                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0473
                               Filed May 11, 2016


IN THE INTEREST OF H.E. AND A.R.,
Minor children,

T.R., Mother,
Appellant.

C.R.,
Intervenor-Appellee
________________________________________________________________


       Appeal from the Iowa District Court for Jasper County, Steven J.

Holwerda, District Associate Judge.



       A mother appeals from a review order in a children-in-need-of-assistance

proceeding. REVERSED AND REMANDED.



       Jane K. Odland of Odland Law Firm, P.L.L.C., Newton, for appellant

mother

       Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for Intervenor-

appellee.

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

General, for the State.

       Larry J. Pettigrew of Pettigrew Law Firm, Newton, for minor children.



       Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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TABOR, Judge.

       A mother appeals from a dispositional-review order in a children-in-need-

of-assistance (CINA) proceeding that continued placement of her two children

with their stepmother, who is an intervenor in the case. The mother argues the

continued placement with the intervenor is unnecessary and the juvenile court

should permit the children to return home under Iowa Code section 232.102

(2015). After reviewing the record, we agree with the mother and reverse the

juvenile court order. The children should be placed with their mother under the

continued supervision of the Iowa Department of Human Services (DHS).

       I.     Facts and Prior Proceedings

       The children at issue, H.E. and A.R., are ages three and one respectively.

Their mother and father shared custody of the children, each assuming care for

one week at a time. On June 15, 2015, the children came to the attention of the

DHS because their father struck H.E.1 As a result, the court ordered the father

have no contact with H.E. or A.R. The children were placed with their mother

following their removal from the father’s care, and the court adjudicated them as

CINA on August 13, 2015.

       Before a dispositional hearing on September 17, 2015, the mother

informed the DHS that she needed to relocate and would look for housing in

Newton. At the hearing, the mother consented to the children’s placement with

their stepmother until the mother obtained suitable housing.     On September 25,

2015, the stepmother filed a motion to intervene in the CINA case. The father


1
 The DHS also investigated an alleged assault by the father against his stepdaughter,
who also resided in his home.
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resisted the stepmother’s motion to intervene, but the mother did not resist. On

November 23, 2015, the juvenile court granted the stepmother’s motion to

intervene.

       The juvenile court held a disposition-review hearing on December 3, 2015.

About one month before that hearing, the mother found a residence in Carlisle.

The Family, Safety, Risk and Permanency (FSRP) caseworker inspected and

approved the home. The mother lived there with her five-year-old daughter, who

is not a party to this case. At the hearing, the DHS caseworker, the guardian ad

litem (GAL), and both parents requested the children be returned to the mother’s

care. The stepmother requested continued placement of the children with her.

The court decided it was in the children’s best interests to remain with their

stepmother. The court noted the mother’s housing had been stable for less than

one month and determined she had not “made sufficient progress overall to

support a safe return of her children.”

       At a CINA review hearing on February 26, 2016, the mother testified she

was ready to care for the children.           The GAL and the DHS caseworker

recommended H.E. and A.R. be returned to their mother’s care. The caseworker

testified the mother had maintained stable housing and was increasing her

contact with the children. “To the best of her ability” the mother was taking

responsibility for transporting H.E. to his appointments for speech therapy and

play therapy. (The mother did not have a driver’s license and depended on

extended family to help with the transportation.) The caseworker testified the

mother did need more education to become a better caregiver, but she was
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       successfully parenting a five-year-old child in her care and making
       all of these efforts to get back and forth from Carlisle to Newton to
       Des Moines, we’re creating barriers for her, and it would be much
       easier for her to parent her children and us to educate her on
       parenting them if they were in her care.

       The caseworker also testified the stepmother was not supportive of the

mother’s reunification with the children and recommended placement in family

foster care if the children were not returned to the mother.         The children’s

daycare provider testified to concerns about H.E.’s aggressive behavior that

appeared to manifest after contact with his mother. The stepmother testified in

opposition to reunification of the children with their mother.

