In the Interest of D.A., Minor Child ( 2021 )


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  •                        IN THE COURT OF APPEALS OF IOWA
    No. 20-1636
    Filed March 3, 2021
    IN THE INTEREST OF D.A.,
    Minor Child,
    I.A., Mother,
    Appellant,
    F.A., Father,
    Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, Susan Cox, District
    Associate Judge.
    Parents separately appeal the juvenile court’s denial of the father’s motion
    to modify the court’s dispositional order. AFFIRMED ON BOTH APPEALS.
    Kelsey Knight of Carr Law Firm, P.L.C., Des Moines, for appellant mother.
    Jeremy Feitelson of Feitelson Law, L.L.C., West Des Moines, for appellant
    father.
    Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
    General, for appellee.
    Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, attorney for minor
    child.
    Lynn Vogan of Youth Law Center, Des Moines, guardian ad litem for minor
    child.
    2
    Considered by Bower, C.J., Schumacher, J., and Potterfield, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206
    (2021).
    3
    POTTERFIELD, Senior Judge.
    D.A. is the teenaged child of the mother and father1; she was removed from
    the parents’ care in December 2019. In May 2020, the father filed a motion to
    modify the dispositional order, asking the court to end D.A.’s out-of-home
    placement and return her to the family home. The juvenile court denied the motion,
    and the parents separately appeal. They assert there has been a material and
    substantial change in circumstances and circumstances in Iowa Code section
    232.103(4) (2019) exist so modification of the dispositional order is appropriate.
    They also contend returning D.A. to their care is in her best interests.
    1 D.A. and her family are Syrian nationals who came to the United States as
    refugees in 2016. The parents do not speak English, and the children have
    sometimes been used as informal interpreters when service providers drop in.
    Whether due to the language barrier, lack of official paperwork such as birth
    certificates, or an actual intent to deceive, there are inconsistencies in the record
    that we cannot resolve.
    For instance, it is unclear whether D.A. was born in January 2004 or 2006.
    At one point, the court specifically corrected the record to change D.A.’s listed birth
    date from 2006 to 2004. But it seems D.A. continued to report her birth year as
    2006, and the clinical psychologist who completed her psychological evaluation in
    early 2020 noted D.A. “appeared to be her stated age” of fourteen. Plus another
    child in the family is listed as having a birth date of May 2004.
    Additionally, D.A. told the same psychologist that her biological father died
    when she was young and the father involved in these proceedings is her
    stepfather. The mother denies this claim. As far as we can tell, D.A.’s statement
    was generally disregarded; paternity testing was not completed and everyone
    proceeded under the assumption the father is the biological father.
    We do not presume the narrative and information provided by the parents
    are reliable. The father pled guilty to two counts of immigration fraud in May 2018
    based on providing false information as part of his refugee application. His
    absence from the family home throughout most of these proceedings was due to
    these convictions and his resulting sentence. Throughout his time in jail, it was
    reported the father and rest of the family were at an ongoing risk of being deported
    due to their loss of refugee status. It was also reported the father would likely be
    killed if he was deported to Syria.
    4
    I. Background Facts and Proceedings.
    In May 2019, D.A. expressed suicidal ideation. At the time, the father was
    being held in jail by Immigration and Customs Enforcement (ICE) and was
    expected to be deported. The mother, who was then the sole caretaker for D.A.
    and her six siblings, took some steps to get D.A. mental-health treatment but
    allowed D.A. to quit an intensive outpatient program against medical advice and
    did not require her to follow through with other mental-health therapy or treatment.
    The Iowa Department of Human Services (DHS) was already involved with the
    family due to the family’s needs regarding inappropriate discipline (including
    physical abuse), mental-health treatment, appropriate supervision, and school
    truancy.
    In July, D.A. was adjudicated a child in need of assistance (CINA) pursuant
    to Iowa Code section 232.2(6)(f). The court determined D.A. was a child “in need
    of medical treatment to cure or alleviate serious mental illness or disorder, or
    emotional damage as evidenced by severe anxiety, depression, withdrawal, or
    untoward aggressive behavior toward self or others and whose parent, guardian,
    or custodian is unwilling to provide such treatment.” 
    Iowa Code § 232.2
    (6)(f). She
    remained in her parents’ custody and living in the family home.
