In the Interest of M.N., Minor Child ( 2024 )

IN THE COURT OF APPEALS OF IOWA
No. 24-1006
Filed September 4, 2024
IN THE INTEREST OF M.N.,
Minor Child,
S.B., Mother,
Appellant.
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Appeal from the Iowa District Court for Polk County, Erik I. Howe, Judge.
The mother appeals the juvenile court’s dispositional order, which ordered
the child’s continued removal from the mother’s custody. AFFIRMED.
Jesse A. Macro Jr. of Macro Law, LLP, Des Moines, for appellant mother.
Brenna Bird, Attorney General, and Michelle R. Becker, Assistant Attorney
General, for appellee State.
Megil D. Patterson of Youth Law Center, Des Moines, attorney and guardian
ad litem for minor child.
Considered by Greer, P.J., and Ahlers and Badding, JJ.
2
GREER, Presiding Judge.
The mother of one-year-old M.N. appeals from a dispositional order in the
child-in-need-of-assistance (CINA) proceedings, challenging the juvenile court’s
decision the child could not yet be returned to her custody.1 “We review decisions
in CINA proceedings de novo.” In re L.H., 904 N.W.2d 145, 149 (Iowa 2017)
(citation omitted). “While we are not bound by the juvenile court’s factual findings,
we accord them weight.” Id. “Our primary concern is the child[]’s best interests.”
In re J.S., 846 N.W.2d 36, 40 (Iowa 2014). After our review, we affirm the
dispositional order of the juvenile court.
Under Iowa Code section 232.99(4) (2024), after the dispositional hearing,
the juvenile court is required to “make the least restrictive disposition appropriate
considering all the circumstances in the case.” From least to most restrictive, the
court is permitted to enter an order suspending judgment and continuing the
proceedings for up to twelve months, Iowa Code § 232.100, allowing the parent to
retain custody subject to specific terms and conditions, id. § 232.101, appointing a
guardian, id. § 232.101A, or transferring legal custody of the child to the Iowa
Department of Health and Human Services (the department). The court can only
transfer (or keep) the child out of parental custody if it finds by clear and convincing
evidence that the “child cannot be protected from physical abuse without transfer
of custody” or “from some harm which would justify the adjudication of the child as
1 M.N. is also removed from his father’s custody. While the father filed a notice of
appeal from the dispositional order, he voluntarily dismissed his appeal before the
supreme court transferred the case to this court for resolution.
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a [CINA] and an adequate placement is available.” Iowa Code § 232.102(4)(a)(1)–
(2).
In her petition on appeal, the mother argues that while there was an issue
or two that may have justified the involvement of the department and the juvenile
court with her family, those issues were isolated and are not ongoing. Advocating
that “minimally adequate” parenting is all that is required of her, the mother
questions whether it was ever appropriate to remove M.N. from her custody.2 She
urges that there is no reason for his continued removal. But the mother’s version
of the facts are at odds with those found by the juvenile court, with which we agree.
The department became involved with the family in July 2023 when it was
alleged that the mother drove intoxicated with M.N. and his then-eight-year-old
sibling, M.M.,3 in the car, but that incident was resolved without referral. The
department again became involved in December 2023 after learning that the
mother left one-year-old M.N. alone in a car twice that month while she went
tanning at a tanning salon. The mother was criminally charged with child
endangerment, to which she pled guilty, received a deferred judgment, and was
placed on probation for two years. Pointing to a recent Iowa Supreme Court case,
the mother questions whether her action of leaving one-year-old M.N. alone in a
vehicle during winter was even illegal. See generally State v. Cole, 3 N.W.3d 200
2 Insofar as the mother is challenging the initial removal of M.N.—as opposed to
the child’s continued removal—that issue is now moot. See In re A.M.H., 516
N.W.2d 867, 871 (Iowa 1994) (“Any error committed in granting the temporary
[removal] order cannot now be remedied. We cannot go back in time and restore
custody based on alleged errors in the initial removal order.”).
3 M.M. was also removed from the mother’s custody and placed with his father
(who is different than M.N.’s father). M.M. is not at issue in this appeal.
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(Iowa 2024) (vacating conviction for child endangerment where mother left five
children—ages twelve to five years old—at home sleeping while she went to buy
groceries). And she argues that, whether it was illegal or not, she learned her
lesson and will not repeat the mistake.
