                    IN THE COURT OF APPEALS OF IOWA

                                    No. 16-0794
                               Filed August 17, 2016


IN THE INTEREST OF J.S.-G.,
Minor child,

R.S., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Pottawattamie County, Gary K.

Anderson, District Associate Judge.



       A mother appeals the juvenile court’s modification order removing her

child from her care and placing the child with the father.     REVERSED AND

REMANDED.



       Te’ya T. O’Bannon-Martens of O’Bannon Law, P.C., Council Bluffs, for

appellant mother.

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

General, for appellee State.

       Roberta J. Megel of the State Public Defender’s Office, Council Bluffs, for

minor child.



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

       A mother appeals the juvenile court’s modification order removing her

child from her care and placing the child with the father. She argues no clear and

convincing evidence existed to support the juvenile court’s decision—a decision

contrary to the recommendations of both the Iowa Department of Human

Services (DHS) and the child’s guardian ad litem—because there was not clear

and convincing evidence suggesting the child was at risk of harm that could be

avoided only through a change of placement. Furthermore, the mother argues

the evidence presented to the juvenile court did not support the conclusion that

placing the child with the father was in the child’s best interests. We hold the

juvenile court did not have clear and convincing evidence to justify the

modification placing the child with the father. We therefore reverse the juvenile

court’s modification order and remand for further proceedings.

I. Background Facts and Proceedings

       In November 2014, DHS received information the mother had committed

an assault in the presence of her two-year-old son, J.S.-G. The reported victim

of the assault was the child’s maternal grandmother. A child abuse assessment

completed by DHS confirmed the assault and also revealed the mother was

using methamphetamine. When DHS became involved, J.S.-G was living with,

and being cared for by, the maternal grandmother.        She had taken primary

responsibility for the care of J.S.-G., and she reported the mother’s contact with

the child was intermittent.

       On November 14, 2014, the juvenile court found clear and convincing

evidence to justify J.S.-G.’s removal from the care of his mother and placed the
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child with his maternal uncle and aunt. In addition to its inclusion of the DHS

findings regarding the mother, the juvenile court noted several issues regarding

the father—he lived in Nebraska, had recently been arrested on drug charges

and for operating while intoxicated, and had not seen J.S.-G. since May of 2014.

      Following an adjudicatory hearing, J.S.-G. was adjudicated to be a child in

need of assistance (CINA) on January 26, 2015, pursuant to Iowa Code section

232.2(6)(c)(2) and (6)(n) (2013). The juvenile court ordered that the child remain

with his maternal uncle and aunt. The court also ordered both the mother and

the father to complete substance abuse evaluations and follow all resulting

recommendations for treatment.

      Following the CINA adjudication, the mother sought substance abuse

treatment at an inpatient program at Family Works. In a February 10, 2015

dispositional order, the juvenile court noted the mother’s active participation and

high level of engagement in the program. At the time, J.S.-G. had already been

participating in overnight and weekend visits with his mother at Family Works

with good results. The juvenile court ordered that the child be placed with the

mother at Family Works, subject to DHS supervision.          That placement was

continued in a May 1, 2015 review order. The juvenile court noted the mother

continued to make progress in the program, J.S.-G. was acclimating well to the

placement, and all of the child’s needs were being met.

      The mother graduated from Family Works in June 2015, and she moved

with J.S.-G. into the maternal grandmother’s home. By August 2015, however,

the mother began to miss her outpatient treatment appointments. She admitted

to relapsing and using methamphetamine twice. The mother was referred to a
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thirty-day treatment program at Prelude in Des Moines, where she was admitted

on October 6, 2015. She was discharged from that program when she left the

facility in order to attend an October 19, 2015 CINA review hearing. As a result

of the mother’s relapse and discharge from the Prelude program, the juvenile

court placed J.S.-G. in the care of the maternal grandmother in its October 26,

2015 order. The mother was allowed to live in the same home with the child

while she obtained further treatment.

      The mother then entered intensive outpatient treatment with Heartland

Family Service but was unsuccessfully discharged soon afterward due to a lack

of participation and noncompliance with drug screens. Despite this third setback,

the juvenile court ordered that J.S.-G. remain with the maternal grandmother in

its January 14, 2016 review order.

