In the Interest of E.R. and H.R., Minor Children ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1345
Filed December 15, 2021
IN THE INTEREST OF E.R. and H.R.,
Minor Children,
K.R., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dickinson County, David C. Larson,
District Associate Judge.
A father appeals a permanency review order denying his request to modify
placement of his two children in a child-in-need-of-assistance proceeding and
overruling his application for rule to show cause. AFFIRMED.
Shawna L. Ditsworth, Spirit Lake, until withdrawal, and then Pamela A.
Wingert of Wingert Law Office, Spirit Lake, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Elizabeth K. Johnson of Johnson Law Firm, Spirit Lake, attorney and
guardian ad litem for minor children.
Michael L. Sandy of Sandy Law Firm, P.C., Spirit Lake, for
intervenors-appellees D.L. and B.L.
Considered by Bower, C.J., and Greer and Badding, JJ.
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BADDING, Judge.
Fourteen-year-old H.R. and eleven-year-old E.R. were adjudicated as
children in need of assistance (CINA) for the second time in spring 2019. Because
their mother struggled with substance abuse and their father was largely absent
from their lives, the juvenile court transferred guardianship and custody to the
maternal grandparents in a permanency order. In a later review of that order, the
court denied the father’s modification request for sole custody and appointed the
grandparents to serve as guardians under Iowa Code chapter 232D (2021). Only
the father appeals.1 We affirm.
I. Background Facts and Proceedings
This family first came to the attention of the Iowa Department of Human
Services in October 2016 due to the mother’s substance-abuse and mental-health
issues. The children, who were then adjudicated in need of assistance, were
placed with their maternal grandparents for more than two years, until the case
was closed in January 2018. Just one year later, the mother was arrested on
drug-related charges. H.R. and E.R. were again removed from her care in
February 2019 and placed with their grandparents. They have lived there since,
along with their younger half-sibling on the mother’s side.
By stipulation of the parties, the juvenile court issued the second CINA
adjudication. Although the father was a part of the proceedings, the primary focus
of the adjudication was on the mother whose actions led to the back-to-back
removals. Visitation for both parents was left at the department’s discretion. The
1 The mother consented to the guardianship and does not appeal. The
grandparents joined in the State’s response to the father’s appeal.
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father filed a motion for reasonable efforts in late May, requesting “regular and
consistent visitation as well as any therapy or other services that may be
recommended” so that he could “reestablish a relationship and bond with [E.R.
and H.R.].” He had been absent from their lives since a criminal no-contact order
was entered against him in 2013 after he pleaded guilty to harassing the children’s
mother.
After an uncontested dispositional hearing, the court continued the
children’s placement with their grandparents. As part of an agreed-upon resolution
of the father’s motion for reasonable efforts, the court specifically granted the father
access to services, including Family Safety, Risk, and Permanency Services; co-
parenting; family team meetings; and visitation. While the dispositional order
opened the door for the father to reconnect with his children, his visitation rights
were limited to “written letters or emails as directed by the children’s therapist” and
supervised phone calls. The order likewise provided for family therapy but only at
the recommendation of the children’s therapist. For their part, the grandparents
and mother were directed to “encourage the children to have a healthy relationship
with [their father]” and “avoid talking negatively about [him] in front of the children.”
Several continuances later, a permanency hearing occurred over two days
in July and August 2020. The mother, the department, and the guardian ad litem
all agreed that placing the children in a guardianship with the grandparents was
the best permanency option. The father, on the other hand, sought sole
custody. He informed the court that he did not get along with the grandparents
and was worried they would interfere with his ability to see the children. He pointed
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to his recent efforts of engaging in services and bonding with the children in support
of his custody request.
In weighing the options, the juvenile court acknowledged the father had
begun strengthening his relationship with the children and had progressed from
fully supervised to semi-supervised visits since the dispositional order. But the
court echoed the guardian ad litem’s concern that the relationship was “too new to
know if it will last long-term.” In that vein, the court noted that transferring custody
would require H.R. and E.R. to change schools and adjust to a new home at the
risk of having to move back in with the grandparents. On balance, the court
determined that while the father “may be an appropriate placement” for the
children, it “would like to see more strength and stability in the parent-child
relationship and bonding before moving to full-time placement.” To aid in that goal,
the court ordered that the father was to have unsupervised visitation according to
a set schedule, which included half of Christmas break. As neither parent was
ready to resume custody at the time of the hearing, the court established a
guardianship with the grandparents under Iowa Code section 232.104(2)(d)(1)
(2020).
Shortly after the permanency order was entered, the department moved to
modify visitation based on allegations that H.R. had been physically abused by the
father when she was younger and had also witnessed his abuse toward her
mother.2 The motion requested that his “visitation be modified to be more
2Neither of these allegations were confirmed after investigation by child protective
services. The child-abuse assessment deemed the children safe, noting “there is
very vague information about both allegations and they are alleged to have
happened several years ago.”
