IN THE COURT OF APPEALS OF IOWA
No. 15-1217
Filed September 23, 2015
IN THE INTEREST OF H.H.,
Minor Child,
A.H., Mother,
Appellant,
J.H., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Steven J.
Holwerda, District Associate Judge.
A mother and father appeal separately from the adjudication and
disposition orders in a child-in-need-of-assistance proceeding. AFFIRMED ON
BOTH APPEALS.
Darrin T. Hamilton of Darrin T. Hamilton Law Office, P.C., Newton, for
appellant-mother.
Larry J. Pettigrew of Pettigrew Law Firm, Newton, for appellant-father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Michael K. Jacobsen, County Attorney, and Jonathan Noble, Assistant
County Attorney, for appellee.
Jane Odland of Odland Law Firm, P.L.L.C., Newton, attorney and
guardian ad litem for minor child.
Considered by Doyle, P.J., and Bower and McDonald, JJ.
2
MCDONALD, JUDGE.
A mother and father separately appeal from the adjudication and
disposition orders in this child-in-need-of-assistance (CINA) proceeding. The
mother and father both argue the juvenile court erred in adjudicating and
confirming their child, H.H., to be in need of assistance under Iowa Code section
232.2(6)(o) (2015) and seek dismissal of the CINA petition. We affirm the
juvenile court’s orders on both appeals.
I.
H.H. was born in October 2014. Umbilical cord testing administered at the
time of birth was positive for amphetamine and methamphetamine. The Iowa
Department of Human Services (“IDHS”) learned of the child’s positive test and
removed her on an emergency basis from the care of the parents when both
parents refused drug screens. A few days later, on the day of the removal
hearing, both parents offered clean drug screens.
Following the removal hearing, the juvenile court ordered removal of the
child from the mother’s care and custody finding “substantial evidence to support
the allegations . . . .” Regarding the father, the juvenile court found the
allegations against him were not proved and found that “without evidence of the
father’s drug use, the Court does not find imminent danger if he is living with the
[mother’s parents].” Thus, the court returned H.H. to the father’s care and
custody on the condition that he reside with the child in the home of the father’s
in-laws. The court further required both parents complete a substance abuse
evaluation and follow recommended treatment, submit random drug screens as
3
requested by IDHS, and cooperate with IDHS and Family, Safety, Risk, and
Permanency Services (“FSRP”).
The mother continued to live in her parents’ home with the father and H.H.
and had liberal supervised visitation with H.H. as neither the father nor the
mother were employed. The mother completed an IDHS-requested drug screen
prior to the pre-adjudication hearing in October, which was negative. The mother
was not asked to complete more drug screens because she did not demonstrate
any behaviors that would indicate she was using drugs, returned a clean hair stat
test, and completed a substance abuse evaluation that did not recommend any
further treatment. The father was asked to submit a hair stat test but was unable
to complete one because, on one occasion he was not authorized, on another
occasion he had shaved his body hair and his head hair was too short, and on
another occasion he was unable to get to a testing site because he had a job
interview and could not follow up because of unreliable transportation. The
father completed a self-reported substance-abuse evaluation that did not
recommend further treatment.
In January 2015, the juvenile court held an adjudicatory hearing at which
H.H. was adjudicated in need of assistance pursuant to section 232.2(6)(o)
because of the presence of methamphetamine and amphetamine in her umbilical
cord at birth. The juvenile court ordered that H.H. remain in the care and custody
of her father and be returned to the care and custody of her mother, provided that
the parents reside with the maternal grandparents until IDHS approved other
suitable housing for the family. The court noted the mother was being
4
cooperative and that all of her drug screens had been negative. The juvenile
court also ordered the father to cooperate with a hair stat test.
Following the adjudicatory hearing, IDHS did not request any hair stat
tests from the father. The father produced clean urine tests; however, these
tests did not comply with the drug-screen requirement because IDHS did not
request them and they were not random. Instead, IDHS approved sweat patch
testing. On one occasion, the father received a sweat patch for testing but later
claimed it fell off the day he received it but did not report the problem until the
scheduled removal. In May 2015, the father submitted a sweat patch that came
back positive for methamphetamine and amphetamine. The juvenile court
ordered H.H. removed from his custody but remain in the mother’s care and
custody.1
In June 2015, the juvenile court held a dispositional hearing confirming
H.H. to be in need of assistance. The juvenile court ordered the child to remain
in the care and custody of her mother and remain out of her father’s care and
custody. In regards to the mother, the juvenile court found she “remains in
contact with [IDHS], is cooperating with services, and all of her recent drug tests
have been ‘clean’. Her only remaining issue is one of stable housing except for
the continued housing arrangements provided by her parents.” The juvenile
1
It is unclear whether the father continued to live with the mother and H.H. at the
mother’s parents’ house following the removal of H.H. from the father’s custody in May.
