No. 05-0009.Court of Appeals of Iowa.
March 16, 2005.
Appeal from the Iowa District Court for Kossuth County, Donald J. Bormann, District Associate Judge.
A mother appeals from the ruling on the State’s motion to modify a dispositional order in a child in need of assistance proceeding. AFFIRMED.
Brian W. Thul of the Thul Law Firm, Whittemore, for appellant mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Todd M. Holmes, County Attorney, for appellee State.
Gregory Stoebe of Stoebe Law Office, Humboldt, guardian ad litem for child.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
VOGEL, P.J.
Tyler, born in April of 2003, is the child of Ronald and Alona. In June of 2004, Tyler was removed from his parents’ home after he had been left alone outside for two days in a row and had received numerous mosquito bites. Following a June 25, 2004 hearing, Tyler was adjudicated in need of assistance pursuant to Iowa Code section 232.2(6)(b) (2003) based on the incident. Tyler was later returned to the legal custody of Ronald and Alona, but the Iowa Department of Human Services (DHS) was ordered to provide “protective supervision” of Tyler.
On September 15, 2004, the State moved to modify in which it requested a more restrictive disposition, including removal and placement in foster care. Ronald and Alona subsequently voluntarily placed Tyler in foster care. Following a November 2, 2004 hearing, the district court entered a ruling in which it ordered Tyler to remain in foster care. It further ordered that “Tyler may be returned to the custody of [Alona] if she will establish a residence separate and distinct from Ronald and will assure the Court that Ronald will not have unsupervised contact with the child.”
Alona has appealed from this order. She first contends “the State failed to show that there had been a material and substantial change in circumstances to support its claim for modification.” She next asserts “the juvenile court lacked statutory authority effectively to terminate the parental rights of [Ronald].”
Our review of an action arising from CINA proceedings is de novo. Iowa R. App. P. 6.4. We give weight to the fact findings of the juvenile court, especially when considering the credibility of witnesses, but we are not bound by these findings. In re C.D., 509 N.W.2d 509, 511 (Iowa Ct.App. 1991).
Modification.
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 interest of the child requires such a change in custody. In re J.F., 386 N.W.2d 149, 152 (Iowa Ct.App. 1986). A parent’s past performance provides insight into this determination. In re D.C., 436 N.W.2d 644, 645 (Iowa Ct.App. 1988).
Ronald appears to perform at an extremely low level of intellectual functioning, described as likely that of a five to six-year-old child. Our review of the hearing transcript reveals that he failed to understand simple questions, responded inappropriately to direct lines of questioning, and responded indecipherably to others. Psychological evaluator, Dr. Mark Pelton, described Ronald as functioning at a “mild range of mental retardation” and found him to be an “irritable person who resents women and dislikes any limits set on his behavior.”
Adding to his immaturity is Ronald’s serious temper and anger control problems. Alona reported to DHS that Ronald has threatened to shoot people and has been violent with her, including throwing a coffee pot and a pair of pliers at her. She also stated that when Ronald does lose his temper, she has to take Tyler outside until Ronald “cools down”. Family therapist Alison Hauser reported that Ronald threw a hammer at her when she requested that he come out of the basement for a parenting session. At the modification hearing, Ronald admitted throwing the coffee pot, the pliers, and the hammer, but claimed he was not trying to hit anybody. Hauser also opined that “at some point Ron is going to physically harm or kill Tyler.”
The record supports that Ronald is not amenable to services and refuses suggestions as to how to be a better parent. During a family team meeting with various service providers, Ronald stated that he was his “own boss”, does not have to listen to anybody and can take care of himself. At the modification hearing, Ronald complained that his providers would only “give him crap” and “boss [him] around.” He responded that he would not listen to any parenting teaching and did not “want a peep out of them.” When asked if he would accept any parenting instruction, Ronald responded “[n]obody supposed to be telling me how to be a dad.” Alison Hauser also informed the court of an incident in which, during a supervised visit, Ronald became extremely upset with her and a therapist, threatening to “kick their asses” and calling Tyler a “son of a bitch.”
We concur in the court’s conclusion that Tyler’s best interests are best served by continued removal from Ronald’s care. Ronald’s violent temper, refusal to accept guidance, and immaturity all seriously undermine our confidence in his prospects of safely caring for Tyler. As the bulk of this information was gained by DHS after its initial involvement with the family and the first CINA dispositional order, the modification of the order was both warranted and reasonable based on a material and substantial change of circumstances.
“Effective Termination” of Ronald’s Parental Rights.
Alona argues that none of the statutory grounds warranting termination of Ronald’s parental rights have been established. She asserts that because the court order “compelled her to sever the marital relationship with her husband to avoid losing custody of her child,” it was an effective termination of Ronald’s parental rights. First, we note the court’s order did not address termination of Ronald’s parental rights, therefore we do not consider the issue. Second, we note that Ronald has not appealed. Alona therefore does not have standing to raise the claim his
parental rights were improperly terminated. See Citizens for Responsible Choices v. City of Shenandoah, 686 N.W.2d 470, 475
(Iowa 2004).
AFFIRMED.