In the Interest of A.W., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 20-1406
Filed February 3, 2021

IN THE INTEREST OF A.W.,
Minor Child,

T.D., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Susan Cox, District

Associate Judge.

The mother appeals the adjudication of her child as in need of assistance

and the continued removal of the child from her care. AFFIRMED IN PART AND

REVERSED IN PART.

Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant

mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Kimberly A. Graham of Graham Law Collaborative, Indianola, attorney and

guardian ad litem for minor child.

Considered by Bower, C.J., and Vaitheswaran and Greer, JJ.
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GREER, Judge.

The mother appeals seeking a reversal of the juvenile court order

adjudicating her child, A.W., a child in need of assistance (CINA). Alternatively,

the mother seeks reversal of a portion of the dispositional order that continued

removal of A.W. from her care.

Facts and Earlier Proceedings.

The family first came to the attention of the Iowa Department of Human

Services (DHS) in September 2018. The family was receiving ongoing services

from DHS throughout the mother’s pregnancy with A.W., and three of A.W.’s half-

siblings were removed from the mother’s care before A.W.’s birth because of

domestic violence, substance abuse, and instability.1 Before A.W.’s birth and

during time services were provided through DHS, the mother’s history of drug use,

arrests for domestic violence, and lack of progress, led to the removal at birth of

one of A.W.’s half-siblings. So before A.W.’s birth the mother revealed she would

give birth outside Iowa, possibly in Nebraska or Michigan, so DHS could not take

the child and suggested she would sign parental rights over to a paternal aunt or

grandmother. After the mother learned she would violate her probation if she left

the State of Iowa she gave birth to A.W. at an Iowa hospital on April 7, 2020.2

Shortly after A.W.’s birth, DHS informed the mother and her attorney the

department would seek formal removal of A.W. unless the mother made

1 As of September 2020, the mother and father’s parental rights to A.W.’s siblings
were terminated. An appeal of this matter is pending in the Iowa Supreme Court,
Case Number 20-1266.
2 The mother left the hospital with the baby the day following the caesarean section

birth.
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arrangements to voluntarily place A.W. in another’s care. The mother and her

attorney exchanged emails with the assigned DHS caseworker over placement of

A.W. with the paternal grandmother out of state. The caseworker’s last email to

the mother asked if she could have A.W. “go back” with the paternal grandmother

on April 9, and the mother responded, “Yes, I can.”

That same day, the juvenile court issued an order for temporary removal,

placing A.W. in DHS custody for foster care placement, pending a hearing

scheduled for April 17. The order included “that physical custody could not be

placed with another relative because no appropriate relatives are known to” DHS.

The juvenile court noted a CINA petition would follow.

On April 14, the State filed a motion requesting the juvenile court order DHS

to pursue expedited placement of A.W. and another half-sibling with their paternal

grandmother in Michigan under the Interstate Compact on the Placement of

Children (ICPC). See Iowa Code § 232.158 (2020). The juvenile court approved

the order and directed DHS to apply for provisional placement of A.W. and that

half-sibling with their grandmother pending a home assessment by the State of

Michigan. At this time, A.W. was in Michigan with the grandmother.

With the removal order still in place and a hearing set for April 17, DHS

advised the grandmother and mother that A.W. needed to be back in Iowa for the

hearing. One day before the hearing date, the mother moved to stay the removal

order and suggested the grandmother could not bring A.W. back to Iowa in time

for the removal hearing because of adverse weather. In her motion, the mother

faulted DHS for creating confusion by seemingly giving the grandmother

permission through emails sent on April 9 to take A.W. to Michigan. The juvenile
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court held a contested removal hearing on April 17 and then denied the motion to

stay removal on April 19. In its order, the juvenile court found it did not believe

DHS agreed to allow the grandmother to take A.W. out of state, and, in any event,

the proper procedures were not followed.

The legal grounds for . . . granting the emergency removal have not
changed. . . . The parents cannot safely care for the baby. The Court
does not have reliable information re[garding] the paternal
grandmother. Furthermore, the Court cannot safely place the baby
in the grandmother’s custody without an ICPC Report.

