IN THE INTEREST OF W.R., 699 N.W.2d 686 (Iowa App. 2005)

No. 5-406 / 05-0359Court of Appeals of Iowa.
Filed May 25, 2005

Appeal from the Iowa District Court for Scott County, John G. Mullen, District Associate Judge.

W.R. and S.R. appeal the dispositional order in a child in need of assistance proceeding. AFFIRMED.

Christine Frederick of Zamora, Taylor, Frederick, Alexander
Woods, Davenport, for appellant father.

Timothy Tupper, Davenport, for appellant mother.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, William E. Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee-State.

Lucy Valainis, Davenport, guardian ad litem for minor children.

Considered by Vogel, P.J., and Mahan and Zimmer, JJ.

MAHAN, J.

I. Background Facts Proceedings
William and Sherry are the parents of William Jr., born in October 2000, and Brandon, born in August 2002. The family came to the attention of the Department of Human Services in June 2003 when William Jr. had unexplained bruises. There were concerns about the condition of the parents’ home, domestic violence, and the father’s angry, controlling demeanor. William has been diagnosed with a bipolar disorder and a personality disorder. Sherry is intellectually low functioning.

The children were adjudicated to be children in need of assistance pursuant to Iowa Code sections 232.2(6)(c)(2) (2003) (child is likely to suffer harm due to parent’s failure to supervise), (g) (parent fails to provide adequate food, clothing, or shelter), and (n) (parent’s mental condition results in child not receiving adequate care). The children were temporarily removed in November 2003, while the mother was having a third child, Gabrielle, and service providers felt the father could not supervise the children alone.[1] In the dispositional order, entered in February 2004, the children were returned to the parents. The parents were ordered to comply with the case plan.

In June 2004 the guardian ad litem sought to modify the dispositional order to remove the children because the parents were not complying with services. In an August 2004 order, the juvenile court ruled:

Although the totality of the circumstances do not show that the circumstances have materially or substantially changed since the last court order which would justify removal at this time, the father’s continued inappropriate behavior, yelling and aggressiveness towards the workers, the service providers and professionals in this case may lead to the ultimate removal of his sons from his care.

The father was ordered to immediately resume his participation in services.

In November 2004 the State filed an application to remove the children from the home because William continued to resist services and engage in violent and emotionally abusive behavior. The juvenile court determined, “the risks of harm are no longer manageable given the services being provided to this family because of parental attitudes, behavior and refusal or failure to participate in services.” The court ordered the children removed from the home.

The parents filed post-trial motions pursuant to Iowa Rule of Civil Procedure 1.904(2). In ruling on the motion, the juvenile court stated:

The Court determines that with the admonition given to the father and the Order from the August of 2004 hearing the Court anticipated and intended involvement in services by the father and change in the father’s attitudes and behaviors. Since that did not happen in the face of the Court’s admonition, the Court now concludes that that is a substantial and significant change in circumstances. Further, the reports discuss that the behavior of the children is becoming increasingly conflictual, especially in interaction with the father.

William and Sherry appeal the modification of the dispositional order to remove the children from the home.

II. Standard of Review
Our scope of review in juvenile court proceedings is de novo In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). Although we give weight to the juvenile court’s factual findings, we are not bound by them. Id. Our primary concern is the best interests of the children. In re E.H., 578 N.W.2d 243, 248 (Iowa 1998).

III. Timeliness of Appeals
We first address the State’s contention that the appeals in this case are untimely because the parents did not file valid post-trial motions. The State asserts that a post-trial motion that essentially requests the juvenile court to reconsider issues does not toll the deadline for filing a notice of appeal. See Explore Info. Servs. v. Iowa Court Info. Sys., 636 N.W.2d 50, 54
(Iowa 2001). We determine the post-trial motions were permissible under Iowa Rule of Civil Procedure 1.904(2) because they sought an expansion of the court’s ruling, particularly of whether there had been a substantial change in circumstances. The time to file an appeal was tolled until the court ruled on the motions. See Gardner v. Hartford Ins. Accident Indem. Co., 659 N.W.2d 198, 202 (Iowa 2003) (“[A] notice of appeal is timely if filed within thirty days of the ruling on what was, in essence, a rule 1.904(2) motion.”).

IV. Substantial Change in Circumstances
William and Sherry claim the juvenile court should not have modified the dispositional order to remove the children from the home because there had not been a substantial change in circumstances. Under section 232.103(1), a dispositional order may be modified at any time. A party seeking a modification of the custody provisions of a prior dispositional order must show the circumstances have so materially and substantially changed that the best interests of the children requires such a change in custody. In re C.D., 509 N.W.2d 509, 511 (Iowa Ct.App. 1993) In re J.F., 386 N.W.2d 149, 152 (Iowa Ct.App. 1986).

In August 2004 the juvenile court warned the parents that the children might be removed if William continued his inappropriate behavior of intimidating others. William did not participate in mental health counseling, batterer’s education class, or parenting instruction. He refused to cooperate with services or acknowledge any concerns with his family. There was no evidence that Sherry made any independent improvement to her parenting ability. The parents’ failure to follow the court’s earlier admonition constituted a substantial change in circumstances. There was also evidence that the children’s behavior had deteriorated, which was also a substantial change in circumstances.

V. Best Interests
The parents claim that even if there was a substantial change in circumstances, the State failed to show it would be in the best interests of the children to remove them from the parents’ care. We note that William was observed to slap William Jr. in the head and twist his ear during the family’s supervised visits with Gabrielle. There was also evidence that William was emotionally abusive to Sherry and the children. Sherry continued to support William and did not protect the children. We conclude it is in the children’s best interests to be removed from the parents’ care.

VI. Medical Records
Sherry asserts that the juvenile court improperly considered medical records of William Jr. from Dr. Amir Arbisser, an eye doctor. Sherry claims the medical records should not have been considered because Dr. Arbisser was not called to testify. Under section 232.96(6), a hospital record is admissible in juvenile court proceedings, despite any hearsay objections, “provided its probative value substantially outweighs the danger of unfair prejudice. . . .” In re J.L.W., 570 N.W.2d 778, 780
(Iowa Ct.App. 1997). We conclude the medical records of Dr. Arbisser were properly considered by the juvenile court.

VII. Ex Parte Order
On September 20, 2004, the juvenile court entered an ex parte order requiring the parents to make William Jr. available for a physical examination. The State sought to introduce the subsequent medical report by Dr. Barbara Harre. Sherry’s attorney objected on the ground that section 232.98(1) provides that a physical examination of a child may be ordered “after a hearing to determine whether an examination is necessary to determine the child’s physical or mental condition.” The juvenile court determined the evidence should be admissible, and the alleged statutory violation should go to the weight of the evidence.

On appeal, Sherry contends Dr. Harre’s medical report should not have been considered because the ex parte order violated her due process rights. This constitutional issue was not raised before the juvenile court. An issue not presented in the juvenile court may not be raised for the first time on appeal, even an issue of constitutional dimensions. In re N.W.E., 564 N.W.2d 451, 455 (Iowa Ct.App. 1997).

On our de novo review we have not considered the medical report by Dr. Harre. Therefore, we need not address the issue of whether the report should have been excluded because the medical examination was obtained in a manner contrary to section 232.98(1).

We affirm the decision of the juvenile court to remove the children from the home.

AFFIRMED.