                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0315
                                Filed June 11, 2014


IN THE INTEREST OF V.B.,
Minor Child,

B.B., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Johnson County, Deborah Farmer

Minot, District Associate Judge.



       A mother appeals from the juvenile court order modifying the dispositional

order in a child-in-need-of-assistance proceeding. AFFIRMED.




       Jean Lawrence of the University of Iowa College of Law Clinical Law

Program, Iowa City, for appellant mother.

       Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, Janet M. Lyness, County Attorney, and Patricia Weir, Assistant County

Attorney, for appellee State.

       Anthony Haughton, Cedar Rapids, for minor children.



       Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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DANILSON, C.J.

       A mother appeals from the juvenile court order modifying the dispositional

order to transfer custody of her child, V.B., to the Iowa Department of Human

Services (DHS) for placement outside of the home.1 She contends the State

failed to prove a substantial change in circumstances warranting modification

occurred following entry of the dispositional order.        She also contends the

transfer of custody was not in the child’s best interests. Considering the mother’s

disregard of the directives set forth in the dispositional order and the continued

and worsened physical and emotional abuse suffered by the child, we conclude a

substantial change in circumstances warranting modification of the prior court

order has occurred. We further conclude it is in the child’s best interests to be

removed from her mother’s care.           Accordingly, we affirm the court order

modifying the dispositional order to transfer custody of V.B. to DHS for placement

outside of the home.

I. Background Facts and Proceedings.

       DHS became involved with the mother and her four children in October

2011, after one of V.B.’s brothers was hospitalized for psychiatric evaluation and


       1
         Three of the mother’s four children were adjudicated as children in need of
assistance on May 30, 2012. The mother appeals the court’s modification order, which
only modified the custody and placement of V.B. The family originally became involved
with DHS when one of V.B.’s siblings was hospitalized for psychiatric evaluation and
treatment. The child subject to psychiatric treatment was removed from the mother’s
care in November 2011 and spent over a year in a psychiatric medical institution for
children (PMIC). At the time of the modification, and after two foster home placements,
the child was back in a PMIC facility with a permanency goal of another planned,
permanent living arrangement.
        The other two children remain in the mother’s home. One of these two siblings
was originally also subject to the petition for modification, but the GAL withdrew his
recommendation regarding this child after the hearing, so only V.B.’s custody was
modified.
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treatment. The brother was removed from the mother’s care in November 2011.

The State filed child-in-need-of-assistance (CINA) petitions for each of the three

remaining children, including V.B., in December 2011.

          V.B. was adjudicated a CINA pursuant to Iowa Code 232.2(6)(c)(2)

(2011)2 on May 30, 2012. In the written ruling, the juvenile court stated:

                  It is abundantly clear that each of these children is in need of
          assistance. Parental mental illness and medical conditions, lack of
          follow through with recommended services, failure to appropriately
          supervise and discipline the children, resistance to intervention, and
          inability or unwillingness to recognize and acknowledge these
          issues has, over a period of many years, created a stressful,
          chaotic, and unpredictable home which has negatively impacted all
          the children to various degrees. . . . Without intensive services the
          children’s problems, as well as the conditions that have prevailed in
          the home for the past several years, will certainly fail to improve
          and will likely worsen.
                  ....
                  [V.B.] is already suffering ill effects as a result of the home
          environment. She, like [her siblings], has frequently missed school
          and is significantly behind. While truancy alone is not a legal basis
          for adjudication, it is but one symptom of the lack of structure and
          supervision in this home. . . . [The mother] and [the stepfather]
          have no system of discipline in their home and they cannot agree
          on one. They frequently argue about discipline in front of the
          children, sometimes for hours.           [The stepfather] favors [the
          youngest child] and regularly defends her or blames the other
          children for her behavior. In his eyes, [the youngest child] can do
          no wrong. This appears to be a frequent source of disagreement
          with [the mother], who has a similar attitude toward [V.B.]. This
          chaos has lasted for years and is steadily worsening.

          The juvenile court held a dispositional hearing on July 18, 2012. The

resulting order allowed V.B. to remain in the home of her mother and stepfather


2
    Iowa Code section 232.2(6)(c)(2) provides:
          A “child in need of assistance” means an unmarried child:
          (c) Who has suffered or is imminently likely to suffer harmful effects as a
          result of . . . .
          (2) The failure of the child’s parent, guardian, custodian, or other
          member of the household in which the child resides to exercise a
          reasonable degree of care in supervising the child.
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but set expectations the parents would (1) develop and use a system of behavior

management, behavior modification, and discipline for the children; (2) continue

to participate in marital therapy; and (3) obtain mental health and parenting

evaluations and follow through with any recommendations.

       On September 10, 2012, the mother and stepfather became involved in an

argument that ultimately resulted in the stepfather pleading guilty to domestic

abuse assault causing bodily injury and being placed on probation. During the

argument, V.B. tried to intervene and was pushed to the floor by the stepfather.

A criminal no contact order was entered but later dropped at the request of the

mother.

