                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0548
                               Filed July 27, 2016


IN THE INTEREST OF M.M. and I.M.,
Minor children,

O.F., Father,
Appellant,

J.M., Mother,
Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Winnebago County, Karen

Kaufman Salic, District Associate Judge.



      A mother and father appeal the juvenile court’s review orders modifying

the dispositional orders and placing two of their children in the custody of the

Iowa Department of Human Services for placement in family foster care.

AFFRIMED ON BOTH APPEALS.



      Philip L. Garland, Garner, for appellant father.

      Jane M. Wright, Forest City, for appellant mother.

      Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

      Theodore J. Hovda, Garner, for minor children.



      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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McDONALD, Judge.

       A mother and father appeal from the modification of two dispositional

orders in this child-in-need-of-assistance (CINA) proceeding. The modification

orders removed two of the parents’ three children from the parents’ care and

placed the children in the custody of the Iowa Department of Human Services

(DHS) for placement in family foster care. The parents argue the juvenile court

was not authorized to modify the dispositional orders without first finding a

substantial and material change in circumstances occurred. The parents also

argue DHS failed to make reasonable efforts to maintain the integrity of the

family unit.

                                        I.

       This appeal relates to two of the parents’ three children, M.M. and I.M.1

M.M. is eight years old, and I.M. is seven years old. The family came to the

attention of DHS in June 2015, when the couple’s youngest child, L.M., nearly

died as a result of an untreated medical condition. On June 29, 2015, when L.M.

was less than one month old, the mother brought L.M. to an emergency room.

The child was unresponsive. Medical professionals discovered L.M. had a fairly

common medical condition, which prevented formula from being digested. Most

children suffering the condition fully recover, but L.M.’s situation had become

critical because the parents failed to obtain timely medical care. By the time the

mother sought care, the child was severely dehydrated and oxygen deprived.



1
  The parents also sought review of the district court’s permanency order
regarding the parent’s third child, L.M., but the supreme court dismissed the
appeal as to L.M. upon the State’s motion.
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        The parents’ failure to obtain timely and appropriate care for L.M. led DHS

and the juvenile court to become involved with all three of the family’s children.

All three were adjudicated children in need of assistance in September 2015.

The juvenile court found M.M. had autistic characteristics and I.M. had been

diagnosed with severe autism. The juvenile court found the parents were “not

following through with recommended services.” The juvenile court also noted a

history of violence in the home.        The juvenile court summarized its CINA

adjudication:

        The children clearly need more than they are receiving.
        Fortunately, neither [I.M.] or [M.M.] have faced an acute medical
        condition that could deteriorate rapidly like [L.M.]’s. The obvious
        concern—which is not speculative or remote—is that neither parent
        could recognize or appropriately respond to [the children]’s needs.
        The children have not received proper supervision, and it seems
        unlikely that will change without [DHS] intervention and Court
        supervision.

The juvenile court transferred custody of L.M. to DHS for placement in family

foster care. M.M. and I.M. were allowed to remain with their parents.

        In October 2015, the juvenile court issued its dispositional orders. The

juvenile court noted additional risks to the children, including the poor condition of

the family home and the fact the mother was overwhelmed by her obligations to

M.M. and I.M. due to the father’s absence from the home during most of the work

week.    The juvenile court noted, “The problems for which the Court became

involved have not resolved.      The level of compliance by family members is

indicative of the family’s progress.”    The juvenile court ordered the family to

participate in a number of services but allowed M.M. and I.M. to remain with their

parents.
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       In January 2016, the juvenile court issued its review orders.                  A

psychological evaluation found the mother was in the borderline intellectual

functioning range.     The mother considered her daughter, who had been

diagnosed with severe autism, to be high functioning. The mother stated a belief

the daughter’s condition could be cured with medication.           The juvenile court

stated, “It is very clear that [the] parents are not in a position to consistently meet

the needs of any of the children,” before again ending with the statement, “The

problems for which the Court became involved have not resolved. The level of

compliance by family members is indicative of the family’s progress.”               Once

again, however, the juvenile court left M.M. and I.M. “in the custody of their

parents for placement in their home, and subject to supervision by [DHS].” The

juvenile court did warn, “If things do not improve dramatically by the next hearing

[M.M.] and [I.M.] will likely be removed from the custody of their parents.”

