In the Interest of K.K., I.K., and G.M., Minor Children, D.P., Mother ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-2110
Filed March 23, 2016
IN THE INTEREST OF K.K., I.K., and G.M.,
Minor Children,
D.P., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,
District Associate Judge.
A mother appeals from the adjudicatory and dispositional orders in a child-
in-need-of-assistance proceeding. REVERSED AND REMANDED.
Agnes G. Warutere of Warutere Law Office, Clive, for appellant.
Thomas J. Miller, Attorney General, and Bruce L. Kempkes and Mary A.
Triick, Assistant Attorneys General, for appellee.
Randall L. Jackson of Law Office of Randall L. Jackson, Des Moines,
attorney for minor child G.M.
Brent M. Pattison of the Drake Legal Clinic, Des Moines, guardian ad litem
for minor children and attorney for minor children I.K. and K.K.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.
A mother appeals from the adjudicatory and dispositional orders in a child-
in-need-of-assistance (CINA) proceeding. The mother argues (1) the State failed
to prove by clear and convincing evidence that the mother failed to exercise a
reasonable degree of care in supervising her children; (2) the juvenile court failed
to make and file written findings as to its reason for the disposition; and (3) the
court did not make the least-restrictive disposition. We reverse and remand.
The mother has four children: G.M., born in March 2001; I.K., born in
December 2005; K.K., born in May 2008; and E.K., born in August 2015. The
Iowa Department of Human Services (DHS) removed the children from the
mother’s care and custody in August 2015, following E.K.’s birth, due to his urine
and umbilical cord testing positive for amphetamine and methamphetamine.
Prior to the removal, the mother, the biological father of the three youngest
children (the father), and all four children lived with the father’s parents. Upon
removal, the mother and father moved out of the family home so as to minimize
disruption in the children’s lives.
In October, the mother stipulated to the adjudication of her youngest child
but contested the adjudication of her three oldest children. She admitted to
having used methamphetamine twice when she was pregnant with E.K. and to
having parented her older children while under the influence of
methamphetamine. The State also presented evidence that the father had
provided care for the children in the home after using methamphetamine. Based
on this evidence, the court adjudicated all four of the mother’s children CINA
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under Iowa Code section 232.2(6)(c)(2) (2015),1 after finding there was clear and
convincing evidence the children were imminently likely to suffer harmful effects
as a result of the parents’ failure to exercise a reasonable degree of care in
supervising the children. In November, the court entered a dispositional order
confirming the CINA adjudication and continuing temporary legal custody of the
children with their paternal grandparents. The mother appeals these orders only
as to her three oldest children—G.M., I.K., and K.K.2
“We review CINA proceedings de novo.” In re J.S., 846 N.W.2d 36, 40
(Iowa 2014). “In reviewing the proceedings, we are not bound by the juvenile
court’s fact findings; however, we do give them weight.” Id. “Our primary
concern is the children’s best interests.” Id. “CINA determinations must be
based upon clear and convincing evidence.” Id. Evidence is clear and
convincing “when there are no ‘serious or substantial doubts as to the
correctness [of] conclusions of law drawn from the evidence.’” In re M.W., ___
N.W.2d ___, ___, 2016 WL 852001, at *5 (Iowa 2016) (citation omitted).
The juvenile court adjudicated the three oldest children CINA pursuant to
Iowa Code section 232.2(6)(c)(2). This section provides, in relevant part, a child
is in need of assistance when the child “has suffered or is imminently likely[3] to
1
The court also adjudicated the youngest child CINA under Iowa Code section
232.2(6)(o) (illegal substance present in child’s body), to which the mother stipulated.
2
The rights of the children’s biological fathers are not at issue in this appeal. The
biological father of G.M. stipulated to the CINA adjudication and disposition. The father
of I.K., K.K., and E.K. stipulated to the same.
3
The phrase “imminently likely” is not defined in the Iowa Code, but we interpret it
liberally in the CINA context. See In re J.S., 846 N.W.2d at 43.
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suffer harmful effects[4] as a result of . . . [t]he failure of the child’s parent,
guardian, custodian, or other member of the household in which the child resides
to exercise a reasonable degree of care in supervising the child.” Iowa Code
§ 232.2(6)(c)(2).
We recognize methamphetamine is a dangerous drug, and children can
suffer harmful effects when being cared for by a parent who continues to use
methamphetamine. In In re J.S., 846 N.W.2d 36, 37 (Iowa 2014), our supreme
court stated: “We have no difficulty concluding under [section 232.2(6)(c)(2)] that
a parent’s methamphetamine addiction by itself can result in ‘harmful effects’ to
the child, thereby justifying state intervention to protect the child.” However,
there is no evidence in the case before us that the mother has an “active”
addiction to methamphetamine and is continuing to use methamphetamine while
caring for her children. See In re J.S., 846 N.W.2d at 41. Although the mother
initially failed to admit she had used methamphetamine for fear the children
would be removed from her care, she later took responsibility and admitted she
had used the drug twice while pregnant with her youngest child. The mother
completed a substance abuse evaluation that recommended she attend weekly
Narcotics Anonymous and Alcoholics Anonymous meetings, which she did. She
complied with requests for random drug testing. Prior to the dispositional
hearing, the mother submitted a drug patch, and the State acknowledged it
expected the results to be negative. The mother was also working with a parent
partner and participating in Early Access with her youngest child. And despite
4
“Although chapter 232 does not contain a definition of ‘harmful effects,’ we have noted
it ‘pertains to the physical, mental or social welfare of a child.’” Id. at 41 (quoting In re
Wall, 295 N.W.2d 455, 458 (Iowa 1980)).
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there not being any concerns about her mental health, the mother scheduled
weekly individual therapy sessions at the request of DHS. Indeed, everyone
involved in the case agreed the mother was sober and accomplishing the goals
expected of her, the case was progressing and the parents were close to
reunification, and the older children were eager for the case to close and have
their parents back in the home.
Furthermore, by the time of the dispositional hearing, the mother and
father were exercising liberal supervised visitation with the children. The mother
was caring for the children for more than two-thirds of every day—from 6:30 a.m.
until 11:30 p.m.; arriving at the family home early to get the children ready for
school, dropping them off at school, taking them to medical and dental
appointments, laundering their clothes, cleaning the home, preparing dinner,
helping the children with their homework, and getting them ready for bed—plus
two overnight visits a week. She was also exercising daily one-hour
unsupervised visits with her children. Evidence was presented that the three
oldest children are well-adjusted, good students, who are involved in
extracurricular activities. The children miss having their mother in the home. No
one connected to the older children had expressed concerns about them or their
parents. There were no concerns regarding the mother’s parenting of her
children. In fact, the record shows clear evidence the mother has continued to
provide for her children’s mental, physical, emotional, health, and educational
needs.
On our de novo review of the record, we do not find clear and convincing
evidence that the mother’s three oldest children are imminently likely to suffer
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statutorily-defined harm as a result of her use of methamphetamine on two
occasions while pregnant with her youngest child.5 See Iowa Code
§ 232.2(6)(c)(2). Accordingly, we reverse the adjudication and remand for
dismissal of the State’s petition as to the mother’s three oldest children, G.M.,
I.K., and K.K.6
REVERSED AND REMANDED.
5
The mother raises additional arguments on appeal; however, because we do not find
clear and convincing evidence of the statutory grounds alleged, we need not address her
remaining arguments.
6
The adjudication of E.K. provides DHS continuing observation of the mother’s ability to
provide adequate care.