                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0352
                                Filed July 3, 2019


IN THE INTEREST OF A.W. and B.W.,
Minor Children,

JENNIFER OLSEN, Guardian ad Litem,
     Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor,

District Associate Judge.



       The guardian ad litem appeals from the juvenile court’s denial of the

petition to modify the dispositional order and dismissal of the child-in-need-of-

assistance adjudication.     REVERSED IN PART AND REMANDED FOR

FURTHER PROCEEDINGS.



       Jennifer Triner Olsen of Olsen Law Firm, Davenport, appellant and

guardian ad litem for minor children.

       Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant

Attorney General, for appellee State.



       Considered by Potterfield, P.J., and Doyle and May, JJ. Tabor, J., takes

no part.
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POTTERFIELD, Presiding Judge.

       The guardian ad litem (GAL) for A.W. and B.W., the minor children at

issue, appeals the juvenile court’s denial of the petition to modify the dispositional

order and dismissal of the children-in-need-of-assistance (CINA) adjudication.

       A.W. and B.W. were born in 2011 and 2013, respectively. They were

initially removed from the mother’s care in November 2016, which occurred after

the mother’s then-boyfriend, Eddie, physically abused B.W., leaving bruises on

B.W.’s face, chest, and shoulders.       Additionally, both A.W. and B.W. tested

positive for THC. Soon thereafter, both children were adjudicated CINA pursuant

to Iowa Code section 232.2(6)(b), (c)(1), (c)(2), (n), and (o) (2016); the court

found “that the children were living with their mother where there were substance

abuse and domestic violence issues and the children were not safe.”              The

children were placed together in relative care.

       While the children were out of her care the first time, from November 2016

through late July 2017, the mother participated in individual mental-health

counseling and engaged in classes to address her history of being and staying in

relationships with incidences of domestic violence.       The mother was able to

recognize the history of abuse in her romantic relationships.          But she also

continued to speak with and see Eddie, and—after asking the Iowa Department

of Human Services (DHS) and being recommended not to—she chose to have

the no-contact order lifted on another former paramour, Michael, who had

assaulted her. The mother seemed to recognize B.W.’s well-founded fear of

Eddie, but that did not stop her from having B.W. speak to Eddie on the phone.
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       The children were returned to the mother’s custody in late July 2017 and

remained in it until mid-October 2017. During this time, the mother began dating

another man, Tyler, with an extensive criminal past. She was told he could not

be around the children, but the mother ignored DHS’s directive.      DHS then

became concerned the mother had moved Tyler into the home with her and the

children; when confronted, the mother agreed to voluntarily place A.W. and B.W.

back into the relatives’ care. The voluntary placement became court ordered at a

later review hearing.

       Following the second removal, the children remained outside of the

mother’s care from October 2017 until mid-December 2018. Early in this period,

the mother began a new romantic relationship, this time with Zach. The GAL

expressed concerns that the mother chose to involve herself in another

relationship, noting she had been encouraged to focus on just herself and her

children but seemed unable to do so. DHS expressed concerns that Zach had

some criminal history involving marijuana.     The mother was told her new

boyfriend could not be around the children, and again, the mother disregarded

DHS’s directive.   Additionally, although the mother paid lip service to “taking

things slow” with Zach, in February 2018, she reported on Facebook that she and

Zach were engaged to be married.

       In March 2018, DHS determined Zach was an appropriate person to be

around the children; he completed a number of negative drug tests and engaged

in services with the children and mother. Although there were setbacks—the

mother and Zach both tested positive for THC in summer 2018—A.W. and B.W.
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were returned to the mother’s home—where Zach also lived—on December 14,

2018.