       The juvenile court held another review hearing on March 22, 2013, after

receiving the first report of the court appointed special advocate. Shortly before

the hearing, there was an incident on a city bus where the stepfather hit V.B. in

the arm and called her names, including racial slurs. The DHS worker’s report,

submitted at the hearing, stated, “While none of the concerns have individually

warranted an emergency removal, this worker feels the combination of concerns

puts the children at very high risk and this worker is concerned for the long term

well being of the children.”

       The court set a modification hearing for July 2, 2013, to consider whether

the children should be removed from the home. By the time the hearing date

arrived, all parties were in agreement the prior orders should be continued. The

mother had made concerted efforts to follow through with case plan expectations;

however, there was no consensus that any significant or lasting progress had

been made. In the ruling following the hearing, the juvenile court stated, “The
                                            5


Court continues to find that the situation at home is tenuous, that minimal

progress is being made, and that these children are at high risk for not having

their needs met, for physical and emotional abuse, and for denial of critical care.”

At the recommendation of the mother’s psychiatrist, the court ordered her to

participate in the Systems Training for Emotional Predictability and Problem

Solving (STEPPS) program. The court also considered a recommendation from

DHS that a no-contact order should be entered to prohibit the stepfather from

contacting V.B., but the GAL expressed concern that such an order would isolate

V.B. from her other family members. The court declined to enter the order but

stated, “[I]f further reports of physical, verbal, or emotional abuse are received,

the Court will reconsider this decision. [The stepfather] is encouraged to pursue

a positive relationship with [V.B.] in the best interests of all the children.”

       On November 4, 2013, the juvenile court held another hearing for in-court

review.   At the hearing, the GAL submitted a report recommending the prior

orders be modified for V.B. “because the GAL fears for her health and safety and

her mother’s inability to protect her from her husband and siblings.” The court’s

order, filed November 14, 2013, summarizes the findings from the hearing:

       Both the mother and [stepfather] provided information about the
       incident [that occurred on September 10, 2013]. It is clear that
       [V.B.] and [her youngest sibling] were arguing and name-calling
       and, as usual, neither parent was able or willing to properly redirect
       or discipline the children. When [V.B.] called him names, [the
       stepfather] felt “disrespected” and slapped her in the mouth.
       Afterward, he ordered her out of her home.             [The mother]
       accompanied [V.B.] outside, whereupon [the stepfather] locked
       them out of the home despite the fact that [the mother and V.B.]
       lives in the home, but [the stepfather] lives elsewhere. Based upon
       this information, a review of the court files, the documents
       submitted, the testimony presented, and the statements of the
       parties, the Court finds that [V.B.] can no longer remain safely in
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       the family home and that remaining in the home would be contrary
       to her best interests due to repeated episodes of physical, verbal
       and emotional abuse, and that her mother is unable and/or
       unwilling to protect her.

The court then ordered V.B. to be temporarily placed in foster care and

scheduled a modification hearing for January 14, 2014.

       At the modification hearing, the mother admitted she had not complied

with court order to enter the STEPPS program. She also testified that she and

the stepfather were separated and going through a divorce. Although the mother

claimed the stepfather had not been allowed in the family home since September

10, 2013, when the stepfather slapped V.B. on the mouth and locked her out of

the home, but other statements she made belied this testimony. In the written

order, the court stated:

       The files, reports, and orders of the Court document a well-
       established pattern of [V.B.] being a target of resentment, anger,
       and abuse by [the stepfather]. She appears to be a convenient
       scapegoat. She is often caught in the crossfire between [the
       stepfather] and [the mother]. She has repeatedly been the victim of
       physical, emotional and verbal abuse. [The stepfather’s] treatment
       of [V.B.] has been nothing short of abysmal. His emotional maturity
       appears to be at the level of a child, not an adult. He lacks the
       resources to manage his anger and frustration, and he takes it out
       on [V.B.]. As was evident from his statements in November, he
       clearly feels completely justified in his actions because he is
       “disrespected” by [V.B.]. To be sure, [V.B.] is disrespectful,
       disobedient, and insulting to [the stepfather], but the blame for her
       behavior can be laid squarely at the feet of the adults. [The mother]
       cannot or will not protect [V.B.]. While she is not to blame for [the
       stepfather’s] words and actions, she most certainly is responsible
       for failing to use the tools that are available to her, such as no
       contact orders. She is also responsible for minimizing [the
       stepfather’s] behaviors and blaming [V.B.] for the abuse, which was
       very much in evidence during her testimony at the hearing.

The court found V.B. could not remain in the family home and maintained her

placement with a foster family. The court also granted custody to DHS so that
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V.B.’s medical and medication needs could be met. Finally the court found it was

in V.B.’s best interest to enter a no-contact order prohibiting the stepfather from

contacting V.B. The mother appeals.

II. Standard of Review.

      We review CINA proceedings de novo. In re K.B., 753 N.W.2d 14, 14

(Iowa 2008).

