                   IN THE COURT OF APPEALS OF IOWA

                                    No. 18-1585
                              Filed January 23, 2020


IN RE THE MARRIAGE OF ANDREW J. VAN FLEET
AND BRENDA JEAN VAN FLEET

Upon the Petition of
ANDREW J. VAN FLEET,
      Petitioner-Appellant,

And Concerning
BRENDA JEAN VAN FLEET,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.




      Andrew Van Fleet appeals from an order modifying the physical care

provisions of the decree dissolving his marriage to Brenda Van Fleet. AFFIRMED.




      Billy J. Mallory of Brick Gentry, P.C., West Des Moines, for appellant.

      Lisa A. Allison of Allison Law Firm, LLC, Des Moines, for appellee.



      Considered by Bower, C.J., Doyle, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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MAHAN, Senior Judge.

       Andrew Van Fleet appeals from an order modifying the physical care

provisions of the decree dissolving his marriage to Brenda Van Fleet. Upon our

de novo review, we agree modification is appropriate under the facts of this case

and we affirm.

I.     Background Facts and Proceedings

       Andrew and Brenda divorced in 2008. They agreed to share joint legal

custody and alternating-week physical care of their two children, P.D. and G.M.,

born in 2000 and 2002.

       In 2015, the family came to the attention of the department of human

services upon reports that Andrew was “huffing” nitrous oxide and had overdosed

while the children were in his care. Andrew acknowledged this occurred but

explained the problem was caused by his wife giving him sleeping pills without his

permission, in combination with his use of nitrous oxide. The department issued

a founded assessment against Andrew but considered it to be an “isolated

incident” that was “unlikely to reoccur.”

       In 2016, the department again became involved with the family upon reports

of Andrew’s erratic behavior, substance abuse, and physical restraint of P.D. The

department issued a founded assessment against Andrew for failure to provide

proper supervision and allowing access to obscene material. The department

informed Brenda it would not take action to remove the children if she could obtain

physical care through the district court.

       Meanwhile, police executed a search warrant at Andrew’s home,

precipitating the filing of a trial information charging him with possession of a
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controlled substance with intent to deliver, possession of a controlled substance,

and prohibited acts. Andrew pled guilty to possession of marijuana. Andrew

conceded there was marijuana in his home, as well as “infused butter that I had

forgotten about in my freezer from two years ago.”

       Brenda petitioned to modify the decree to order sole legal custody of the

children with her. Brenda also filed an application to suspend Andrew’s visitation,

which the court denied.     The State then initiated child-in-need-of-assistance

proceedings, and the juvenile court entered an order removing the children from

Andrew’s care. The children were adjudicated in need of assistance. Andrew was

ordered to participate in mental-health and substance-abuse treatment and

abstain from drug use. The juvenile court entered dispositional and review orders

confirming removal of the children from Andrew’s care. In September 2017, the

juvenile court granted concurrent jurisdiction to the district court so that the

modification action could proceed. The juvenile case was set to automatically

close in April 2018, pending a modification to the parties’ custody order.

       The district court entered an order on temporary matters, placing the

children in Brenda’s physical care and providing Andrew two, unsupervised

overnight visits per week. The court denied Andrew’s request to require P.D. to

visit him.

       Trial took place over two days in June 2018, and the court entered an order

for modification in August. At that time, P.D. was seventeen years old and chose

to have no contact with Andrew. G.M. was sixteen years old and maintained

“consistent communication” with Andrew. The district court entered an order for

modification, concluding “shared physical care is no longer realistic.” However,
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the court noted its concern “that an award of sole custody of P.D. and G.M. to

Brenda will deprive the children of their last opportunity to forge a meaningful, safe,

and healthy relationship with Andrew, and vice-versa, before becoming adults.”

The court ordered the parties to maintain joint legal custody, Brenda to have

physical care of the children, and Andrew to have liberal visitation with G.M.

Andrew appealed.

II.    Scope and Standard of Review

       We review modification actions de novo. Iowa R. App. P. 6.907; In re

Marriage of Johnson, 781 N.W.2d 553, 554 (Iowa 2010). We give weight to the

fact findings of the district court, especially in determining witness credibility, but

are not bound by them. In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).

III.   Discussion

       The party seeking modification of a dissolution decree bears a heavy

burden. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). This is

because once the custody and care of children has been fixed, it should be

disturbed only for the most cogent reasons. Id. The children’s best interests are

the “controlling consideration.” Cf. Hoffman, 867 N.W.2d at 32 (citation omitted).

       To change a custodial provision of a dissolution decree, the applying
       party must establish by a preponderance of evidence that conditions
       since the decree was entered have so materially and substantially
       changed that the children’s best interests make it expedient to make
       the requested change. The changed circumstances must not have
       been contemplated by the court when the decree was entered, and
       they must be more or less permanent, not temporary. They must
       relate to the welfare of the children. A parent seeking to take custody
       from the other must prove an ability to minister more effectively to
       the children’s well being.

Id. (quoting Frederici, 338 N.W.2d at 158).
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       On appeal, Andrew contends the only evidence before the court was the

testimony of the parties,1 which “did not establish a substantial change in

circumstances” warranting modification of the decree.            Andrew’s claim is

unpersuasive.    Andrew conceded to using nitrous oxide while caring for the

children, but he testified the children have “never been unsafe.” He conceded he

had marijuana in his home, but he testified he was keeping it there for P.D. Andrew

has been the subject of several founded child abuse assessments. The children

were adjudicated in need of assistance and removed from his care. The record

clearly supports the district court’s finding that “starting in 2015 Andrew made

choices that were not in the children’s best interests or his own best interests,”

which amounted to a material and substantial change in circumstances.

       The record also supports the court’s conclusion that Brenda had established

she was better able to care for the children. We concur with the court’s finding that

Brenda is “the more stable parent.” The court found the children “are entitled to a

custodial decision that fosters their best interest yet creates as little additional

upheaval for them as possible. Under the record presented that means they




1 Andrew argues the court did not take judicial notice of the juvenile court
proceedings so those proceedings “should not be considered on review.” In
contrast, at trial, Brenda’s attorney asked the court to “take judicial notice of the
underlying juvenile and criminal matters,” and the court stated, “You’ll have to
[point out specific documents] because when I take judicial notice, to me, that
means I’m just aware of the file. In terms of picking out what’s relevant in the file,
that’s for you to tell me. So that is the way we will proceed with that.” Andrew
responded, “That was actually my intent also. I wasn’t aware that the JV cases
were not part of the docket.” We, like the district court, have considered those
facts and circumstances relevant from the juvenile and criminal proceedings in
determining whether modification is appropriate in this case.
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should remain in Brenda’s care, with liberal visitation for Andrew.” On our de novo

review, we agree with the court’s conclusion. Accordingly, we affirm.

      AFFIRMED.
