                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0921
                           Filed December 23, 2015


SARAH BETH SLOAN,
    Plaintiff-Appellant,

vs.

COURTNEY ARTHUR CASEY,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,

Judge.



      Sarah Sloan appeals from a decree modifying custody and support

concerning the parties’ minor child. AFFIRMED.




      Jeffrey A. Kelso of Cunningham & Kelso, P.L.L.C., Urbandale, for

appellant.

      James R. Quilty of Quilty Law Firm, Des Moines, for appellee.




      Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
                                      2


POTTERFIELD, Presiding Judge.

      Sarah Sloan appeals from a decree modifying custody and support

concerning the parties’ minor child. Upon our de novo review, we conclude there

has been a substantial change of circumstances. We affirm the order modifying

physical care with fewer parental exchanges and giving Courtney Casey the

primary authority to make the child’s non-emergency medical appointments.

I. Background Facts and Proceedings.

      Sarah Sloan and Courtney Casey have never been married. They had a

child together, J.C., who was born in 2004. A decree establishing paternity,

custody, visitation, and child support was entered on October 26, 2005. The

parties were granted joint legal custody and the child was placed in Sarah’s

physical care.    Courtney’s parenting time was set for overnight every

Wednesday, every other weekend, and every other Monday evening following

the weekend he did not have the child. In June 2012, Courtney and Sarah filed

cross-applications to modify the decree.   In September 2012, the child was

diagnosed with celiac disease. The modification applications were voluntarily

dismissed on November 8, 2012. In December 2012, the child was diagnosed

with Type 1 diabetes.

      On December 4, 2013, a department of human services (DHS) child

protective assessment was conducted concerning a report that Courtney was not

providing adequate care to the child. The report was not confirmed. The child

protective worker (CPW), Lauren Templeman, observed:

             It appears each parent has a different understanding and
      feeling to the importance with regards to cross contamination and
      the impact on her gluten levels and celiac disease. In consultation
                                        3


      with the specialist’s office, this worker is highly recommending that
      Courtney, his wife, and [J.C], together attend an educational
      session with a nutritionist. . . .
              [J.C.] should continue to attend therapy with Bridget Beneke.
      Both parents need to regularly attend sessions with [J.C.] per the
      recommendation of the therapist.             This worker has again
      recommended that they work with in-home services now called
      [Behavioral Health Intervention Services] BHIS through title 19 as
      referred by Ms. Beneke. She can set that up to help with
      communication between the households. This is the service you
      participated in the past with [Children and Families of Iowa] CFI that
      came to your home.
              ....
              This child stays in two very different households. The
      negative speaking of one parent is not harming the other parents, it
      is harming the child. The other parent is half of this child and it is
      not just an insult to the other parent but an insult to the child.
              This worker has seen, in the prior assessment by this
      worker, the last assessment by CPW Hansen, and through this
      assessment, how the two households are run at polar opposites.
      This worker has seen that Sarah appears to be structure-oriented
      around her daughter’s diagnosis. She stated that [J.C.]’s issues
      are caused by, or contributed by, Courtney or Carly.
              This worker feels that Courtney wants to have a household
      that [J.C.]’s diagnoses are in the background. He states he wants
      her to be a normal kid. A concern is how much is it in the
      background that [J.C.] is concerned if he keeps her safe medically.
              [J.C.] has been parented by, and her train of thought
      regarding her diagnosis has been from primarily her mother. She is
      naturally hyperactive with regard to her diet and blood sugars. It
      appears [J.C.] is concerned she cannot tell her dad when she has
      fears about this. While [J.C.] should be vigilant in her own care,
      there is a concern that her mother takes it to a new level of concern
      and this does not allow her to have time to just be a kid. This is
      while the father’s household puts it too far into the background.
              [J.C.] is nine years old and is privy to too much information.
      Neither way of parenting is exactly right nor is the other way
      abusive in nature at this point in time. This worker’s concern is if
      the opposite parenting styles do not come together at least some,
      this could lead to continuing mental concerns for [J.C.] This needs
      to be addressed in therapy. If it continues and shows to impair her
      ability to function in life, DHS could be contacted regarding a
      referral for mental harm.

      On March 19, 2014, Courtney again filed an application to modify custody,

asserting, among other things, that Sarah was now disabled and unemployed,
                                         4


did not support his relationship with the child, and was imposing mental and

physical abuse upon the child by subjecting the child to unnecessary and

intrusive medical care.