A.W. was returned to Iowa and placed in foster care with one of her siblings. And

the removal hearing continued on April 27. On May 4, the juvenile court ordered

continued removal of A.W. from both parents, finding:

Removal is necessary to avoid imminent risk to the child’s life or
health. The Court believes the parents’ abrupt decision to have the
paternal grandmother take [A.W.] to Michigan was to try and thwart
DHS’s decision to request the Court remove [A.W.]. If the Court
and/or DHS was not involved, [A.W.] would be back with the mother
who repeatedly tested positive for drugs—yet denies responsibility—
continues to violat[e] a Criminal No Contact Order and continues to
engage in an unhealthy, domestic violence relationship with [the
father].

Following a contested adjudication hearing in June, the juvenile court

adjudicated A.W. a CINA under Iowa Code section 232.6(c)(2) and (n), and

continued removal. The juvenile court listed concerns about the mother’s lack of

insight over her drug use and her propensity to engage in domestic violence. Next,

the juvenile court held a contested dispositional hearing in July, and it issued an

order in October confirming A.W. as a CINA and continuing removal of A.W. from
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the mother’s custody. The mother timely appealed the CINA adjudication and

dispositional order.3 The father is not a party to this appeal.

Standard of Review.

“We review CINA proceedings de novo.” In re J.S., 846 N.W.2d 36, 40

(Iowa 2014). “[T]he State bears the burden of proving its allegations by clear and

convincing evidence.” In re L.H., 904 N.W.2d 145, 149 (Iowa 2017).

Error Preservation.

The State asserts the mother failed to preserve error on her first claim

contesting the CINA adjudication order. But at the adjudication hearing she voiced

her position resisting an adjudication. Then, at the dispositional hearing, the

mother stated, “We are in agreement with all the recommendations except for we

are asking the child be returned to the mother’s care.” So minimally, the record

shows the mother firm on her conviction that removal of A.W. was unnecessary.

Thus, we find the mother preserved error on her claim by contesting CINA

adjudication at the June 3 adjudication hearing. The State concedes the mother

preserved error on her alternative claim, challenging the juvenile court’s order for

continued removal of A.W.

3 See In re Long, 313 N.W.2d 473, 476–77 (Iowa 1981) (noting the proper
procedure to challenge adjudication is to appeal from the dispositional order
following adjudication).
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Analysis.

I. Did the juvenile court properly adjudicate A.W. a CINA under section

232.2(6)(c) and (n)?

The mother asserts the juvenile court erred in adjudicating A.W. a CINA

because the State did not meet its burden of proof under Iowa Code section

232.6(c)(2) or (n). Our court recently explained the requirements of a CINA

adjudication under 232.6(c)(2):

To adjudicate the [CINA] pursuant to Iowa Code section 232.6(c)(2),
the State must show the child has “suffered or is imminently likely to
suffer harmful effects as a result of” the parent failing to exercise a
reasonable degree of care in supervising the child. Harmful effects
under 232.2(6)(c)(2) “pertain[] to the physical, mental, or social
welfare of a child” and are “established when there was harm to a
child’s physical, mental, or social well-being or such harm was
imminently likely to occur.”

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

(citation omitted).

To begin, at the dispositional hearing DHS recommended continuing the

CINA adjudication and that the child remain in foster care. And the mother

concurred with “all recommendations,” except for asking for A.W. to be returned to

her care. Citing the mother’s “remarkable improvement,” the child’s guardian ad

litem agreed with continuing the CINA adjudication, but offered that she “would join

in the request that [A.W.] be returned to [the mother’s] physical care today.”

As a part of the record to be considered, the juvenile court took judicial

notice of testimony from the hearing to terminate the parental rights of A.W.’s step-

sibling held in June. In October, the juvenile court upheld the CINA adjudication

and the removal. To support the findings, the juvenile court discussed the family’s
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long history and prior involvement with DHS. Of note, A.W.’s mother and father’s

(S.W.) history includes domestic violence4 with the mother contacting S.W. before

and after A.W.’s birth, despite a no-contact order. The juvenile court also

described the mother’s criminal history, including the mother’s multiple violent

encounters with A.C., father of one of A.W.’s siblings, throughout 2018 and 2019.