       In a March 3, 2016 order, the juvenile court again denied the mother’s

request for the return of her children. The court acknowledged the mother’s

progress in maintaining suitable housing and her efforts to keep H.E.’s therapy

appointments. But the court found “too many unresolved issues for the court to

safely return the children to their mother” and continued placement with the

stepmother.    The court noted the mother’s lack of income, lack of a driver’s

license, and H.E.’s missed therapy sessions due to transportation issues. The

court also expressed concern that A.R. returned from a visit with her mother with

head lice and a diaper rash. The court found the mother needed “parenting

development” but overlooked the DHS worker’s view that such education would

be more effective if she had custody of the children.

       The mother filed a petition appealing the March 3 order. The stepmother-

intervenor filed a brief in support of continued placement with her. The State filed

a notice to the court indicating that the DHS took the position in the juvenile court

that the children should be returned to their mother’s care.
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       II.    Standard of Review

       We review de novo a juvenile court order entered after a CINA review

hearing. In re K.B., 753 N.W.2d 14, 15 (Iowa 2008). We give weight to the

findings of the juvenile court but are not bound by them. In re D.D., 653 N.W.2d

359, 361 (Iowa 2002). We are guided by the best interest of the child. In re J.S.,

846 N.W.2d 36, 40 (Iowa 2014).

       III.   Discussion

       At the February 2016 dispositional review hearing, the juvenile court

reviewed placement of H.E. and A.R. to decide the best choice among three

options: (1) returning the children home, (2) extending the out-of-home

placement, or (3) initiating termination-of-parental-rights proceedings. See K.B.,

753 N.W.2d at 16 (discussing Iowa Code section 232.102(9)). The first choice,

returning the child home, is the preferred outcome. See In re A.T., 799 N.W.2d

148, 151 n.6 (Iowa Ct. App. 2011).

       But the juvenile court instead decided to extend the current placement.

After our de novo review of the record, we believe the mother established by a

preponderance of the evidence that the children would not suffer harm if returned

to her care. See In re D.S., 437 N.W.2d 587, 588 (Iowa Ct. App. 1989). The

children were adjudicated CINA as a result of the father’s behavior.         After

removal, the mother experienced a housing crisis and voluntarily placed the

children in the care of their stepmother so the mother could find a place to live.

The mother accomplished that task.       The DHS found her current residence

appropriate for the children.
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       Despite the mother’s ability to maintain stable housing for several months,

the juvenile court questioned the adequacy of her resources, pointing out: “The

mother has no income. She lives off her rent-free housing and the FIP benefits

and Food Stamps that she receives for her five-year-old daughter.” We do not

think the mother’s strained financial condition should preclude reunification with

her children.

       Likewise, we disagree with the court’s conclusion that the mother has not

done enough to show she can safely parent H.E. and A.R. if they are returned to

her care. The mother has been parenting her five-year-old daughter without

incident. The mother has no apparent substance-abuse or mental-health issues.

The DHS worker and GAL are in accord that the younger children can be safely

returned to her care. The juvenile court’s concerns about “isolated incidents”

involving head lice or diaper rash, or the mother’s less-than-appropriate response

to H.E.’s tantrum, may be addressed through DHS services to improve the

mother’s parenting skills when the children are returned to her care.

       As for H.E.’s therapy sessions, the therapist noted it would be easier for

the mother if she did not have to go from Carlisle to Newton to pick him up, then

from Newton to Des Moines to attend therapy. We agree. The record also

shows the mother has extended family members who have assisted her with

transportation needs. The therapist also said “[t]he biggest concern would just

be to improve her skill level in dealing with his tantrums—from                 my

understanding, though, many adults in [H.E.’s] life are struggling to do this, so I

don’t think it is something that should keep him from going home to his mom.”
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        The record does not show that H.E. and A.R are likely to suffer harm as

defined in section 232.2(6) if returned to their mother’s care. Because we find

returning the children to their mother’s care with continued DHS supervision is

the best option under section 232.102(9), we reverse the order continuing

placement with the stepmother. On remand, the juvenile court should direct the

DHS to set up a case plan with requirements to ensure the mother continues to

improve her parenting skills and the children are able to access the services they

need.

        REVERSED AND REMANDED.
