IN THE COURT OF APPEALS OF IOWA
No. 20-1348
Filed January 21, 2021
IN THE INTEREST OF R.P. and K.P.,
Minor Children,
L.P., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Tama County, Angie Johnston,
District Associate Judge.
A father appeals a juvenile court order adjudicating his two children in need
of assistance. AFFIRMED.
Peter Stiefel, Victor, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Taylor Reichardt of Kaplan & Frese, LLP, Marshalltown, attorney and
guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
2
TABOR, Judge.
Citing their father’s habitual drug use and “his willingness to keep and
distribute large amounts of methamphetamine from the premises of the family
home,” the juvenile court adjudicated eleven-year-old R.P. and eight-year-old K.P.
as children in need of assistance (CINA).1 Only the father appeals. He argues
(1) the State failed to present clear and convincing evidence to prove the grounds
for adjudication and (2) the court erred in not dismissing the CINA adjudication at
the dispositional hearing.
In our de novo review,2 we find the record contains sufficient proof to
support the grounds for adjudication. The father also failed to show the children
were no longer at risk when he sought dismissal. For these reasons, we affirm the
juvenile court’s rulings.
I. Facts and Prior Proceedings
In February 2020, Levi landed in the hospital after suffering broken ribs and
a head injury in an all-terrain vehicle accident. During his treatment, a routine urine
test showed Levi was positive for amphetamines, opioids, and methamphetamine.
Within forty-eight hours, the Iowa Department of Human Services (DHS) began a
child-abuse investigation based on the hospital’s “concerns that Levi was using
methamphetamine while residing in the home with his children.”
1 The father, Levi, has another daughter, H.P., who turned eighteen years old in
July 2020—a month before the adjudication hearing. The juvenile court dismissed
her CINA case.
2 Our standard of review in CINA cases is de novo. In re J.S., 846 N.W.2d 36, 40
(Iowa 2014). We give weight to the juvenile court’s fact findings, though they do
not bind us. Id. Our main consideration is the best interests of the children. Id.
3
A child protection worker met with Levi and the children’s mother, Jennifer,
at their ranch-style house for an interview. During that interview, Levi admitted
using methamphetamine daily for the past seventeen years. He said the drug
“made him feel normal.” The child protection worker noted Levi “seemed very
frustrated with the questions” because he did not think his drug use affected his
parenting.3 For her part, Jennifer said she could not do much about Levi’s
substance abuse because he was “a grown man.” Both parents insisted that Levi
only used methamphetamine at work.4 But sometimes he would be away on work
trips “for several days or even weeks.”
In late March, the DHS issued a founded child-abuse report with Levi as the
perpetrator after determining he unlawfully used or possessed methamphetamine
while caring for the children.5 Based on the founded report, the State petitioned
the juvenile court to adjudicate R.P. and K.P. as CINA.
From March through August, the DHS had five in-home visits with the
family. According to the case manager, Levi participated in only one of those
interactions. During the other visits, Levi was either in the garage or the basement.
Each time, Levi would make an appearance for “about 60 seconds.”
3 To that point, the child protection worker saw no signs of physical abuse or
malnourishment in observing R.P. and K.P. on her visit.
4 Levi told worker that he did farm labor in the spring, snow removal in the winter,
and sold fireworks in the summer.
5 Levi had pending criminal charges for possession of a controlled substance and
drug paraphernalia from 2019. In that incident, a passerby reported a “male
slumped over the wheel” of his truck in the middle of an intersection. When police
arrived, Levi was asleep in the driver’s seat with a pipe in his right hand. Levi
admitted the pipe contained methamphetamine. Police later found a small baggie
of methamphetamine in the center console. When questioned, Levi told the
officers he was on his way home from work.
4
A few days before the adjudication hearing, the DHS notified the court that
another child-abuse assessment was in progress. That assessment originated
with a report from Tama County Deputy Sheriff Lucas Dvorak, who provided
evidence that Levi was trafficking drugs from the family home.6 The report also
named Jennifer as a perpetrator of abuse for failing to adequately supervise the
children.
Based on the deputy’s report, the DHS implemented an emergency safety
plan that required Levi to move out of the home and prevented him from having
any unsupervised contact with the children. Child protection worker Lacey Halleck
described her uncomfortable exchange with Levi on the safety plan:
He was rather agitated and didn’t really want to have a conversation
with me at that point in time. He said he would agree to sign the
safety plan because he felt like he didn’t have a choice at that point
in time but that he felt that his children were safe and DHS was
wasting their time.
At the August 31 adjudication hearing,7 Jennifer stipulated to the CINA
petition under Iowa Code section 232.2(6)(c)(2) (2020) for her failure to adequately
supervise the children. Levi objected to the petition. The court heard testimony
6 As part of an ongoing narcotics investigation, Deputy Dvorak executed a search
warrant at the house on August 26. According to Dvorak, the children, R.P. and
K.P., were awake when officers began the search but soon went to their bedroom.