As a part of the criminal history, in 2018 alone, she was arrested for violating a no-

contact order, three separate assaults, driving while barred, theft, and child

endangerment. In the child endangerment case, the mother left A.W.’s sibling

alone in a vehicle while she tracked down that father in anger. Then in 2019, the

mother continued to violate a no-contact order involving A.C.’s girlfriend, often with

her children in tow.

But much of the record reflects actions before A.W.’s birth. In that vein, the

mother complains “the State and juvenile court rely heavily on [the mother’s] past

performance, her criminal history, her probation status; however they do not rely

upon facts grounded in current reality as to any current mental capacity or

condition, or drug and alcohol use.” She points to her engagement in substance-

abuse treatment and therapy, and claims she had not used illicit drugs “for some

months” at the time of adjudication. After testing positive for cocaine in February,

the mother tested positive for alcohol on May 7 and missed several appointments

for substance-abuse treatment in May. That said, “In determining the best

interests of the child, ‘we look to the parent[’s] past performance because it may

4In December 2019, both parents were arrested for domestic assault. The criminal
court issued a no-contact order between the mother and S.W. that month.
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indicate the quality of care the parent is capable of providing in the future.’” L.H.,

904 N.W.2d at 149 (quoting In re C.K., 558 N.W.2d 170, 172 (Iowa 1997)).

First, the mother’s relationship with A.W.’s father has been tumultuous and

punctuated by violent incidents. The juvenile court found “the mother and

father . . . continue in a toxic domestic violence relationship—which includes using

drugs.” Throughout these proceedings the mother has been dishonest with

professionals about her relationship with A.W.’s father, and she has violated a no-

contact order between them dozens of times. And there is evidence suggesting

the mother violated the no-contact order in June.5 In the past, the domestic

assaults led to frequent arrests of the mother, a child endangerment charge

against her, and exposure of the children to the violence. The harmful effects of

those actions if continued bode poorly for the potential mental welfare of A.W. See

J.S., 846 N.W.2d at 42 (“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.’” (citation omitted)). We find clear and convincing evidence

demonstrates A.W. is imminently likely to suffer harmful effects as a result of the

mother and father’s toxic relationship. See L.H., 904 N.W.2d at 152 (finding CINA

adjudication under 232.2(6)(c) was proper where the child was continually exposed

to domestic violence). We affirm adjudication under section 232.2(6)(c).

Turning now to CINA adjudication under section 232.2(6)(n), the State must

prove by clear and convincing evidence the child’s “parent’s or guardian’s mental

capacity or condition, imprisonment, or drug and alcohol abuse results in the child

5 An older step-sibling insisted that S.W. had made spaghetti for the family,
including the mother, in late June 2020.
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not receiving adequate care.” From August to October 2019, the mother

repeatedly tested positive for marijuana. DHS noted the mother waited two months

to obtain a recommended substance-abuse evaluation following a positive test in

August 2019. “After the evaluation, she repeatedly missed appointments and

again tested positive for drugs. DHS remained concerned with her ‘lack of follow

through’ with treatment.” In February 2020, two months before A.W.’s birth, the

mother tested positive for cocaine. Although she admitted testing positive for

marijuana and cocaine, the mother refused to accept responsibility and for most of

this record denied personally using either drug. Until recently, the mother’s

engagement in substance-abuse treatment has been spotty at best throughout

these proceedings. Still, her substance-abuse treatment provider indicated in early

June the mother made progress since A.W.’s birth: “Since end of April when we

resumed testing following COVID changes, she has provided four negative UA’s

and the positive on 05/07 for alcohol . . . . She has been working on what I have

been asking in sessions.”