    In the months following adjudication, D.A. ran away from home and was
    twice reported as a missing person. Both times, D.A. was away from home multiple
    days before returning. According to the court appointed special advocate, after
    the first instance, D.A. threatened to run away again “the next time her mom hits
    her or raises her fist.” D.A. did not consistently engage in therapy and was
    resistant to attending. The mother was not supportive of mental-health treatment
    5
    for D.A. and, at times, denied she needed it. D.A. also had issues with school—
    both failing to attend and fighting with peers while there.
    D.A. was admitted to the behavioral health unit of a local hospital following
    an altercation with the mother a few days before the dispositional review hearing
    on December 2. While hospitalized, D.A. reported physical and emotional abuse
    from her mother. She was given a provisional diagnosis of adjustment disorder
    and began taking medications for her depressive symptoms and anxiety. The
    hospital recommended D.A. go to a foster home after her discharge so she could
    continue to receive mental-health treatment and work on relationship issues with
    her mother. Following the December 2 hearing, the juvenile court removed D.A.
    from the parents’ care and custody “due to [her] safety and [mental health] needs
    going unmet.” It noted that “extensive efforts” were “made over [m]any months to
    try and keep [D.A.] safe with her family and her home” but “it just [had not] proven
    viable.” DHS was ordered to determine a placement commensurate with D.A.’s
    needs after her release from the hospital.
    A week later, while D.A. remained in the hospital, the mother called and told
    D.A. one of her brothers had been stabbed near his heart. In two follow-up calls
    to D.A., the mother reported similar information.2 But later, with the help of a social
    worker, D.A. learned her brother had not been stabbed and was alive and well. A
    week after that, D.A. reported to a social worker that she expressed interest to her
    2The mother denied she said this to D.A. But a social worker at the hospital wrote
    a letter to the court that indicated the worker “observed [D.A.] speaking with her
    mother on the phone” and saw D.A. “have a genuine response to this information,
    begin to cry and yell, and enter into a panic attack after hanging up the phone.”
    6
    mother about the foster family she would be placed with after her discharge and
    her mother responded, “I wish you were dead.”
    After D.A.’s discharge from the hospital in mid-December, she was placed
    in a shelter while DHS attempted to locate a foster home for her. Within a short
    time of her arrival, D.A. ran away twice and was in an altercation with another girl
    in the shelter. After one of her elopements, D.A. assaulted a police officer who
    was attempting to return her to the shelter. D.A. also incurred shoplifting charges
    while she was on the run from the shelter. As a result, D.A. spent a couple of days
    in a juvenile detention center. She was back in the shelter only two days before
    being taken back to the detention center after assaulting another resident at the
    shelter. Beginning January 4, 2020, D.A. spent a little over two months in juvenile
    detention before going into foster care on March 8.
    D.A. underwent a psychological evaluation in March, and the psychologist’s
    report was available shortly before the dispositional review hearing in April. The
    clinical psychologist who met with D.A. diagnosed her with other specified trauma
    and stressor related disorder, oppositional defiant disorder, and adjustment
    disorder with anxiety and depressed mood. He recommended D.A. participate in
    individual psychotherapy “to help with symptoms related to mood and acting out
    behavior” and noted she needed professional help with regulating her emotions
    and gaining skills to manage interpersonal relationships.         Additionally, the
    psychologist advised, “Structural behavior planning should occur in either foster
    care or placement. She will need to be told and reminded of expectations, rules,
    and potential consequences.”
    7
    A dispositional review hearing took place on April 22. While the mother
    expressed that she wanted D.A. to be returned home, the court noted the mother’s
    inconsistent testimony about D.A. needing and receiving mental-health therapy.
