                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1954
                                Filed April 5, 2017


IN THE INTEREST OF A.J.,
Minor Child,

D.J., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Julie A.

Schumacher, District Associate Judge.



       A father appeals from the juvenile court’s dispositional review order in a

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




       Andrew J. Twinamatsiko of Crary Huff, Sioux City, for appellant father.

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

General, for appellee State.

       Stephanie S. Forker Parry of Forker & Parry, Sioux City, attorney and

guardian ad litem for minor child.



       Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MULLINS, Presiding Judge.

       The father of A.J., age four, appeals from the juvenile court’s dispositional

review order in a child-in-need-of-assistance (CINA) proceeding. He argues the

State failed to prove by clear and convincing evidence that a substantial and

material change in circumstances existed to modify the custody provision of the

court’s prior dispositional order. We affirm.

       I.     Background Facts and Proceedings

       In July 2016, the juvenile court adjudicated the child CINA, pursuant to

Iowa Code section 232.2(6)(b), (c)(2), and (n) (2016). A.J. had been the subject

of at least four child protective services assessments before she was adjudicated

CINA, three of which involved the father. There had been reports the father was

“rough” with A.J. and physically disciplined her with a belt. The father was also

involved in an incident of domestic violence involving A.J.’s mother that A.J.

witnessed. The father repeatedly refused to cooperate with the Iowa Department

of Human Services (DHS) regarding these incidents. The father was also the

subject of an investigation by law enforcement for allegations of sexual abuse.

       The father has a lengthy history of domestic violence. At the time of the

adjudication, the father was living with A.J., his girlfriend, their child together,1

and his girlfriend’s older child. The father’s girlfriend described incidents in which

the father had hit her when she was pregnant and also when she was holding

their infant child or her older child. She testified the father had also hit her in the

head and face and called her derogatory names. She admitted she had hit the


1
  The father’s child with his girlfriend is the subject of a separate CINA case and was
removed from the parents’ custody for failure to provide for the child’s medical needs.
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father. The father admitted he had been physical with his girlfriend and had

broken items in the home when he was angry. The court acknowledged the

father’s history of domestic violence, his anger-management issues, and that all

three children had witnessed the violence.       The court noted A.J. had begun

mimicking the violence, throwing objects at the father’s girlfriend, hitting her, and

yelling at the girlfriend’s child.   The court also found the father treated his

girlfriend’s other child poorly and his girlfriend used foul language toward A.J.,

which A.J. repeated. The child’s guardian ad litem (GAL) expressed reservations

about the father’s continued custody of the child but did not resist the custodial

arrangement at that time. The court noted it shared similar concerns given the

father’s history but ultimately determined it was in the child’s best interests to

remain in the father’s custody under the protective supervision of DHS, so long

as the father cooperated with services and did not allow contact between the

child and his girlfriend.

        In August, the court held a dispositional hearing at which the father

admitted to physically disciplining A.J. by “whooping” her and smacking her in the

face.   The father also admitted he had instructed his girlfriend to physically

discipline A.J. and frequently allowed his girlfriend to provide unsupervised care

for the child.   The court noted the father and his girlfriend had continued to

expose the children to domestic violence in the home and admonished the father

for physically disciplining A.J. and for instructing his girlfriend to physically

discipline her. The court warned the father that, if DHS received any information

regarding further physical discipline of A.J. or reports of domestic violence

between the father and his girlfriend, both could serve as a basis for the removal
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of the child from his custody.       The court further acknowledged DHS had

observed his home to be cluttered and dirty, with food wrappers, dishes, and

other items scattered on the floor and the carpet to be extremely soiled.

Nevertheless, DHS recommended A.J. remain in the custody of her father, and

the State and the GAL reluctantly agreed; A.J.’s mother resisted the

recommendations. The court hesitantly continued placement of A.J. with her

father and ordered the father to participate in parenting classes and a

psychological evaluation.

       The court held a dispositional review hearing two months later. At the

hearing, the father testified he was no longer in a relationship and had not used

physical discipline for A.J. since he had begun parenting classes. He admitted

he had anger-management issues but denied having any mental-health issues.

He admitted he did not obtain a psychological evaluation until early October; thus

his results were unavailable at the time of the hearing. The father testified A.J.

had been accepted into a preschool program but he chose not to enroll her

despite repeated requests by DHS.

       The State presented evidence of several incidents that had occurred since

the dispositional hearing in August. On one occasion, the father slept through a

visit with his younger child and the service provider was required to parent A.J.

during that time.   On another occasion in late September, when the service

provider arrived at the father’s home in the late morning to pick A.J. up for a visit

with her mother, the father was still in bed and his girlfriend was parenting A.J. in

violation of the court’s order.   About one week before the review hearing in

October, the service provider was present in the father’s home for a supervised
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visit with his younger child and observed A.J. step on a block and begin to cry.

The father believed A.J. was merely seeking attention and became agitated with

the child. He called the child negative names and sent her to her room. The

service provider observed A.J. to be afraid of her father and heard A.J. ask him

not to hit her. The father became argumentative with the service provider and

the GAL. At the hearing, the father testified the service provider made up A.J.’s

statements.

      In a report authored prior to the October incident, DHS recommended the

child remain in the father’s custody.    The State requested the court transfer

custody of the child to DHS. The GAL and the child’s mother supported the

State’s request for modification. In its order, the court discussed the father’s

history of physical abuse, his unaddressed anger-management and mental-

health issues, and his resistance to services and treatment, as well as his

continued violent relationship with his girlfriend and his allowing her to care for

A.J. unsupervised. The court determined reasonable efforts had been made to

avoid an out-of-home placement but the efforts had been unsuccessful. It found

keeping A.J. in her father’s custody would be contrary to her welfare and against

her best interests. The court entered an order modifying the custody provision of

its prior dispositional order and transferring legal custody of the child to DHS.