       The State filed a motion to modify placement in March 2016. Following a

contested review and modification hearing, the juvenile court issued review

orders modifying the dispositional orders. The juvenile court removed both M.M.

and I.M. from the parents, and the juvenile court transferred custody of each child

to DHS for placement in family foster care. The court explained:

               With respect to [M.M.] and [I.M.], it is not questioned at all
       that the parents, especially [the] mother, care about each of the
       children very much and want to meet all of their needs and give
       them everything that they require. In a large part, it is likely a failing
       of this court for not removing the children at the time of disposition.
       I think the hope was that the parents would be able to learn what
       they needed to do to meet the children’s needs and everyone was
       very hopeful, and so that dispositional order last fall allowed the
       children to stay at home with a number of orders in place. Even the
       first adjudicatory order directed . . . the parents to enroll the children
       in the Autism Center. We’re at a point here in March where only
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      [I.M.] has started. [M.M.] is on the wait list. That’s just one of the
      services and an example of how long we’ve sort of languished in
      this case hoping that the parents can get these things started.
      Each of the children has their own special needs. [I.M.] requires a
      great deal of supervision, and I think that [the DHS social worker]’s
      recommendation that they be placed in separate homes is a . . .
      real life example of how difficult it would be for any parent to
      provide them what they need because they do require so much
      care, and it certainly isn’t anything taken lightly by this court either,
      that removing children from the care of their parents and separating
      siblings is a very dramatic step and isn’t done very often, but
      certainly when it is, it’s because there’s been a determination made
      that that’s what’s required for the best interest of the children.
               Again, we have hoped and wished for, I guess, another
      miracle for this case. [L.M.] nearly died. . . . [B]ut hoping isn’t
      going to improve this situation. . . . I certainly can see how the
      many needs of these children could be overwhelming and it would
      be difficult to know where to start, but it’s March, adjudication
      happened back in September, and we are no further along than
      when we started. I think it’s very telling that [I.M.] was seen at the
      Autism Center three years ago and their assessment is she’s in no
      better place three years later than she was that day, which is
      difficult to comprehend and needs to be remedied immediately.
               I am going to adopt the recommendations made by [DHS] in
      the most recent report and [M.M] and [I.M.] will be placed in the
      temporary care, custody, and control of [DHS] for their placement in
      family foster care. . . .

The court further explained:

              M.M. and I.M. have remained in the home, against this
      court’s better judgment. It is clear that all participants, including
      [DHS] . . . have been hopeful that the situation would improve for
      them at home. Instead, things remain unchanged. . . .
              ....
              Despite every opportunity and the passage of six months, it
      is clear that neither parent has the ability to keep these children
      safe or act in their best interest.
              The problems for which the court became involved have not
      resolved. The level of compliance by family members is indicative
      of the family’s progress.

(Emphasis added).
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                                         II.

       Our review of CINA proceedings is de novo. See In re K.B., 753 N.W.2d

14, 15 (Iowa 2008). “In reviewing the proceedings, we are not bound by the

juvenile court’s fact findings; however, we do give them weight.” In re J.S., 846

N.W.2d 36, 40 (Iowa 2014).          “Our primary concern is the children’s best

interests.” Id. CINA determinations must be based upon clear and convincing

evidence. See Iowa Code § 232.96(2) (2015). Evidence is clear and convincing

when there are no serious or substantial doubts as to the correctness of

conclusions drawn from it. See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).

                                         III.

       As a prerequisite to the transfer of custody from the parents to another,

the juvenile court must find 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). Furthermore, the juvenile 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.”           Id.

§ 232.102(5)(b). The parents contend the State must also establish a material

and substantial change in circumstances as a prerequisite to modification of prior

dispositional orders.

       Our case law does provide that “modification of custody or placement

requires a material and substantial change in circumstances.” In re R.F., 471

N.W.2d 821, 824 (Iowa 1991). This rule was first set forth in In re Leehey, 317
                                          7

N.W.2d 513, 516 (Iowa Ct. App. 1982). Leehey involved parents battling each

other within a juvenile court proceeding for the custody of their child. The Leehey

court, relying on dissolution law, asserted that modification of a dispositional

order first required a showing of a material and substantial change in

circumstances.     The importation of the dissolution law principles was

unnecessary, and no subsequent case has explained the rationale for the rule.

The necessity and merits of the rule seem questionable. We need not decide,

however, whether Leehey and its progeny have ongoing merit because the

legislature has decided the issue.

      “Juvenile legislation is a response to the modern spirit of social justice.”

State ex rel. Roberts v. Johnson, 194 N.W. 202, 202 (Iowa 1923). “In solving the

problems of social concern in our modern life the Legislatures of the different

commonwealths have seen fit to prescribe the manner and method of procedure

in relation to child welfare.”   Id.   Thus, “CINA proceedings are creatures of

statute.” In re B.N., No. 14-1465, 2014 WL 6682454, at *2 (Iowa Ct. App. Nov.

26, 2014).    Iowa Code section 232.103 sets forth the grounds authorizing

modification of a dispositional order. In 2004, post Leehey and R.F., the statute

was amended, see 2004 Iowa Acts ch. 1154, § 2, and now provides as follows:

      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:

      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.
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      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).      Two of the grounds are relevant here.       First, the

juvenile court may modify a dispositional order where “the purposes of the order

cannot reasonably be accomplished.” Iowa Code § 232.103(4)(b). Second, the

juvenile court may modify a dispositional order where “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.” Iowa Code § 232.103(4)(c). Neither

provision requires the juvenile court to find a substantial change in circumstances

as a prerequisite to modification.   See In re K.S.-T., No. 14-0979, 2014 WL

5865081, at *4 (Iowa Ct. App. Nov. 13, 2014) (noting that a showing of a change

in circumstances “is not statutorily mandated”); In re V.B., No. 14-0315, 2014 WL

2600318, at *4 n.3 (Iowa Ct. App. June 11, 2014) (“However, since Leehey, our

juvenile code has evolved. . . . To impose the additional requirement of showing

a substantial change of circumstances, where our legislature has made

provisions for permanency and created a two step process to modify a

dispositional order to remove a child from a parent’s care and transfer custody to

DHS, is overly burdensome.”).        To the contrary, each provision implicitly

recognizes the absence of a change in circumstances may demonstrate the

purposes of a prior dispositional order cannot be achieved and modification is

warranted.

