In the Interest of M.O. and Z.O., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 21-0242
Filed October 6, 2021

IN THE INTEREST OF M.O. and Z.O.,
Minor Children,

E.I., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Carrie K. Bryner,

District Associate Judge.

A mother appeals adjudicatory and dispositional orders filed in a child-in-

need-of-assistance proceeding. AFFIRMED IN PART AND REVERSED IN

PART.

Katie Eastvold, North Liberty, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Julie Trachta, Cedar Rapids, attorney and guardian ad litem for minor

children.

Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
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VAITHESWARAN, Judge.

A mother appeals adjudicatory and dispositional orders filed in a child-in-

need-of-assistance proceeding. She contends (1) the State failed to prove the

grounds for adjudication cited by the district court; (2) the State failed to make

reasonable reunification efforts; and (3) the district court should not have placed

the children with their father.

I. Grounds for Adjudication

This appeal involves two of the mother’s children, born in 2007 and 2013.

The children were removed from the mother’s custody following her altercation

with their father and an adult child. The children were placed with their father.

The district court adjudicated the children in need of assistance (CINA)

under three statutory grounds: Iowa Code sections 232.2(6)(b), (c)(2), and (n)

(2020). Because those grounds may affect subsequent proceedings, we address

each of them. See In re J.S., 846 N.W.2d 36, 41 (Iowa 2014) (stating “[t]he

grounds for a CINA adjudication do matter” because the grounds “have important

legal implications beyond the adjudication” (citation omitted)).

Section 232.2(6)(b) defines a “[c]hild in need of assistance” as “an

unmarried child . . . [w]hose parent . . . has physically abused or neglected the

child, or is imminently likely to abuse or neglect the child.” “‘[P]hysical abuse or

neglect’ and ‘abuse or neglect’ mean ‘any nonaccidental physical injury suffered

by a child as the result of the acts or omissions of the child’s parent . . . .’” J.S.,

846 N.W.2d at 41 (citing Iowa Code § 232.2(42)).

The State does not point to a nonaccidental physical injury suffered by

either child involved in this proceeding. Instead, the State relies on a “physical
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altercation” with the mother’s adult child and a “serious assault” on the child’s

father. Neither qualifies as physical abuse or neglect under section 232.2(6)(b).

See Iowa Code § 232.2(5) (defining “[c]hild” as “a person under eighteen years of

age”), (42) (referring to injuries “suffered by a child”).

The question, then, is whether the mother was “imminently likely to abuse

or neglect” the children. Id. § 232.2(6)(b). “[W]e do not require neglect or physical

or sexual abuse to be on the verge of happening before adjudicating a child as one

in need of assistance.” J.S., 846 N.W.2d at 43. We do require “specific prior

incidents of abuse or neglect.” Id. As in J.S., “the State failed to prove any specific

prior incidents of abuse or neglect” with respect to these children. Id. As noted,

its case for adjudication under section 232.2(6)(b) was based on the mother’s

physical abuse of adults. While a department of human services social worker

mentioned the older child’s report of “physical violence by her mom, scratches,

being hit, things of that nature in the past,” she admitted that the department did

not perform an assessment of the allegation “because there was no proof of any

injuries at this time.”

The State also cites the “mother’s issues with her mental health and

explosive anger,” the children’s lack of “adequate care as evidenced by their

ongoing exposure to violence and emotional abuse,” and one of the children’s

“ingestion of methamphetamine.” These circumstances do not qualify as “specific

prior incidents” of abuse or neglect. See id. at 42–44 (citing opinions involving

prior acts of physical or sexual abuse and stating “we do not believe general

statements about methamphetamine addiction are enough by themselves to prove

that a child is imminently likely to suffer physical harm under section 232.2(6)(b)”).
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We conclude the State failed to prove the elements of section 232.2(6)(2)(b). We

reverse the adjudication under that provision.

We turn to section 232.2(6)(n), which defines a child in need of assistance

as a child “[w]hose parent’s or guardian’s mental capacity or condition,

imprisonment, or drug or alcohol abuse results in the child not receiving adequate

care.” The State relies on the mother’s mental capacity and drug abuse to support

this ground for adjudication. The State failed to prove either circumstance by clear

and convincing evidence.