       Sarah filed a cross-application to modify, requesting a change in the

visitation schedule and sole legal custody.

       On May 15, 2014, the court appointed Amy Skogerson to serve as

guardian ad litem (GAL) for the child and ordered the GAL to make specific

recommendations regarding a parenting schedule for the minor child and to draft

a proposed parenting plan for the parties. Additionally, the court ordered the

GAL to prepare a written report detailing her recommendations. On September

9, 2014, the GAL submitted her report and recommendations to the district court.

She recommended “some kind of limitation” on Sarah’s medical powers,

increased parenting time for Courtney (“grant him care of J.C. at least 50% of the

time”), and that parenting time be “divided into large blocks of time without

frequent exchanges.” The GAL also opined Sarah “may benefit from obtaining a

mental health evaluation and following through with any recommended treatment

to help her cope with stress, anxiety, post-traumatic stress and/or any other

concerns identified.” Finally, the GAL suggested the appointment of a parenting

coordinator.

       The GAL offered testimony at the March 2015 trial in which she explained

the findings in her report. The GAL pointed out what she believed to be each

parent’s strengths and weaknesses and her concerns for the child. She stressed

the importance of modifying the visitation schedule to allow for more consistency

and stability for the child. In her opinion, the current schedule was not in the best
                                         5


interest of the child as it required too much moving between homes throughout

the week.

      The following facts found by the district court are fully supported by the

record:

              Sarah is 32 years old and is generally in good physical
      health.     She states she suffers from hypothyroidism and
      fibromyalgia and is currently taking medicine for each of these
      medical conditions. In the past she has received treatment for
      depression, anxiety, and post-traumatic stress disorder and has
      been treated with medications for these conditions.                  She
      discontinued all counseling and medications for her mental health
      issues sometime in 2011 or 2012. At trial she stated that she does
      see a therapist but not on a regular basis.
              She completed high school and attended . . . Vatterott
      College. She has a . . . boyfriend, Grimaldo Hernandez, with whom
      she has two children, both of whom are younger than J.C.
      Grimaldo Hernandez is gone every week during the week and
      returns home to spend the [occasional] weekend with Sarah and
      their two biological children. Sarah is currently unemployed.
              Courtney is 34 years old and is in good physical health with
      the exception of some back pain issues. He admitted to having a
      prior addiction to prescription pain medication due to his back pain;
      however, he successfully completed substance abuse treatment in
      2009 and has had no relapses since completion of that program.
      Courtney is employed full time in a family business, Rubber Roofing
      Systems, Incorporated. He lives with his wife, Carly, and they have
      a son who is significantly younger than J.C. Carly also has a
      daughter from a prior relationship, and she is slightly older than J.C.
      When J.C. spends time with Courtney, she shares a bedroom with
      Carly’s daughter.
              J.C. is an active 11-year-old girl in fifth grade at St. Teresa’s
      Catholic School. She participates in dance, gymnastics, swimming
      and basketball. She is a good student in spite of missing a
      significant amount of school. She is well liked by her classmates
      and has lots of friends.
              In September 2012, J.C. was diagnosed with celiac disease
      and in December of that same year was diagnosed with Type 1
      Juvenile Diabetes. These diagnoses required significant changes
      to her diet and lifestyle. J.C.’s diabetes requires a strict dietary
      regimen in addition to her gluten-free diet. J.C. has taken on the
      responsibility of managing her diet and her diseases.                The
      proficiency with which she manages her diseases was undisputed.
                                 6


