                        IN THE COURT OF APPEALS OF IOWA

                                    No. 16-0513
                                Filed June 15, 2016


IN THE INTEREST OF T.R. and T.R.,
Minor Children,

J.R., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Plymouth County, Robert J. Dull,

District Associate Judge.



       The father appeals from the dispositional order placing the children in the

custody of the department of human services. AFFIRMED.




       Robert B. Brock II of the Law Office of Robert B. Brock II, P.C., LeMars,

for appellant father.

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

General, for appellee State.

       Kathryn C. Stevens of the Juvenile Law Center, Sioux City, for minor

children.



       Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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PER CURIAM.

         The father appeals the district court’s dispositional order in a child-in-

need-of-assistance (CINA) proceeding placing his children in the custody of the

department of human services (DHS) for relative/foster care/suitable person

placement.      He argues the juvenile court’s imposition of the most restrictive

option under Iowa Code section 232.102 (2015) was not supported by clear and

convincing evidence. Because the father’s progress during approximately two

years of DHS involvement has been minimal at best, we affirm the juvenile

court’s dispositional order.

         The father has two children subject to this proceeding, T.R. (born in 2011)

and T.R. (born in 2013).1 DHS has been involved with the family since January

2014. In September 2015, the family home was in such a condition that it was

unsafe for the children. The home had excessive amounts of cat urine and feces

and other hazards.          The children were voluntarily removed and returned

approximately one month later after actions were taken to remedy the state of the

home.

         At the time of the dispositional hearing on February 26, 2016, there

remained concerns with the condition of the home, including a cockroach

infestation. Although the parents were aware of the cockroach infestation for

some time, they had not yet sufficiently cleared clutter in the home to prepare for

a professional extermination. The parents also continued to struggle to keep up

with chores and maintain a clean environment for the children. The mother is on

disability for medical conditions, and thus her ability to stay afloat of the

1
    The children’s mother does not appeal.
                                         3


housekeeping responsibilities is limited. The family had numerous animals, both

inside and outside of the home, making upkeep more challenging.            Animals

inside the home at various times included two litters of kittens, goats, and two

chickens and a peacock kept in the laundry room. Despite these circumstances,

the father makes only minimal contribution to the maintenance of the home.

       In addition to the issues described as to the state of the family home, the

juvenile court expressed concern regarding the father’s lack of cooperation with

DHS services and his limited progress. The court stated:

       Ms. Delutri testified that she has been involved with this family
       since September of 2014 and that during that entire period [the
       father] has only sporadically complied with service provider
       requests and generally refused to cooperate. He, in fact, has now
       requested a third therapist. He remains unamenable to services,
       lacks parenting skills, and presents a real possibility of violence
       within the family setting. He is self-centered and not focused on his
       children’s welfare.

       Initially, the father participated only minimally in mental health therapy—

failing to consistently attend sessions and proving unwilling to identify and

address important issues. To his credit, he has recently become more consistent

but now seeks a new therapist, his third therapist if granted. The father has also

not been forthright with the mother about finances, refusing to explain where he

had spent money despite the family’s ongoing financial struggles. The father has

exhibited poor communication with the mother and the children, often resorting to

yelling rather than working on efficient communication and relationship building.

There is also a concern with the possibility of violence due to the father’s mention

of having and using guns. For example, the father requested that a service

provider give him advance notice before visiting the family home because he did
                                        4


not want to be surprised and accidentally shoot her.       Based on the father’s

ongoing issues and failure to fully cooperate with DHS services, DHS

recommended at the dispositional hearing that the father be required to leave the

home, or alternatively, that the children be removed and placed in DHS custody.

       Consistent with the guardian ad litem’s recommendation, the juvenile

court concluded removal of the children and placement with DHS was “the only

workable plan given the conditions that continue to exist in the home. It is the

only plan that allows the department all options necessary to ensure the safety of

the children and implementation of recommended and necessary changes.” The

court also concluded that placement with DHS for relative/foster care/suitable

person placement was “the most secure avenue to ensure implementation of

needed and identified reasonable efforts and is in the best interest of the

children.”

       The father appeals the dispositional order.

       We review CINA proceedings de novo. In re J.S., 846 N.W.2d 36, 40

(Iowa 2014). “In reviewing the proceedings, we are not bound by the juvenile

court’s fact findings; however, we do give them weight. Our primary concern is

the children’s best interests. CINA determinations must be based upon clear and

convincing evidence.” Id. (citations omitted). “Clear and convincing evidence is

more than a preponderance of the evidence and less than evidence beyond a

reasonable doubt.” In re L.G., 532 N.W.2d 478, 481 (Iowa Ct. App. 1995).

       Following the dispositional hearing, courts are required to “make the least

restrictive disposition appropriate considering all the circumstances of the case.”

Iowa Code § 232.99(4). Section 232.102(5)(a) further explains:
                                                5


               Whenever possible, the court should permit the child to
        remain at home with the child’s parent, guardian, or custodian.
        Custody of the child should not be transferred unless the court finds
        there is 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.

        Upon our de novo review, we find the juvenile court properly transferred

custody of the children to DHS to protect the children from harm which would

justify adjudication.

        The children were adjudicated CINA pursuant to Iowa Code section

232.2(6)(b), (c)(2), and (g).2 Due to the father’s minimal cooperation with DHS

services, limited participation in mental health therapy although improvement has

been shown, inability to be forthright regarding finances and to communicate

positively with the mother and the children, potential for violence, and maintaining

a home unfit for the children, the children have suffered or are likely to suffer the

harms which would justify adjudication pursuant to section 232.2(6)(b), (c)(2),

and (g). We again acknowledge the father did make some progress throughout

the involvement of DHS. However, such limited progress does not overcome the

potential harm to the children. See In re A.J., No. 15-1692, 2016 WL 541435, at

*7 (Iowa Ct. App. Feb. 10, 2016) (“[The court’s] finding that the mother had made



2
  Children are adjudicated CINA under Iowa Code section 232.2(6)(b) if their “parent, . . .
has physically abused or neglected the child[ren], or is imminently likely to abuse or
neglect the child[ren]”’; under section 232.2(6)(c)(2) if they have “suffered or [are]
imminently likely to suffer harmful effects as a result of . . . : The failure of the child[ren]’s
parent, . . . to exercise a reasonable degree of care in supervising the child[ren]”; and
under section 232.2(6)(g) if their “parent, . . . fails to exercise a minimal degree of care in
supplying the child[ren] with adequate food, clothing, or shelter and refuses other means
made available to provide such essentials.”
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some progress did not change the determination that the home was still

unsafe.”).

         Further, although section 232.102(5)(a) requires the court to permit the

children to remain at home with the parents when possible, “[b]oth DHS and the

juvenile court have the important function of protecting the children who are in

need of assistance.      It is the duty of the juvenile court when necessary to

intervene and remove a child from the care and custody of parents, either

temporarily or permanently.”     In re A.M., 856 N.W.2d 365, 376 (Iowa 2014)

(citation omitted).

         Clear and convincing evidence supports the juvenile court’s determination

that placing the children in the custody of DHS is necessary to ensure they are

not subject to adjudicatory harm while the parents continue to work with DHS to

make the required changes. We therefore affirm the juvenile court’s dispositional

order.

         AFFIRMED.
