                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1642
                             Filed August 15, 2018


JAMES LEE LEIRAN,
    Plaintiff-Appellant,

vs.

JEANEEN LYNNE KLEPPE,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Allamakee County, Margaret L.

Lingreen, Judge.



      The father appeals from the district court’s denial of his petition to modify

physical care of his three children. AFFIRMED.




      Mark B. Anderson, Cresco, for appellant.

      Jeaneen Lynne Kleppe, Monona, appellee, pro se.



      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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POTTERFIELD, Presiding Judge.

       James Leiran appeals the district court’s denial of his petition to modify the

physical-care determination regarding the three children he shares with Jeaneen

Kleppe. The district court found James established a material and substantial

change in circumstances since the entry of the original decree but determined he

had failed to establish that he could provide the children with care superior to that

provided by Jeaneen.

I. Background Facts and Proceedings.

       James and Jeaneen are the never-married parents of three children, who

were born in 2009, 2011, and 2013. James and Jeaneen were in a relationship

from 2008 until July 2014, and the original custody decree was entered in

September 2015.

       In the decree, the court found that a physical altercation had taken place

between James and Jeaneen in August 2013, in which James assaulted Jeaneen.

The court noted, “James has a controlling and abusive personality. He has a

history of prior abuse with his ex-wife that continued in his relationship with

Jeaneen.” Additionally, the court was “disturbed” by James’s behavior of—while a

no-contact order was in place—going to a nearby town to locate Jeaneen’s car at

the home of her new boyfriend and videotaping her car. He then set an alarm for

several hours later to wake up in the middle of the night and return to the nearby

town to video her car in the same position. He admitted in his testimony that he

drove by the boyfriend’s apartment building a number of times in order to check on

Jeaneen’s location.
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       Moreover, Jeaneen was recognized by the court as the primary caregiver

of the children. While James worked two jobs, it was also noted he “was not very

involved when he was home.”

       James and Jeaneen were given joint legal custody of the children, with

Jeaneen receiving physical care. James had scheduled parenting time every other

weekend and on Wednesdays overnight. He was ordered to pay $449 per month

in child support for the three children, based in part on his previous child-support

obligation to his ex-wife for their shared child.

       In September 2016, Jeaneen filed a petition for modification of child support,

claiming the court should modify the obligation because James’s salary had

increased and because James’s child with his wife had turned eighteen and no

longer received support.

       James resisted Jeaneen’s petition to modify child support and filed a

counter-petition for change of custodial arrangement, asking the court to award the

parties joint physical care of the children.

       Both petitions proceeded to trial in September 2017.

       At trial, James testified he was now seeking physical care of the children

rather than shared or joint care. He cited new information he learned about

Jeaneen’s fiancé as the reason. James testified that in May, he learned Jeaneen

had recently started dating Mitchell Kubik, a registered sex offender. James did

not express any concerns to Jeaneen about the children’s safety or tell her what

he had learned. Instead, he waited until July and then reported to the Iowa

Department of Human Services (DHS) that he believed Kubik was being allowed

improper contact with his children. He also reported to local police that he believed
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Kubik was staying somewhere other than where he was currently registered. A

child-abuse assessment followed, with DHS issuing a founded report for Jeaneen’s

act of allowing access to a registered sex offender. Additionally, Jeaneen was

charged with child endangerment (which was still pending at the time of the

modification trial), and Kubik was charged with failing to register his address.

       The report from the founded assessment was entered into evidence at trial.

In it, the social worker found that Jeaneen was open with the worker, admitting that

she knew Kubik was a registered sex offender, they were in a romantic

relationship, and he had stayed overnight in her home on nights the children were

also there. Jeaneen was told by the social worker that Kubik could not be alone

with the children and could not stay overnight in the home on the nights they were

there; Jeaneen indicated she was previously unaware of the rule but stated she

understood it and would follow it in the future. The social worker found “no other

indicators” “of abuse or neglect” and found the children to be “without outward

signs of abuse or neglect” and to “interact[] in a manner showing no fear and a

bond with the mother.” The report ultimately concluded the children were safe in

their home, and “Jeaneen has the parenting skill and capacity to continue to keep

the children from Mitchell Kubik.” The family’s ongoing social worker—who was

different than the worker who authored report—testified at the trial, stating,

“[Jeaneen’s] been very cooperative.       I haven’t had issues.     She takes any

recommendation I would make, and the [family safety, risk, and permanency]

worker didn’t—has [not had] any concerns about her ability to parent or follow

through with recommendations made for her or the kids.” The worker also testified
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she did not have any concerns that Jeaneen would fail to follow the restriction of

not leaving the children otherwise unsupervised with Kubik.

