In the Interest of J.S. & N.S., Minor Children, A.S., Mother

IN THE SUPREME COURT OF IOWA
No. 13–1606

Filed April 25, 2014

IN THE INTEREST OF J.S. & N.S., Minor Children,

A.S., Mother,
Appellant,

STATE OF IOWA,
Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Woodbury County, Julie A.

Schumacher, District Associate Judge.

The State seeks further review of a court of appeals decision that

reversed, in part, an adjudication of two children as children in need of

assistance. DECISION OF COURT OF APPEALS AFFIRMED;

JUVENILE COURT ORDER AFFIRMED IN PART AND REVERSED IN

PART.

David A. Dawson, Sioux City, for appellant mother.

Thomas J. Miller, Attorney General and Bruce L. Kempkes,

Assistant Attorney General, and Diane M. Murphy, Sioux City for

appellee State.

Chad C. Thompson of Thompson, Phipps & Thompson, Kingsley,

for appellee father.
 2

Tobias Cosgrove, Sioux City, attorney and guardian ad litem for

minor children.
 3

MANSFIELD, Justice.

This case requires us to determine whether a parent’s status as a

methamphetamine addict, without more, is enough to support a juvenile

court’s determination that the parent is “imminently likely to abuse or

neglect the child,” where “abuse or neglect” means “physical injury

suffered by a child as a result of the acts or omissions of the child’s

parent.” See Iowa Code § 232.2(6)(b), (42) (2013). We have no difficulty

concluding under a separate statutory provision that a parent’s

methamphetamine addiction by itself can result in “harmful effects” to

the child, thereby justifying state intervention to protect the child. See

id. § 232.2(6)(c)(2). However, the present appeal concerns imminent

likelihood of physical injury. Because we conclude that the parent’s

addiction by itself is not sufficient to establish such a likelihood of injury,

we affirm the decision of the court of appeals and reverse in part the

order of the juvenile court.

I. Background Facts and Proceedings.

Ashley is the mother of nine-year-old N.S. and five-year-old J.S.

On April 2, 2013, the Iowa Department of Human Services (DHS)

received information that Ashley was “using methamphetamines

intravenously while caring for her daughters.” That day, a DHS child

protection worker met Ashley at her apartment in Sioux City.

The worker found the residence clean and appropriately furnished.

Ashley appeared to be very nurturing with the daughter, J.S., who was

present. During the interview, Ashley explained she had recently moved

to Iowa from Nebraska. J.S. was living with Ashley, but N.S. was staying

with Ashley’s mother in order to attend school in South Sioux City,

Nebraska. Ashley reported that she previously had a job at a retail store,
 4

but acknowledged that after she and J.S. became ill, she was fired for

missing too much work.

Ashley admitted past methamphetamine use. According to Ashley,

she used methamphetamine before N.S. was born. Afterward, she claims

she did not use the drug for seven years. In 2012, she relapsed. Ashley

admitted that Nebraska authorities had removed her children from her

care due to her methamphetamine usage. After she successfully

completed the Women and Children’s Center program with the children,

they were returned to her. She completed the program in September

2012.

Ashley further admitted that she deteriorated again in March 2013.

According to Ashley, she used methamphetamine over a weekend while

spending time with people she should not have been around. Ashley told

the DHS worker that N.S. and J.S., however, were with their

grandmother at the time, and Ashley claimed not to have used

methamphetamine around N.S. and J.S. Ashley also said that when she

did use methamphetamine, she did so by smoking it, not injecting it.

Despite phone calls and attempted visits to Ashley’s apartment in

the following weeks, DHS workers were unable to meet with Ashley again

until May 21. On that date, Ashley came to the DHS office at DHS’s

insistence and met with DHS staff. Ashley explained that she had been

staying with her boyfriend in South Dakota for about a month and that

she was without her cell phone or a car. She said that both daughters

were staying with her mother and stepfather. Ashley expressed a desire

that they remain with her mother and stepfather, who would “take good

care of the children.” She expressed concern about her children “going

through this again,” and said she was worried about N.S., who had a lot

of anxiety.
 5

During the interview, Ashley acknowledged she had used

methamphetamine as recently as a week ago. The child protection

worker also observed emotional displays by Ashley. Ashley was angry,

laughing, or crying at times throughout the interview. The worker noted

she was “not sure what to attribute this to, her usage or an emotional

reaction to the situation.” Ashley consented to a drug test which came

back positive for methamphetamine, amphetamine, cannabinoids, and

carboxy-THC. 1 Staff members who administered the drug test suspected

Ashley was under the influence at the time of the test because “she

appeared extremely scattered.”