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restrictive/supervised” as to both children. The father resisted and countered with
his own motion for modification of the permanency order. He alleged a substantial
change in circumstances had occurred since the last hearing and it was in the
children’s best interests to be placed in his custody subject to the department’s
supervision. He also filed an application for rule to show cause, claiming the
grandparents “intentionally and willfully failed to cooperate and facilitate the
visitation awarded to [him]” by postponing the start of his Christmas break visitation
until Christmas Day. The grandparents filed a motion to intervene, which the
juvenile court granted without objection from the parties.
By the time of the combined permanency review and modification hearing
in early May 2021, the only services offered by the department dealt with improving
the father’s parenting skills and his communication with the grandparents. Service
providers testified there were no concerns about the children’s physical safety
while in their grandparents’ care or during visits with the father. That being said,
the department’s case manager felt the children were not “emotionally safe” in the
father’s care, especially H.R. She stopped attending visits with the father in the
fall of 2020 because, according to a letter from her therapist, she had “severe levels
of fear and anxiety at the thought of having to interact with her father now or in the
near future.” In contrast, E.R. appeared to be developing a good relationship with
the father and regularly attended visits. But he sometimes returned from visits
exhibiting inappropriate behaviors and problems with anger, which his therapist
believed was tied to exposure to “adult-contented movies” and “violent video
games” at his father’s house. Another cause for concern was the father and
grandparents placing E.R. in the middle of their conflicts by arguing and talking
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negatively about the other when he was around. Based on the foregoing, the case
manager recommended both H.R. and E.R. remain in the guardianship, with
visitation for the father at the grandparents’ discretion. The children’s guardian ad
litem, mother, and grandparents joined in this recommendation.
Following the combined hearing, the juvenile court modified the
permanency order to restrict the father’s visitation with H.R. as requested by the
State, appointed the grandparents as guardians of both children pursuant to Iowa
Code section 232.104(8)(b), and closed the CINA case. Finally, the court denied
the father’s motion to modify the permanency order and his application for rule to
show cause based on a finding of insufficient evidence. The father now appeals.
II. Analysis
The father challenges two aspects of the juvenile court’s permanency
review/modification order—the denial of his request to modify the children’s
placement from the grandparents’ care to his care and the refusal to hold the
grandparents in contempt for violating the visitation schedule under the original
permanency order. We will address each issue in turn.
A. Modification of the Permanency Order
We review the denial of a motion to modify a permanency order de
novo. See In re A.S.T., 508 N.W.2d 735, 737 (Iowa Ct. App. 1993). Although we
give weight to the juvenile court’s fact findings, we are not bound by them. Id. Our
job is “to examine the entire record and adjudicate anew rights on the issues
properly presented.” Id.The father argues the juvenile court overlooked three developments in the
case that warranted a modification of the October 2020 permanency order: (1) his
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recent efforts to reestablish a relationship with the children; (2) his ability to provide
them with a safe and stable home; and (3) the grandparents’ role in allegedly
causing his strained relationship with H.R. He claims these changed
circumstances supported a finding that continuing placement with the
grandparents was not in the children’s best interests or, alternatively, that their best
interests would be better served in his care.
Unlike the father, the State does not focus on whether there was a change
in circumstances justifying a modification of the permanency order. Instead, the
State relies on section 232.104(7) and argues “the evidence does not support a
finding that placing the children in the custody of their father would be in their best
interests and, as such, return was not proper.”
The differing standards employed by the parties likely stem from a split in
our decisions. See In re E.G., No. 17-1855, 2018 WL 540995, at *2 n.4 (Iowa Ct.
App. Jan. 24, 2018) (collecting cases). Some of our recent case law notes that
although past cases from the supreme court required a party seeking modification
of a dispositional order to establish a material and substantial change in
circumstances, section 232.103 was subsequently amended and no longer
requires such a showing. See In re M.M., No. 16-0548, 2016 WL 4036246, at *3–4
(Iowa Ct. App. July 27, 2016) (noting “CINA proceedings are creatures of statute”
and the “language of the statute is controlling” (citation omitted)). Yet in other
instances, our court has upheld the changed-circumstances requirement. See In
re C.C., No. 16-1678, 2017 WL 104969, at *1 (Iowa Ct. App. Jan. 11, 2017).
Further complicating matters is that although the material-and-substantial-change-
in-circumstances standard was initially employed in modifications of dispositional
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orders, see In re Leehey, 317 N.W.2d 513, 516 (Iowa Ct. App. 1982), superseded
by statute, 2004 Iowa Acts ch. 1154, § 2, it has since leaked into modifications of
permanency orders. See In re D.S., 563 N.W.2d 12, 14–15 (Iowa Ct. App. 1997).
Having reviewed the relevant case law and statutes, we hold that a party
seeking modification of a permanency order does not need to establish that a
substantial change in circumstances has occurred. The proper focus in this case
is on section 232.104(7), which provides that after a permanency order has been
entered,
the child shall not be returned to the care, custody, or control of the
child’s parent or parents, over a formal objection filed by the child’s
attorney or guardian ad litem, unless the court finds by a
preponderance of the evidence, that returning the child to such
custody would be in the best interest of the child.
