IN THE COURT OF APPEALS OF IOWA
No. 18-0141
Filed May 2, 2018
IN THE INTEREST OF A.M. and A.M.,
Minor Children,
S.M., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District
Associate Judge.
A father appeals from the dispositional order confirming the removal of his
children from his care. AFFIRMED.
Christine L. Sand of Wild, Baxter & Sand, P.C., Guthrie Center, for appellant
father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Yvonne C. Naanep, Des Moines, guardian ad litem for minor children.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
2
DANILSON, Chief Judge.
A father appeals from the dispositional order confirming the removal of his
children from his care. He contends he has complied with all of the juvenile court’s
requirements and objects to the court’s order that he obtain a hair-stat test. Upon
our de novo review, see In re J.S., 846 N.W.2d 36, 40 (Iowa 2014), we find no
reason to disturb the juvenile court’s dispositional order. We therefore affirm.
In mid-2016, the children—a boy, age ten, and a girl, age four—came to the
attention of the department of human services (DHS) due to methamphetamine
use by their mother and a lack of proper supervision by their father. There was no
custody order between the parents but the mother allowed the children to reside
with the father, and the mother entered substance-abuse treatment.1
Unfortunately, the father was distrustful of DHS involvement. DHS asked that he
provide a hair-stat test, which he refused.
On June 9, 2017, both parents were ordered to undergo hair-stat tests on
Monday, June 12, and submit the results to DHS. They were also ordered to
cooperate with the Family Safety, Risk, and Permanency (FSRP) worker. On June
23, an order for ex parte removal was entered after the court found the
mother’s hair stat test showed positive results which were higher
than expected; the father has not complied with a drug test as
previously agreed. The children could not be placed with a non-
custodial parent because both parents are involved. The children
could not be placed with another relative because other appropriate
relatives are unknown.
1
DHS considered this placement with the father as a relative placement with the goal
being reunification with the mother.
3
On June 27, a hearing was held at which the father agreed to allow service
providers to come into his home. The court ruled the father “did not comply with
the court’s order to get a hair stat test” but found “there is no evidence of drug use”
by the father. At the hearing, the court told DHS to accept the urinalysis (UA)
results from samples provided by the father to his employer. The court’s written
order also provided: “[T]he court orders that the child be returned to [the father’s]
custody immediately; he is still ordered to obtain a hair stat test, from the provider
of his choice, with results to be provided to the court by July 12, 2017.”
A child-in-need-of-assistance (CINA) adjudication hearing was scheduled
but was continued a number of times.
In August, the father was allowing FSRP service providers into his home.
The father was told the mother was not to provide unsupervised care of the
children. At the CINA adjudication hearing on September 6, the father contested
the adjudication, and the hearing was rescheduled for October 24.
Despite agreeing not to allow the mother to be with the children
unsupervised, DHS learned the mother was providing unsupervised care for the
children. DHS social worker Sheila Aunspach informed the father DHS would be
seeking a removal order for the children. The father did not attend work for the
next several days and pulled the children out of school. A removal order issued
on October 23, but the children’s whereabouts were unknown.
The father did appear for the October 24 adjudication hearing and, upon
questioning by the court, the father informed the court the children were at his
home. He had left the children there without adult supervision.
4
Social worker Ashley Laughlin, who had been the case manager until
September, testified:
April to July [2017] mom would not address her substance
abuse issue and said she no longer had a problem and was reporting
that she was the one taking care of the kids when dad was at work.
I believe it was in July that we asked for a hair test. That hair test
came back positive for methamphetamine.
Q. Was that for mom? A. That was for mom, yes.
Q. Does it cause you concerns that the mother was watching
the children at this point? A. It did at the time. However, the father
reported that he did not know what things to look for with
methamphetamine use. It concerned me that mom had put her
children in that position. It concerned me that the father who has
known this woman for ten plus years didn't know what any of her real
indicators looked like.
Q. Did the children’s mother indicate that she had a history of
methamphetamine use? A. The children’s mother did.