But those arguably isolated incidents of leaving the young child alone in a
vehicle are not the only concerns. While it was those incidents that first caused
the department to recommend services, the record evidence exposes the mother’s
problem with excessive alcohol consumption. In May 2023 the mother was
arrested for operating while intoxicated and eluding.4 And it was M.M.’s interview
at a child advocacy center (for an unrelated reason) that led to the department’s
first child-protective assessment in July 2023, which ended without a referral. In
that interview, M.M. offered up that after spending the day with his mother at an
event at a bar, the mother made him blow into a square “breathing thing” in the
front seat of her car so it would start. He described having to breathe into the
device a second time while the mother was driving when it started to beep while
they were on the road. M.M. reported feeling nervous as his mother drove “crazy”
while he and his brother were in the backseat.
But that was not all. When department workers spoke to M.M. in December
after the department again became involved, he reported things were not so good
at his mother’s home. He stated he is required to watch M.N. while his mother
sleeps and recounted a time when his mother was drinking beers at home and
became too drunk; he could not wake her up when he tried. In other parts of the
4 The mother was convicted of eluding, given a suspended sentence of one year,
and placed on probation. The OWI charge was dropped.
5
same report, department workers summarized concerns the mother was frequently
intoxicated and that, at times, M.M. had to touch her to ensure she was still
breathing. The mother denied having a problem with alcohol. She testified at the
disposition hearing that receiving an OWI charge was a single poor decision rather
than indication of a bigger problem, and she reported to the person conducting her
substance-use evaluation that she consumes alcohol only once every couple
months. Yet, the mother continued exhibiting concerning behavior after the
children were removed in January 2024.
In February, she was charged with domestic abuse assault causing bodily
injury, with M.N.’s father as the victim.5 The police report from the incident
indicated the mother was impaired by alcohol at the time. When asked about the
incident at the disposition hearing, the mother denied she was under the influence
of alcohol. But M.N.’s father—who was in support of M.N. returning to the mother’s
custody—testified the mother was drinking alcohol before the assault took place.
In support of her stance that she does not have a problem with the
excessive consumption of alcohol, the mother testified that she was required to
wear an alcohol monitoring device for about thirty days as part of her probation
requirements. She argues the absence of positive results during that time shows
she does not have a problem with consuming alcohol. But, as the juvenile court
recognized, that report was not introduced at the hearing, and the mother lacks
credibility when it comes to self-reporting her use of alcohol. Additionally, the
mother testified that her substance-use evaluation did not recommend any
5 This charge was later amended to disorderly conduct, to which the mother pled
guilty in May 2024.
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treatment, but that evaluation was also not introduced as evidence. Based on the
mother’s behavior, the mother’s self-reporting to the evaluator about her use of
alcohol is suspect, at best.
While the father had moved out of state before the dispositional hearing, the
mother and father also have a history of allegations of domestic violence in their
relationship, with each having been the victim and the perpetrator. The mother did
not deny this history; instead she suggested that the issue no longer existed
because she took some online classes about domestic violence and had an hour-
long conversation with the department caseworker. The juvenile court, recognizing
the mother’s inability to grasp the severity of her actions, stated, “[the mother’s]
inability to gain that insight [into the concerns over her behavior] is a large barrier
to reunification and her ability to meaningfully engage in services.”
Overall, as the juvenile court recognized, the mother continues to deny the
reality of the family’s situation and her role in it. While the mother has participated
in some services, she continues to “check boxes” rather than address the core
issues that led to removal and adjudication. See In re D.D., 955 N.W.2d 186, 192–
93 (Iowa 2021) (“[T]erminating a [CINA] proceeding isn’t an exercise in box-
checking. Progress in therapy and similar efforts to ‘put the work in’ are
unquestionably important. But the statute doesn’t ask whether all the boxes have
been checked or the work put in; it asks whether the child remains in need of
supervision, care, or treatment.”). And without that insight or recognition of
changes that need to be made, we agree with the juvenile court that M.N. is still at
risk of adjudicatory harm if returned to the mother’s custody. See, e.g., In re T.C.,
489 N.W.2d 53, 56 (Iowa Ct. App. 1992) (holding the circumstances that led to
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termination still existed when the parent failed to face substance-abuse problem,
focused on blaming others, and “adamantly deni[ed] a need for services . . . on the
premise that she [did] not have a problem”); In re J.W., No. 02-1359, 2002 WL
31528638, at *3 (Iowa Ct. App. Nov. 15, 2002) (affirming juvenile court’s
conclusion risk of harms resulting in child’s adjudication remained “the same
because of [the parent’s] failure to address these issues”).
Because M.N. would face further adjudicatory harm if returned to the
mother’s custody at this time, we affirm the juvenile court’s dispositional order.
AFFIRMED.