“[O]ur responsibility in a modification of a permanency order is to look solely at the
best interests of the children from whom the permanency order was previously
entered.” A.S.T., 508 N.W.2d at 737. “Part of that focus may be on parental
change, but the overwhelming bulk of the focus is on the children and their
needs.” Id. The juvenile court found it was not in the children’s best interests to
be placed in their father’s custody. After our de novo review of the record, we
agree.
No doubt, the father has become more active in the children’s lives since
the start of the second CINA case. Yet he was still only in the process of building
a relationship with them, at least with E.R., when he requested a modification of
the permanency order. By the father’s own admission, he had not developed the
necessary foundation with H.R. for her to be placed in his custody without ongoing
court involvement. Because H.R. was estranged from her father in earlier years
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and their last interaction occurred in November 2020, we find no support for his
claim that modification of her placement would be in her best interests. Although
the father blames the grandparents for H.R.’s decision to no longer see him, the
record reveals she made that decision out of discomfort and anxiety stemming
from past trauma. On this record, the modification requested by the father as to
H.R. is not in her best interests. See In re T.B., No. 20-0368, 2020 WL 2988267,
at *3 (Iowa Ct. App. June 3, 2020) (recognizing a child should not be forced to
restore a “fractured relationship” with an estranged parent).
While the father did maintain a safe home environment and provide for
E.R.’s needs during their visits together, the children’s therapy reports suggest the
parent-child relationship between them remained surface level. The record shows
E.R. reported spending more time “watching television and/or playing video
games” than spending quality time with the father. Indeed, the father did not know
about the various mental-health concerns discussed in those reports, including
E.R.’s inability to manage his emotions and exhibiting inappropriate behaviors after
returning from visits. Given the children’s history of being involved in two CINA
cases, we are especially concerned with the therapist’s reflection that visits with
the father appeared to be hindering E.R.’s progress in therapy. In any event, even
if we looked solely at the progress between the father and E.R., it is not in the
children’s best interests to be separated from each other or their half-sibling, whom
they have lived with for most of their lives. See In re J.E., 723 N.W.2d 793, 800
(Iowa 2006) (noting a preference to keep siblings together).
By all accounts, the children are doing well in their grandparents’ care. They
have a safe and stable home, reliable transportation for therapy appointments and
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extracurricular activities, and consistent supervision. For these reasons, we affirm
the juvenile court’s ruling denying the father’s request for modification of placement
under the permanency order.
B. Contempt
The father argues the juvenile court erred in finding the grandparents did
not commit willful disobedience when they denied him the first half of his
court-ordered Christmas break visitation. He urges the court should have found
the grandparents in contempt of the permanency order for failing to comply with
the visitation schedule in a “willful and deliberate” manner.
In defending the court’s refusal to find the grandparents in contempt, the
State does not dispute that the father’s visitation was to start when the children left
school for Christmas break on December 22, and not Christmas Day, which is
when the exchange between him and the grandparents occurred. It instead relies
on the grandmother’s testimony at the permanency review hearing to rebut the
father’s sole claim of willful and deliberate conduct.
On this point, the juvenile court cited Bell v. Iowa District Court, 494 N.W.2d
729, 730 (Iowa Ct. App. 1992), in finding the grandparents’ actions did not
constitute willful disobedience sufficient to justify a conviction for contempt. In Bell,
we defined “willful disobedience” as “conduct which is ‘intentional and deliberate
with a bad or evil purpose, or wanton and in disregard of the rights of others, or
contrary to a known duty.’” 494 N.W.2d at 730 (citation omitted). The person
seeking a contempt finding must establish the willful conduct by proof beyond a
reasonable doubt. Id. Like the juvenile court, we find insufficient evidence to
support a contempt finding against the grandparents.
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On cross-examination, the father’s attorney asked the grandmother, “Would
you agree that absent some other agreement with [the father], the judge ordered
[he] was to have visitation during the first one-half of Christmas break for the year
of 2020?” While the grandmother did agree with the attorney’s statement, she
explained that she misunderstood the language in the court order, stating, “I kind
of thought that meant like starting Christmas Day . . . we could have done an even
amount of visitation even if it wouldn’t have started when [the father] stated he
wanted it.” But beyond any misunderstanding, the grandmother testified E.R. had
been feeling nervous about spending Christmas break time with the father after an
incident involving an inappropriate sexual message the eleven-year-old had
written to his older step-sister. According to the grandmother, the father called the
police to talk to E.R. as a form of discipline. When she asked E.R. about the
message, E.R. was “defensive” and said “it was between him and his dad.”
From this testimony, the court could find the grandmother’s motive for
departing from the visitation schedule was not willful and deliberate. Given the
court’s broad discretion in deciding whether to hold a person in contempt, we
decline to disturb its ruling. See In re Marriage of Swan, 526 N.W.2d 320, 327
(Iowa 1995) (requiring that “unless this discretion is grossly abused, the [trial
court’s] decision must stand” (alteration in original) (citation omitted)).
Finding no grounds for reversal, we affirm the juvenile court’s permanency
review order.
AFFIRMED.