Police found “just under 74 grams of methamphetamine, approximately $11,000
U.S. currency, marijuana, suspected marijuana edibles or THC edibles, suspected
psilocybin mushrooms, prescription pills, digital scales, packing and
paraphernalia” in the attached garage. Dvorak testified the garage was accessible
through a door that led to the kitchen. Although the door had a lock, he could not
recall whether it was secured when police executed the search. Police did not
arrest Levi on the day of search.
7 The court conducted the hearing using remote technology because of the
COVID-19 pandemic. See Iowa Supreme Ct. Supervisory Order, In the Matter of
Ongoing Provisions for Coronavirus/COVID-19 Impact on Court Services (May 22,
2020).
5
from the child protection workers, the DHS case managers, and Deputy Dvorak.
Invoking their Fifth Amendment right against self-incrimination, neither Jennifer nor
Levi testified at the hearing.
The child protection workers believed R.P. and K.P. needed help because
their home environment was not safe. Halleck expressed concerns that the
children were at risk of physical harm from exposure to the illegal drugs or violence
from drug-related activities, as well as “potential mental and emotional neglect.”
Deputy Dvorak believed the presence of drug activity at the family residence
endangered the children. The children’s guardian ad litem also supported granting
the CINA petition based on the search warrant evidence.
The juvenile court granted the State’s petition, finding intervention was
necessary after the “major drug raid at the family home.” The court reasoned:
Levi seems to think that as long as the children are fed and not
physically abused, the children are safe. Neither parent seems to
understand the large propensity for physical and emotional danger
that dealing methamphetamine out of the family home poses to these
children. This behavior has clearly been ongoing during the
pendency of the voluntary case.
The court did not order the children be removed from their home. But given
recent events, the court did direct Jennifer and the children to complete hair drug
tests before the next hearing. Jennifer, R.P., and K.P. tested negative for
methamphetamine and other drugs. Focusing on that evidence, Levi asked the
court to dismiss the CINA adjudication order at the October dispositional hearing.
In his view, the negative test results proved his substance abuse did not harm the
children. In the alternative, Levi asked the court to amend the safety plan to allow
him to return home.
6
Despite Levi’s pleas, the court maintained the children’s CINA status and
reaffirmed the safety plan. In doing so, the court stated: “The bottom line is
regardless of whether the kids actually ingested drugs it is still an unsafe situation
when you’re actively dealing drugs out of the family home. I don’t know how else
I can put this to you guys to understand. That in itself is an inherent danger.”
Levi now appeals.
II. Grounds for Adjudication
The juvenile court adjudicated R.P. and K.P. as CINA under Iowa Code
section 232.2(6)(c)(2), (n), and (p). Levi contests all three grounds. We will
address each argument in turn. See J.S., 846 N.W.2d at 41 (affirming on multiple
theories because basis for CINA adjudication may affect eventual grounds for
termination of parental rights).
Under section 232.2(6)(c)(2), the State must present clear and convincing
proof that a child “has suffered or is imminently likely to suffer harmful effects” as
a result of the parent’s failure “to exercise a reasonable degree of care in
supervising the child.” It helps to break these concepts into digestible parts. First,
our supreme court defined “harmful effects” to mean “harm to a child’s physical,
mental, or social well-being.” Id. at 42. Second, the court offered various
interpretations of “imminent” including “on the point of happening.” Id. at 43
(quoting Black’s Law Dictionary 750 (6th ed.1990)). Overall, CINA cases adopt a
liberal interpretation of the phrase “imminently likely.” Id. Under this formulation,
“a parent’s active addiction to methamphetamine” may be “‘imminently likely’ to
result in harmful effects to the physical, mental, or social wellbeing of the children
in the parent’s care.” Id. at 42. But “general statements about methamphetamine
7
addiction” standing alone are not enough to show an imminent risk of harm under
the clear and convincing standard. Id.
Levi contends the State failed to meet that standard under
section 232.2(6)(c)(2) because (1) Jennifer was the children’s primary caretaker
and (2) the State offered no proof his substance abuse hurt the children in the past,
so harm was unlikely to result now. We are unpersuaded by either contention.
True, the risk of harm may be reduced where another parent or relative can
supervise the children when a parent is dealing with an untreated addiction. See
id. (comparing untreated addiction “to what occurs when a parent falls ill or
becomes disabled and leaves her or his children with a relative”). But what if
neither parent offers safe supervision? Jennifer stipulated to the CINA adjudication
based on her failure to adequately supervise the children at their home. See Iowa
Code § 232.2(6)(c)(2). Even without that stipulation, Jennifer did not exercise
reasonable care in allowing Levi continued contact with the children while he was
actively using methamphetamine. See State v. Petithory, 702 N.W.2d 854, 857
(Iowa 2005) (“The dangers of leaving one’s children in the custody of actively using
methamphetamine addicts cannot be denied.”). Thus this factor carries little
weight in our analysis.
