In the Interest of O.P., Minor Child ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0464
Filed May 24, 2023
IN THE INTEREST OF O.P.,
Minor Child,
J.B., Mother,
Appellant.
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Appeal from the Iowa District Court for Carroll County, Joseph B.
McCarville, District Associate Judge.
A mother challenges the juvenile court’s removal order. AFFIRMED.
Mark J. Rasmussen of Rasmussen Law Office, Jefferson, for appellant
mother.
Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Kaitlyn C. DiMaria of DiMaria Law P.L.L.C., Des Moines, attorney and
guardian ad litem for minor child.
Considered by Bower, C.J., and Tabor and Greer, JJ.
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GREER, Judge.
In early October 2022, the Iowa Department of Health and Human Services
received allegations that the mother was smoking marijuana in the presence of the
child, born in June 2017. As the department was conducting its initial investigation,
the mother was arrested after she pointed a gun at a woman through her vehicle’s
passenger window and sunroof while the child was in the car. The mother was
arrested in her home, and the police report from the arrest, given to one of the
department’s child protection workers, stated that police found marijuana on the
mother’s dresser and a loaded handgun in the mother’s jacket pocket, which was
laying on the floor. A founded child abuse assessment was completed, noting
concerns with both the mother’s displaying a weapon in front of the child as well
as leaving the gun and marijuana within the child’s reach.
After the mother was arrested, the child was removed from the mother’s
custody and placed in the temporary custody of the department. The county
attorney filed a petition to adjudicate the child in need of assistance (CINA). While
still in jail, the mother called the department social worker and said the child had a
phone and asked the worker to make sure the child had it during their separation.
When the social worker eventually took possession of the phone, there were
obscene photographs of male and female genitalia accessible on the phone; a
second founded child abuse assessment followed, finding the mother allowed the
child access to obscene materials.
The mother was released from jail on November 10. After her release, she
exercised visitation and completed a mental-health evaluation. She also provided
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a drug screen, which was positive for hydrocodone; it was unclear whether this
medication had been prescribed.1
The child was adjudicated CINA in January 2023, at which time the juvenile
court found the child had “suffered or [was] imminently likely to suffer harmful
effects as a result of . . . the failure of the child’s parent . . . to exercise a reasonable
degree of care in supervising the child.” Iowa Code § 232.96A(3)(b) (Supp. 2022).
That same month, the child’s maternal grandmother moved in with the mother, and
the child was placed in the grandmother’s care; the implemented safety plan stated
all interactions between the mother and child were to be supervised by the
grandmother. Temporary custody of the child remained with the department.
In February, the mother revoked all releases of information2 to the
department and stopped drug testing.3 She had only limited contact with the
department’s social worker, and at the March dispositional hearing, the social
worker could not confirm that the mother was working or making other progress
toward reunification. At the dispositional hearing, the mother asked for the child to
be placed back in her care and custody. The juvenile court instead maintained the
adjudication and placed the child in the department’s custody; with the safety plan
1 The department requested proof of a prescription, but we have no record showing
compliance.
2 At the dispositional hearing, the mother claimed she had only revoked the release
for her past medical history. The department’s report to the court ahead of the
hearing explained the social worker received a text message from the mother
stating, “Do not get any of my releases of info I do not authorize you to get any
MORE of my information.” The department treated this as a blanket revocation,
and the juvenile court agreed with that characterization.
3 Between the initial CINA adjudication hearing and the dispositional hearing, the
department social worker asked the mother to complete a drug test four times, all
of which the mother refused.
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that the child remain in the grandmother’s care and the grandmother supervise all
interactions between the child and mother. The mother now appeals.
The mother makes two arguments—(1) the child should have been returned
to her custody when she was released from jail, and (2) the child should have been
placed in the mother’s custody at the March dispositional hearing. Her first claim,
however, is moot—once there was a dispositional hearing, “any error committed
in granting the temporary ex parte order cannot now be remedied. We cannot go
back in time and restore custody based on alleged errors in the initial removal
order.” In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994); see also In re B.B., 826
N.W.2d 425, 428 (Iowa 2013) (“Ordinarily, an appeal is moot if the ‘issue becomes
nonexistent or academic and, consequently, no longer involves a justiciable
controversy.’” (citation omitted)); In re D.N., No. 22-1262, 2023 WL 386705, at *2
(Iowa Ct. App. Jan. 25, 2023) (deeming a mother’s claim about “issues relating to
the initial temporary removal order [were] moot” after the dispositional order
confirming the removal order was entered). So, we turn to the mother’s second
claim.
We review CINA proceedings 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.The mother argues the juvenile court wrongly placed the child in the
department’s custody rather than hers at the dispositional hearing; she does not
appeal the child’s adjudication as CINA. The child was adjudicated CINA under
Iowa Code section 232.96A(3)(b), which allows the court to adjudicate a child CINA
if “[t]he child has suffered or is imminently likely to suffer harmful effects as a result
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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 section 232.99(4) directs the court, following
a dispositional hearing, to “make the least restrictive disposition [4] appropriate
considering all the circumstances of the case,” which the mother argues was to
return the child to her custody.
With the child’s best interests as our polestar, we cannot agree with the
mother. See In re J.S., 846 N.W.2d 36, 40 (Iowa 2014) (“Our primary concern [in
CINA proceedings] is the child[’s] best interests.”). The mother had not assuaged
the drug concerns that initially brought the family to the department’s attention and
was refusing continued drug testing, and the issues in the founded child abuse
assessments remained unaddressed. We do not require “compliance for
compliance’s sake” from parents when it comes to child custody. In re G.B.,
No. 22-0439, 2022 WL 1657190, at *5 (Iowa Ct. App. May 25, 2022). But here,
the mother’s lack of communication with the department prevented the juvenile
court from monitoring if the necessary progress had been made to return the child
to the mother’s custody. In fact, prior to the appeal, the mother was facing a show
cause order for failing to submit to drug tests or sign the necessary releases.
Faced with these circumstances, the court chose an option—leaving the child in
the department’s custody while placing the child in the grandmother’s care—that
4 “The dispositions which may be entered under this subchapter are listed in
sections 232.100 through 232.102 in order from least to most restrictive.” Iowa
Code § 23.99(4).
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kept the child and mother in the same home, which the court explicitly noted was
important.
On our de novo review, we affirm the juvenile court order confirming
continued removal from the mother, as placement with the mother was not
appropriate without further supervision nor in the child’s best interests.
AFFIRMED.