The next day, the DHS child protection worker met with N.S., J.S.,

and their maternal grandmother at the grandmother’s home in South

Sioux City. The home was spacious, clean, and appropriately furnished.

N.S. and J.S. were neatly groomed and in clean clothes. The

grandmother expressed significant concern about Ashley’s ongoing drug

use. She explained that when she is at her part-time job, she puts the

children in day care.

On June 14, the child protection worker spoke with Ashley over

the telephone. Ashley explained she had visited the children at their

grandmother’s home, with their grandmother supervising the visits.

Ashley said their grandmother had offered to become N.S. and J.S.’s

guardian, but Ashley was willing to do whatever was necessary to get

N.S. and J.S. back in her care. Toward that end, Ashley claimed to have

1The State argues for the first time on appeal that Ashley’s test results were

consistent with daily methamphetamine use, citing expert testimony in an unpublished
Texas appellate case and a commercial website known as www.testcountry.com. These
sources cannot be used to fill in gaps in the State’s proof below. We do agree the record
demonstrates that Ashley was an active methamphetamine addict who was in need of
treatment at the time of the CINA proceeding.
 6

changed her phone number and severed some relationships. She also

conveyed her willingness to go to inpatient treatment if recommended.

The DHS worker concluded there was “sufficient credible evidence

to indicate that Denial of Critical Care, specifically Failure to Provide

Proper Supervision[,] has occurred.” In support of this finding, the child

protection worker noted:

Even if [Ashley] was not caring for [N.S. and J.S.] at the time
of her use, risk exists in caring for a child when coming
down from methamphetamines.

Parents who are addicted to methamphetamines are
not available to their children because under the influence of
meth there is an initial high that an individual perceives and
very soon after that high comes a downfall or depression,
which is very much more severe with methamphetamine
than other drugs of abuse. When that happens many meth
using adults will fall asleep, and that period can last for
hours at a time. In that period of time, they’re not capable of
providing supervision and care for young children around
the household.

Methamphetamine is also a drug that stimulates the
sensory nerve system and it also blocks the higher centers
that are responsible for the checks and balances of impulses.
Perceptions of danger and reasoning ability are hindered
from ongoing meth use, so that over a period of time an
adult using methamphetamine loses (his/her) capacity to
function on a daily basis because of a lack of comprehension
of what the risks [are] in the environment, what the
children’s needs [are] on a day-to-day basis because they
don’t have the energy level to provide for those needs. And
also, because of the poor impulse control and increased risk
of losing their temper and anger, the children in an
environment where parents use meth are at an increased
risk of physical abuse.

As later noted by the court of appeals, this passage is almost a

direct quotation from our opinion in State v. Petithory, 702 N.W.2d 854,

857–58 (Iowa 2005). There we were quoting an expert witness’s

testimony in Petithory’s criminal trial. See id.
 7

The DHS report also concluded that it was “certainly not

reasonable nor prudent [for Ashley] to use illegal drugs, given the fact

that she is the primary caretaker of her children.”

In early July, Ashley completed an evaluation at a recovery center

and began intensive outpatient drug treatment. In a meeting with DHS

on July 9, Ashley stated she did not want to go through the Women and

Children’s Center program again, because it was “very hard on the

children.” She admitted she had been hanging around with the wrong

crowd again.

In mid-July, Ashley relapsed. A report dated August 22 indicated

Ashley had “made little to no progress in the last 30 days” and had tested

positive for methamphetamine, amphetamine, and opiates. Ashley

denied using opiates. Ashley had attended only eight of the twenty-six

days scheduled for group sessions and still needed to have an individual

session to “create her treatment plan.” The discharge plan noted she

was “recommended for inpatient treatment . . . followed by halfway house

placement,” and further recommended she continue with services for

eight to twelve months. On August 27, Ashley was admitted to a

residential drug treatment program.

