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In re A.W.

Court of Appeals of Iowa

July 3, 2019

IN THE INTEREST OF A.W. and B.W., Minor Children, JENNIFER OLSEN, Guardian ad Litem, Appellant.

          Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.

         The guardian ad litem appeals from the juvenile court's denial of the petition to modify the dispositional order and dismissal of the child-in-need-of-assistance adjudication.

          Jennifer Triner Olsen of Olsen Law Firm, Davenport, appellant and guardian ad litem for minor children.

          Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant Attorney General, for appellee State.

          Considered by Potterfield, P.J., and Doyle and May, JJ. Tabor, J., takes no part.

          POTTERFIELD, PRESIDING JUDGE.

         The guardian ad litem (GAL) for A.W. and B.W., the minor children at issue, appeals the juvenile court's denial of the petition to modify the dispositional order and dismissal of the children-in-need-of-assistance (CINA) adjudication.

         A.W. and B.W. were born in 2011 and 2013, respectively. They were initially removed from the mother's care in November 2016, which occurred after the mother's then-boyfriend, Eddie, physically abused B.W., leaving bruises on B.W.'s face, chest, and shoulders. Additionally, both A.W. and B.W. tested positive for THC. Soon thereafter, both children were adjudicated CINA pursuant to Iowa Code section 232.2(6)(b), (c)(1), (c)(2), (n), and (o) (2016); the court found "that the children were living with their mother where there were substance abuse and domestic violence issues and the children were not safe." The children were placed together in relative care.

         While the children were out of her care the first time, from November 2016 through late July 2017, the mother participated in individual mental-health counseling and engaged in classes to address her history of being and staying in relationships with incidences of domestic violence. The mother was able to recognize the history of abuse in her romantic relationships. But she also continued to speak with and see Eddie, and-after asking the Iowa Department of Human Services (DHS) and being recommended not to-she chose to have the no-contact order lifted on another former paramour, Michael, who had assaulted her. The mother seemed to recognize B.W.'s well-founded fear of Eddie, but that did not stop her from having B.W. speak to Eddie on the phone.

         The children were returned to the mother's custody in late July 2017 and remained in it until mid-October 2017. During this time, the mother began dating another man, Tyler, with an extensive criminal past. She was told he could not be around the children, but the mother ignored DHS's directive. DHS then became concerned the mother had moved Tyler into the home with her and the children; when confronted, the mother agreed to voluntarily place A.W. and B.W. back into the relatives' care. The voluntary placement became court ordered at a later review hearing.

         Following the second removal, the children remained outside of the mother's care from October 2017 until mid-December 2018. Early in this period, the mother began a new romantic relationship, this time with Zach. The GAL expressed concerns that the mother chose to involve herself in another relationship, noting she had been encouraged to focus on just herself and her children but seemed unable to do so. DHS expressed concerns that Zach had some criminal history involving marijuana. The mother was told her new boyfriend could not be around the children, and again, the mother disregarded DHS's directive. Additionally, although the mother paid lip service to "taking things slow" with Zach, in February 2018, she reported on Facebook that she and Zach were engaged to be married.

         In March 2018, DHS determined Zach was an appropriate person to be around the children; he completed a number of negative drug tests and engaged in services with the children and mother. Although there were setbacks-the mother and Zach both tested positive for THC in summer 2018-A.W. and B.W. were returned to the mother's home-where Zach also lived-on December 14, 2018.

         Then, on February 3, 2019, the county attorney filed a motion asking the court to modify the current dispositional order to remove the children from the mother's care once again. At the hearing on the motion, the GAL joined the county attorney's request, but DHS resisted. According to the mother's initial reports, Zach came home very intoxicated on New Year's Eve and the mother and Zach got into a verbal altercation, which then became physical, with Zach choking, hitting, pushing, and scratching the mother. After Zach calmed down, the mother woke up A.W. and B.W., and she and the children left the home and spent the night elsewhere. Within a day or two, the mother reported the incident to her therapist and appropriate DHS professionals. She showed DHS the marks left on her body from the incident and stated she was going to obtain a no-contact order against Zach. She also told DHS that she made Zach move out of the home, their relationship was over, and she would not be seeing or speaking to him. DHS explicitly told the mother she could not have Zach in the home or around the children until further investigation and steps were taken; she agreed. The mother did not get a no-contact order and, within a couple weeks, she allowed Zach into her home while the children were present. At the hearing on the motion, on February 28, 2019, the mother minimized the New Year's Eve attack; whereas she initially described being choked, she now said Zach had just "restrained" her and "wrapped [her] in a bear hug." She claimed the scratches she had previously shown DHS came from her dog. She also indicated she planned to continue her relationship with Zach. The social worker testified DHS was recommending leaving the children in the mother's care because "these kids are very bonded to their mother" and they "have a routine."

         After the presentation of evidence, the county attorney asked the court to remove the children from ...


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