In the Interest of A.G., T.G., and E.G., Minor Children, A.G., T.G., and E.G., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 16-0673
Filed June 15, 2016

IN THE INTEREST OF A.G., T.G., AND E.G.,
Minor children,

A.G., T.G., AND E.G., Minor Children,
Appellants.
________________________________________________________________

Appeal from the Iowa District Court for Appanoose County, William S.

Owens, Associate Juvenile Judge.

A guardian ad litem appeals the juvenile court’s dismissal of the State’s

child-in-need-of-assistance petitions. AFFIRMED.

Julie R. DeVries of DeVries Law Office, Centerville, for appellants minor

children.

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

General, for appellee State.

Jonathan Willier, Centerville, for appellee mother.

James R. Underwood of Underwood Law Office, Centerville, for appellee

father.

Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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TABOR, Judge.

The guardian ad litem for three children—ages seven, five, and four—

appeals the juvenile court’s dismissal of the State’s petitions seeking to have

them adjudicated in need of assistance under Iowa Code section 232.2(6)(c)(2)

and .2(6)(n) (2015). The State’s concern was drug paraphernalia found in the

mother’s home during execution of a search warrant. The juvenile court decided

the State did not meet its burden to show by clear and convincing evidence that

the children had suffered or were imminently likely to suffer harmful effects as a

result of their mother’s failure to exercise a reasonable degree of care in

supervising them. Because our review of the record likewise reveals insufficient

evidence to justify adjudication, we affirm.

I. Facts and Prior Proceedings

B.E. and R.G. have five children together, ranging in age from twelve to

four years old. The children were living with their mother, B.E., in January 2016

when Centerville police officers executed a search warrant at their home. The

police were investigating the mother for identity theft, but during the search

officers seized seven items of drug paraphernalia containing residue, described

as follows:

1. Light bulb converted to pipe (test for meth) found under [B.E.’s]
bed
2. Glass pipe (test for meth) found under [B.E.’s] bed
3. Glass pipe (test for meth) found in box in the hallway
4. Glass pipe (test for meth) found in kitchen cabinet above sink
5. Spoon (test for meth) found on basement stairs
6. Pepsi can converted to pipe with marijuana residue found on
floor of basement
7. Glass bong with marijuana residue found on floor of basement
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The presence of the drug paraphernalia prompted the police to contact the

Iowa Department of Human Services (DHS) for emergency removal of the

children. DHS child protection worker Melissa Weeks responded to the police

call and spoke with B.E., who denied the paraphernalia belonged to her and said

she wasn’t aware the items were in the home. B.E. suggested the items may

have been left behind by her former live-in boyfriend. The mother did not appear

to be under the influence of drugs or alcohol when she spoke to the police and

the DHS workers. Other than the residue on the paraphernalia, the police did not

find any illegal drugs in the home. Weeks interviewed the older children, and

they did not report witnessing any substance abuse or drug use in their mother’s

home. The DHS did not test the children for exposure to illegal drugs. The DHS

placed the children with their father based on a safety plan entered into with the

mother.

DHS case worker Marybeth McCulley-Hoffman also arrived at B.E.’s home

during execution of the search warrant. B.E. had been participating in voluntary

services with the help of DHS and McCulley-Hoffman for about six months during

late 2015. The services followed a report that the mother’s boyfriend had

pinched and twisted seven-year-old A.G.’s ear, causing a bruise. In a family

case plan dated October 20, 2015, McCulley-Hoffman opined the children were

well-bonded to their mother and father; the parents had age-appropriate

expectations for the children; the children were well-behaved, followed directions,

and appeared to have their needs met. McCulley-Hoffman had visited B.E.’s

home on several occasions and reported it was “clean and appropriate with no

observable safety concerns.”
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On January 22, 2016, the State filed petitions alleging all five children—

M.G., I.G., A.G., T.G., and E.G.—were children in need of assistance (CINA)

under section 232.2(6)(c)(2) and (n). The juvenile court held an adjudicatory

hearing on March 31, 2016. In an order dated April 4, 2016, the court dismissed

the petitions, finding insufficient evidence to support the State’s allegations. See

Iowa Code § 232.96(8).

The guardian ad litem (GAL) filed a petition on appeal challenging the

court’s dismissal as to the three youngest children: A.G., T.G. and E.G. The

State filed a statement in support of the GAL’s position. The mother filed a brief

seeking to uphold the juvenile court’s order.

II. Standard of Review

We review CINA proceedings de novo, which means after assessing both

the facts and the law, we resolve the parties’ rights anew. In re J.C., 857 N.W.2d

495, 500 (Iowa 2014). At the same time, we are “influenced by the favorable

vantage point” of the juvenile court and give weight to its factual findings. In re

L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). As in all juvenile proceedings,

our fundamental concern is the best interests of the children. In re K.N., 625

N.W.2d 731, 733 (Iowa 2001).