        Although J.C. is managing her celiac disease and juvenile
diabetes well, she suffers from some incontinence.               The
incontinence began recently; years after she had been successfully
potty-trained. She has undergone significant medical testing for her
incontinence and no anatomical or neurological basis for J.C.’s
incontinence has been determined. After hearing the testimony, it
appears the incontinence began at approximately the same time
Sarah made . . . allegations that Courtney was sexually abusing
J.C. These allegations were investigated by the Department of
Human Services and were unfounded.
        The current relationship between the parties is seriously
fractured.    Courtney and Sarah have a history of criminal
harassment and protective orders. In 2007, Courtney sought and
obtained two temporary protective orders prohibiting Sarah from
having contact with him.         In 2008, Courtney pled guilty to
harassment in the 3rd degree and a criminal no-contact order was
entered prohibiting him from contacting Sarah.            Due to the
tumultuous relationship between the parties, all visitation
exchanges occur at the Des Moines police department.
        The Court heard much testimony and reviewed numerous
exhibits over the course of the three-day modification trial.
However, the most disturbing evidence was that which pertained to
the number of medical procedures, exams, and appointments J.C.
has undergone. In fairness, this child does suffer from two serious
diseases; celiac disease and juvenile diabetes. Both of these
diseases require treatment and care. They also require a vigilance
surrounding diet and medication. By all accounts, both parents are
rigorous in their food preparation including keeping separate
cookware at each home so as to not contaminate any of J.C.’s food
with gluten. The testimony reflected that Courtney was slow to
respond to J.C.’s dietary changes and was not always as diligent as
is required when managing these diseases. But, over the past year
Courtney has undergone significant training and education on
juvenile diabetes and by all accounts is providing all necessary
support and care to J.C. as she learns to live with these diseases.
Additionally, J.C. has taken on much of the responsibility for
managing her diet and medication.
        Yet, even considering the juvenile diabetes and celiac
disease, the Court was stunned to learn that over the past four
years J.C. has been to some type of medical care giver or therapist
for an appointment, a test, or an exam somewhere between 285
and 400 times. The Court received into evidence hundreds of
pages of medical reports regarding this child. During the 2013–14
school year alone, J.C. missed 40 partial or full days of school for
various medical appointments or alleged illnesses. An example of
the physical exams and medical tests this child has undergone
include but are not limited to: drug screen (negative), lead exposure
                                  7


testing (negative), two sexual assault exams (both negative), an
echocardiogram (negative), urinary tract infection appointments
(majority negative), [and] numerous emergency room visits at both
Mercy and Methodist Hospitals. J.C. has also undergone a high
resolution anorectal man[o]metry study which required sedation.
The results were normal. All of these exams were requested by
Sarah after describing her observations of J.C. to various medical
providers.
        In addition to the extraordinary numbers of medical
procedures this child has been subjected to, Sarah has [instigated]
numerous . . . allegations to the Department of Human Services
regarding Courtney.
        In May 2007, Sarah contacted the Iowa Department of
Human Services and reported illegal drug usage in Courtney’s
home, including marijuana and methamphetamine.                     An
investigation occurred per Sarah’s request. As a result, J.C. was
subjected to a full drug screen; which was negative. The DHS
report was unfounded.
        In March 2011, Sarah made statements to medical
personnel alleging that Courtney had sexually abused J.C. A DHS
investigation ensued, in which J.C. denied any inappropriate
touching by her dad. As part of the investigation, J.C. was
subjected to a sexual assault exam. No signs of sexual abuse
were found. The report was unfounded.
        Despite the negative findings by the Department of Human
Services, Sarah continued to tell J.C.’s service providers about her
suspicion of sexual abuse by Courtney. Between approximately
May 2007 and December 2013, seven or eight DHS investigations
of alleged abuse or neglect against Courtney occurred. Each of the
DHS assessments resulted in a finding of “not confirmed.” In a May
2012 report prepared by DHS worker Lauren Templeman she
noted her concerns:
        This worker believes there are many concerns with
        the continued pursuit of hampering the relationship of
        the child with her father and pursuit of the beliefs of
        sexual abuse with no physical evidence, nor
        statements made by the child. This appears to be
        causing disruption in the child’s life and her daily
        functioning. If this continues, it is recommended the
        Department of Human Services do further
        investigation of the child.
        Eight days after the May 2012 sexual abuse investigation
was concluded and was unconfirmed, Sarah took J.C. to the doctor
for alleged vaginal bleeding and painful urination. J.C. was given
another sexual assault exam that yielded no results.
        Many of these investigations involved personal interviews
with J.C. requiring her to answer difficult invasive questions as well
                                        8


      as her being subjected to two sexual assault exams and drug
      screen testing. A child does not experience this type of relentless
      emotional and physical poking and prodding without some type of
      emotional and or psychological scarring. The Court notes it was
      during this time that J.C. started having incontinence issues.

      On March 5, 2015, the district court determined there had been a

substantial change in circumstances, not contemplated by the court when the

decree was entered in 2005. The court found:

      Specifically, J.C. has been diagnosed with both celiac and juvenile
      diabetes. Additionally, Sarah has subjected her daughter to
      numerous unnecessary, unwarranted and painful medical
      procedures. This has resulted in J.C. missing significant amounts
      of school. Finally, the Court finds Sarah has interfered with
      Courtney’s relationship with J.C. based on unfounded DHS reports
      resulting in unfounded DHS investigations.       The court finds
      modification of the decree entered on October 26, 2005, is
      warranted.