    The mother also testified she did not want D.A. to take medication. The social
    worker testified that DHS had been recommending therapy since April 2019 and
    had tried to help the mother and D.A. attend by providing protective daycare for
    the other children so the mother would be free, teaching the mother how to use the
    public bus system, and setting up individual transportation for the appointments
    when the mother refused to use the bus. Still, the mother and D.A. only went to
    one or two appointments, reporting they were busy or forgot when missing the
    rest.3      Considering   these    things   and   focusing   on   the   psychologist’s
    recommendations for D.A., the court confirmed D.A.’s out-of-home placement,
    stating:
    Placement outside the parental home is necessary because
    continued placement in or a return to the home would be contrary to
    the child’s welfare due to unresolved mental health and stability
    concerns that continue to exist. With the COVID-19 pandemic, the
    Department (and [juvenile court services]) would not be able to
    provide intensive supervision and supportive services if [D.A.] were
    returned home today. [D.A.] has been making progress in the foster
    home but has only been there about six weeks and needs to show
    consistent improvement and stability. Both [D.A.] and her family
    have had six months of chaos,[4] leading to hospitalizations, shelter
    stays, detention stays, and now placement in an enhanced foster
    home. Instantly returning [D.A.] to the family home without any sort
    of transition planning or supportive services in place would not be in
    her best interest.
    3 We do not have a transcript of this hearing. These facts are taken from the
    juvenile court’s written ruling filed on April 22, 2020, which included findings of fact
    detailing the testimony the court heard.
    4 The family moved homes a number of times, including switching school districts
    two or three times.
    8
    On May 29, the father filed a motion to modify D.A.’s out-of-home
    placement. He asserted he had been recently released from ICE’s custody after
    spending two years incarcerated by the federal government and would be living in
    the family home as “deportation back to Syria [was] not allowed at [the] time.” The
    father maintained the return of the family to a two-parent home would “allow for
    additional supervision of the minor child and make participation in required
    services easier for the family to comply with.”
    At a September hearing, the court considered the father’s motion
    contemporaneously with a dispositional review hearing.5 The father testified he
    would ensure D.A. went to school and her visits with doctors if she was returned
    to the parents’ custody. He also testified he had videos showing D.A. smoking
    cigarettes, drinking alcohol, and illegally driving a vehicle so he questioned
    whether she was being properly cared for and supervised in her current foster
    home. On cross-examination, the father agreed D.A. has mental-health struggles
    but denied D.A. has anxiety, depression, or lack of confidence and said he thinks
    the therapist is wrong in making those diagnoses. He also said he would attend
    therapy with D.A. but stated he wanted to do it “to show DHS that [D.A.] is just a
    normal individual” and “there’s nothing wrong with her.” The father admitted that
    since shortly after he returned to the family home, he refused to work with or allow
    into the home the family’s long-term case worker, the service provider, and the
    Refugee Immigrant Guide. He testified he would work with the organizations but
    5 Between May 29 and the September 15 hearing, D.A.’s case was assigned to a
    different judge and the father’s attorney withdrew, which required a new attorney
    be appointed for him.
    9
    refused to work with those three individuals because he “consider[s] these three
    like a Mafia.” The father was also asked about an August incident at the family
    home when a neighbor called the police and reported the father had hit the mother
    and one of the children, giving the child a bloody nose. DHS issued a founded
    child-abuse report after investigating the incident. The father denied hitting the
    mother or the child.
    D.A. also testified at the September hearing. She reported therapy was
    going well and she had been able to show some change in her behaviors since
    being placed in her current foster home in June. D.A. expressed an interest in
    being adopted by her foster family, stating she “felt loved. And I started doing
    school. And I stopped fighting, and I . . . stopped doing the negative stuff, and I
    just changed myself.” When asked if she had concerns about returning to her
    family home, D.A. replied, “Nothing’s going to change. . . . Like, I’m pretty sure if I
    go back home, . . . . I’m going to be back to the old me, and I don’t want that.”
    D.A. testified, “[W]hat’s best for me is adoption.”
    The juvenile court denied the father’s motion and confirmed D.A.’s out-of-
    home placement “due to the parents’ inability/unwillingness to meet [D.A.’s] basic
    safety needs.” The mother and father separately appeal.6
    6 The father’s motion to modify disposition asserts the mother “supports this
    motion.” The mother did not contradict the father’s assertion but also never filed
    her own motion or stated on the record she was joining the father’s. The mother’s
    attorney was present at the September hearing, which took place online due to
    COVID-19, but the mother was silent and, it seems, may not have been present or
    participating. After the father was asked about the police coming to the home due
    to allegations he hit the mother and a child, the interpreter informed the court the
    father was “calling in his daughter and wife to testify.” The court stopped the father,
    telling him, “No, we’re not doing that. . . . You’re under oath. You’re being asked
    questions.”