        When asked, Jeaneen indicated that Kubik told her was a registered sex

offender due a conviction for assault with intent to commit sexual abuse that he

received after pleading guilty in 2008. Although no official description of the crime

was entered into the record at the modification trial, Jeaneen testified the incident

took place when Kubik was nineteen years old and involved a seventeen-year-old

girl.

        During Jeaneen’s testimony, she discussed several incidents when James

failed to properly supervise the children. In one instance, James took the three

children to a local racetrack for a special race that was well-attended with both

local and out-of-state people. At some point, James had the oldest child—who

was then eight—take the three-year-old child to the bathroom. James was unable

to see the children from where he waited, as was made clear when he could not

testify as to which bathroom the eight-year-old took the three-year-old. Jeaneen

also attended the races and chanced upon the three-year-old when she was also

using the restroom. Additionally, Jeaneen and James testified about the time the

children were at James’s home and a bookcase fell on the three-year-old because

she tried to climb it; the child reported difficulty breathing and had to be taken to

the emergency room. In another instance, Jeaneen testified about a video James

posted to social media; James used his phone to film images from his outdoor

security camera as the oldest child and middle child physically fought over a toy

rather than going outside to intervene. Another picture admitted into evidence

showed a page from James’s social media account in which he uploaded a picture
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of the youngest child with an injury to her face that he captioned “[A]t the [ER].

[Middle child] beat her up.” According to Jeaneen, there was initially concern that

the youngest child had suffered a broken nose as a result of the incident.

      In its written ruling, the court denied James’s petition to modify the physical-

care arrangement, stating:

              In the instant case, [Jeaneen’s] engagement to a convicted
      sex offender concerns the court. Also of concern to the court is [her]
      wiliness to accept explanations provided by Kubik for his behavior
      and then to excuse that behavior. Kubik was caught in at least one
      lie by the DHS investigator. It appears to this court Kubik will say
      anything to minimize his behaviors and to cast himself in a better
      light. It appears [Jeaneen] has not yet recognized this type of
      behavior by Kubik.
              The court finds [Jeaneen’s] engagement to a registered sex
      offender is, in fact, a material and substantial change in
      circumstances since entry of the original decree, which certainly
      could not have been contemplated by the court when the decree was
      entered. The court also finds these circumstances relate to the
      welfare of the children.
              ....
              [Jeaneen] not only provides for the basic needs of the
      children, she has offered them opportunities to participate in
      extracurricular activities, at her expense; she has secured additional
      services to address their needs, including behavior issues.
      [Jeaneen] demonstrates a better awareness of safety concerns for
      the children, such as the incident [that] occurred on Memorial Day [at
      the racetrack].
              As previously noted, there is undisputed evidence in the
      record of [James’s] remark in front of the children regarding their
      mother only wanting child support and not loving the children. There
      is no evidence of similar remarks by [Jeaneen] that would damage
      the children’s relationship with [James]. There is evidence in the
      record of calculating behavior by [James] to establish evidence for a
      possible contempt; there is no credible evidence of similar behavior
      by [Jeaneen].
              As previously noted, [the family’s ongoing social worker]
      testified she did not have concerns that [Jeaneen] would allow Kubik
      around the children. [She] felt that the children were safe with
      [Jeaneen] and that [Jeaneen] provides an appropriate home. As
      previously noted, [James], himself, elected not to report Kubik’s
      relationship with [Jeaneen] and presence at the home, until more
      than a month after discovering Kubik is a registered sex offender. It
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       appears [James] also expects [Jeaneen] will keep the children safe
       from Kubik.

       The court granted Jeaneen’s motion for modification of child support, finding

that James’s obligation met a statutory criteria for a substantial change in

circumstance, as his previous child-support obligation varied “by ten percent or

more from the amount which would be due pursuant to the most current child

support guidelines.” Iowa Code § 598.21C(2)(a) (2016).

       James appeals.

II. Standard of Review.

       We review proceedings to modify custodial provisions de novo. Melchiori

v. Kooi, 644 N.W.2d 365, 368 (Iowa 2002).

