and other options to effect the purposes of the
       order are not available.
              (d) The purposes of the order have been sufficiently
       accomplished and the continuation of supervision, care, or
       treatment is unjustified or unwarranted.

Iowa Code § 232.103(4). If the court finds there is good cause, the court must

take a second step in the analysis before it may transfer custody.

       A transfer of custody shall not be ordered unless the court finds there is

clear and convincing evidence that, “(1) the child cannot be protected from

physical abuse without transfer of custody; or (2) the child cannot be protected

from some harm which would justify the adjudication of the child as a child in

need of assistance and an adequate placement is available.”            Iowa Code

§ 232.102(5)(a). Further, the court “must make a determination that continuation

of the child in the child’s home would be contrary to the welfare of the child, and

identify the   reasonable    efforts that    have   been   made.”     Iowa    Code

§ 232.102(5)(b). Finally, in order to modify custody or placement, there must
                                         7



also be a material and substantial change of circumstances. In re R.F., 471

N.W.2d 821, 824 (Iowa 1991).

      The mother argues the State failed to prove by clear and convincing

evidence that L.S. could not be protected from some harm that would justify the

CINA adjudication. She contends she has made significant progress as it relates

to her substance abuse issues and there is no evidence that she has consumed

alcohol or used an illegal substance in years. She also contends there is no

evidence that her relationship with B.H. has ever had any negative impact on

L.S., and that the repeated violations of the no-contact order are not a reason for

removing L.S. from her care. The mother claims no mental health professional

has recommended that L.S. be removed from her mother’s care due to emotional

instability. She further contends she has never placed L.S. in imminent danger,

because even when the mother did not know where L.S. was on the occasion

when the DHS worker visited, she was still in the care of a family member.

      We find the mother’s continued contact with B.H., her dishonesty with the

court, her lack of supervision of L.S., her unresolved substance abuse and

mental health issues, her limited progress in therapy, and her lack of

improvement regarding her parenting skills, constitute a material and substantial

change of circumstances.

      The mother next contends the juvenile court erred in determining that

continuation of the child in her home would be contrary to the welfare of the child.

See Iowa Code § 232.102(5)(b) (2013). She asserts L.S. is safe in her care,

their interactions are positive and warm, and they share a close bond. “The
                                         8



court’s determination regarding continuation of the child in the child’s home . . .

must be made on a case-by-case basis. . . . [P]reserving the safety of the child is

the paramount consideration.” Id. For the reasons stated above, we find the

juvenile court was correct and affirm its determination that leaving the child in her

home would be contrary to the child’s welfare.

       Accordingly, we affirm the juvenile court’s order modifying the dispositional

order to transfer custody of the child to DHS for placement outside the home.

       AFFIRMED.
