In the Interest of J.M., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 19-0772
Filed July 24, 2019

IN THE INTEREST OF J.M.,
Minor Child,

K.M., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Cherokee County, Mary L. Timko,

Associate Juvenile Judge.

A mother appeals a child in need of assistance permanency order.

AFFIRMED.

Theresa Rachel of Fankhauser Rachel, PLC, Sioux City, for appellant

mother.

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

General, for appellee State.

Lesley D. Rynell, Sioux City, guardian ad litem for minor child.

Considered by Mullins, P.J., Bower, J., and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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DANILSON, Senior Judge.

A mother appeals a child in need of assistance (CINA) permanency order.

We find the juvenile court properly denied the mother’s request to dismiss or

modify the permanency order placing the child in the care of the father. We affirm

the decision of the juvenile court.

I. Background Facts & Proceedings

K.M. is the mother and C.M. is the father of J.M., born in 2010. The parents

were married but living separately and shared care of the child.1 The mother has

two older children, born in 2003 and 2006, who also lived in the home. The Iowa

Department of Human Services (DHS) became involved with the family in

November 2016 due to the mother’s methamphetamine use. The children were

removed from the mother’s care on March 3, 2017. The children were placed in

the care of C.M.

The children were adjudicated CINA. The mother tested positive for

methamphetamine in March and August 2017. The mother participated in

services, including an extended outpatient treatment program for substance abuse

and individual therapy for mental-health concerns.

In February 2018, the children were returned to the mother’s care on a trial

basis but were returned to the care of the father on April 19. The court found, “[I]t

does appear that the return home of the children has been fraught with issues that

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The mother and father were divorced on September 7, 2017. The decree granted the
mother physical care of J.M. The father filed an application to set aside the dissolution
decree, which was denied on April 22, 2019. At a review hearing, the attorney for the
father stated the father intended to seek modification of the physical care provision of the
decree if his request to set aside the decree was denied.
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have not been conducive to allowing the children to be returned home full time.”

The court noted the conditions in the mother’s home were chaotic and caused

regression in J.M.’s behaviors.

The mother tested positive for marijuana in October. In a permanency order

filed on October 29, the court noted J.M. had been having extensive visitation with

the mother but determined the child should be placed in the sole care of the father,

pursuant to Iowa Code section 232.104(2)(d)(2) (2018). The court found the two

oldest children, who were fifteen and twelve years old, should be placed in the

mother’s care, as they “appear[ed] to be old enough to self-care.” These two

children stated they did not want to continue to live with C.M., who was not their

biological father.

The mother sought dismissal of the juvenile court proceedings. The juvenile

court entered an order on April 24, 2019, stating:

After having reviewed all of the evidence, the court cannot find
by a preponderance of the evidence that it would be in [the child’s]
best interest to modify the permanency order or dismiss this matter
from Juvenile Court Services. [The child] is only eight years old. He
has the structure that he needs in his father’s home in order to grow
emotionally, physically, and educationally that has never been
provided in his mother’s home. His needs are being taken care of by
a parent rather than a sibling or by himself. At his age, it is important
that there be as little disruption to school as possible.

The court noted the mother had “difficulty at times with being able to consistently

provide for the two children that are in her care,” and she did not consistently attend

AA/NA meetings. The court also stated, “[T]here is nothing in the record to push

the scale of what is in the best interest of [the child] to [the mother’s] side at this

time to allow for a modification of the permanency order or dismissal.” The court
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determined DHS could cease providing reunification efforts for the mother and J.M.

The mother appealed the juvenile court’s decision.

II. Standard of Review

Our review of CINA proceedings is de novo. In re L.H., 904 N.W.2d 145,

149 (Iowa 2017). “[T]he State bears the burden of proving its allegations by clear

and convincing evidence.” Id. (citing Iowa Code § 232.96(2) (2016)). “‘Clear and

convincing evidence’ means there are no serious or substantial doubts as to the

correctness [of] conclusions of law drawn from the evidence.” In re C.B., 611

N.W.2d 489, 492 (Iowa 2000) (citation omitted). Our primary concern is the best

interests of the child. In re J.S., 846 N.W.2d 36, 40 (Iowa 2014).

III. Permanency Order

The mother claims, “There was no permanency order ever issued in this

matter and reasonable reunification efforts should have continued to be provided

to [her].” The record shows the order filed on October 29, 2018, was a permanency

order. In the ruling filed on April 19, the court ordered “this matter come on for

review/modification of disposition/permanency hearing on the 24th day of October,

2018 at 1:00 p.m. for the rest of the afternoon.” A hearing in the case was held on

October 24 and the court entered an order on October 29, which placed the child

in the care of C.M. pursuant to section 232.104, the code section pertaining to

permanency orders. In the order filed on April 24, 2019, the court stated, “A

permanency order was entered on October 29, 2018, placing sole custody of [J.M.]

with his father, [C.M.], pursuant to Iowa Code section 232.104(2)(d)(2).” The

record does not support the mother’s claim a permanency order was never issued.
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IV. Dismissal of Proceedings

The mother claims the juvenile court should have dismissed the CINA

proceedings concerning J.M. In the alternative, she claims the court should have

modified the permanency order to place the child in her care. She states she has

taken steps to address her substance-abuse and mental-health problems. The

mother asserts it would be in the child’s best interests to be returned to her care.

The guardian ad litem objected to the mother’s request for dismissal or

modification, so section 232.104(7) applies:

Subsequent to the entry of a permanency order pursuant to
this section, 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.

When considering the modification of a permanency order, we “look solely at the

best interests of the children for whom the permanency order was previously

entered. Part of that focus may be on parental change, but the overwhelming bulk

of the focus is on the children and their needs.” In re A.S.T., 508 N.W.2d 735, 737

(Iowa Ct. App. 1993).

We find dismissal or modification of the permanency order would not be in

the child’s best interests. The previous trial home placement with the mother in

February 2018 was unsuccessful, and the child was removed again in April. The

court stated, the mother “admitted that having all three boys in the home was much

more difficult than she thought it would be and, at times, it is overwhelming.” The

two older children are already in the mother’s care, raising concerns about whether

the mother would again be overwhelmed by caring for all three children.
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When J.M. was in the mother’s care during the trial home placement, he

was reported to be very tired in school, hindering his ability to complete his school

work. The mother’s home was described as being in chaos and lacking structure,

while the child needs stability and structure to grow intellectually, physically, and

emotionally. The juvenile court found the child thrived in the care of the father and

regressed while in the care of the mother. Unlike the two older children, J.M., who

was eight years old, is not able to largely take care of himself. The court properly

denied the mother’s request to have the child placed in her care.

We affirm the decision of the juvenile court.

AFFIRMED.