        Then, on February 3, 2019, the county attorney filed a motion asking the

court to modify the current dispositional order to remove the children from the

mother’s care once again. At the hearing on the motion, the GAL joined the

county attorney’s request, but DHS resisted. According to the mother’s initial

reports, Zach came home very intoxicated on New Year’s Eve and the mother

and Zach got into a verbal altercation, which then became physical, with Zach

choking, hitting, pushing, and scratching the mother. After Zach calmed down,

the mother woke up A.W. and B.W., and she and the children left the home and

spent the night elsewhere. Within a day or two, the mother reported the incident

to her therapist and appropriate DHS professionals. She showed DHS the marks

left on her body from the incident and stated she was going to obtain a no-

contact order against Zach. She also told DHS that she made Zach move out of

the home, their relationship was over, and she would not be seeing or speaking

to him. DHS explicitly told the mother she could not have Zach in the home or

around the children until further investigation and steps were taken; she agreed.

The mother did not get a no-contact order and, within a couple weeks, she

allowed Zach into her home while the children were present. At the hearing on

the motion, on February 28, 2019, the mother minimized the New Year’s Eve

attack; whereas she initially described being choked, she now said Zach had just

“restrained” her and “wrapped [her] in a bear hug.” She claimed the scratches

she had previously shown DHS came from her dog. She also indicated she

planned to continue her relationship with Zach. The social worker testified DHS
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was recommending leaving the children in the mother’s care because “these kids

are very bonded to their mother” and they “have a routine.”

      After the presentation of evidence, the county attorney asked the court to

remove the children from the mother’s care, stating:

      If the children are paramount and their best interest is paramount,
      hope is no longer enough. We have thrown every possible service
      at this mother, and the same thing continues to happen, and to
      hear today that this is an isolated incident, it is not isolated. Mom
      today was not truthful about the very events she claimed to happen
      to the provider and the Department, minimizing or not being truthful
      about being assaulted. She has zero insight, zero protective
      capacity for these children. These children are not safe in her care.

The court ruled from the bench, stating:

               Well, the court considers the matter submitted. It’s a very
      difficult situation because, as people have talked about our
      systemic issues, the front line of our children’s system is [DHS],
      and the protection of the children is theirs, and the services to
      children involved in a CINA case is at their discretion and their
      responsibility through their providers. It’s very difficult in a case
      where it’s so clear that the issues that brought this family before
      this court 27 months ago were domestic violence and substance
      abuse and safety of the children. Two weeks after returning the
      children to the mother, we have an incident involving domestic
      violence and substance abuse, and [DHS] comes before the court
      two months after that where they submitted a new case plan dated
      the 19th of February that has absolutely no additional services for
      this family. None. No additional services for [Zach]; no additional
      services for Mom; no additional services for the children. And it
      leaves the court wondering where the services that are supposed to
      be provided to this family are, because I don’t believe [DHS] is
      providing any services to this family to address the issues that were
      raised by the incident two weeks after the children were returned to
      their mother. And certainly from the testimony of [DHS] and the
      argument of the counsel for [DHS], nothing needs to change.
      We’re gonna continue on providing the same services that we’ve
      provided to this mother for 27 months that were receiving the
      absolute same results that we’ve had with every other relationship
      she’s established: That she continues to be a victim of domestic
      violence; that substance abuse continues to play a part in that. And
      we are not asking to change a thing, a thing. And that was said, I
      believe, by the representative of the Attorney General’s Office.
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              Well, folks, here’s the situation: CINA adjudication occurs
       under 232.96, and sub (8) says that if we’re not gonna provide any
       service to the family, then the court need not provide oversight.
       Well, I’m gonna tell you what. Nobody is asking this court to
       provide any oversight in this case because every recommendation
       this court has made has not been followed. We put the children
       back with Mom. Within two weeks the very adjudicatory harm
       occurred again, and nobody thought to ask for any changes in a
       case plan. And I believe that if that’s the attitude of [DHS] that is
       supposed to provide the services for the safety of these children
       and they don’t see any need to change, this court cannot provide
       any service to this family, and these cases are dismissed.
              Thank you, all.

       The same day, the court entered written orders stating, “For the reasons

stated on the record, these cases are dismissed.”

       The GAL appeals, asserting the juvenile court should not have dismissed

the CINA adjudications and the county attorney established the dispositional

order should be modified to remove the children from the mother’s care again.

We agree the CINA adjudications should be reinstated and remand to the

juvenile court to determine, on the facts presently existing, whether and how to

modify the dispositional orders.