The State filed a petition on July 31 alleging N.S. and J.S. were

children in need of assistance (CINA) under Iowa Code sections

232.2(6)(a), (b), (c)(2), and (n). 2 On August 30, the juvenile court held a

2Section 232.2(6)(a) involves a child “[w]hose parent, guardian, or other
custodian has abandoned or deserted the child.” Iowa Code § 232.2(6)(a).
Section 232.2(6)(b) involves a child “[w]hose parent, guardian, other custodian,
or other member of the household in which the child resides has physically abused or
neglected the child, or is imminently likely to abuse or neglect the child.” Iowa Code
§ 232.2(6)(b).
Section 232.2(6)(c)(2) involves a child
 8

hearing. Ashley resisted adjudication under Iowa Code sections

232.2(6)(b) and (n). The parties waived a formal record. No witnesses

were called. Ashley did not object to admission of the State’s nine

exhibits, and no other evidence was presented.

On September 5, the juvenile court filed an order adjudicating N.S.

and J.S. CINA under Iowa Code sections 232.2(6)(a), (b), and (c)(2). The

juvenile court declined to adjudicate the children under Iowa Code

section 232.2(6)(n).

On September 30, a dispositional hearing was held. The parties

again waived a formal record, no testimony was heard, and with the

exception of two additional exhibits submitted by the State, no new

evidence was presented. The court ordered that N.S. and J.S. be placed

with their maternal grandmother.

Ashley filed a notice of appeal on October 11. Ashley challenged

only the CINA determination under Iowa Code section 232.2(6)(b). We

transferred the case to the court of appeals. The court of appeals

reversed, with one judge dissenting. It held the State failed to meet its

burden of proving N.S. and J.S. should be adjudicated CINA under Iowa

Code section 232.2(6)(b). The State sought further review, which we

granted.

_______________________
[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.
Iowa Code § 232.2(6)(c)(2).
Section 232.2(6)(n) involves 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.” Iowa Code § 232.2(6)(n).
The adjudication under section 232.2(6)(a) was sought only as to the children’s
father.
 9

II. Standard of Review.

We review CINA proceedings de novo. In re K.B., 753 N.W.2d 14,

15 (Iowa 2008). In reviewing the proceedings, we are not bound by the

juvenile court’s fact findings; however, we do give them weight. In re

K.N., 625 N.W.2d 731, 733 (Iowa 2001) (en banc). 3 Our primary concern

is the children’s best interests. Id. CINA determinations must be based

upon clear and convincing evidence. Iowa Code § 232.96(2).

III. Discussion.

Ashley raises only one issue on appeal: Did the juvenile court

correctly find that N.S. and J.S. are children in need of assistance under

Iowa Code section 232.2(6)(b)? Although Ashley does not contest the

CINA determination under section 232.2(6)(c)(2), that does not render the

present appeal moot. The grounds for a CINA adjudication do matter.

See In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995) (“The

underlying grounds of adjudication in child in need of assistance cases

have important legal implications beyond the adjudication.”). For

example, a CINA determination under section 232.2(6)(b) may lead to

termination of parental rights under section 232.116(1)(d), whereas a

CINA determination under section 232.2(6)(c)(2) cannot. See Iowa Code

§§ 232.2(6)(b), 232.2(6)(c)(2), 232.116(1)(d). In other words, adjudication

under section 232.2(6)(b) may result in parental rights being terminated

before the statutory time periods in sections 232.116(1)(e), 232.116(1)(f),

or 232.116(1)(h) have passed. See In re J.E., 723 N.W.2d 793, 801–02

(Iowa 2006) (Cady, J., concurring specially) (discussing the importance of

statutory deadlines for reunification).

3We note, however, that in the present case, the juvenile court made its decision
based upon written exhibits that were stipulated into evidence. There were no
credibility findings.
 10

Under Iowa Code section 232.2(6)(b), the CINA adjudication

requires a determination that a “parent, guardian, other custodian, or

other member of the household in which the child resides has physically

abused or neglected the child, or is imminently likely to abuse or neglect

the child.” But “physical abuse or neglect” and “abuse or neglect” are

terms of art in this context. Within chapter 232, “physical 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, guardian, or custodian or other person legally responsible for the

child.” Id. § 232.2(42). 4

We have explained “physical injury to the child is a prerequisite” to

finding past physical abuse or neglect. See In re B.B., 440 N.W.2d 594,

597 (Iowa 1989) (observing the definition of neglect under chapter 232

requires a finding of physical injury). Nothing in the record indicates

N.S. or J.S. suffered a physical injury. Therefore, N.S. and J.S. cannot

be adjudicated CINA under section 232.2(6)(b) based on previous abuse

or neglect, and the State concedes as much.