      The court modified legal custody to the extent that Courtney “shall be the

sole parent to schedule all routine medical appointments for J.C.” Sarah was not

precluded from scheduling emergency care for J.C. But, “[p]rior to Sarah taking

J.C. to a provider for emergency care or in the process of doing so, she shall

attempt to reach Courtney by all reasonable means to advise him of the basis for

the emergency care.”

      The district court ordered the child placed in Courtney’s physical care and

ordered that each parent would have the child on a “seven on and seven off

schedule.” The child was to continue to attend mental health and behavioral

health intervention services (BHIS). Sarah was ordered to obtain a mental health

evaluation and follow through with any recommended treatment. The court also

entered a holiday schedule, ordered the appointment of a parenting coordinator,

and ordered Sarah to pay child support in the sum of thirty dollars per month.
                                          9


       Sarah appeals, contending the district court erred in ruling a change of

circumstances was warranted because the court did not find Courtney could

provide superior care. She also contends the court erred in removing her ability

to make medical decisions, ordering her to obtain a mental health evaluation, and

modifying the parenting time schedule.

II. Scope and Standard of Review.

       Our review of child custody proceedings is de novo. In re Marriage of

Hansen, 733 N.W.2d 683, 690 (Iowa 2007). “We give weight to the findings of

the district court; especially to the extent credibility determinations are involved.”

Id.

III. Discussion.

       A. Modification of physical care.      Sarah maintains the court erred in

(1) ruling a change of circumstances warranted a change of physical care,

(2) modifying physical care without finding Courtney could provide superior care,

and (3) modifying the parenting time schedule.          We address these claims

together.

       A party requesting modification must prove (1) a substantial and material

change in circumstances that is more or less permanent and affects

the child’s welfare and (2) an ability to provide superior care. In re Marriage of

Frederici, 338 N.W.2d 156, 158 (Iowa 1983). On our de novo review, we are

convinced Courtney satisfied this heavy burden.

       While we recognize Sarah loves her daughter, we also must recognize

that since at least December 2013, DHS workers have expressed concern about

her repeated allegations that Courtney mistreats the child in various ways,
                                         10


despite findings to the contrary.    The GAL shared this concern “of ongoing

statements by Sarah about Courtney to nearly every medical, mental health and

social work professional with whom Sarah has come into contact.” The GAL

observed, “J.C.’s records are riddled with statements by Sarah about Courtney

and his allegedly abusive and/or neglectful parenting of J.C.” The GAL also

expressed concern about “Sarah’s level of medical attention with J.C.”          She

noted “questionable visits and procedures” and Sarah “continuing to seek

medical attention and invasive testing for J.C. that may not actually be

necessary.” The GAL noted there had been seven to eight DHS investigations of

alleged abuse or neglect by Courtney conducted and “every single DHS

assessment results in a finding of ‘not confirmed.’”         We conclude Sarah’s

repeated charges against Courtney, which have resulted in the child repeatedly

having to endure invasive questioning and medical testing, constitutes a material

and substantial change of circumstances affecting the welfare of the child. See

In re Marriage of Winnike, 497 N.W.2d 170, 174 (Iowa Ct. App. 1992) (“In

determining custody we can give great weight to a parent’s attempt to alienate

a child from her other parent if evidence establishes the actions will adversely

affect a minor child.”); see also, e.g., In re Marriage of Gooley, No. 08-0551,

2008 WL 5412287, at *3 (Iowa Ct. App. Dec. 31, 2008) (affirming modification of

physical care where mother “systematically attempted to destroy the relationship

between father and daughter” by making “numerous allegations of abuse to the

DHS,” subjecting child ”to at least four genital examinations . . . with none finding

there was conclusive evidence of sexual abuse,” and taking other actions against

the best interests of the child).
                                        11


       Sarah argues the district court did not find Courtney could provide superior

care. While the district court did not make that explicit finding, upon our de novo

review, we conclude Courtney can provide superior care. Sarah argues she is

more “in tune” with the child’s diabetes and celiac nutritional needs. However,

the problem appears to be that Sarah is overly so. On the other hand, Courtney

has attempted to take the focus off the child’s health conditions.              We

acknowledge Courtney may have been somewhat less than vigilant when the

child was first diagnosed.     However, he and his wife have since become

“completely involved in J.C.’s diabetic care” and are cognizant of and act in

accordance with her dietary needs. Moreover, Courtney assured the court he is

in favor of continuing J.C.’s mental health and behavioral counseling. We thus

conclude Courtney has proved he can offer J.C. superior care, notwithstanding

Sarah’s historic role as primary caretaker.

