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In re C.K.

Court of Appeals of Iowa

December 19, 2018

IN THE INTEREST OF C.K., Minor Child, T.D., Father, Appellant.

          Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.

         A father appeals the denial of his motion to modify a dispositional order in child-in-need-of-assistance proceedings. AFFIRMED.

          Thor J. Klinker of Smith, Grigg, Shea & Klinker, P.C., Primghar, for appellant father.

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

          Shannon L. Sandy of Sandy Law Firm, PC, Spirit Lake, guardian ad litem for minor child.

          Considered by Tabor, P.J., and Mullins and Bower, JJ.


         Concerned about the safety of his now five-year-old son, C.K., Travis moved to modify a dispositional order in the child-in-need-of-assistance (CINA) case. The juvenile court had returned C.K. to the care of his mother, Candace. But Travis feared Candace would expose C.K. to dangerous conduct by Sam, the father of her other child. Travis sought care of C.K. because of Candace's renewed relationship with Sam. Travis also argued placement with him was in C.K.'s best interests.

         The juvenile court found no "showing that circumstances have so materially and substantially changed that a modification of the current dispositional order is in the best interests of [C.K.]." The court also decided "the purposes of the current dispositional order, namely, to maintain [C.K.] at home with his mother and sister, can reasonably be accomplished with the services currently being provided." See Iowa Code § 232.103(4)(b), (c) (2018). In his petition on appeal, Travis challenges only the court's finding of no material and substantial change. He does not discuss the statutory grounds for modification.[1]

         In our de novo review, we reach the same conclusion as the juvenile court.[2]Travis did not satisfy either the statutory grounds for modification described in section 232.103(4) or the material-and-substantial-change test lingering in our case law. Furthermore, being in his mother's care is in C.K.'s best interests.

         I. Facts and Prior Proceedings

         C.K. came to the attention of the Iowa Department of Human Services (DHS) in late 2016. He was living with his mother Candace, his younger half-sister Z.S., and Z.S.'s father, Sam. Authorities suspected Sam was using heroin and methamphetamine in the home, as well as selling marijuana. Sam also had a history of domestic violence against Candace, including once threatening her with a gun. After removing C.K. and Z.S. from the home, the DHS issued a founded child-abuse assessment against Sam for denial of critical care for C.K.[3] The court adjudicated C.K. a CINA and placed him with Travis's parents.[4] Travis has never had custody of C.K.

         For the next few months, Candace struggled to maintain stability. She moved often and had no job. She continued an on-again, off-again relationship with Sam, over objections from the DHS. Although ordered by the court to attend parent-child interactive therapy (PCIT) with C.K., Candace failed to participate. She also did not follow through with court-ordered individual therapy.

         But by March 2018, Candace showed improvement. She started to cooperate with services. She also reported to DHS she had ended her relationship with Sam, who was in and out of jail. The DHS planned to return C.K. to Candace's care. Candace found an apartment and a job. In July, following a successful trial home visit, the court transferred custody of C.K. back to Candace, who already had custody of Z.S. Candace worked to maintain a stable home, job, and daycare for the two children. The DHS reported both children were healthy, had their basic needs met, and were bonded with Candace. Candace showed appropriate and affectionate parenting without prompting.

         A complication arose in early 2018. Candace revealed to the DHS she was pregnant following an encounter with Sam in October 2017 when they were still in a relationship.

         Meanwhile, Sam never progressed in Z.S.'s CINA case. He failed in all juvenile court expectations, including visitation, therapy, and substance-abuse testing and treatment. He continued to engage in criminal activity, resulting in new charges. The State petitioned to terminate his parental rights to Z.S. and intended to file another petition to terminate when the new baby was born.

         In April, Candace continued to cooperate with services, according to the DHS reports. The social worker had no concerns about her care for C.K., though Candace admitted losing her full-time job and working only part-time. But the worker did have suspicions Candace was seeing Sam again. The worker cited text messages, a photograph from a ...

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