The only issue, therefore, is whether the record demonstrates by

clear and convincing evidence that N.S. or J.S. were “imminently likely”
to suffer a nonaccidental physical injury. Here we agree with the views of

the court of appeals. True, Ashley’s admitted methamphetamine use,

her repeated positive drug tests, and her relapses indicate she is an

active methamphetamine addict. Furthermore, the record establishes

that the children have suffered or are imminently likely to suffer

4As the court of appeals put it, these are “statutorily-defined phrases having a
narrow definition.”
 11

“harmful effects” as a result of Ashley’s failure to exercise a reasonable

degree of care in supervising them. See Iowa Code § 232.2(6)(c)(2).

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.” In re Wall, 295 N.W.2d 455, 458 (Iowa 1980).

Because of this broad definition, we have found such effects established

when there was harm to a child’s physical, mental, or social well-being or

such harm was imminently likely to occur. See In re B.B., 440 N.W.2d at

597–98 (finding the State proved the parents’ failure to exercise a

reasonable degree of care when a child’s lack of attendance at school

“adversely affected his educational, social, and emotional development”);

In re J.S., 427 N.W.2d 162, 165 (Iowa 1988) (finding harmful effects as a

result of a failure to exercise a reasonable degree of care in supervising

children given that a child was playing outside on the street while the

parents’ home was locked and a child was “very aggressive and

uncontrollable”). Hence, a juvenile court could reasonably determine

that a parent’s active addiction to methamphetamine is “imminently

likely” to result in harmful effects to the physical, mental, or social well-

being of the children in the parent’s care. See In re A.B., 815 N.W.2d

764, 776 (Iowa 2012) (noting “an unresolved, severe, and chronic drug

addiction can render a parent unfit to raise children”).

It is telling that Ashley’s own mother was so concerned about the

effects of Ashley’s drug addiction that she felt it necessary to personally

supervise Ashley’s visits to her own children. Ashley admitted the

consequences of her methamphetamine addiction were hard on the

children. Being shuttled back and forth from grandparents during

episodes of drug intoxication, or when Ashley decided to stay with her

boyfriend in South Dakota for a month, is disruptive to a child’s
 12

emotional health and well-being. Clearly, the section 232.2(6)(c)(2)

determination was appropriate here.

Having said all that, 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). See Iowa Code § 232.2(6)(b), (42). In this case, from what we

can tell on this record, a grandparent was willing and able to step in and

relieve Ashley of parenting duties when she was not up to the task. As a

result, the children were well-groomed, well-dressed, well-fed, and

generally well-cared for while at their grandmother’s. To some extent,

what happened here is analogous to what occurs when a parent falls ill

or becomes disabled and leaves her or his children with a relative. We

would rather have parents who are grappling with untreated addiction

rely on the services of a relative than do nothing, and so it seems unfair

not to take that into consideration at all.

We can contrast this case with Petithory, where the defendant had

no parental surrogate. See 702 N.W.2d at 855. In that case, while

coming down from a methamphetamine high, the defendant fell asleep

after putting his infant daughter in the bathtub with the water running,

an episode that resulted in his daughter’s drowning. Id. It is possible

that N.S. and J.S. may have been exposed to similar dangers,

notwithstanding the availability of Ashley’s mother, but a general

statement about methamphetamine’s deleterious effects is not enough to

meet the State’s burden. Indeed, in Petithory we stressed that the

conviction for criminal neglect was not based “purely upon [the

defendant’s] status as an illegal drug user” and that “[t]he particular

circumstances of this case, buttressed by expert testimony regarding the
 13

[e]ffects of meth addiction and its concomitant dangers,” supported the

finding of guilt. Id. at 859–60.

Although the phrase “imminently likely” is used three times in the

definition of “child in need of assistance,” the term “imminent” is not

defined in Iowa Code chapter 232. See Iowa Code § 232.2(6)(b)–(d).