With respect to mental health, the department social worker testified the

mother “seems to have some very significant mental health issues,” but she

provided no professional documentation of those issues. The social worker had

yet to obtain an order requiring a psychological evaluation of the mother and she

stated she did not know the mother’s mental health diagnoses, whether the mother

took any medication to address any mental health diagnoses, and whether she

attended therapy. The record lacks clear and convincing evidence to support a

determination that the mother’s mental capacity resulted in the children’s receipt

of inadequate care. See In re S.S., No. 21-0121, 2021 WL 1400774, at *3 (Iowa

Ct. App. Apr. 14, 2021) (“The State failed to establish any nexus between the

father’s mental health and the father’s assault of the mother or, in turn, the children

receiving inadequate care as a result thereof.”); In re I.N., No. 20-0793, 2020 WL

5651595, at *6 (Iowa Ct. App. Sept. 23, 2020) (finding “insufficient reason to

believe the mother’s mental condition would result in the children not receiving

adequate care in her custody”); In re M.B., No. 20-0404, 2020 WL 2065965, at *2

(Iowa Ct. App. Apr. 29, 2020) (concluding “the State failed to prove the mother’s
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‘mental capacity or condition’ resulted in deprivation of care” where the child

protective worker acknowledged the mother had not undergone a mental-health

evaluation and she declined to characterize the abuse as a mental-health

diagnosis).

As for drug use, the social worker expressed “concerns about

meth[amphetamine] use” based on a hair test of the younger child that was positive

for the drug. Although the positive test result led to a founded child abuse report

for “presence of illegal drugs,” the perpetrator was listed as “[u]nknown” and the

department reported “[t]here was no information to support that either parent is

abusing substances.” The social worker acknowledged the department had yet to

obtain a court order requiring the mother to undergo drug testing and she could

only speculate on the source of the methamphetamine. While the district court

made an adverse credibility finding with respect to the mother’s explanation for the

child’s positive drug test and we give weight to that finding, we are not persuaded

the positive drug test alone sufficed to support a determination that the mother’s

substance abuse resulted in her failure to provide adequate care. See In re M.S.,

889 N.W.2d 675, 682 (Iowa Ct. App. 2016) (“[T]he mere fact of use does not

establish adjudicatory harm.”); In re A.W., 2021 WL 2021646, at *1 (Iowa 2021)

(agreeing with the court of appeals that “the State failed to provide clear and

convincing evidence that Mom had a substance abuse problem resulting in A.W.

not receiving adequate care”); In re E.M., No. 20-1722, 2021 WL 811135, at *1–2

(Iowa Ct. App. Mar. 3, 2021) (declining to affirm adjudication under section

232.2(6)(n) notwithstanding founded child abuse assessment for dangerous

substances); In re A.W., No. 20-1406, 2021 WL 377448, at *4 (Iowa Ct. App. Feb.
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3, 2021) (overruled on other grounds by A.W., 2021 WL 2021646, at *2)

(acknowledging mother’s repeated positive drug tests and “history of substance

abuse” but concluding “the State has not proven by clear and convincing evidence

that the mother’s substance abuse resulted in [the child] not receiving adequate

care”); In re L.B., No. 20-1164, 2020 WL 6482087, at *2 (Iowa Ct. App. Nov. 4,

2020) (reversing adjudication under section 232.2(6)(n) where State relied on

testimony the drug “could impact a user’s ability to adequately and safely parent a

child”); In re L.B., No. 19-1671, 2019 WL 6358452, at *2 (Iowa Ct. App. Nov. 27,

2019) (concluding State failed to present clear and convincing evidence that a

“particular incident was fueled by [the father’s] use of drugs or alcohol” and

reversing adjudication under section 232.2(6)(n)); cf. In re A.B., 815 N.W.2d 764,

767, 776 (Iowa 2012) (referring to children’s adjudication pursuant to Iowa Code

sections 232.2(c)(2) and (n) and stating, “[A]n unresolved, severe, and chronic

drug addiction can render a parent unfit to raise children”); In re H.W., 961 N.W.2d

138, 144–45 (Iowa Ct. App. 2021) (affirming adjudication under section 232.2(6)(n)

where department cited children’s exposure to unresolved mental health and

substance abuse issues and domestic violence); In re J.B., No. 21-0241, 2021 WL

1662248, at *3 (Iowa Ct. App. Apr. 28, 2021) (concluding a founded abuse report

noting father’s admission to daily marijuana use and use in the presence of the

children supported adjudication under section 232.2(6)(n)). We conclude the State

failed to prove by clear and convincing evidence that the children should be

adjudicated in need of assistance pursuant to section 232.2(6)(n). We reverse the

adjudication under that provision.
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We are left with section 232.2(6)(c)(2), which defines a child in need of a

assistance as a child “[w]ho has suffered or is imminently likely to suffer harmful

effects 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.” On our de novo review, we agree with the

district court that this ground was satisfied.

