In the Interest of D.A., Minor Child

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.