    10
    II. Discussion.
    As the mother and father recognize, our court has questioned what must be
    shown before a dispositional order may be modified. In the past, we held “a party
    seeking modification of the custody provisions of a prior dispositional order must
    show the circumstances have so materially and substantially changed that the best
    interest of the child requires such a change in custody.” In re C.D., 
    509 N.W.2d 509
    , 511 (Iowa Ct. App. 1993). Some of our more recent case law has called that
    standard into question. See, e.g., In re A.J., No. 16-1954, 
    2017 WL 1278366
    , at
    *3 (Iowa Ct. App. Apr. 5, 2017). And panels of this court have concluded it is
    unnecessary to show a material and substantial change in circumstances because
    section 232.103 does not require it. See, e.g., In re C.P., No. 16-1459, 
    2016 WL 6269941
    , at *3 (Iowa Ct. App. Oct. 26, 2016); In re K.S.-T., No. 14-0979, 
    2014 WL 5865081
    , at *4 (Iowa Ct. App. Nov. 13, 2014). Under section 232.103(4):
    The court may modify a dispositional order, vacate and
    substitute a dispositional order, or terminate a dispositional order
    and release the child if the court finds that 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.
    Under these circumstances, where the parents are living and parenting
    together and make virtually identical arguments on appeal, we presume the mother
    did enough to preserve the issues raised in her appeal.
    11
    Here, the mother and father attempt to meet both standards. They each argue the
    father’s return to the family home and ability to help care for the children and
    engage them in services is a material and substantial change in circumstances.
    They also assert “the purposes of the order have been accomplished and the child
    is no longer in need of supervision, care, or treatment” and “the continuation of
    supervision, care, or treatment is unjustified or unwarranted.” See 
    Iowa Code § 232.103
    (4)(a), (d). The parents also point to section 232.102(9), which provides
    that at a dispositional review hearing, “[t]he placement shall be terminated and the
    child returned to the child’s home if the court finds by a preponderance of the
    evidence that the child will not suffer harm in the manner specified” in the CINA
    adjudication section.
    Here, “[a]s in all juvenile proceedings, our fundamental concern is the best
    interests of the child.” In re K.N., 
    625 N.W.2d 731
    , 733 (Iowa 2001). While the
    father’s return to the family home after his multi-year incarceration may be a
    material and substantial change in circumstances, we cannot say it is in D.A.’s best
    interests to be returned to the family home. The objective of her out-of-home
    placement—that she may receive the mental-health treatment she needs in a
    stable, structured environment—is still an ongoing need for D.A. So we cannot
    say the purposes of the order have been accomplished under section
    232.103(4)(a) or (d). Similarly, D.A. would be subject to further adjudicative harm
    if returned to her parents care. See 
    Iowa Code § 232.2
    (6)(f). While the mother
    and father have said they will get D.A. the medical help she needs if she is returned
    to their care, we do not find these statements credible. The parents agree to
    services for the sake of going along with what is asked of them, but when pressed,
    12
    they deny that D.A. needs therapy or medication. Even at the September 2020
    hearing, the father agreed to therapy but for the purpose of proving D.A. is
    “normal.” Service providers have tried to explain to the parents that mental-health
    therapy is necessary for D.A.’s wellness, but the mother and father seem more
    focused on stigma they associate with mental-health struggles. Additionally, the
    father’s return to the family home has not helped with issues of stability. Service
    providers and DHS have been prevented from entering the home, and police have
    been called to the home upon a report of the father perpetrating violence. In the
    past when asked about domestic abuse issues, the mother did not deny it was an
    issue but instead claimed it is “private” and refused to elaborate. And while D.A.
    loves her family, she recognized it is not in her best interest to return to the family
    home.
    The purpose of the dispositional order has not been accomplished and the
    family’s circumstances have not so materially and substantially changed that the
    best interests of D.A. require such a change in custody. We also cannot find by a
    preponderance of the evidence that D.A. will not suffer adjudicatory harm if
    returned to the parents’ care. For these reasons, we agree with the juvenile court’s
    denial of the father’s motion to modify the dispositional order and the continued
    out-of-home placement of D.A. from the parents’ care.
    AFFIRMED ON BOTH APPEALS.
    

Document Info

Docket Number: 20-1636

Filed Date: 3/3/2021

Precedential Status: Precedential

Modified Date: 4/17/2021