Q. How long of a history? A. It didn’t really say a length. [The
boy] did talk about the time . . . that he was asked to pee in the cup.
Q. So in July these concerns about the mom watching the kids
came up, is that right? A. That had been a concern throughout, but
I believe that’s the time where it was really addressed because her
hair test came back positive.
Q. So what type of arrangements were made with the parents
regarding mom and seeing the kids? A. I believe it was around that
time that I asked for the removal. Mom then reengaged in treatment.
The children returned to the father, and mom was engaged in
treatment at that time. And then on August 4th, 2017, I received an
email from mom’s probation officer that basically said that she had
admitted to continued methamphetamine use and would be like two
weeks off, two weeks on.
When asked why DHS was not requiring professionally supervised
visitation, Laughlin stated:
Legally we don’t have removal from either parent at this point
in time, so FSRP does not supervise contact without a removal.
Even with that, being a new FSRP provider, the trauma the children
had just gone through [being removed from home] and the fact that
dad was cooperative at that point in time and stated that he was not
going to allow mother to be alone with the children, I felt it was in the
children’s best interest to allow her to come over to their home with
dad and see the kids.
5
Laughlin reported that in September the father “was willing to allow me into
his home, but that was about the extent of it. He did not feel like it was his fault
that DHS was involved and that he did not have to engage in services.” Laughlin
testified that more than a year after DHS involvement began, “[t]here still remain
concerns about mother’s substance abuse and father’s ability to be protective of
the children with regard to mother’s substance abuse.”
Aunspach replaced Laughlin as the supervising social worker on this case
in September 2017.2 Aunspach testified the father’s one-bedroom home was
“minimally adequate,” though dirty, and the children were sharing one mattress.
Aunspach testified the father acknowledged to her that the mother was seeing and
caring for the children without supervision. She also testified the mother was not
currently in treatment and she had concerns about the father’s mental health or
possible substance use. Aunspach summarized her concerns:
Q. And what would you consider the imminent danger to the
children’s life or health if they were allowed to remain in the home?
A. Mom is known to use illegal substances or we can presume that
she is due to the lack of drug screening and her lack of attendance.
She is not able to properly supervise these children if she is using
illegal substances. And dad is allowing mom to continue to watch
these children. It’s concerning that dad does not have the protective
capacity to know when mom is using or to question mom and to
follow up with providers or professionals if she is telling them things
such as the department and her attorney told her that she’s able to
be alone with the children. I believe that a reasonable adult would
follow up on that information and not believe somebody that is a
known drug user.
Q. Just to clarify, you never gave mom permission to watch
the kids? A. No.
2
Aunspach testified Laughlin “felt that dad had a lack of trust for her and that it would be
best for somebody else to take the case moving forward in order to hopefully be able to
work better with that.”
6
She also stated DHS “is very concerned that there had been an order for removal
and that dad has been hiding the children and has not made them available for the
removal to take place and that the children are not in school at this time.”
The father acknowledged at the adjudication hearing he had used
methamphetamine but stated it was many years ago. He also admitted that he did
leave his daughter in the mother’s unsupervised care “[b]ecause I didn’t have
nobody else to watch her while I was at work.” He stated the mother was alone
with the child “about three hours a day” and the mother had informed him “she had
talked to her lawyer and to one of the DHS ladies and they said it was all right.”
He had not confirmed the information with anyone else. He stated he had no
concerns the mother was still using methamphetamine because “she said she had
been going [to treatment], that she had been dropping clean UAs.” Again, he had
not confirmed the mother’s claims with anyone else. The father also
acknowledged he knew the court had ordered the children’s removal but he felt the
children were safer in his care than in DHS’s.
The following exchange occurred on cross-examination:
Q. So do you normally just accept [the mother] at her word?
A. No. But when I’m stuck in a position of not having a baby-sitter
and I have to get to work, I didn’t feel like she was high.
Q. Can you recognize when she’s high? A. Sometimes. I
mean—
Q. Well, what sort of symptoms do you see from her when
she’s using? A. She is—she doesn’t do what she says she’s going
to do. She doesn’t come around.