The mother had an “explosive” temper that she manifested by physically

abusing members of her family. See In re L.H., 904 N.W.2d 146, 151 (Iowa 2017)

(“Although the State does not present evidence showing that [the father] has ever

physically abused L.H., the State does present evidence that [the father] has

serious anger issues that have led him to physically abuse other current and

previous members of his household.”). The department intervened after she had

an argument with the children’s father that resulted in injury to the father. Both

children were in the home at the time of the argument. According to the

department social worker, the older child reported that domestic violence between

the parents was “an ongoing issue” and the mother was “the aggressor.” While

the mother denied committing acts of violence against the children’s father, she

admitted pushing and biting her adult child.

In addition, a department social worker testified the mother’s

“communication toward her children [was] extremely inappropriate” and included

“[a] lot of cursing, calling names[, and] talking poorly about their father on a regular

basis.” The mother acknowledged she had a propensity to cuss and agreed she

cussed at her older child.
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At the time of the adjudicatory hearing, the mother was living in a truck. She

stated that, if her children were returned, she would stay with her mother until she

could get housing. At the same time, she conceded her relationship with her

mother was unhealthy.

We conclude the department proved the ground for adjudication set forth in

section 232.6(2)(c). We affirm the adjudication under that provision.

II. Reasonable Efforts

Following a hearing, the district court found the mother was “unsafe” and

had “threatened the physical safety of the provider and children.” The court

suspended visits between the mother and her children and ordered the team

working with the mother “to determine if there [was] a safe video visit plan that

[could] be implemented” or investigate “visitation in a therapeutic setting.” In short

order, the team met with the mother, discussed expectations at visits, and agreed

to transition back to “in person” supervised visits at the service provider’s office.

At the dispositional hearing, the State asked the court to afford the department

discretion with respect to visits. The district court denied the request, stating

“[v]isits right now will remain fully supervised with no discretion as to visitation.”

The court also imposed a no-contact order between the mother and father.

The mother contends the suspension of visits and the no-contact order

contravened the department’s obligation to make reasonable efforts toward

reunification. See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). The State

responds that we need not address the suspension of visits because they were

reinstated. We agree with the State. See E.M., 2021 WL 811135, at *2 (stating
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“we cannot go back in time and restore custody based on alleged errors in the

initial removal order”).

We turn to the court’s imposition of a no-contact order. The background is

as follows. Following the incident that precipitated the department’s involvement,

the father obtained a criminal no-contact order against the mother. That order was

later “dropped” at the father’s request. The father sought another no-contact order

that was denied. At that juncture, the department asked the juvenile court to issue

its own no-contact order. The court granted the request. The court ordered that

“there be no contact between the parents.” The court instructed the mother’s

attorney to advise his client that she was “not allowed to contact the father in

person, by phone call, through her daughter, by showing up at the house.” The

court also instructed the father not to be “contacting” the mother “in any manner.”

On appeal, the mother asserts the order “hinder[ed] her ability to reunify

with her children.” To the contrary, the order permitted her to have supervised

contact with the children “in a neutral location.”

We conclude the department satisfied its reasonable-efforts mandate.

III. Placement with Father

The mother contends “the children should not live with their father and

should live with her instead.” She cites her role as “primary caregiv[er] throughout

their lives.” Without belaboring the point, continued removal from the mother’s

home was in the children’s best interests. See In re L.H., 904 N.W.2d at 149 (“[O]ur

principal concern is the best interests of the child.”).
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IV. Disposition

We affirm the child-in-need-of-assistance adjudication under Iowa Code

section 232.2(6)(c)(2). We reverse the adjudication under Iowa Code sections

232.2(6)(b) and (n).

AFFIRMED IN PART AND REVERSED IN PART.