When the legislature leaves a term undefined, we may look to this court’s

decisions, other courts’ decisions, dictionary definitions, similar statutes,

and common usage to define the term. Schaefer v. Putnam, 841 N.W.2d

68, 78 (Iowa 2013). Relying on a dictionary definition, we have defined

“imminent” for purposes of our self-defense statute to mean “ ‘ready to

take place,’ ‘near at hand,’ ‘hanging threateningly over one’s head,’ and

‘menacingly near.’ ” State v. Shanahan, 712 N.W.2d 121, 142 (Iowa

2006) (citing Webster’s Third New International Dictionary 1130 (unabr.

ed. 2002)). Relying on this same definition, we explained in another case

that “imminent” means a threatened act “is impending or about to

occur.” State v. Lane, 743 N.W.2d 178, 182 (Iowa 2007). “Imminent” has

also been defined to mean “on the point of happening.” Black’s Law

Dictionary 750 (6th ed. 1990).

Case law supports a liberal interpretation of the phrase
“imminently likely” in the CINA context. In In re D.D., an eight-year-old

boy was adjudicated a child in need of assistance under Iowa Code

section 232.2(6)(d) because the juvenile court found he was “ ‘imminently

likely to be sexually abused’ by his father.” 653 N.W.2d 359, 361–62

(Iowa 2002). The father had admitted climbing into the bathtub and

encouraging his nude ten-year-old daughter and her female friend “to

soap his chest and stomach and then slide down his body.” Id. at 360–

61. The boy denied his father had ever bathed with him or touched him.

Id. at 360. Nevertheless, because of the incident with the two girls and
 14

the boy’s vulnerability to sexual abuse, this court found the boy to be in

imminent danger of sexual abuse. See id. at 362.

In another case, we upheld an adjudication of a child as one in

need of assistance because we found the child “imminently likely to be

abused or neglected by her mother or maternal grandparents.” In re

A.M.H., 516 N.W.2d 867, 872 (Iowa 1994). The grandparents had been

involved in numerous instances of physical and sexual abuse with

others. See id. at 873. The mother had been convicted of assault and

had been hospitalized because she threatened to harm herself. See id. at

873–74. She also failed to cooperate with mental health treatment and

failed to pursue Title XIX coverage despite being urged to do so by a

social worker. See id. at 874. Finally, the mother was an admitted

alcoholic and drug addict. Id. We concluded the child could not be

safely parented by either the mother or the grandparents. Id.

D.D. and A.M.H. establish that under Iowa Code section 232.2(6),

we 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.

Nor should we require that showing. Child protection statutes “are

designed to prevent probable harm to the child and do not require delay

until after harm has occurred.” In re L.L., 459 N.W.2d 489, 494 (Iowa

1990).

Even so, in both D.D. and A.M.H. there were specific prior

instances of sexual or physical abuse committed by a caregiver. In D.D.,

the father’s previous sexual contact with his daughter and her friend put

his son at risk of future sexual abuse. See 653 N.W.2d at 362. In

A.M.H., several founded sexual and physical abuse reports against the

grandparents contributed to the risk of future abuse of the child. See

516 N.W.2d at 873–74. Unlike in those cases, here the State failed to
 15

prove any specific prior incidents of abuse or neglect. Its case was based

on the general characteristics of methamphetamine addiction, and for

section 232.2(6)(b) purposes, we do not believe that is automatically

enough to establish an imminent likelihood of physical harm to the

children.

IV. Conclusion.

For the foregoing reasons, we reverse the order of the juvenile

court finding N.S. and J.S. to be children in need of assistance under

Iowa Code section 232.2(6)(b). We affirm the juvenile court’s order in all

other respects. We affirm the decision of the court of appeals.

DECISION OF COURT OF APPEALS AFFIRMED; JUVENILE

COURT ORDER AFFIRMED IN PART AND REVERSED IN PART.

All justices concur except Cady, C.J., and Zager, J., who dissent.
 16
#13–1606, In re J.S.
CADY, Chief Justice (dissenting).

