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IN THE COURT OF APPEALS OF IOWA No. 0-596 / 10-0443 Filed November 24, 2010 IN RE THE MARRIAGE OF JOHN P. MANN AND JESSICA M. MANN Upon the Petition of JOHN P. MANN, Petitioner-Appellee, And Concerning JESSICA M. MANN, Respondent-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Winneshiek County, John Bauercamper, Judge.

Jessica Mann appeals from child custody provisions of the decree dissolving her marriage to John Mann. AFFIRMED.

James Burns of Miller, Pearson, Gloe, Burns, Beatty & Cowie, P.L.C., Decorah, for appellant. Andrew P. Nelson of Meyer, Lorentzen & Nelson, Decorah, for appellee.

Heard by Mansfield, P.J., and Danilson and Tabor, JJ.

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TABOR, J. Jessica Mann appeals from child custody provisions of the decree dissolving her marriage to John Mann. She contends the court erred in granting John physical care of their two children. In weighing the factors outlined by our supreme court and the legislature, we agree with the district court's assessment that this custody determination is a difficult one to make. But we conclude the children's long-term best interests are better served by granting John physical care. Accordingly, we affirm. I. Background Facts and Proceedings. John and Jessica were married on April 26, 2002. They have two minor children: Allen, born in December 2002, and Carly, born in November 2005.1 Carly was born prematurely and suffers from a genetic disorder known as otopalatodigital syndrome. She has a

tracheotomy2 and a feeding tube, and requires between twelve and fourteen hours of outside nursing care daily. Both John and Jessica are trained to care for her. John was born in 1978 and is in good health. He has a high school degree and obtained one year of community college training in plumbing and heating. Since May 2009, he has been employed at Mracek's Plumbing where he earns $11.25 per hour. concerns. Jessica was born in 1982 and has no health

She has some education toward a nursing degree, but left the

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The parties also had a child, Heath, who was born between Allen and Carly. He was born with severe health problems and died approximately one year before the parties separated. 2 The record shows Carly's respiratory status has improved and at the time of the hearing, she had a cap over the tracheotomy tube which allows her to breathe normally. When she has difficulty breathing she still requires the assistance of oxygen.

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program to care for her children. She works fifteen to sixteen hours per week as a community trainer for Goodwill Industries. She chooses not to work more than that because it would restrict her ability to maintain Title XIX insurance for Carly. The parties separated in November 2006. John moved into his mother's home, where both his mother and sister reside. His mother works as a medical aide. His sister, Patty, works as a registered nurse for the home health

organization that administers Carly's medical services. Patty provides nursing services to Carly when the child is in John's care, but not when the child is in Jessica's care. Jessica remained in the marital home with the children. Following their separation, the parties began a visitation schedule with John receiving visitation every other weekend. petition, which was later dismissed. Jessica filed a dissolution

In that action, a temporary order was

entered in October 2007 to grant John visitation on alternate weekends and overnights on Wednesdays of the weeks he did not have weekend visitation. The parties continued to follow that visitation schedule through trial in this matter. The same order required John to pay Jessica child support in the amount of $335 per month. After dismissal of the action, John stopped paying the child support. The Child Support Recovery Unit issued an administrative support

order requiring John to pay $396 per month in child support, with which he has complied. Prior to the parties' separation, John's job required him to work out of town during the week, leaving the majority of the child-rearing responsibilities to Jessica. After separating, John obtained employment that enabled him to have a

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more active role in the children's lives. But Jessica continued to be primarily responsible for taking Carly to her regular doctors' appointments . Jessica

estimated she took Carly to approximately forty visits over the three-year period after separation, while John took her to only one. John also relies on his family members to assist with visitation exchanges; John works from approximately 7:30 a.m. until 5:30 p.m. and looks to his mother (and sometimes his girlfriend) to pick up or drop off the children. After separating, both parties began relationships with other people. John has been dating Erin, a nursing student at Luther College. John and Erin live together and plan to marry; Erin is trained to care for Carly. Jessica lives with her boyfriend, Chris. Since the parties separated, the Department of Human Services (DHS) has investigated Jessica's home at least four times. In May 2007, the DHS investigated an allegation that Jessica failed to provide adequate shelter based on the children's exposure to pet urine and feces in the home, as well as the failure to pick up small objects that presented a choking hazard for Carly. The social worker showed Jessica what needed to be corrected and Jessica eliminated the problem by the second visit. In January 2010, DHS investigated Jessica's home following an allegation that she again failed to provide adequate shelter due to the strong odor of pet urine and the presence of dog feces in areas accessible to the children. The DHS listed the report of denial of critical care and failure to provide adequate shelter as "founded." The report details the unsafe and unsanitary conditions as follows:

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CPW observed the home and found conditions unsafe for the children. There was dog feces on children's clothing on the floor in the kitchen, numerous piles of dog feces on the floor in the children's bedroom and in a second room upstairs and a strong odor of feces and dog urine in the home. There were also piles of clothing and other items around each room. There were bags of garbage stacked in and around the waste basket in the kitchen and dishes and other items filling the sink and covering the kitchen counter. There [were] also numerous small items on the floor including a coin and decorative light bulb that could present a choking risk to Carly. In addition the home was being heated entirely by space heaters. CPW spoke with Carly's nurse, who reported finding dog feces in the home on numerous occasions. CPW also spoke with the children's physician, who reported dog feces presented health risks for both children. The conditions existing in the home are such that they would have accumulated over time rather than existing due to a crisis or disaster situation. In this situation, Jessica failed to provide for adequate shelter for these children. Because the gas heater in the home was not functioning, the kitchen pipes had been frozen for about one week before the DHS conducted its investigation. During the summer of 2009, Jessica applied for Supplemental Security Income (SSI) benefits for Carly. She now receives approximately $575 per

month from Social Security, though the exact amount fluctuates in relation to her earnings. Jessica did not inform John of her application and receipt of the

benefits. She also has never provided John with a copy of Carly's insurance card. On April 17, 2009, John filed a petition for dissolution seeking temporary and permanent physical care of the children. In her answer on May 15, 2009, Jessica sought temporary and permanent physical care of the children.3

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Neither party requested joint physical care of the children.

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The district court held trial on February 4 and 5, 2010. In its February 12, 2010 decree dissolving the marriage, the district court granted John physical care of the children with the following analysis: Both parties are appropriate caretakers for the children. The respondent has been their primary caretaker in the past. Both parents receive the same amount of intensive in-home nursing care for their special needs child. Some basic needs have been neglected in the respondent's home. Communication and the sharing of information between parents is not at an acceptable level. The placement decision in this case is close. However, the evidence persuades the court that petitioner is the superior parent, because he can administer most effectively to the long-term best interests of the children, place them in an environment that will foster healthy physical and emotional development, and promote contact with both parents. Therefore, primary placement of the children should be awarded to the petitioner. Jessica appeals. II. Scope and Standard of Review. We review a custody order de novo. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We examine the entire record and adjudicate anew the parties' rights on the issues properly presented. See In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). It is significant that the "trial court had the opportunity to observe the parties, listen to them and watch them in person. Although we are not bound by the trial court's findings, in a case such as this we give them weight." Jacobs v. Jacobs, 216 N.W.2d 312, 314 (Iowa 1974). III. Analysis. The best interest of the children is our standard for deciding child custody. Iowa R. App. P. 6.14(6)(o); Murphy, 592 N.W.2d at 683. Our

objective is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity. Murphy, 592 N.W.2d at 683. In

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considering what custody arrangement is in the best interest of the children, we consider statutory factors. Iowa Code

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