CINA determinations must be supported by clear and convincing

evidence. Iowa Code § 232.96(2); In re J.S., 846 N.W.2d 36, 41 (Iowa 2014).

“Clear and convincing evidence” means we harbor no serious or substantial

doubts that the conclusions of law drawn from the evidence are correct. In re

C.B., 611 N.W.2d 489, 492 (Iowa 2000).
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III. Analysis

On appeal, the GAL contends the presence of drug paraphernalia in the

mother’s home, left in places accessible to the children, provided sufficient

grounds for adjudicating A.G., T.G., and E.G. as CINA under section

232.2(6)(c).1 That provision defines a CINA as “an unmarried child . . . who has

suffered or is imminently likely to suffer harmful effects as a result of . . . [t]he

failure of the child’s parent . . . to exercise a reasonable degree of care in

supervising the child.” Neither the State nor the GAL alleged the children

actually suffered harmful effects from their mother’s failure to remove the drug

paraphernalia from their home. Accordingly, the question is whether the State

proved by clear and convincing evidence that the children were imminently likely

to suffer harmful effects as a result of her failure to exercise a reasonable degree

of care.

As the juvenile court recognized, neither “imminently likely” nor “harmful

effects” are defined in Iowa Code chapter 232. Our supreme court tackled the

task of defining these terms in In re J.S., 846 N.W.2d at 41-43. “Harmful effects”

has been broadly defined as pertaining to “the physical, mental or social welfare

of a child.” Id. at 41. “Imminently likely” has been defined as “ready to take

place,” “near at hand,” “hanging threateningly over one’s head,” “menacingly

near,” “impending or about to occur,” and “on the point of happening.” Id. at 43.

Using these definitions as a framework, the juvenile court reached the

following conclusion:

1
The GAL does not pursue the argument that the children could have been adjudicated
under section 232.2(6)(n). Accordingly, we do not analyze that alternative ground.
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While there is some evidence the children may have had
access to some, or all, of the items of drug paraphernalia, there
was no evidence presented how contact with those items of drug
paraphernalia may have caused harm to the physical, mental or
social welfare of the children. In addition, even if evidence had
been presented to establish how the drug paraphernalia may have
resulted in harm to the children, there is not clear and convincing
evidence that any prospective harm was imminently likely to occur.

After our de novo review of the record, we reach the same conclusion as

the juvenile court. The GAL relies on Jones v. Commonwealth, 636 S.E.2d 403,

407 (Va. 2006), for the proposition that “inherent dangers” exist when children

have access to illegal drugs and drug paraphernalia. In Jones, the Virginia court

upheld a conviction for felony child neglect when the mother left heroin capsules

within reach of her eight-year-old son. See id. at 408. But we see an important

distinction between exposing children to controlled substances and possessing

paraphernalia alone. See generally State v. Baker, 912 S.W.2d 541, 545 (Mo.

Ct. App. 1995) (holding mere presence of burnt residue inside pipe did not

support finding of possession of drug itself). No witness testified at the CINA

hearing that access to drug residue on the paraphernalia posed the same danger

to children as access to a measureable amount of an illegal drug. The police

officer who conducted the search testified he could not tell how old the residue

was or when the paraphernalia had last been used to consume drugs.

The GAL also cites J.S., 846 N.W.2d at 37, for the proposition that our

supreme court would have “no difficulty” in justifying state intervention into a

family under section 232.2(6)(c)(2) when a parent has a methamphetamine

addiction. But in the instant case, the State offered no evidence B.E. had been

using illegal drugs, much less suffered from an addiction. Case worker
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McCulley-Hoffman testified B.E. had tested negative for drugs during the

voluntary provision of services in late 2015. The children did not report any

concerns about drug use by their mother to child protection worker Weeks, and

Weeks opted not to have them tested for exposure to drugs as part of the

protective assessment.

Finally, the GAL argues the children should have been adjudicated CINA

because B.E.’s home was in disarray, the children’s beds were piled with clothing

and other items, and B.E. was sleeping in the basement, “thus leaving

unsupervised young children” to open the door to law enforcement arriving to

execute the search warrant. The officer testified the oldest child, twelve-year-old

M.G., answered the door. We see no merit to the GAL’s claim that a twelve-

year-old must be supervised when answering the door. Likewise, we are not

impressed that the condition of the house constituted clear and convincing

evidence the children were likely to suffer harm from the mother’s failure to

exercise a reasonable degree of care when supervising them. Contra In re M.H.,

444 N.W.2d 110, 111 (Iowa 1989) (upholding CINA adjudication because family

history was marked by instability and variety of factors pointed to need for state

intervention, including denial of medical attention and unclean home).

On this record, we agree with the juvenile court’s determination that the

State did not establish its grounds for CINA adjudication by clear and convincing

evidence.

AFFIRMED.