                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0228
                                Filed July 9, 2015


IN THE INTEREST OF D.M., G.M., AND N.M.,
Minor Children,

A.S., Mother,
Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Mark F. Schlenker,

Judge.



      The mother appeals the juvenile court’s dispositional order placing her

children in foster care, rather than in her care. AFFIRMED.



      Andrea Flanagan of Sporer & Flanagan, P.L.L.C., Des Moines, for

appellant mother.

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

General, John Criswell, County Attorney, and Tracie L. Sehnert, Assistant

County Attorney, for appellee State.

      M. Kathryn Miller of the Juvenile Public Defender, Des Moines, attorney

and guardian ad litem for minor child D.M.

      William E. Sales of Sales Law Firm, P.C., Des Moines, attorney and

guardian ad litem for minor children G.M. and N.M.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, P.J.

        The mother appeals the juvenile court’s dispositional order placing the

children, D.M., G.M., and N.M., in foster care. She asserts the court improperly

denied her request the children be placed in her custody. She further argues the

State failed to make reasonable efforts to reunite her with the children. We

conclude the State made reasonable efforts to avoid the out-of-home placement;

furthermore, the mother’s unresolved mental health and substance abuse issues

support the juvenile court’s conclusion the children should not be placed in her

care. Consequently, we affirm the court’s decree placing the children in foster

care.

        D.M., born July 1999, G.M., born May 2009, and N.M., born April 2010,1

came to the attention of the Iowa Department of Human Services (DHS) in

October 2014.2 The mother was arrested in Iowa and jailed in Missouri for failure

to pay child support for her three other children, who reside with their father. The

children were removed from her care on October 7 and were adjudicated in need

of assistance by a dispositional order filed November 24, 2014. The mother was

incarcerated for forty-five days and was released on December 10, 2014. She is

still in arrears, and the issue remains unresolved. The mother has previously

served in the Marine Corps, and she is currently seeking employment as a bus

driver for Ankeny schools, though this work is seasonal.




1
  D.M.’s father resides in California. He was represented by counsel but did not contest
the foster-care placement. G.M. and N.M.’s father is deceased.
2
  The children were first removed from the home in 2011 due to allegations D.M. was the
primary caretaker for the younger children. DHS was involved with the family for
fourteen months as part of this case.
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       The mother has acknowledged an informal diagnosis of borderline

personality disorder. She testified she is in counseling to address this issue.

She also suffers from substance abuse issues, specifically with regard to her

abuse of marijuana.3        The juvenile court noted that, while previous drug

screenings were negative, she was only recently released from jail and therefore

has not demonstrated consistent sobriety outside of this controlled setting. She

has been high while parenting the children, including while driving them, and has

offered D.M. marijuana. The mother denied these allegations, and stated she

was given a substance abuse evaluation and no treatment was recommended.

She also suffers from an inner-ear condition, which she stated she treats with

marijuana.

       Additionally, the mother has a history of unstable housing. Over the past

several years, she has lived in many different residences, one of which was a

camper. She moved between states often, and came to Iowa in April 2014.

Upon her release from jail in Missouri, the mother obtained an apartment;

following a home visit, DHS found the housing to be adequate.

       Prior to the children’s removal, the mother often relied on D.M. to care for

the younger children. She would be gone for long periods of time, including

overnight, and D.M. feels it is her responsibility to care for the children. 4 The

mother stated she considered this babysitting; however, the juvenile court noted



3
  The mother stated the last time she used marijuana was October 15, 2014, and that
she uses it to treat her inner-ear disease.
4
  D.M. expressed excitement and relief at being placed in a foster home, as it would
provide stable housing and relieve her of the responsibility of caring for the younger
children. However, the DHS report to the court noted she still has difficulty interacting
with her younger siblings, given she is no longer considered the primary caretaker.
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that, “having heard the evidence [the Court] finds the care given these children

by [D.M.] to have been more than mere ‘babysitting’ as it has included overnight

care . . . . She has been given responsibilities by her mother inappropriate for

her age.”