      On March 14, 2016, the mother was admitted into the inpatient women

and children’s facility at the Jackson Recovery Center in Sioux City. DHS placed

J.S.-G. with the mother later the same month without a formal order from the

juvenile court. When the case came up for a review hearing on April 27, 2015,

both the State and the child’s guardian ad litem recommended the court order

that the child remain with his mother in the program.         No testimony was

presented by the mother, the State, or the guardian ad litem.          The State

summarized its recommendation as follows:

             The mother’s done very well in her treatment program. The
      child has been with her on a visit for approximately thirty days, and
      everything is going well up there in the program, so the
      recommendation from DHS is that she—the child continue to be
      placed with the mother.
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Those sentiments were echoed by the recommendation from J.S.-G.’s guardian

ad litem:

              Your Honor, no evidence or testimony. If this hearing was
       twenty days ago, I might have a different recommendation, but at
       this point in time, I am in agreement with the recommendation that
       [the child] stay with his mother at Jackson Recovery, and I would
       ask that the parties be granted concurrent jurisdiction to settle
       matters of custody and support . . . .
              No additional services are being requested.

The mother’s attorney also informed the court of her accomplishments

               As stated by [the State], [the mother] is doing extremely well
       right now. She’s been in Jackson Recovery for—I believe it’s forty-
       six days, and she is already I believe they call it a senior mentor.
       She’s doing extremely well in the program.
               [J.S.-G.] is doing extremely well with her, and all reports
       coming out of Jackson [Recovery] right now are glowingly positive
       on both of them, so we would be in agreement with the
       recommendations as they are set forth right now.
               We would resist the recommendation of concurrent
       jurisdiction as my client would like to have the opportunity to
       complete her treatment and continue following through with the
       recommendations of the court.

       The father was present and testified at the hearing. He also presented

testimony from the child’s paternal grandmother.         The father and paternal

grandmother asked that J.S.-G. be placed with the father in Nebraska. They

testified to their belief that J.S.-G.’s placement with the mother in a treatment

program was negatively affecting the child’s behavior and development.

However, the father was confronted on cross-examination with documents from a

daycare facility showing J.S.-G. was on track developmentally.

       At the conclusion of the testimony of the father and paternal grandmother,

the juvenile court made the following oral ruling:

              This is always a difficult situation. The court would note that
       there’s no specific order from this court placing [the child] with [the
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      mother] in Jackson Recovery and that [DHS] did that. The last
      order from this court was that [the child is] placed in the custody of
      his maternal grandmother.
              Certainly, [the mother]’s progress at Jackson Recovery is—
      is—the court’s pleased by that, but she does have a history of not
      completing those treatments, and at this point [the father] has a job.
      He has a place to live. He’s doing well on probation. It’s not this
      court’s intention nor will the court interfere or add to his adult
      probation and requirements in the state of Nebraska. I don’t have
      the power to do that nor do I think—I think they’re addressing those
      issues satisfactorily to my way of thinking. Certainly, his list of
      [Alcoholics Anonymous] meetings is impressive. The [urinalysis
      tests] indicate that he’s not using.
              I understand [DHS]’s requirements and the [Iowa] Code
      requires that [DHS] return the child to the person the child was
      taken from.
              There apparently is no current—there’s no custody order.
              The court feels that at this particular time, it’s more important
      for the child to be with the parent who is not in some kind of facility.
      Certainly, I understand that—that [the mother]’s doing well in
      Jackson Recovery, and I’d certainly commend that, but I think at
      this point the recommendation of concurrent jurisdiction is
      appropriate.
              I think at this point the court feels that the most appropriate
      placement for the child is with his father. The home study has been
      approved, and I understand that we’re moving [the child] again, but
      at a certain point that’s just the way it is.
              The court’s going to order that the care, custody, and control
      of the minor child be placed with his father subject to the Iowa
      Department of Human Services. The court’s going to adopt the
      other recommendations from [DHS]. The court’s not going to add—
      the court’s going to grant the parents concurrent jurisdiction for
      child support and child custody through district court. The court—
              At this point it would appear that even when [the mother] is
      discharged from Jackson Recovery, she may have another halfway
      house to go to. She does not have any employment or any housing
      on her own.

The juvenile court issued a written order on April 28, 2015.

      The mother appeals.

II. Standard of Review

      Our review of CINA proceedings is de novo. In re K.B., 753 N.W.2d 14,

15 (Iowa 2008). “In reviewing the proceedings, we are not bound by the juvenile
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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 [child]’s best interests.” Id.

CINA determinations must be based upon clear and convincing evidence. 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.

In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).

III. Discussion

       The mother argues the juvenile court improperly modified its prior

dispositional and review orders to place custody of J.S.-G. with the father. Her

argument is twofold. First, she argues the juvenile court did not have clear and

convincing evidence that the child was at risk of harm that could be avoided only

through a change of placement. Second, she argues the juvenile court did not

have clear and convincing evidence the best interests of J.S.-G. would be

furthered by transferring placement of the child to the father. Because DHS had

recommended to the juvenile court that J.S.-G. should be placed with the mother,

the State has filed no brief in opposition to the mother’s position.