I dissent separately to emphasize an important point. The

standard and burden for the State to prove a child is in need of

assistance under the enumerated definitions in the juvenile justice

chapter of the Iowa Code do not differ depending on the length of time

parents are subsequently given to eliminate the parenting deficiencies

that resulted in the adjudication before an action for termination of

parental rights may proceed. See Iowa Code §§ 232.2(6), .96(2) (2013).
The grounds for termination of parental rights are a separate legislative

determination from the question whether a child is in need of assistance.

See id. § 232.116.

Unfortunately, the mother in this case is a methamphetamine

addict who, despite recovery efforts, continues to fall victim to her

addiction. Her addiction, as supported by the stipulated evidence in the

case, renders her undependable while using methamphetamine and

while coming down from the drug. This fact is a serious problem

because she is also the parent of two young children, one four years of

age, who depend on her.
The mother admitted her circumstances supported a finding that

her children are “imminently likely to suffer harmful effects as a result

of” her failure “to exercise a reasonable degree of care in supervising” her

children. Id. § 232.2(6)(c)(2). I submit those same circumstances also

mean her children have a mother who “is imminently likely to . . .

neglect” them. Id. § 232.2(6)(b). The failure of a parent to adequately

supervise a four-year-old child due to a methamphetamine addiction

necessarily places the child at risk of suffering a nonaccidental physical

injury. See id. § 232.2(42).
 17

The State was entitled to an adjudication of child in need of

assistance under both grounds, even though one may give a parent a

more limited window of time to recover from her addiction.
 18

#13–1606, In re J.S.

ZAGER, Justice (dissenting).

I respectfully dissent. The majority’s review of the record is

thorough, so I will recount it only as necessary. However, I disagree with

the majority’s conclusion N.S. and J.S. are not children in need of

assistance under Iowa Code section 232.2(6)(b) (2013).

This court has rarely had the opportunity to apply the different

provisions of Iowa Code section 232.2(6), under which a child may be

adjudicated CINA because the child is “imminently likely” to be the victim

of abuse or neglect. We have done so in only two cases, In re D.D. and In

re A.M.H. See generally In re D.D., 653 N.W.2d 359 (Iowa 2002); In re

A.M.H., 516 N.W.2d 867 (Iowa 1994). In those cases, we found specific

prior instances of sexual or physical abuse supported the finding the

children were “imminently likely” to be neglected or physically or sexually

abused.

However, I do not believe we should let the specific facts at issue in

those cases control the resolution of this case. Nothing we said in those

cases indicated that a lack of specific previous instances of abuse or

neglect foreclosed a CINA adjudication on the basis that a child was

imminently likely to be abused or neglected. Moreover, the plain

language of section 232.2(6)(b) does not require the State to prove the

occurrence of specific previous incidents of abuse or neglect to show the

risk of future abuse or neglect. See Iowa Code § 232.2(6)(b). Nor should

the State be required to prove that abuse or neglect has already occurred

before acting to protect children under these statutes. As the majority

notes, child protection statutes “are designed to prevent probable harm

to the child and do not require delay until after harm has occurred.” In

re L.L., 459 N.W.2d 489, 494 (Iowa 1990); see also Iowa Code § 232.1
 19

(requiring liberal construction of child protection statutes to serve

children’s welfare).

I would conclude, after a de novo review of the record, there was

clear and convincing evidence showing Ashley was imminently likely to

abuse or neglect N.S. and J.S. were the children returned to her care.

This conclusion is based upon more than the mere classification of

Ashley as a methamphetamine addict and the excerpt from Petithory

contained in the DHS report. See State v. Petithory, 702 N.W.2d 854,

857–58 (Iowa 2005).

The record tells the story of Ashley’s continued inability to parent

her children due to her unabated drug use. Ashley has relapsed multiple

times since the children were removed from her care in Nebraska in

2011. Even after DHS became involved in Iowa, she continued her drug

use and tested positive for multiple drugs twice since April 2013. The

hair-follicle test conducted in May found the presence of

methamphetamine at 7890 picograms per milligram. Ashley did not

dispute the State’s claim that this amount is consistent with daily use.