         Following her release from jail, the mother had two supervised visits each

week with the children, which lasted two hours. The DHS case management

plan stated the visits would be moved to semi-supervised and increased to five

times each week beginning in March 2015.5           Other services provided to the

mother include: family safety, risk, and permanency services; substance abuse

and mental health evaluations and counseling; family counseling; and supervised

visitation.

         A contested hearing with regard to the children’s removal was held on

January 8, 2015, in which the mother requested the children be placed in her

care. On January 26, the juvenile court issued an order finding the children

should be placed in foster care, as the mother’s issues preventing her from

properly caring for the children still existed. The mother appeals.

         We review child-in-need-of-assistance proceedings de novo. In re K.N.,

625 N.W.2d 731, 733 (Iowa 2001). Although we give weight to the juvenile

court’s factual findings, we are not bound by them. Id. Our primary concern is

the best interests of the children. Id.

         The mother disputes the juvenile court’s conclusion the children should

not be placed in her care; however, we do not agree. As the court noted:



5
    We note a review/permanency hearing was set for March 25, 2015.
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             The conditions which gave rise to this case, as set forth in
      the Petition, continue to be unresolved in that the mother continues
      to lack stable housing, which prevents her from safely
      independently parenting her children. She has only recently
      acquired a residence in Prole, Warren County, lowa, which she
      rented December 18, 2014, after her release from jail December
      10, 2014. She has a significant record of instability in her
      residences, including numerous residences in Polk County, lowa,
      Warren County, lowa, in Wisconsin, and in a camper.
             ....
             Placement outside the parental home is necessary because
      continued placement in or a return to the home would be contrary
      to the children’s welfare due to ongoing parenting and a lack of a
      stable and suitable home environment. The mother has had
      substance abuse issues for which she has not yet proven have
      been resolved.

      The record supports this assessment. While the mother does currently

have a residence, her past instability indicates it is unlikely she will maintain

consistent housing. Moreover, her mental health and substance abuse issues

remain unresolved. When considering the parent’s possible future conduct, her

past conduct is instructive. See In re L.L., 459 N.W.2d 489, 494 (Iowa 1990).

Given the mother’s history of unstable housing and severe substance abuse

issues, we agree with the juvenile court the children could be exposed to harm

were they to be returned to the mother’s care. Therefore, it is in the children’s

best interests to remain out of her care and in foster care. See generally id.

(noting: “The goal of our statutory scheme is to prevent probable harm to the

child; our statutes do not require delay until after the harm has happened . . .

they are preventative as well as remedial”).

      The mother also argues the State failed to make reasonable efforts to

avoid the out-of-home placement, particularly when DHS failed to increase the

amount and duration of her visits. We agree with the mother that the removal of
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the children triggered a statutory duty on the part of DHS to make reasonable

efforts to reunify the family.    See Iowa Code §§ 232.96(10)(a), 232.102(7).

Reasonable efforts often include visitation. In re M.B., 553 N.W.2d 343, 345

(Iowa Ct. App. 1996). Nonetheless, we conclude the State fulfilled this duty. As

our supreme court has noted:

       Visitation . . . cannot be considered in a vacuum. It is only one
       element in what is often a comprehensive, interdependent
       approach to reunification. If services directed at removing the risk
       or danger responsible for a limited visitation scheme have failed its
       objective, increased visitation would most likely not be in the child’s
       best interests.

Id.   The mother has been provided consistent visitation with the children.

However, the circumstances that led to the removal still exist—the possibility of

the mother returning to jail, her unstable housing, and her unresolved substance

abuse and mental health issues.        Consequently, we agree with the juvenile

court’s finding that reasonable efforts had been made so the children could

remain in the mother’s care; nonetheless, placement in a foster home was “the

least restrictive . . . [and] is appropriate under the circumstances.”

       For these reasons, we affirm the juvenile court’s placement of D.M., G.M.,

and N.M. in foster care, with visitation to remain at the discretion of DHS.

       AFFIRMED.