       A transfer of custody requires a finding by the juvenile court, by 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).

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

shall identify the reasonable efforts that have been made.” Id. § 232.102(5)(b).
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       Iowa Code section 232.103 was amended in 2004 by an act “expanding

the circumstances by which the juvenile court may modify, vacate and substitute,

or terminate a child in need of assistance dispositional order.” 2004 Iowa Acts

ch. 1154, §§ 1, 2. Following the 2004 amendment, subsection (4) now provides:

              The [juvenile] court may modify a dispositional order . . . 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.
              (d) The purposes of the order have been sufficiently
       accomplished and the continuation of supervision, care, or
       treatment is unjustified or unwarranted.

In addition to these statutory requirements, our supreme court stated in 1991 that

“[a] 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).1

       We find the juvenile court did not have the evidentiary support necessary

to justify its modification of disposition and transfer of custody of J.S.-G. to the

father. Although it is true that the juvenile court engaged in a recitation of the

necessary statutory findings under section 232.102(5), those findings are not

supported by the record.

       In its April 28, 2016 order modifying placement, the juvenile court stated:




1
  At least two panels of our court noted in previous cases that the final requirement of a
material and substantial change in circumstances may no longer be necessary since the
2004 changes to Iowa Code section 232.103(4). In re M.M., No. 16-0548, 2016 WL
______, at *9 (Iowa Ct. App. July 27, 2016); In re V.B., No. 14-0315, 2014 WL 2600318,
at *4 n.3 (Iowa Ct. App. June 11, 2014).
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               The court finds there is clear and convincing evidence that
       unless there is a transfer of custody, the child could not be
       protected from some harm that would justify the adjudication of the
       child as a child in need of assistance. Removal from the family
       home is the result of a determination that continuation therein
       would be contrary to the welfare of the child and reasonable efforts
       have been made to prevent or eliminate the need for removal of the
       child from the child’s home.
               The court finds that reasonable efforts were made to avoid
       the necessity of continued out-of-home placement and that return
       of the child to a parental home would be contrary to the well-being
       of the child.

On our de novo review, we find the record does not reveal any indication that a

transfer of custody was necessary to protect J.S.-G. from physical abuse at the

hands of the mother or any other person. Nor does the record contain reference

to a need to protect J.S.-G. from any specific, articulable harm that would befall

the child without a transfer of custody. Section 232.102(5)(a) requires that one of

those two circumstances be established by clear and convincing evidence to

justify a transfer of custody.

       Furthermore, on our de novo review, we do not find the evidence before

the juvenile court supports the conclusion that continuing J.S.-G.’s existing

placement was contrary to the child’s best interests as required by section

232.102(5)(b). Both DHS and the child’s guardian ad litem recommended he

remain with the mother at the Jackson Recovery Center. The father and paternal

grandmother’s objections notwithstanding, there was no concrete evidence

suggesting J.S.-G. had suffered any negative effects from the existing placement

or that placement with the father would be a better option. The father has been

on probation since the outset of this case. The state of Nebraska conducted a

home study in the spring of 2015 but denied placement of J.S.-G. with the father
                                          10


because the father was facing a felony strangulation charge stemming from an

April 2015 incident involving his girlfriend. The father had to complete anger

management classes as a result of the charge. Finally, like the mother, the

father also has a reported history of substance abuse that included both

methamphetamine and alcohol, though the court noted he had engaged in

treatment with Lutheran Family Services and attended Alcoholics Anonymous

meetings to address the issue. J.S.-G. has not lived with the father since August

2013.

        Finally, we note the juvenile court’s reference to the fact it had last ordered

that J.S.-G. remain placed in the care, custody, and control of the maternal

grandmother. Although the juvenile court noted no party was recommending that

J.S.-G. remain placed there, it did not explain why, if the court did not believe

placement with the mother at the inpatient treatment program was in the child’s

best interests, it did not maintain the status quo by again ordering J.S.-G. remain

placed with the maternal grandmother.           In the absence of the clear and

convincing evidence required by Iowa Code section 232.102(5)(a) and (b), the

juvenile court should have continued the existing placement of J.S.-G.

        For these reasons, we reverse the juvenile court’s April 28, 2016 order

modifying placement of J.S.-G. and remand this case for further proceedings.

        REVERSED AND REMANDED.