Throughout these proceedings, Ashley continually denied using and

minimized her drug use. In mitigation, Ashley claims that she never

used drugs in front of her children or while she was responsible for their

care. In July, Ashley commenced out-patient drug treatment. However,

in a progress report dated August 22, it was noted that “Ashley has made

little to no progress in the last 30 days. Ashley admitted to services on

July 9, 2013, and has been present 8 out of 26 days scheduled for

group.” The progress report also noted that a drug test on August 14

was positive for methamphetamine, amphetamine, and opiates, although

Ashley denied using any opiates. This report is dated eight days before

the scheduled adjudication hearing.
 20

As the drug tests reveal, Ashley used not only methamphetamine

but also other drugs. In addition to methamphetamine, she was also

variously ingesting amphetamine, cannabnoids, carboxy-THC, and

opiates. The use of multiple controlled substances paints a picture of an

individual who will ingest anything available to get high. Ashley was

simply not capable of stopping her usuage of drugs until she entered

inpatient treatment.

The record also reveals that without the discipline provided by

inpatient treatment, Ashley was incapable of avoiding the use of drugs.

Ashley had previously completed inpatient drug treatment in September

2012. The apparent impetus for Ashley entering treatment on that prior

occasion was, like in this case, the removal of her children from her care.

According to Ashley’s mother, Barbara, Nebraska child welfare

authorities removed N.S. and J.S. from Ashley’s care because of her drug

addiction. Ashley reported relapsing six months after completing

treatment, though Barbara believed Ashley relapsed as soon as two

months after completing treatment. Regardless of when Ashley relapsed,

it is clear she did so after leaving the supervision of treatment. This

history of use followed by treatment, abstinence, and relapse indicates

more than a prolonged struggle with drugs. It portends future relapse,

future drug abuse, and future treatment, and thus more risk and

disruption to her children. Cf. L.L., 459 N.W.2d at 494 (noting a parent’s

past is a consideration in child protection cases because that past

performance may indicate future capabilities).

Without profound change, Ashley’s past indicates that she will

again abuse methamphetamine. This makes especially relevant a portion

of the DHS report. According to the report, which takes its language

from Petithory, “ongoing methamphetamine use” hinders reasoning
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ability, causing users over time to lose their “capacity to function on a

daily basis because of a lack of comprehension of what the risks in the

environment [are], [and] what the children’s needs on a day-to-day basis

[are].” It is not merely speculation or conjecture that Ashley’s daily

methamphetamine use likely has diminished her reasoning ability, which

impairs her ability to care for N.S. and J.S.

Evidence suggests Ashley’s use causes her other behavioral

problems that put her children at risk as well. The DHS child protection

worker reported Ashley behaved erratically during an interview. Ashley

laughed, cried, and displayed anger, which, the child protection worker

noted, could have been caused by Ashley’s methamphetamine use.

When Ashley reported that same day for a drug test, drug test facility

workers described Ashley as “scattered,” which led them to believe she

was under the influence of drugs, even though Ashley claimed to have

used a week earlier. Subsequent drug testing confirmed the inaccuracy

of Ashley’s representation.

Ashley’s behavior during the interview and in front of the testing

facility workers indicates the sort of erratic, perhaps careless, behavior to

which she could subject her children. Moreover, Ashley’s displays

discredit her claims that after relapsing in March she used

methamphetamine rarely before beginning to use each day sometime in

July. As the State suggests, there would not have been such a high

concentration of methamphetamine in her system were Ashley only an

infrequent user. Importantly, contrary to what Ashley claims, she may

have relapsed before March. Barbara believed Ashley may have resumed

using in November 2012, just two months after completing a prior

placement in residential drug treatment. Ashley, we may safely

conclude, concealed the full extent of her drug abuse.
 22

In spite of Ashley’s early drug abuse, the record indicates N.S. and

J.S. were receiving adequate care. In fact, Barbara reported that N.S.

and J.S. were in good health; the DHS report indicated Ashley was

“meeting the physical needs of the children.” The report also describes

Ashley’s residence as “clean” and “appropriately furnished.” The child

protection worker observed Ashley combing J.S.’s hair and dressing her.

She described Ashley as “very nurturing.” However, it must also be

awknowledged that N.S. was already in the full-time care of Barbara, and

J.S. followed shortly thereafter.

I do not doubt that in times of sobriety Ashley may be a capable

mother. But as noted, Ashley has to this point struggled to maintain

sobriety. When she is under the influence, or descending from a high,

she subjects N.S. and J.S. to the risk of being abused or neglected. As

the report noted, J.S. is particularly vulnerable to mistreatment, being

just four years old at the time of the report. Cf. D.D., 653 N.W.2d at 361–

62 (concluding father’s past sexual conduct with his daughter and son’s

vulnerability supported adjudication of the son as a child in need of

assistance).

