                     IN THE COURT OF APPEALS OF IOWA

                                     No. 19-0470
                                 Filed June 19, 2019


IN THE INTEREST OF K.P., K.P., J.P., K.P., J.P., K.P., J.P., and K.P.,
Minor Children,

K.P., Mother,
       Appellant,

B.S., Father of K.P.,
       Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic,

District Associate Judge.



       A mother and the father of one of her children appeal the juvenile court’s

removal order in a child-in-need-of-assistance proceeding. REVERSED IN PART

AND REMANDED.



       Elizabeth A. Batey of Vickers Law Office, Greene, for appellant mother.
       Danielle M. Ellingson of Eggert, Erb, Kuehner & DeBower, P.L.C., Charles
City, for appellant father of K.P.
       Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
       Cameron Sprecher of Prichard Law Office, PC, Charles City, for appellee
father J.B.
       Cynthia S. Schuknecht of Noah, Smith & Schuknect, P.L.C., Charles City,
attorney and guardian ad litem for minor children.




       Considered by Vogel, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.

        A mother and the father of one of her children appeal the juvenile court's

removal order in a child-in-need-of-assistance (CINA) proceeding. We find there

is not clear and convincing evidence supporting removal of the children. We

reverse the district court’s removal of all the children from the mother’s custody,

and removal of the youngest child from her father’s custody.

        I.     Background Facts & Proceedings

        K.P. is the mother of eight children: K.P., born in 2004; K.P., born in 2005;

J.P., born in 2006; J.P., born in 2008; K.P., born in 2013; J.P., born in 2014; K.P.,

born in 2015; and K.P., born in 2017. J.B. (the father) is the father of the seven

older children and legal father to the youngest child. B.S. is biological father to the

youngest child.

        Over the course of 2018, ten different child protective services

investigations were initiated; all ten were unconfirmed. By the last report at the

beginning of November, the Iowa Department of Human Service (DHS) placed the

children at “a high level of risk.” The allegations involve multiple children, and

included abuse, use of dangerous substances around the children, denial of critical

care, and failure to supervise the children. The mother and her paramour, B.S.,

began voluntary participation in a family services program in mid-2018. The father

moved to Texas for several months in 2018, leaving all the children in the mother’s

care.

        In August 2018, the police were called for a domestic violence incident

between the mother and B.S., and DHS was notified as the actions occurred while

the youngest child was present. The mother accused B.S. of hitting her, throwing
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objects, punching holes in her walls, and abusing controlled substances and

alcohol. B.S. accused the mother of scratching him and stated he was the person

who called the police. A no-contact order was put in place between the mother

and B.S., but they dropped it in November. B.S. was living in the home again with

the mother and children from November 2018 until February 2019. The mother

and B.S. ended their relationship at the beginning of February, and B.S. moved in

with his parents.

       Once the father returned to Iowa, the oldest child moved in with him full-

time. The second-oldest lived with the mother. The next five children split their

time between the parents’ homes. The oldest identified B.S. as a major reason to

not return to the mother’s house. The second oldest said the time the others were

at the father’s home was a chance to have a break from taking care of the younger

siblings. The youngest child lived with the mother and B.S., then split time between

the mother’s home and B.S.’s home after they separated.

       Three of the children are hearing impaired and use cochlear implants. One

of them attends a resident program at the Iowa School for the Deaf during the

week. All three were frequently sent to school and daycare without one or both

implants before DHS involvement. The father appeared to be better at maintaining

the implants for the children. Reports show the children’s learning is hindered

when they do not have the necessary implants at school.

       The mother, father, and B.S. do not co-parent effectively, and all three have

complained to DHS about the others. DHS described the situation among the

mother, the father, and B.S. as “chaos.” A no-contact order is in place between

the mother and father. In November 2018, the mother pleaded guilty to domestic
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assault, second offense, against the father. A separate domestic assault charge

relating to B.S. was dropped at that time.