      The juvenile court may modify a dispositional order upon good cause if the

court finds any of the following circumstances exist:

      (a) The purposes of the order have been accomplished and the
      child is no longer in need of supervision, care, or treatment.
      (b) The purposes of the order cannot reasonably be accomplished.
      (c) The efforts made to effect the purposes of the order have been
      unsuccessful and other options to effect the purposes of the order
      are not available.
      (d) The purposes of the order have been sufficiently accomplished
      and the continuation of supervision, care, or treatment is unjustified
      or unwarranted.

Iowa Code § 232.103(4). If the court finds there is good cause, the court must

take a second step in the analysis before it may transfer custody.

      A transfer of custody shall not be ordered 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.”            Iowa Code

§ 232.102(5)(a). Further, the court “must make a determination that continuation

of the child in the child’s home would be contrary to the welfare of the child, and

identify the   reasonable    efforts that    have   been   made.”     Iowa     Code

§ 232.102(5)(b). Finally, in order to modify custody or placement, there must
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also be a material and substantial change of circumstances. In re R.F., 471

N.W.2d 821, 824 (Iowa 1991).3

III. Discussion.

       The mother contends the State failed to prove circumstances have

changed since entry of the dispositional order because the issues that existed at

the time of modification were the same that led to the CINA adjudication. We

disagree.

       The mother’s refusal or inability to limit the stepfather’s contact with the

child and the escalation of the stepfather’s violent and abusive behavior towards

3
  The mother contends the State must show a substantial change of circumstances to
modify the dispositional order granting custody of the child to DHS and cites in support
of this proposition the case of In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). In R.F., our
supreme court recited this principle without any analysis citing In re J.F., 386 N.W.2d
149, 152 (Iowa App. 1986). Our case of J.F. relied upon the analysis and this principle
espoused in In re Leehey, 317 N.W.2d 513, 516 (Iowa Ct. App. 1982). We propounded
that because our supreme court has:
         consistently taken the position it is highly desirable the status of children
         should be fixed as quickly as possible, be thereafter disturbed as little as
         possible, and then only for the most cogent reasons. In dissolution of
         marriage cases, a noncustodial parent seeking custody must establish by
         a preponderance of the evidence that the conditions since the court
         decree have so materially and substantially changed that the child's best
         interests make the change in custody expedient. This principle is
         premised on the concept that once custody is fixed it should be disturbed
         only for the most cogent reasons. Since a child’s need for a stable and
         continuing environment is no less important in custody cases arising
         under the juvenile code, we believe that the requirement of a material and
         substantial change in circumstances is equally applicable to modification
         of custody and placement orders pursuant thereto.
(Internal citations omitted.) However, since Leehey, our juvenile code has evolved.
Stability of the child’s placement remains a concern but our code now includes a
provision for permanency orders and hearings that did not exist at the time Leehey was
decided. See Iowa Code § 232.104. To impose the additional requirement of showing a
substantial change of circumstances, where our legislature has made provisions for
permanency and created a two step process to modify a dispositional order to remove a
child from a parent’s care and transfer custody to DHS, is overly burdensome. However,
because our supreme court has approved the principle, we defer to the supreme court
whether case precedent should still be followed. See State v. Miller, 841 N.W.583, 584
n.1 (Iowa 2014). (“Generally, it is the role of the supreme court to decide if case
precedent should no longer be followed.”).
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V.B. constitutes a material and substantial change of circumstances. Although

the mother claimed she was limiting the stepfather’s access to V.B., the juvenile

court did not believe her testimony. Especially since the mother claimed the

stepfather had not been allowed in the home since the day he slapped V.B. on

the mouth and locked her out of the home, but later admitted he had been in the

home at least two times. She also refused to use the tools available to her to

protect V.B. from her stepfather.     Furthermore, the mother’s disregard of the

directives set forth in the dispositional order and the effect it had on V.B. is a

substantial change in circumstances that warrants modification of the prior court

order. The STEPPS program was recommended by her psychiatrist and clearly

intended to aid her parenting abilities or skills, yet the mother disregarded the

order and never completed the program.

       The mother next contends modification is not in the child best interests. In

modification of a dispositional order relating to child custody, the focal point is the

best interests of the child. In re C.D., 509 N.W.2d 509.511 (Iowa Ct. App. 1993).

The children's best interests are to be determined by looking at their long-range

as well as immediate interests. Id. at 511–12. A parent’s past performance

provides insight into this determination. Id.

       We conclude it is in the child’s best interests to be removed from the

mother’s care. As the district court found, “[C]ontinuation of the child in the family

home would be contrary to the welfare of the child because of the high degree of

chaos in the home, lack of appropriate supervision, parenting deficiencies, and

because the risk of physical and emotional abuse is unacceptably high.” The risk

for abuse is higher for V.B. than the other children because of the stepfather’s
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past history of assaulting her.   Accordingly, we affirm the district court order

modifying the dispositional order to transfer custody of the child to DHS for

placement outside the home.

      AFFIRMED.