The record clearly demonstrates the mother has a history of substance

abuse. It also shows she has made some progress since June 2020. We remain

concerned with the mother’s substance abuse and hope she continues to make

progress. With that said, we find the State has not proven by clear and convincing

evidence that the mother’s substance abuse resulted in A.W. not receiving

adequate care. See In re M.S., 889 N.W.2d 675, 682 (Iowa 2016) (finding

insufficient grounds for termination of parental rights where State failed to establish

a nexus between father’s drug use and an appreciable risk of adjudicatory harm to

the child).
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Because the record fails to show A.W. did not receive adequate care as a

result of the mother’s drug or alcohol abuse, we reverse the adjudication under

section 232.2(6)(n). Given the mother’s concurrence in the recommendation to

continue the CINA adjudication and because we find a basis for that determination,

we affirm the juvenile court under Iowa Code section 232.6(c)(2). The juvenile

court wrote an eighty-one page ruling and had the benefit of observing this family

navigate through years of support from DHS and other professionals. So even

with no direct evidence of neglect or abuse of A.W., the record supporting removal

of the step-sibling raises significant concerns to support the imminent likelihood of

harm based on the history of domestic abuse and instability. The dispositional

order provides the mother a chance to safely demonstrate her ability to care for

A.W. See In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (finding that the

requirements of the dispositional order under the watch of DHS offered opportunity

to change previous course of instability).

II. Did the juvenile court err in continuing removal of A.W. from the mother’s

care?

Iowa Code section 232.95(2)(a) outlines procedures for temporary removal

of children from parental custody. Upon a removal hearing or CINA adjudication,

the court may:

Remove the child from home and place the child in a shelter care
facility or in the custody of a suitable person or agency pending a
final order of disposition if the court finds that substantial evidence
exists to believe that removal is necessary to avoid imminent risk to
the child’s life or health.
(1) If removal is ordered, the court must, in addition, make a
determination that continuation of the child in the child’s home would
be contrary to the welfare of the child, and that reasonable efforts . . .
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have been made to prevent or eliminate the need for removal of the
child from the child’s home.

Iowa Code § 232.95(2)(a)(1). At final disposition, the court must “make the least

restrictive disposition appropriate considering all the circumstances of the case.”

Id. § 232.99(4). As always, our most important consideration is the best interests

of the child. In re D.D., 635 N.W.2d 359, 362 (Iowa 2002).

The mother contends continued placement of A.W. in foster care was not

the least restrictive disposition because, with the “blessing” of DHS, she had plans

to place A.W. in a guardianship with her paternal grandmother in Michigan.

Despite any legitimate confusion between the mother and DHS, the juvenile court,

and DHS could not place A.W. in Michigan without a valid ICPC order. But at the

time of the dispositional hearing, DHS was waiting on an update from the Michigan

ICPC. But the more pressing question was if the mother could resume care of

A.W.

To summarize her primary position, the mother argues, “Even if the

Department could not allow [A.W.] to travel out of state without an ICPC, the State

did not prove at disposition that [A.W.] needed to remain out of the [mother’s] care.”

She points generally to engagement in therapy and substance-abuse treatment

and claims her last positive drug screen was five months before the July disposition

hearing. The treatment providers involved in the mother’s care referenced her

progress. Likewise, the guardian ad litem commended the mother’s significant

progress and agreed A.W. should return to the mother’s care. We hope the mother

continues to follow the positive path she has struck. Under the protective

supervision of DHS with the conditions established by the juvenile court, the least
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restrictive disposition should be the mother’s home, but a few months of

compliance does not assure success. See In re T.A.T., 695 N.W.2d 334 (Iowa Ct.

App. 2004) (finding parent demonstrated that while not always exemplary with

compliance, she did eventually accomplish what was required of her so removal

was inappropriate). Thus, based on our rationale for extending the CINA, we agree

with the juvenile court that clear and convincing evidence supports continued

removal. Even facing termination of her parental rights to A.W.’s step-siblings, the

mother continued to interact with A.W.’s father despite a no-contact order being in

place and their long history of domestic strife. Unlike the older step-sibling, A.W.

would be unable to report the presence of her father or any domestic abuse that

might result. We believe the mother and father’s toxic relationship and continued

involvement with one another creates an unsafe environment that could cause

imminent risk to A.W.’s life or health. Thus, we affirm the juvenile court order

continuing removal of A.W. from the mother’s care.

Conclusion.

With our foremost concern being the best interests of the child, we affirm

adjudication under the grounds set forth in section 232.6(c)(2) but reverse

adjudication under section 232.2(6)(n). We affirm the juvenile court order

continuing removal from the mother’s care.

AFFIRMED IN PART AND REVERSED IN PART.