      While we have recognized the legislative amendment authorized

modification of a dispositional order without requiring a material and substantial

change in circumstances, at least in some instances, we have continued to
                                        9

impose the requirement in deference to the supreme court. See V.B., 2014 WL

2600318, at *4 n.3 (“However, because our supreme court has approved the

principle, we defer to the supreme court whether case precedent should still be

followed.”).   Such deference is not necessary here.       The decisions of the

supreme court regarding Iowa law are binding on this court until overruled by the

supreme court or superseded by other legitimate authority.       Leehey and its

progeny, including R.F., have been superseded by the 2004 amendment to

section 232.103(4) and are not controlling under the circumstances presented

here.    See McMartin v. Saemisch, 116 N.W.2d 491, 493 (Iowa 1962)

(recognizing decisions are no longer controlling where “outmoded and

superseded by statute”). The language of the statute is controlling. We thus

hold the juvenile court need not find a substantial change in circumstances as a

prerequisite to modification of a dispositional order pursuant to Iowa Code

section 232.103(4).

        On de novo review, we conclude the record supports modification of the

dispositional orders under the controlling statute. See, e.g., In re A.K., No. 11-

1404, 2012 WL 299982, at *3 (Iowa Ct. App. Feb. 1, 2012) (“We conclude the

parents’ disregard of the directives set forth in the dispositional order, the

continued and worsened health and safety conditions of the family home, and the

effect these issues have had on the children are substantial changes of

circumstances that warrant modification of the prior court order.”). We further

conclude the reasonable efforts mandate has been satisfied. The core of the

reasonable efforts mandate is the child welfare agency must make reasonable

efforts to “facilitate reunification while protecting the child from the harm
                                          10

responsible for the removal.”       In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.

App.1996). The nature of the reasonable efforts mandate is determined by the

circumstances of each case. See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000)

(discussing scope of mandate). As set forth in the juvenile court’s order, DHS

has made substantial resources available to the family, and the family has failed

to avail itself of those resources to effect positive change and minimize the risk of

harm to the children.

                                          IV.

       For the foregoing reasons, we affirm the judgment of the juvenile court.

       AFFIRMED ON BOTH APPEALS.

       Mullins, J., concurs; Potterfield, P.J., dissents.
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POTTERFIELD, Presiding Judge. (dissenting)

       I dissent and would remand for findings by the juvenile court to support its

decision to modify placement of the children.       Despite the conclusion of the

majority, the juvenile court is obligated to follow the statutory framework and the

Iowa Supreme Court’s rulings that have been established for modifications of

dispositional orders that result in transfers of custody, and in this case it did not

make the findings required by Iowa Code section 232.103(4). Nor did it make

any finding regarding a change of circumstances.         Both the juvenile court’s

statement on the record and its March 9, 2016 written review orders explained

the court’s concern was not a material and substantial change but, in fact,

precisely the opposite—the case was languishing and the circumstances facing

M.M and I.M. remained unchanged.

       Unlike other cases in which modification of custody was justified by a

material and substantial change in circumstances, the juvenile court’s findings

here do not support the conclusions that the children’s situation was worsening

or that the parents had wholly disregarded the court’s orders, even if the juvenile

court acknowledged the parents’ compliance had been slow to occur. See, e.g.,

In re A.K., No. 11-1404, 2012 WL 299982, at *3 (Iowa Ct. App. Feb. 1, 2012)

(noting, among other factors, “the continued and worsened health and safety

conditions of the family home” (emphasis added)). The juvenile court noted I.M.

was assessed at the Opportunity Village Autism Center in February 2016 and

was participating in services at the time of the March 2016 hearing; M.M. was still

on a wait list for services because of a delay by the parents in filling out

paperwork.
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      Without the juvenile court’s findings, we have nothing to review. Because

the juvenile court did not make the findings required by Iowa Code section

232.103(4), nor did it make any finding regarding a change of circumstances, it

has not stated an adequate basis for modification of the dispositional orders. I

believe we are therefore compelled to remand this case for further proceedings

and findings by the juvenile court. See, e.g., In re B.L., 491 N.W.2d 789, 793

(Iowa Ct. App. 1992) (“We find the court failed to address the issue of the least

restrictive available placement as required by Iowa Code section 232.52(7), and

we remand for that purpose.”).