At some point before the dispositional hearing in June, the father moved out and did not
have a place to live, but he did so at the request of his in-laws rather than by court order
or IDHS direction.
5
court again ordered that the mother and H.H. continue to reside with the mother’s
parents until IDHS approved other suitable housing.
Regarding the father, the juvenile court found it “would be contrary to the
child’s welfare due to the father’s ‘positive’ drug screen for methamphetamine
and amphetamine as well as his overall refusal to submit or avoidance of
requested drug testing.” The juvenile court found the father had provided two
clean results from his own drug screens, but found these screens did not comply
with IDHS’s requirements. The juvenile court also noted the father was currently
wearing a sweat patch but had failed to have it timely removed so that the results
would be available for the hearing. This appeal followed.
II.
We review CINA proceedings de novo. In re J.S., 846 N.W.2d 36, 40
(Iowa 2014). “In reviewing the proceedings, we are not bound by the juvenile
court’s fact findings; however, we do give them weight.” Id. “Our primary
concern is the children’s best interests.” Id. “CINA determinations must be
based upon clear and convincing evidence.” Id. Evidence is clear and
convincing when there is no serious or substantial doubt as to the correctness of
the conclusions of law drawn from the evidence. In re D.W., 791 N.W.2d 703,
706 (Iowa 2010). The parties raise several substantive and procedural
challenges to the adjudication and disposition orders, and we address each in
turn.
6
III.
A.
Both the mother and the father contend the State did not meet its burden
of establishing H.H. is in need of assistance pursuant to section 232.2(6)(o) by
clear and convincing evidence. Section 232.2(6) provides:
“Child in need of assistance” means an unmarried child:
....
(o) In whose body there is an illegal drug present as a
direct and foreseeable consequence of the acts or omissions
of the child’s parent, guardian, or custodian. The presence
of the drug shall be determined in accordance with a
medically relevant test as defined in section 232.73.
Iowa Code § 232.2(6)(o).
The mother argues the only positive test for either the mother or the child
has been the test performed on the child’s umbilical cord following her birth.
Both parents contend the State failed to prove H.H. had an illegal drug present in
her body by clear and convincing evidence because the specimen collection form
was completed incorrectly and therefore the test was flawed.2 They argue the
form does not identify the donor, who collected the specimen, the date and time it
was collected, and is not certified by the laboratory. Thus, the improper
paperwork, combined with both of the parents’ clean drug tests following the
child’s birth, “raise serious and substantial doubts” as to their exposing the child
to illegal drugs.
2
Both parents also argue that the State failed to meet its burden of proof because the
meconium and urine testing procedures have a high false positive rate. However,
neither meconium nor urine testing were conducted in this case for the child and neither
party has put forth evidence to suggest false positives or any other discrepancies in
umbilical cord testing.
7
Upon our review, we find the form and test results present sufficient
evidence that the child was exposed to methamphetamine and amphetamine in
utero. The form includes the child’s name and date of birth, as well as the name
and signature of the nurse who sealed the specimen container and the date and
time of when the container was sealed. Further, the test results page includes
handwritten notations of the child’s first name and a case number, identifies the
collector as the same nurse who was identified on the other form as the person
who sealed the specimen container, and matches the date and time of the
collection to the date and time the specimen container was sealed. Accordingly,
we find the State proved by clear and convincing evidence that an illegal drug
was present in the child’s body as determined by a medically-relevant test and
thus the juvenile court did not err in adjudicating H.H. a CINA. See Iowa Code
§ 232.2(6)(o).
B.
The mother next challenges the disposition order. In the disposition order,
the juvenile court found the mother’s “only remaining issue is one of stable
housing.” The juvenile court ordered the mother to “continue to reside with the
maternal grandparents unless other suitable housing is approved by [IDHS].”
The mother argues that she continues to reside with the maternal grandparents,
that there are no continuing issues for her to address, and that the juvenile court
should have thus dismissed the CINA petition as to her.
