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In re E.R.

Court of Appeals of Iowa

November 21, 2018

IN THE INTEREST OF E.R., Minor Child, M.K., Mother, Appellant.

          Appeal from the Iowa District Court for Plymouth County, Julie Schumacher, Judge.

         A mother appeals the order modifying the dispositional order in a child-in-need-of-assistance proceeding. AFFIRMED.

          John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant mother. Rosalynd J. Koob of Heidman Law Firm, P.L.L.C., Sioux City, for appellee father.

          Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney General, for appellee State.

          Meret Thali of Juvenile Law Center, Sioux City, for minor child.

          Considered by Danilson, C.J., and Potterfield and Doyle, JJ.

          DOYLE, JUDGE.

         A mother appeals the order modifying the dispositional order entered after her child was adjudicated to be a child in need of assistance (CINA) to transfer legal custody of the child to the Iowa Department of Human Services (DHS) for placement of the child with a relative or foster family. She contends the juvenile court erred in denying her motion to dismiss the CINA action, in transferring legal custody of the child, and in placing certain terms and conditions on her.

         I. Background Facts and Proceedings.

         The parents of the child at issue were married when the child was born in 2004.[1] The DHS first had contact with the family in 2006 after an altercation between the parents led to the father's arrest for domestic assault and child endangerment. The 2007 decree dissolving the parents' marriage granted them joint legal custody and shared physical care of the child. As described by the juvenile court, the parents' relationship following the divorce was "extremely contentious" and remained so. A 2011 order modified the dissolution decree to grant the mother physical care of the child. The DHS continued to have contact with the family in the years that followed.

         The State filed a CINA petition in December 2013. The juvenile court adjudicated the child to be a CINA pursuant to Iowa Code section 232.2(6)(c)(2) (2013) (defining a CINA as a child who "has suffered or is imminently likely to suffer harmful effects as a result of . . . [t]he failure of the child's parent, guardian, custodian or other member of the household in which the child resides to exercise a reasonable degree of care in supervising the child"). The mother appealed and this court reversed the adjudication. In re E.R., No. 14-0850, 2014 WL 4937999, at *1 (Iowa Ct. App. Oct. 1, 2014). This court concluded the mother's conduct did not fall within the purview of section 232.2(6)(c)(2). Id. at *4. But, this court had "no doubt these children are in need of assistance" and that "adequate protection for these children can be found in a plain reading of section 232.2(6)(c)(1), because both children have sustained mental injury at the hands of both parents." Id. at *4. The State then filed another CINA petition concerning the child on October 17, 2014. In March 2015, the juvenile court entered an order adjudicating the child to be a CINA pursuant to Iowa Code section 232.2(6)(c)(1) (2014) (defining a CINA as a child who "has suffered or is imminently likely to suffer harmful effects as a result of . . . [m]ental injury caused by the acts of the child's parent, guardian, or custodian"). The court entered a dispositional order in April 2015, which found the least restrictive placement available was for the child to remain with the mother under the supervision of the DHS. See Iowa Code § 232.101(1). The order set forth terms and conditions for both the parents and child, which included the child's attendance at individual counseling. The court continued the CINA adjudication and the child's placement with the mother following each subsequent dispositional-review hearing. It also denied the State's 2016 motion to modify the dispositional order and the mother's 2017 motion to dismiss the CINA case and terminate the dispositional order.

         In January 2018, the mother again moved to dismiss the CINA case. The father moved to modify the dispositional order in March 2018. The court held a hearing on the motions in March 2018. On April 20, 2018, before the court had ruled on the motions, the mother filed another motion to dismiss the case pursuant to Iowa Code section 232.101(2) on the basis that more than three years had elapsed since the entry of the initial dispositional order. Another hearing was held in May 2018. In July 2018, the juvenile court overruled the mother's motions to dismiss and it transferred legal custody of the child to the DHS for placement with a relative or in foster care. It is from this order that the mother appeals.

         II. Scope and Standard of Review.

         We review CINA proceedings de novo. See In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). We give weight to the juvenile court's factual findings, though they are not binding on us. See id. Our ...


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