       On February 15, 2019, the court adjudicated all eight children as CINA

pursuant to Iowa Code section 232.2(6)(c)(2) (2019). DHS and the guardian ad

litem recommended the parents share custody of the children. The court noted

concerns of domestic violence in the presence of the children, allegations of

physical abuse and drug use in the home, and the mother’s failure to meet the

children’s medical needs. The court required DHS approval of other adults in the

home, ordered the parents and their household members to submit to alcohol and

drug testing as directed, prohibited persons under the influence of alcohol or drugs

around the children, directed the mother to complete a domestic abuse program,

the mother to attend individual therapy, ordered B.S. to have no contact with any

child but the youngest, and required the parents ensure the children’s medical

needs are met and the cochlear implants are worn at all times as directed.

       On March 14, a dispositional hearing was held. The State and the guardian

ad litem supported following DHS’s recommendation the parents continue to share

custody. The DHS report noted two of the older children were taking care of their

siblings often and the hearing-impaired children did not consistently wear their

cochlear implants while in the mother’s care. The mother said she was attending

mental-health therapy and had completed a substance-abuse evaluation, though

no records were submitted. The father requested placement of the children in his

care, testifying at the hearing the oldest child reported abuse in the mother’s home.

All eight children were removed from the mother’s custody, and the youngest child
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was removed from B.S.’s custody. The court found the following circumstances

supported removal:

       Mother, [B.S.] and [B.S.]’s household members unresolved
       substance abuse issues, history of violence and abuse in the home
       in the presence of the children, failure of Mother to meet the essential
       needs of the children—particularly failure to make sure that the
       children who need them have their implants available to allow them
       to hear, conflictual relationships between parents, lack of compliance
       with Court orders for services, lack of progress since case initiation,
       lack of proper supervision of the children, Mother’s frequent
       absences from the home, and conflictual relationships between the
       oldest children and parents.

In particular, the court sought to prevent the older children from being placed in a

caretaker or parent role with the younger siblings. The seven older children were

placed in their father’s custody. The court ordered four of the children to participate

in therapy. The youngest child was placed in foster care. B.S. is not allowed

contact with the seven older children. The court again ordered all adult household

members of the parents to submit to drug testing.

       The mother and B.S. appeal the removals. The father supports the court

order, and the State offers no argument on appeal.

       II.    Standard of Review

       Our review in CINA proceedings is 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.” Id. “We review both the

facts and the law, and we adjudicate rights anew.” In re K.N., 625 N.W.2d 731,

733 (Iowa 2001). “As in all juvenile proceedings, our fundamental concern is the

best interests of the child[ren].” Id.
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        III.    Analysis

        The court may remove a child from home when it determines by clear and

convincing evidence “that continuation of the child in the child’s home would be

contrary to the welfare of the child.” Iowa Code § 232.102(6)(b). The court is to

“make     the   least   restrictive   disposition   appropriate   considering   all   the

circumstances of the case.” Id. § 232.99(4).

        The mother and B.S. both claim compliance with the recommendations in

the district court’s adjudication order to the extent possible. The mother submitted

a summary of services from the worker who had been visiting the family since

April 2018. The worker specifically noted the mother had been participating in

services and was working on improving her parenting abilities. DHS reported the

mother had begun mental-health therapy. The mother and B.S. were no longer

involved at the time of the hearing, and that relationship had been the source of

many of the court’s concerns.          The DHS report noted B.S. claimed to have

completed a substance-abuse evaluation and DHS was awaiting the report and

any related drug testing. DHS was also waiting on paperwork from the adults in

B.S.’s household before arranging any drug testing. B.S. complied with the order

to avoid the other seven children.

        Upon our review of the record at the time of the dispositional hearing, we

find there is not clear and convincing evidence supporting removal of the children.

The guardian ad litem, DHS, and the State did not recommend the removal, nor

does the State support it on appeal. We reverse the juvenile court’s removal of

the children from the mother’s custody and the youngest child from B.S.’s custody.
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We leave the remaining provisions of the dispositional order in place and remand

for further proceedings.

      REVERSED IN PART AND REMANDED.