       First, we note that no one asked the court to dismiss the CINA

adjudications; even DHS, which resisted the motion to modify, discussed the

ongoing services in which the mother and family needed to continue

participating. Second, the juvenile court dismissed the cases by relying upon

Iowa Code section 232.96(8), which allows the court to dismiss a CINA petition—

not a CINA adjudication—if it concludes “facts sufficient to sustain a petition have

not been established by clear and convincing evidence or if the court concludes

that its aid is not required in the circumstances.” This section is inapposite. “We

recognize that the job of the juvenile court can be extremely difficult, and, at
                                           7


times, frustrating. This frustration is clearly compounded when the resources

devoted to one family over a significant period of time seem to result in no

improvement.” In re K.N., 625 N.W.2d 731, 734 (Iowa 2001). But, that being

said, “a juvenile court may not terminate CINA adjudication status unless the

purposes of the original dispositional order have been fulfilled and ‘the child is

“no longer in need of supervision, care or treatment.”’” Id. (citations omitted). As

that is not the case here, we agree with the GAL that the CINA adjudications

should be reinstated.

       Next, we consider whether the juvenile court should grant the motion to

modify the dispositional order, removing the children from the mother’s care for a

third time. Section 232.103(4) allows the court to “modify a dispositional order,

vacate and substitute a dispositional order, or terminate a dispositional order and

release the child” if the court finds any of the following:

              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.

       Our case law provides 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).       But our court has recently considered whether the

requirement persists after the 2004 amendment to section 232.103. See In re

M.M., No. 16-0548, 2016 WL 4036246, at *4–5 (Iowa Ct. App. July 27, 2016)
                                          8

(Potterfield, J., dissenting); see also In re A.S., 17-0663, 2017 WL 2665119, at *1

n.1 (Iowa Ct. App. June 21, 2017); In re A.J., No 16-1954, 2017 WL 1278366, at

*3–4 (Iowa Ct. App. Apr. 5, 2017).

       Here, we need not decide whether the prerequisite survived the

amendment;     the   State   proved   a   substantial and   material change      in

circumstances since the previous dispositional order.          Since the court’s

December 2018 order returning the children to the mother’s care, the mother’s

live-in boyfriend assaulted her, which resulted in the mother kicking him out of

the home and DHS forbidding the mother from allowing Zach to be around the

children.    The mother quickly did an about-face, minimizing the violence

perpetrated against her, resuming the relationship with Zach, and allowing him to

be in her home with the children.

       We recognize the mother has made strides in her understanding of

healthy relationships, recognizing warning signs of unhealthy relationships, and

knowing what actions to undertake if domestic violence occurs, but she is

apparently not yet able to choose her children and their safety over a violent

paramour. We do not base this determination on the fact that Zach, after a one-

year relationship without any other violent behaviors, perpetrated violence

against the mother. She is not at fault for this incident, and we do not suggest

otherwise.    However, the mother is responsible for the choices she made

afterward. As the mother has consistently told B.W. in an effort to regain his

trust, she is the parent and she is the person in charge of keeping her children

safe. Yet after the violent incident that took place, she chose to—against direct

and explicit DHS directives—allow Zach back into her home and around her
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children. And although she originally reached out to professionals to report his

violent actions, including providing physical evidence of the attack and her

injuries, by the time of the hearing on the petition to modify disposition—

approximately two months later—the mother minimized the violent incident.

       While the State met the grounds for modification at the time of the hearing,

we do not believe making a change now based on the facts and circumstances

from several months ago is in the children’s best interests. See In re S.V.G., 496

N.W.2d 262, 264 (Iowa Ct. App. 1992) (emphasizing that in child-welfare cases,

“[o]ur paramount concern is the child’s welfare and best interests”). Therefore,

we reverse the juvenile court’s ruling dismissing the CINA adjudication but

remand for a hearing on the motion to modify the dispositional order.          We

remand for the juvenile court to determine the appropriate placement of the

children on the facts existing at the time of the new hearing.

       REVERSED        IN    PART      AND     REMANDED          FOR    FURTHER

PROCEEDINGS.