Moreover, much of the children’s good health can be attributed to

Barbara, with whom both children were staying much of the time due to

Ashley’s drug use and living arrangements. Notably, Barbara indicated

N.S. and J.S. were due for a doctor’s appointment. In addition, Barbara

told the child protection worker she had “secured daycare for the

children.” These statements suggest Barbara had already assumed

much of the children’s care. We long ago held a child who does not

receive proper care from his or her parent is a neglected child, even if a

grandparent provides excellent care to the child. See State ex rel. Gering

v. Bird, 250 Iowa 730, 732, 736–37, 96 N.W.2d 100, 101, 103–04 (1959)
 23

(affirming a juvenile court’s finding that a child was a “neglected child” in

relation to her father even though the child had been well cared for by

her grandparents).

In this regard, I disagree strongly with the majority’s suggestion

that a parent afflicted with drug addiction might avoid having his or her

children adjudicated CINA by passing off the children to a relative. In

Ashley’s case, the availability of her mother and stepfather to care for

N.S. and J.S. undoubtedly protected the children from the worst effects

of Ashley’s addiction; however, it also enabled her to go right on using

methamphetamine. Combined with the apparent frequency of Ashley’s

drug use, one could easily conclude that Ashley’s motivation in

voluntarily turning over her children to her parents was to make using

methamphetamine easier.

The fact a parent has been a drug addict or alcoholic is not alone a

sufficient basis for adjudicating a child as a child in need of assistance.

J.B.M. v. Dep’t of Children & Families, 870 So. 2d 946, 951 (Fla. Dist. Ct.

App. 2004) (concluding that without an actual harm or injury “as a

consequence of a parent’s alcohol or drug use, evidence that the parent

has a drug or alcohol problem, standing alone, is insufficient to support

a finding of dependency”); In re William B., 533 A.2d 16, 19 (Md. Ct.

Spec. App. 1987) (“Mere alcoholism of the parents is not grounds under

the statute for removing a child from his home with his parents.”); In re

Children of T.R., 750 N.W.2d 656, 663 (Minn. 2008) (holding “substance

or alcohol use alone does not render a parent palpably unfit” to parent);

Cf. In re A.M., 843 N.W.2d 100, 111 (Iowa 2014) (observing “that a

parent’s ‘lower mental functioning alone is not sufficient grounds for

termination.’ ” (quoting In re D.W., 791 N.W.2d 703, 708 (Iowa 2010)). In
 24

contrast, in this particular case, at the time of the adjudication hearing,

Ashley was an active, untreated methamphetamine user.

On a related note, appellate review in this case was complicated by

the terse adjudication order. Legal analysis in CINA determinations is

particularly important to the appellate courts given the undeniable

expertise of juvenile judges in handling these difficult cases. For that

reason, and a host of others, juvenile courts are reminded that when

there are contested grounds for adjudication before it, appellate review is

much more effective with the benefit of the juvenile court’s full, fair, and

adequate explanation of its legal conclusions. See Iowa Code § 232.96(7)

(“After the hearing is concluded, the court shall make and file written

findings as to the truth of allegations of the petition and as to whether

the child is a child in need of assistance.”). This ensures courts at all

levels are acting in the children’s best interests.

In sum, I would conclude, after a full review of the record, the

State proved by clear and convincing evidence that N.S. and J.S. were

children in need of assistance under Iowa Code section 232.2(6)(b), as

Ashley was imminently likely to abuse or neglect the children. Each time

Ashley climbs up from addiction, only to descend again, she disrupts her

children’s lives. Her drug abuse jeopardizes their health, safety, and

welfare. As we have said in the context of parental rights termination,

“Children simply cannot wait for responsible parenting.” L.L., 459

N.W.2d at 495. Toward that end, we have explained “that an unresolved,

severe, and chronic drug addiction can render a parent unfit to raise

children.” In re A.B., 815 N.W.2d 764, 776 (Iowa 2012). I would vacate

the decision of the court of appeals and affirm the order of the juvenile

court in its entirety.

Cady, C.J., joins this dissent.