Q. So do you truthfully feel you’re able to identify when she’s
using and when she’s not? A. If she tried to hide it, I probably couldn’t
tell.
....
Q. So why wouldn’t you follow up, sir, to make sure that she’s
clean and sober? A. Because I don’t feel that they’re in danger.
7
Q. Why don’t you feel that that’s any danger? A. Because it’s
their mother. I mean, I don’t know.
The State and the guardian ad litem argued the children were in need of
assistance and the mother stipulated to the children’s being adjudicated as CINA.
The father objected to any CINA adjudication.
The court orally ruled the children were in need of assistance. The court
expressed its concerns about the mother’s ongoing substance-abuse issues and
the father’s lack of supervision. The court noted the father admitted to leaving the
boy home alone when he was sick and to leaving the boy home alone the day of
the hearing in charge of his younger sister. The court found most concerning,
however, that after learning of the court order to remove the children, the father
decided to evade the court’s order. The court confirmed the order to remove the
children and place them in the custody of DHS for relative placement. 3
On November 1, the State made application for a change of placement,
asserting that since the October 24 ruling, “the two relatives that were being
considered as relative placements are no longer available. . . . Three relatives
have stated to DHS that they believe the children’s father is using
methamphetamine. The children have not been attending school since the
3
The court added:
I only want this to be until [the father] has worked with DHS to try to help
with some of these supervision issues like before and aftercare at school,
if that would help with your work situation, locating an in-home daycare or
something like that that would be close enough and where if you have a
sick child or—you know, or locate a person that you can line up so that that
is in effect kind of a safety plan that you could work out, then I am happy to
get those kids back to you just as fast as I can.
A maternal aunt had agreed to provide care for the children.
8
October 24 hearing.” The court granted the application, and DHS placed the
children with other relatives who had been found to be appropriate caretakers.
A dispositional hearing was held on December 5 and 20, 2017. Social
worker Aunspach testified the children were in the care of a paternal uncle and
aunt and were doing “very well.” She stated FSRP services and daycare
assistance were being provided to the family. The mother had been participating
in supervised visits with the children, though not on a consistent basis. The mother
was reportedly pregnant and not participating in substance-abuse treatment. The
father was working full time but expected to be laid off from the end of December
2017 until March 2018. He had received some transportation assistance to
supervised visits with the children. Aunspach recommended the children remain
in the care of the relatives, expressing concern about possible substance abuse
by the father. In her written report to the court and testimony, Aunspach pointed
to behavioral indicators such as paranoia, mood swings, lack of cleanliness of the
home, and poor hygiene. She noted the father’s ongoing distrust of DHS and lack
of cooperation and communication with her. She also noted the father’s refusal to
comply with the court-ordered drug testing earlier in the proceedings and the post-
adjudication statements by the mother and maternal relatives that the father had
used methamphetamine for the past fifteen years. Aunspach also testified the
maternal relatives reported “they have no reason to believe he’s not still using.”
She recommended the father have a mental-health assessment and a substance-
abuse evaluation. She also asked that the father be required to provide a hair test
for analysis or random UAs.
9
FSRP consultant Jody Phillips testified that soon after she began working
with the family in July or August 2017, she believed the father had been using
some type of drug. She observed the father exhibiting signs of drug use:
I observed his right side of his body to be having muscle spasms
continuously for about an hour. When asked he said he didn’t notice
that. And he was very talkative to me that evening, which in the
beginning when I took over this case it was hard to get him to
communicate with me, so it was abnormal for him to be talkative and
allow me into the home.
Phillips stated she raised her concern with DHS. She also testified she had a
telephone conversation with the mother’s sister-in-law while she had the children
in her care following removal and she “told [Phillips] that she believes that [the
father] has always used and has not stopped using.”
