                      IN THE COURT OF APPEALS OF IOWA

                                      No. 18-0921
                               Filed September 12, 2018


IN THE INTEREST OF T.I. and M.I.,
Minor Children,

K.S., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Marshall County, Paul G. Crawford,

District Associate Judge.



       A mother appeals the order removing her children from her care.

AFFIRMED.



       Norma J. Meade of Moore, McKibben, Goodman & Lorenz, LLP,

Marshalltown, for appellant mother.

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

General, for appellee State.

       Mary Cowdrey of Public Defenders Office, Marshalltown, guardian ad litem

for minor children.



       Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                           2


DOYLE, Judge.

       A mother appeals following the entry of a May 7, 2018 order removing her

children from her care, arguing removal was improper. We review her claim de

novo. See In re J.S., 846 N.W.2d 36, 40 (Iowa 2014). In doing so, we give weight

to the juvenile court’s fact findings, although we are not bound by them. See id.

       I. Background Facts and Proceedings.

       The children were initially removed from the mother’s care in September

2017 due to her alcohol and substance abuse, and they were later adjudicated

children in need of assistance under the definition set forth in Iowa Code section

232.2(6)(c)(2) and (n) (2017).      The children were placed with their maternal

grandparents. Thereafter, the mother made much progress in her sobriety and in

addressing her issues with alcohol and marijuana. As a result, the juvenile court

entered a stipulated modification of CINA dispositional order on April 13, 2018,

continuing the CINA adjudication under section 232.2(6)(c)(2) but returning the

children to the mother’s care.

       Two weeks later, the children reported discovering marijuana in the

mother’s home. They were afraid for their safety and expressed their concerns to

school officials.    The mother was charged with possession of marijuana,

possession of drug paraphernalia, and child endangerment. A no-contact order

was entered.

       The State filed a motion for temporary removal and motion to modify

disposition, and the court entered an ex parte order for temporary removal

pursuant to section 232.78 finding “removal is necessary to avoid imminent danger

to the child[ren]’s life and health and there is insufficient time to file a petition and
                                             3


hold a hearing under Iowa Code section 232.95.” The court further found the

mother was on probation at the time for child endangerment under similar

circumstances. The order provided the children be in the temporary custody of the

Iowa Department of Human Services (DHS) for placement in the home of a relative

or suitable person or in foster care.

       A removal hearing was set for May 4, 2018—within ten days of the

temporary removal order. See Iowa Code § 232.95(1).1 After the May 4 contested

removal hearing, the court ordered the children “remain removed” from the

mother’s custody. The mother appealed.2

       II. Discussion.

       On appeal, the mother asserts it was not proper to remove the children

pursuant to section 232.95 when there was a dispositional order that placed the

children with her.     It is not clear from her petition on appeal whether she is

challenging the court’s order from a procedural standpoint or whether she

challenges the sufficiency of evidence upon which the juvenile court made its

ruling. At the hearing she argued,

             Your Honor, it’s my opinion that the case law doesn’t support
       the—the process that the State used in order to remove the children

1
  Curiously, the order states: “Pursuant to Iowa Code section 232.44 is set within ten days
(sic).” Section 232.44 does not apply to a child placed in accordance with section 232.78.
Iowa Code § 232.44(11).
2
   While the appeal was pending, the juvenile court entered a stipulated order on CINA
dispositional review after the parties waived the hearing and advised the juvenile court
they “agreed to the entry of the order set forth below.” In that order, the court found “that
it would be contrary to the children’s welfare to be returned to the children’s home.” The
court ordered the children’s custody “shall remain with the [DHS] for placement in family
foster care.”
        We may consider matters that have transpired during the appeal for the limited
purpose of determining whether a claim is moot. See In re L.H., 480 N.W.2d 43, 45 (Iowa
1992). But, in view of our disposition of this appeal, we decline to address the mootness
issue.
                                        4


      today, specifically a removal hearing is not allowable when there’s
      already been a disposition entered in a case. That’s not the proper
      method. I believe the proper standard for today’s hearing is a
      modification action, which the State has actually motioned for
      temporary removal and a motion to modify disposition, but the
      standard today isn’t a temporary removal, because a temporary
      removal request was inappropriate, and the order should not have
      been entered removing the children under 232.95.

She further argued,

             Your Honor, I believe the State’s motion has been made today
      pursuant to Iowa Code 232.95 as well as—which is the hearing for
      temporary removal. I believe its error to use that Code section as a
      standard for today’s hearing. I believe that case law supports that,
      that Code section is to be used only after a petition has been filed
      but prior to disposition being entered in a case.

We are directed to no case law, nor have we found anything in section 232.95 that

precludes the procedure employed by the State to temporarily remove the children

from the mother’s care.

      Our review of the record also leads us to the conclusion there was sufficient

evidence to support the juvenile court’s temporary removal order. The police

officer who conducted the search of the mother’s home testified he found a baggie

of marijuana and a bowl known as a smoking device in the home. He testified he

found marijuana residue on the smoking device. The material was not field tested,

nor was it sent to a lab for testing. The evidence shows the mother had been drug-

free for six months and had been regularly attending substance-abuse treatment,

but she did not deny that some of the material found was marijuana. Rather, she

testified she did not know it was in the house because she assumed law

enforcement had removed all illegal substances from the house during a search

conducted the previous September. Given the history of the case, we believe the
                                          5


State presented sufficient evidence to justify the temporary removal of the children

from the mother’s home.

       The mother also argues on appeal that it was improper to continue the

removal of the children as a modification of the prior dispositional order when there

was no material and substantial change of circumstances to warrant modification.

At the hearing she argued,

       So I believe the standard for today’s hearing is a modification
       standard, and whether the State has shown that circumstances have
       materially and substantially changed that the best interest of the child
       requires such a change in custody, and I don’t think the State has
       met its burden of proof in this matter. I don’t think that there has been
       any change.

This was a section 232.95 removal, but even if we were to treat the May 7 order

continuing the children’s removal as a modification of a prior dispositional order,

the State met the requisite burden.

       We recognize our opinions on the matter have not been a model of

consistency:

       [O]ur 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 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
                                        6

      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).

In re A.J., No. 16-1954, 2017 WL 1278366, at *3 (Iowa Ct. App. April 5. 2017); see

also In re E.G., No. 17-1855, 2018 WL 540995, at *2 n.4 (Iowa Ct. App. Jan. 24,

2018). We elect to follow A.J., in which we held:

      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.

A.J., 2017 WL 1278366, at *3-4. As stated above, we believe the State presented

sufficient evidence to justify the temporary removal of the children from the

mother’s home.
                                       7


      We affirm the juvenile court’s May 7, 2018 order removing the children from

the mother’s home.

      AFFIRMED.
