Appeal from the Iowa District Court for Des Moines County, Michael Dieterich, District Associate Judge.
The opinion of the court was delivered by: Eisenhauer, C.J.
A father and mother appeal separately from the order removing their children from the mother's custody. AFFIRMED ON BOTH APPEALS.
Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.
A father and mother appeal from an order removing their children from the mother's custody. They contend the court erred in modifying the dispositional order without finding a material and substantial change in circumstances and the evidence does not support the children's removal. We affirm on both appeals.
The mother has four children by four fathers. The mother and children became involved voluntarily with the Iowa Department of Human Services in March 2011 based on concerns about the mother's drug use and the children's exposure to her use. The family received family-centered services. In February 2012, based on the mother's continued drug use, the State petitioned to have the children adjudicated in need of assistance. In April 2012 all four children were adjudicated in need of assistance under Iowa Code section 232.2(6)(c)(2) (2011) in an uncontested adjudicatory hearing. The parties waived notice, and the court immediately held a dispositional hearing. The court permitted the mother to retain custody of the children subject to the protective supervision of the Iowa Department of Human Services. It ordered the mother to cooperate with and participate in all services deemed appropriate and to abstain from alcohol and illegal drugs.
The oldest child reported, and the mother admitted, the mother continued to use marijuana. The mother also was not cooperating with and participating in services consistently. In early October the State filed a motion for a six-month review hearing. A few days later, the mother was arrested for possession of marijuana. A week after the mother's arrest, the State filed a notice of request for removal. At the end of October, at the time of the review hearing and hearing on the request for removal, the court granted a brief continuance based on the unavailability of the mother's attorney.
The review hearing and hearing on the request for removal occurred in early November. The court listed services provided in an attempt to maintain the children in the home and found the "extraordinary" services had not been successful because the mother refused to participate in them or to make "a long-term lifestyle change to provide a safe and stable home for the children." It further found:
[P]lacement of the children in relative care is necessary because of the mother's refusal to abstain from illegal substances, the mother's lack of consistent participation in services provided by the Department, the mother's refusal to participate in consistent counseling and mental health services for her and her children, lack of appropriate supervision of the children in the home, the parents' refusal to make significant lifestyle changes to provide a safe and stable home for the children, and none of the children's fathers are options for placement of their respective children.
The court concluded there was good cause to remove the children, the department had made extraordinary efforts to maintain the children in the home, "continued removal" of the children from their home was "the result of a determination that return of the children to the parents' home would be contrary to the welfare of the children," reasonable efforts had been made "to make it possible for the children to return home," and "this disposition is the least restrictive in the circumstances and in the best interest of the children." The court ordered the children placed with their maternal grandfather. The order scheduled a review hearing for January 15, 2013.
Our review of juvenile court proceedings is de novo. See In re T.E., 796 N.W.2d 447, 453 (Iowa Ct. App. 2011). We review both the facts and the law and adjudicate rights anew on the issues properly presented. In re A.G., 708 N.W.2d 85, 90 (Iowa Ct. App. 2005).
Mother. The mother contends the court improperly modified the disposition and considered the wrong standard for removal.
At the hearing, the court was considering both a requested review of the disposition and the request for removal. The mother's attorney recognized the request for removal was an issue to be tried and, after the State rested, made a motion to deny the request based on failure to meet the burden of proof. After the court implicitly denied the mother's motion, the mother presented her witnesses.
The court's ruling makes it clear the court approached the hearing as if it were a review hearing under Iowa Code section 232.102(9), which applies to review of dispositions transferring custody of a child. See Iowa Code § 232.102(9) (providing for "a periodic dispositional review hearing for each child in placement pursuant to this section" (emphasis added)). Although one of the issues in the hearing was whether the children should be removed from the mother's custody, the court's order found "continued removal" of the children from their home was "the result of a determination that return of the children to the parents' home would be contrary to the welfare of the children," reasonable efforts had been made "to make it possible for the children to return home." (Emphasis added.) Because this was not a review of a prior transfer of custody under section 232.102, the court should not have applied that standard to its consideration whether the children should be removed. Furthermore, if this had been a review under section 232.102, the court's decision to transfer custody of the children to the maternal grandmother would be improper. See In re K.B., 753 N.W.2d 14, 16 (Iowa 2008) (holding a juvenile court "is not authorized to change custody at a review hearing").
The State argues the removal was pursuant to section 232.95, which addresses temporary removal of a child "pending a final order of disposition." Iowa Code § 232.95(2)(a), (b). This section does not apply because the ...