Phillips also stated she had consistently recommended to the father that he
clean his home and noted a “trash buildup on the floor, food that hadn’t been
cleaned in the kitchen for quite a while, and just the floor in general . . . would pose
a safety concern for younger children.” She testified the father had participated in
discussions with her about securing appropriate daycare after the children were
removed and she provided a list of people for him to call, but two weeks later he
had not made any calls.
The court orally continued the children’s removal and ordered that before
the children could return to the father, the father was to submit for a hair-stat test.4
The court also ruled that the father needed to clean his residence so it was suitable
4
The court observed, because the father admitted using methamphetamine in the past
and “you physically are constantly moving, what seems to me be some paranoia . . . but I
would like to eliminate the concerns. I want a hair stat test and then it’s over. You know,
if it comes back clean, we don’t have a problem with it anymore.”
10
for the children and ensure that the children had “appropriate places to sleep”—
“They need to have beds.” In addition, though not required before the children
could be returned, the court ordered the father to have mental-health evaluation,
arrange for daycare for when he returned to work, and ensure the children were
able to continue counseling.
A written dispositional order was filed on January 4, 2018, which provided
in part:
(2) The court makes the following specific findings of fact: the
children have been out of the home since October 19, 2017; the
children’s mother is pregnant; the children are doing well with their
uncle and aunt; father is exercising visitation but has had limited
contact with DHS; mother has reengaged with services; the court has
found the testimony regarding the father’s family of origin useful;
based on statements of relatives, DHS still has concerns regarding
the father using illegal drugs; the testimony of the witness is not
necessarily reliable regarding possible drug use by the father
however behavioral indicators and direct observation have
reaffirmed the concern over possible drug use; the court
acknowledges that the father has a distrust for the juvenile court
system that may not be based on his drug use.
(3) The children shall remain in or be placed in out of home
placement. Placement outside the parental home is necessary
because continued placement in or a return to the home would be
contrary to the child’s welfare due to concerns over mother’s
substance abuse and concerns over father’s supervision of the
children.
The father appeals. He does not challenge the children’s CINA adjudication
but argues the children should be returned to him pursuant to Iowa Code sections
232.102(6)5 and 232.103(4)6 (2017). He asserts he has provided negative UAs
and challenges DHS’s “continual focus” on his “alleged substance abuse.”
5
Section 232.102(6) provides: “Whenever possible the court should permit the child to
remain at home with the child’s parent, guardian, or custodian.”
6
Section 232.103(4) provides:
11
“[A] juvenile court is authorized to terminate a dispositional order only if ‘the
purposes of the [dispositional] order have been accomplished and the child is no
longer in need of supervision, care, or treatment.’” In re K.N., 625 N.W.2d 731,
733 (Iowa 2001) (second alteration in original) (citation omitted).
The father’s continued demonstration of an inability to protect the children
and allowing them to have unsupervised contact with their mother establishes a
risk of inadequate supervision. In addition, in light of the father’s admitted past use
of methamphetamine, his continued refusal to provide a hair-stat drug test despite
court orders, the testimony of the FSRP provider about the father’s behavioral
indicators of drug use, and the court’s observations of the father’s behavioral
characteristics at the dispositional hearing, we conclude the juvenile court had
ample reasons to continue the children’s removal and order the father to obtain a
hair-stat drug test. We find no merit in the argument that there was no evidence
and only speculation the father was using illegal substances when the father
steadfastly refuses—notwithstanding an order of the court—to obtain a hair-stat
drug test. Finding no reason to disturb the dispositional order, we affirm.
AFFIRMED.
The court may modify a dispositional order, vacate and substitute a
dispositional order, or terminate a dispositional order and release the child
if the court finds that any of the following circumstances exist:
(a) The purposes of the order have been accomplished and the
child is no longer in need of supervision, care, or treatment.
(b) The purposes of the order cannot reasonably be accomplished.
(c) The efforts made to effect the purposes of the order have been
unsuccessful and other options to effect the purposes of the order are not
available.
(d) The purposes of the order have been sufficiently accomplished
and the continuation of supervision, care, or treatment is unjustified or
unwarranted.