In the Interest of A.B., Minor Child, D.B., Father

IN THE COURT OF APPEALS OF IOWA

No. 16-1267
Filed September 28, 2016

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

D.B., Father,
Appellant.
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Appeal from the Iowa District Court for Dallas County, Virginia Cobb,

District Associate Judge.

A father appeals the modification of a dispositional order placing his

seven-year-old son in the custody of a paternal aunt. AFFIRMED.

Jesse A. Macro, Jr., of Macro & Kozlowski, L.L.P., West Des Moines, for

appellant father.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Kayla A.J. Stratton of the Juvenile Public Defender’s Office, Des Moines,

guardian ad litem for minor child.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.

A father appeals the modification of a dispositional order in a child-in-

need-of-assistance (CINA) proceeding placing his seven-year-old son, A.B., with

a paternal aunt. The father contends the State did not show by clear and

convincing evidence he violated an order in the original CINA adjudication

prohibiting contact between his former paramour and A.B. The father further

argues the juvenile court did not make the least-restrictive disposition in

removing A.B. from his home and contends removal was not in A.B.’s best

interests. Because we agree with the juvenile court that placing A.B. in his aunt’s

custody was necessary to protect the child from harm considering all the

circumstances of the case, we affirm.

I. Facts and Prior Proceedings

The Iowa Department of Human Services (DHS) first became involved

with A.B. and his parents after his mother was charged with domestic assault

against his father in late December 2015. The mother stabbed the father in the

arm with a kitchen knife during an argument about the father’s relationship with

Victoria, a former girlfriend who was pregnant with his child. 1 The struggle took

place in the family’s home, and A.B. witnessed the fight start before seeking

refuge in a nearby bathroom. After the mother’s arrest, the court issued a no-

contact order between the mother and father.

Because of A.B.’s exposure to domestic violence, the State initiated a

CINA proceeding. On April 11, 2016, after a hearing on the matter, the juvenile

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A.B.’s parents engaged in a pattern of domestic violence. Both the mother and father
had previously been charged with domestic assault against the other.
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court adjudicated A.B. as a CINA under Iowa Code section 232.2(6)(c)(2)

(2015).2 The court placed A.B. in the father’s custody and allowed the mother

visitation at the DHS’s discretion. The court also ordered the father not to allow

Victoria, who had previously had her parental rights to three children terminated,

to “be around the child or reside in the family home.”3

Although the mother and father abided by the no-contact order, their

disputes continued. And unfortunately they placed A.B. at the center of their

conflict. The two disagreed about the timing and extent of the mother’s visitation

with A.B. According to Sheila Aunspach, the DHS worker assigned to the case,

the father exhibited “controlling” behavior regarding the mother’s visits and

sought to restrict them. Similarly, the mother was inflexible when the father

would request scheduling changes. Aunspach also expressed concern about the

conversations the father had with A.B. concerning his mother. Aunspach testified

the father told her, in A.B.’s presence, that the mother tried to kill the father. And

both parents used A.B. in attempts to uncover incriminating evidence about the

other. Aunspach noted the father “will question [A.B.] about time at his mom’s

home in regard to mom’s boyfriend. [The mother] looks [A.B.] over for bruises

and marks and asks what happened. . . . [Family, Safety, Risk, and

Permanency] reports [A.B.] is very aware of what is going on and why the

2
A child is adjudicated CINA under section 232.2(6)(c)(2) if the child has “suffered or is
imminently likely to suffer harmful effects as a result of . . . [t]he failure of the child’s
parent . . . to exercise a reasonable degree of care in supervising the child.”
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The DHS caseworker Sheila Aunspach testified: “I’m concerned if Victoria is not able
to take care of her own child that she should not be left in a position to be allowed to
care for another child. There’s also I believe some unresolved mental health concerns
as well.” Aunspach also testified she was aware of a history of domestic violence
between the father and Victoria, including nearly two dozen police calls to the residence
where they lived together.
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parents are questioning him.” A.B. became “very guarded” when speaking about

his parents and reported reoccurring nightmares about them. He struggled in

school both academically and behaviorally. Aunspach testified the father was

supposed to set up Behavior Health Intervention Services (BHIS) for A.B.