III. Discussion.

       The requirements to change a custodial provision are well-settled:

              The first question we need to address is whether the record
       shows there has been a substantial change in circumstances such
       as is necessary for modification of the custody provisions of a
       paternity decree. Courts are empowered to modify the custodial
       terms of a paternity decree only when there has been a substantial
       change in circumstances since the time of the decree, not
       contemplated by the court when the decree was entered, which was
       more or less permanent, and relates to the welfare of the child.

Id.

       Even if the petitioning parent proves a substantial change in circumstances,

the parent must still establish that he or she “has an ability to minister more

effectively to the well-being of the parties’ children” in order for a modification to be

made. In re Marriage of Thielges, 623 N.W.2d 232, 238 (Iowa Ct. App. 2000); see

also In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App. 1998) (noting

the father had shown a substantial change of circumstances, so “[t]he question
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becomes whether he showed he can render superior care”). “The parent seeking

to change the physical care has a heavy burden and must show the ability to offer

superior care.” Mayfield, 577 N.W.2d at 873. This “heavy burden ‘stems from the

principle that once custody of children has been fixed it should be disturbed only

for the most cogent of reasons.’” Thielges, 623 N.W.2d at 235 (quoting In re

Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). The requirements are

the same for unmarried parents as they are for once-married parents. See, e.g.,

Carmichael v. Philpott, No. 17-0124, 2018 WL 739275 (Iowa Ct. App. Feb. 7,

2018); German v. Metcalf, No. 09-1470, 2010 WL 1875640, at *1 (Iowa Ct. App.

May 12, 2010).

       Here, the district court determined James met the first part of his burden;

concluding Jeaneen’s choice to become engaged to a registered sex offender

whom she allowed to be around the children before DHS’s intervention and which

ultimately resulted in a founded child abuse report and a charge for child

endangerment met the standard of a substantial change. No one challenges this

part of the district court’s determination,1 and we agree with the district court.

       Next, we must consider whether James met his heavy burden of

establishing that he can provide the children care superior to that provided by

Jeaneen. At trial, James expended less effort focusing on his strengths as a parent

and more time trying to paint Jeaneen in a negative light. His argument on appeal

is similar, claiming that because Jeaneen has chosen to become engaged to




1
 Jeaneen did not file an appellate brief, see Iowa R. App. P. 6.901(1)(b), and we would
not expect James to challenge this.
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someone on the sex offender registry and has uncharged instances of possibly

applying for a credit card in a boyfriend’s name, she cannot be a good mother.

      Like the district court, we are not unconcerned by Jeaneen’s chosen

paramour. But the evidence at trial was that Jeaneen could and was prepared to

keep the children from being with Kubik unsupervised.          DHS determined the

children were safe in Jeaneen’s home, and the social worker who testified

indicated she believed Jeaneen would keep them that way. And as the district

court noted, James’s delay of more than one month in reporting that Kubik was

staying in the home with his children seems to establish that James trusts Jeaneen

to keep the children safe as well. Additionally, while James asks us to focus on

Jeaneen’s possible past criminal activities—she was never criminally charged for

any false credit card applications and we do not believe the evidence at trial

established she engaged in such actions—James ignores his own past convictions

for assaulting his ex-wife and for going armed with a knife.

      Jeaneen has always been the primary caretaker of the children. She makes

sure the children receive the medical care they need, including reaching out and

securing behavioral services for the oldest child, who has had some outbursts of

anger and dishonesty.      She also makes sure the children are engaged in

extracurricular activities in the community, including Boy Scouts, wrestling, and

dance. She does not appear to have trouble supervising the three young children,

whereas James appears to give the children more freedom than they are yet

prepared to handle. While James appears to have a strong support system in his

parents, who have played a role in helping to care for the children, Jeaneen also
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has a strong support system in her mother. Both sets of grandparents live nearby

and help out with child care and transportation.

       We understand James’s concern regarding Jeaneen’s fiancé, but under

these circumstances, we cannot say James established that he can provide the

children superior care.

       We affirm the district court’s denial of James’s petition to modify the

physical-care arrangement.2

       AFFIRMED.




2
 In passing, James also mentions in his appellate brief that “[c]hild support should be set
according to the financial information submitted by the parties.” As he has provided no
argument regarding alleged legal error by the district court regarding the modified child-
support obligation, we understand this to mean that we need only consider James’s child
support obligation if we disagree with the district court’s denial of his petition to modify the
physical-care arrangement. Because we agree with the district court’s determination, we
do not reconsider James’s child-support obligation.