We also reject Levi’s second contention. Section 232.2(6)(c)(2) does not
require proof of past harmful effects to establish an “imminent likelihood” of future
harm. See J.S., 846 N.W.2d at 43 (“Child protection statutes ‘are designed to
prevent probable harm to the child and do not require delay until after harm has
occurred.’” (quoting In re L.L., 459 N.W.2d 489, 494 (Iowa 1990))). On this point,
Levi ignores crucial evidence in the record—that he was keeping illegal drugs on
8
the premises where his children lived. Even without proof that R.P. and K.P. were
aware of or exposed to the methamphetamine, its presence in the
garage—coupled with Levi’s long-standing addiction—was enough to establish an
imminent likelihood of harm. See Petithory, 702 N.W.2d at 857 (rejecting father’s
claim that “he was a careful drug abuser, smoking it only in the basement, where
the children were not allowed” because he “handled and consumed the illegal drug
in the very house wherein the girls resided”). The sizeable drug operation in the
family garage—including seventy-four grams of methamphetamine and $11,000 in
cash—created an unsafe environment for the children. See In re L.H., No.
19-0931, 2019 WL 5063336, at *5 (Iowa Ct. App. Oct. 9, 2019) (recognizing drug
trafficking within child’s home “exposes the child to dangerous people and
situations”). Thus the State satisfied its burden under section 232.2(6)(c)(2).
We next turn to the court’s CINA finding under section 232.2(6)(n). This
provision requires clear and convincing proof that because of a parent’s “drug or
alcohol abuse,” the children were not receiving adequate care. Iowa Code
§ 232.2(6)(n). To meet its burden, the State must establish a nexus between the
parent’s drug use and the children’s receipt of inadequate care. In re M.S., 889
N.W.2d 675, 682 (Iowa Ct. App. 2016) (explaining drug use standing alone does
not establish adjudicatory harm in CINA and termination proceedings). Levi claims
the nexus is lacking because the “children always appeared clean, healthy, and
properly nourished and the home was safe and appropriate.”
As the juvenile court reasoned, “Court intervention is necessary because
Levi refuses to take responsibility for his drug use and get help.” As an example,
the children were awake, though briefly, when police executed the search warrant
9
at 1:30 in the morning. And Deputy Dvorak believed “Levi looked under the
influence and very strung out during the search.” See In re T.B., No. 18-1139,
2018 WL 4361181, at *2 (Iowa Ct. App. Sept. 12, 2018) (finding parent’s continued
methamphetamine use during pendency of case creates a risk of adjudicatory
harm to the children). Yet Levi still refused to acknowledge his substance-abuse
problem: “I didn’t do anything wrong.” On this record, we find clear and convincing
proof that Levi’s continued drug use and unwillingness to seek help prevent him
from providing adequate care. See In re L.R., No. 17-1010, 2017 WL 3525346, at
*3 (Iowa Ct. App. Aug. 16, 2017) (finding mother’s unresolved mental-health issues
and “inability to heed the advice of professionals” sufficient to support adjudication
under paragraph (n)).
Finally, we address whether sufficient proof supported the ground for CINA
adjudication under section 232.2(6)(p). This provision comes into play when a
parent “unlawfully uses, possesses, manufactures, cultivates, or distributes a
dangerous substance in the presence of a child . . . or unlawfully uses, possesses,
manufactures, cultivates, or distributes a dangerous substance specified in
subparagraph (2) . . . in a child’s home, on the premises, or in a motor vehicle
located on the premises.” Iowa Code § 232.2(6)(p). The statute’s list of dangerous
substances includes methamphetamine. See id. § 232.2(6)(p)(2)(b).
In challenging this ground, Levi claims the State failed to prove he
possessed methamphetamine “in the presence of a child.” But section 232.2(6)(p)
provides an alternative to the presence requirement: “or unlawfully uses,
possesses, manufactures, cultivates, or distributes a dangerous substance . . . in
a child’s home, on the premises, or in a motor vehicle located on the premises.”
10
(Emphasis added.) Because Levi does not dispute the State’s proof that police
found methamphetamine on the premises of the children’s home, the State met its
burden on this ground.
Finding clear and convincing evidence in the record to support all three
grounds, we affirm the juvenile court’s CINA adjudication. We also affirm the
court’s dispositional order because the record does not show that R.P. and K.P.
are “no longer in need of supervision, care, or treatment.” See Iowa Code
§ 232.103(4); see also In re A.B., 569 N.W.2d 103, 107 (Iowa 1997) (noting statute
precludes ending CINA status until children no longer need that protection).
AFFIRMED.