       The district court’s modification of physical care places the child with each

parent for a week at a time. That schedule maximizes the child’s time with each

parent, and minimizes parental exchanges and the stress those exchanges

cause for the child. The schedule is consistent with the GAL’s recommendations.

We affirm.

       B. Modification of legal custody. “‘Legal custody’ or ‘custody’ means an

award of the rights of legal custody of a minor child to a parent under which a

parent has legal custodial rights and responsibilities toward the child.”      Iowa

Code § 598.1(5) (2013). In the original decree, Sarah and Courtney had joint

legal custody, that is, the right to “equal participation in decisions affecting the
                                          12


child's legal status, medical care, education, extracurricular activities, and

religious instruction.” Id. § 598.1(3).

       Both parties sought a modification of legal custody. Courtney requested

sole legal custody so he would be “the party responsible for managing [J.C.’s]

health care issues so she is not subjected to excessive medical examinations.”

In response, Sarah asked that she “be solely designated to make health care

decision for the minor child.” Based on its finding that “Sarah has subjected her

daughter    to   numerous     unnecessary,       unwarranted   and   painful   medical

procedures,” which “has resulted in J.C. missing significant amounts of school,”

the district court struck a different balance:

               1. Joint Legal Custody—It is in J.C.’s best interests that the
       parents continue to have joint legal custody subject to some
       modification. Specifically, the Court orders that while the parties
       shall have essentially all of the rights associated with Joint Legal
       Custody, Courtney shall be the sole parent to schedule all routine
       medical appointments for J.C. Sarah is neither precluded from
       scheduling emergency care for J.C. nor precluded from attending
       any routine care appointments scheduled for J.C. by Courtney.
       Prior to Sarah taking J.C. to a provider for emergency care or in the
       process of doing so, she shall attempt to reach Courtney by all
       reasonable means to advise him of the basis for the emergency
       care.

(Emphasis added.)

       The provision is consistent with the GAL’s recommendation that some

limitation be placed on Sarah’s medical authority.         Sarah is not deprived of

providing necessary care for the child. Upon our de novo review, we find no

reason to disturb this provision of the modified decree. See Harder v. Anderson,

Arnold, Dickey, Jensen, Gullickson & Sanger, L.L.P., 764 N.W.2d 534, 538 (Iowa

2009) (noting a parent’s rights are “tempered by the overriding principle that
                                             13


when dealing with a matter concerning a child whose custody was determined by

court decree . . . , the first and governing consideration a court must apply is the

best interest of the child”).

       C. Mental health evaluation. On appeal, Sarah contends the court’s order

that she undergo a mental health evaluation is duplicative and unnecessary

because she testified she sees a therapist.1

       In the past, Sarah has received treatment for depression, anxiety, and

post-traumatic stress disorder and has been treated with medications for these

conditions. However, she discontinued all counseling and medications for her

mental health issues sometime in 2011 or 2012. The GAL testified a hospital

social worker raised a concern that the child’s extensive medical records across

multiple health systems suggest the mother may have a mental health issue

underlying her hypervigilance concerning the child’s health. Sarah’s testimony

that she occasionally sees a counselor does not negate the assistance a mental

health evaluation could provide or the benefit to the child of the requirement that

Sarah follow the recommendations of the mental health evaluation.

       We affirm the district court’s modification of the physical care provision in

the paternity, custody, visitation, and support decree.

       AFFIRMED.




1
  In her reply brief, Sarah contends the court was without authority to order such an
examination. However, because this claim was not made to the district court and is
raised for the first time in a reply brief, it is not properly before us. See State v. Olsen,
794 N.W.2d 285, 287 n.1 (Iowa 2009) (“Because Olsen failed to raise this issue in his
original brief, the issue is not preserved for our review.”); Sun Valley Iowa Lake Ass’n v.
Anderson, 551 N.W.2d 621, 642 (Iowa 1996) (“Parties cannot assert an issue for the first
time in a reply brief. When they do, this court will not consider the issue.”).