As stated above, the State proved by clear and convincing evidence the
child was in need of assistance pursuant to Iowa Code section 232.2(6)(o). The
8
juvenile court entered an order adjudicating H.H. in need of assistance. See
Iowa Code § 232.96(9) (“If the court concludes that facts sufficient to sustain the
petition have been established by clear and convincing evidence and that its aid
is required, the court may enter an order adjudicating the child to be a child in
need of assistance.”). Following entry of the adjudication order, the juvenile court
was required to hold a dispositional hearing and enter the least restrictive
disposition appropriate under the circumstances. See Iowa Code §§ 232.99(1)
(“Following the entry of an order pursuant to section 232.96, the court shall, as
soon as practicable, hold a dispositional hearing in order to determine what
disposition should be made of the petition.”), 232.99(4) (“When the dispositional
hearing is concluded the court shall make the least restrictive disposition
appropriate considering all the circumstances of the case.”). The IDHS worker
testified he believed the case should remain open with regards to the mother so
that IDHS could further test and observe her with the help of FSRP services to
ensure that substance abuse was not an issue. The juvenile court concluded
that the child was still in need of supervision and that housing remained a
concern. This was not in error. See In re K.N., 625 N.W.2d 731, 734 (Iowa
2001) (“[W]e have consistently observed that a juvenile court may not terminate
CINA adjudication status unless the purposes of the original dispositional order
have been fulfilled and the child is no longer in need of supervision, care or
treatment.”) (internal quotation marks omitted); In re C.A.H., No. 06-2052, 2007
WL 1062971, at *3 (Iowa Ct. App. Apr. 11, 2007) (holding termination of
disposition order and dismissal of CINA petition not warranted where mother
9
continued to be in need of some services). If continued supervision is
unwarranted, the mother may move to terminate the disposition order and
discharge the child. See Iowa Code § 232.103(1).
C.
The father argues the juvenile court erred in denying his request for
counsel at the adjudicatory hearing. He contends he had the right to counsel at
the adjudicatory hearing pursuant to Iowa Code section 232.89. He claims he
asserted the right to counsel at the hearing and his rights were prejudiced when
the juvenile court determined he was eligible to have counsel appointed to
represent him but proceeded in the hearing instead of ordering a continuance.
The father contends he attempted to find private counsel to represent him up
until the morning of the adjudicatory hearing but was unsuccessful. The father
testified he “[did not] feel comfortable proceeding without an attorney” and
requested a continuance. The juvenile court acknowledged that the father had
failed to file a request for appointment of counsel until the afternoon of the
adjudicatory hearing despite consenting to a withdrawal of his private counsel
two weeks before the hearing and found it was in H.H.’s best interests to proceed
with the hearing.
“We review [a juvenile court’s denial of] a motion for continuance under an
abuse of discretion standard and will only reverse if injustice will result to the
party desiring the continuance. Denial of a motion to continue must be
unreasonable under the circumstances before we will reverse.” In re C.W., 554
N.W.2d 279, 281 (Iowa Ct. App. 1996) (citation omitted). The father failed to file
10
a request for court-appointed counsel until approximately one hour before the
start of the hearing. The father was able to cross-examine the witnesses.
Further, the adjudicatory hearing had been scheduled at ninety days from the
date of the pre-adjudication hearing for good cause shown instead of the sixty
days required by statute. See Iowa R. Civ. P. 8.11. The father was represented
by private counsel prior to the adjudicatory hearing and was represented by
court-appointed counsel at the dispositional hearing. Therefore, because we find
it was in the child’s best interests to proceed with the adjudication and the father
did not suffer an injustice, the juvenile court’s did not abuse its discretion in
denying the father’s motion to continue.
D.
The father next argues the juvenile court erred in ordering the father to
participate in drug screens. He contends because he did not give birth to the
child, he could not have contributed to the child’s positive umbilical cord results.
He also points to his non-random negative drug screens, the juvenile court’s
adjudication order in which the court stated that the child’s test results were a
“direct and foreseeable consequence of the acts of the child’s mother,” and his
substance abuse evaluation that recommended no further treatment as evidence
that there were no indications the father used drugs. We conclude the argument
is without merit.
The father ignores three critical facts. First, a father can still contribute to
a child’s in utero exposure to a drug by exposing the pregnant mother to that
drug. Second, the juvenile court found the father’s actions regarding his drug
11
testing evidenced an intent to avoid random drug testing, from which an
inference could be drawn that the father was using drugs and trying to conceal
his usage from IDHS and the juvenile court. Third, the father did in fact test
positive for methamphetamine and amphetamine. We find the juvenile court did
not err in ordering the father to participate in drug screens.
E.
The father also argues the juvenile court erred in removing H.H. from his
custody in May 2015 based upon his testing positive for methamphetamine and
amphetamine because the sweat patch test was invalid. He contends the patch
was either contaminated during the collection process or that it was not his
entirely and the juvenile court erred in not ordering a DNA test of the patch. The
father’s argument is moot because the case has progressed to disposition. See
In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994) (“Any error committed in granting
the temporary ex parte [removal] order cannot now be remedied. We cannot go
back in time and restore custody based on alleged errors in the initial removal
order.”).
F.
Finally, the father argues the juvenile court erred in ordering that he reside
with his in-laws because he was unwelcome there and it “likely hindered the
reunification efforts in this case . . . .” We find that the father resided with his in-
laws prior to the adjudicatory hearing for several years and did not present any
evidence at the time that he was unwelcome in their home. Therefore, we find
12
the juvenile court did not err when it ordered the father to continue residing with
the mother’s parents.
IV.
For the foregoing reasons, we affirm the juvenile court’s adjudication and
dispositional orders in both appeals.
AFFIRMED ON BOTH APPEALS.