On June 6, 2016, the father filed a pro se motion with the court, asking to

modify the adjudication order to allow Victoria to have contact with A.B. Shortly

thereafter, the State sought to change A.B.’s placement, alleging the father

allowed Victoria to spend time with and supervise A.B. The juvenile court held a

hearing to consider both matters.

At the hearing, family consultant Mackenzie Alstott testified A.B. informed

her—and Victoria later confirmed—that Victoria babysat A.B. at least once while

the father was at work and that A.B., the father, and Victoria had ridden together

for a previous court date in May. Aunspach testified the father’s sister also

reported seeing them in a car together on the May court date.

The father denied allowing any contact between A.B. and Victoria,

claiming Victoria fabricated the story to punish him. The father similarly disputed

A.B.’s report, commenting: “He says a lot of things.” Yet despite his claims of

Victoria’s dishonest and unbalanced behavior, the father still urged the court to

terminate the no-contact order, stating he believed Victoria was a mother figure

in A.B.’s life who posed no threat to A.B.’s safety.

The juvenile court determined the father had permitted contact between

Victoria and A.B. in violation of its no-contact order and both parents had caused

A.B. “mental stress . . . by putting him in the middle of their adult issues.” Based

on these findings, the juvenile court granted the motion to modify and placed A.B.
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with his paternal aunt in accordance with the DHS’s recommendation. The father

now appeals.

II. Scope and Standard of Review

We review CINA proceedings de novo. In re J.S., 846 N.W.2d 36, 40

(Iowa 2014). Although we are not bound by the fact-findings of the juvenile court

in our review, we do give them weight. Id. The best interests of the child are our

primary concern. Id. Evidence must be clear and convincing to support the

CINA determination. Iowa Code § 232.96(2). Evidence is clear and convincing

when there are no serious or significant doubts as to the correctness of

conclusions of law drawn from the evidence. In re D.W., 791 N.W.2d 703, 706

(Iowa 2010).

III. Analysis

Iowa Code section 232.103(4) allows the juvenile court to modify a CINA

dispositional order upon good cause for several reasons, including when “[t]he

purposes of the order cannot reasonably be accomplished.” Iowa Code

§ 232.103(4)(b). As in the original adjudication, the juvenile court is required to

“make the least restrictive disposition appropriate considering all the

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

from a parent is the most restrictive option available to the juvenile court. See id.

§ 232.99(4), .102. The court may do so only if it “finds clear and convincing

evidence that . . . [t]he child cannot be protected from some harm which would

justify the adjudication of the child as a [CINA].” Id. § 232.102(5)(a)(2). The

court must also determine “continuation of the child in the child’s home would be

contrary to the welfare of the child.” Id. § 232.102(5)(b).
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The father argues the State failed to prove by clear and convincing

evidence he violated the no-contact order concerning Victoria. We disagree.

Three different individuals reported the father allowed contact between A.B. and

Victoria in contravention of the court’s directive. Although the father disputed

these accounts, we find his protest unconvincing, particularly considering the

force of the testimony to the contrary and the father’s own inconsistent

characterization of Victoria. Accordingly, we find the State presented clear and

convincing evidence showing the father violated the no-contact order by allowing

Victoria to interact with A.B.

The father also argues that by modifying A.B.’s placement the juvenile

court failed to reach the least restrictive disposition and contends removal was

not in A.B.’s best interests. The father emphasizes he had taken several positive

steps towards fulfilling the directives set forth in the court’s dispositional order at

the time of the modification.

In considering the totality of the circumstances, we find the transfer of

custody to his aunt was necessary to protect A.B. from further harm. We

acknowledge the father complied with some of the court’s directives but agree

with the juvenile court that he “dragged his feet on a number of important issues,”

including failing to timely secure a new individual therapist for A.B. or to set up

BHIS services for him. These concerns—in conjunction with the father’s

disregard of the no-contact order with Victoria and the toxic environment posed

by the continuing conflict between the father and mother—warranted modification

of the disposition. We agree with the juvenile court that both parents had been

putting A.B. “in the middle of their adult issues.” A.B. was painfully aware of his
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parents’ antagonistic behavior and suffered stress as a result. Because of the

adverse effects on A.B.’s well-being from remaining in his father’s custody, we

find the transfer was in his best interests.

Accordingly, we find the juvenile court properly transferred custody of A.B.

to his aunt. We affirm the juvenile court’s order.

AFFIRMED.