The court also ordered the father to participate in therapy or treatment to address

domestic-violence concerns, his anger-management issues, and age-appropriate

parenting and prohibited contact between A.J. and the father’s girlfriend.

      The father filed an application for interlocutory appeal. Our supreme court

determined the challenged ruling was a final order and treated the father’s
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application as a notice of appeal. The father also filed a motion to stay the

modification of custody, which our supreme court denied.

       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 child[]’s best interests.” Id. “CINA determinations must be based

upon clear and convincing evidence.” Id. “Evidence is considered clear and

convincing ‘when there are no “serious or substantial doubts as to the

correctness [of] conclusions of law drawn from the evidence.”’” In re M.W., 876

N.W.2d 212, 219 (Iowa 2016) (alteration in original) (citation omitted).

       III.   Analysis

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

evidence a substantial and material change in circumstances existed to modify

the custody provision of the court’s prior dispositional order providing A.J. was to

remain in his custody.

       Under Iowa Code section 232.103(4), 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.
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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.

       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, “(1) [t]he

child cannot be protected from physical abuse without transfer of custody; or

(2) [t]he 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 shall identify the reasonable efforts that

have been made.” Id. § 232.102(5)(b).

       Finally, our case law has held “a party seeking a modification of the

custody provisions of a prior dispositional order must show the circumstances

have so materially and substantially changed that the best interest[s] of the child

requires such a change in custody.” In re C.D., 509 N.W.2d 509, 511 (Iowa Ct.

App. 1993) (citing In re J.F., 386 N.W.2d 149, 152 (Iowa 1986)); In re Leehey,

317 N.W.2d 513, 516 (Iowa Ct. App. 1982)). However, we note more recent

case law has called this standard into question. See In re M.M., No. 16-0548,

2016 WL 4036246, at *3–4 (Iowa Ct. App. July 27, 2016) (questioning the rule

requiring a material and substantial change in circumstances before modifying

the custody provision of a prior dispositional order in a CINA action because such

a showing is not mandated by statute); see also In re C.P., No. 16-1459, 2016

WL 6269941, at *3 (Iowa Ct. App. Oct. 26, 2016) (Mullins, J., concurring
                                         8


specially) (noting it is unnecessary to find a material and substantial change in

circumstances and stating satisfaction of 232.103(4) is “required to modify the

dispositional order”); 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).

        Although In re M.M. is not a published opinion of this court, we adopt the

analysis of that opinion, see 2016 WL 4036246, at *3–4, and agree with its

conclusion:

                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 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 [In re
        R.F., 471 N.W.2d 821 (Iowa 1991)], 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).

Id. at *4.

        We must consider both A.J.’s long-range and immediate interests. See In

re D.S., 563 N.W.2d 12, 14 (Iowa Ct. App. 1997). A parent’s “past performance
                                         9

provides insight into this determination.” Id. We focus “on parental change, but

the overwhelming bulk of the focus is on the child[] and [her] needs.” Id. at 15.

       The record is replete with evidence the father has physically abused A.J.

and otherwise exposed her to domestic violence.          He admitted to physically

disciplining A.J. and instructing others to physically discipline her.      He also

admitted to a history of domestic violence in his off-and-on relationship with his

girlfriend. Between the time of the dispositional hearing and the review hearing

two months later, he allowed his girlfriend to care for A.J. unsupervised against

the court’s orders prohibiting contact between them. A.J. is young and unable to

self-protect. She expressed fear of her father in front of the service provider and

begged her father not to hit her.         The father delayed participation in a

psychological evaluation until the point that his results were not available at the

time of the review hearing. Although the father completed parenting classes, he

admitted he has not taken any steps to engage in any sort of treatment to

address the domestic-violence and child-abuse concerns present in this case.

The record also shows the father has had unstable employment and has failed to

enroll A.J. in preschool as requested by DHS.

       The district court made substantial findings of fact and articulated these

conclusions, among others:

       The best interest of [A.J.] requires modification of the dispositional
       order. While the goal in this case remains reunification with [the
       father], pending compliance with services, addressing domestic
       abuse issues, anger management issues, and age appropriate
       parenting, the safety of [A.J.] cannot be assured in her father’s
       custody.
               Reasonable efforts have been made to avoid this out-of-
       home placement, but to date, those efforts have been
       unsuccessful. It is contrary to the welfare of [A.J.] to be in parental
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       custody at this time. Her current placement is in her best interest
       and is the least restrictive placement available.

       Although the district court did not tie its conclusions to specific code

references, we determine the court’s findings and conclusions satisfy the

statutory requirements. The district court explained that the purposes of the prior

placement order could not reasonably be accomplished, and the efforts made to

effect the purposes of the order had been unsuccessful and other options to

effect the purposes of the order were not available, thus satisfying Iowa Code

section 232.103(4)(b) and (c).       The court specifically satisfied the statutory

requirements of section 232.102(5)(b) with its reasonable efforts and “contrary to

the welfare” findings and conclusions. And we are satisfied on our review of the

court’s ruling that it found the child could not be protected from adjudicatory harm

and an adequate placement was available, per section 232.102(5)(a).

       Upon our de novo review of the record, we find the statutory grounds for

modification of disposition have been satisfied and agree with the findings and

conclusion of the juvenile court.      We affirm the court’s order modifying the

custody provision of its prior dispositional order.

       AFFIRMED.
