IN THE SUPREME COURT OF IOWA
No. 20–1406
Submitted April 29, 2021—Filed May 21, 2021
IN THE INTEREST OF A.W., Minor Child,
T.D., Mother,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Susan Cox,
District Associate Judge.
Mom seeks further review of a court of appeals decision affirming
child in need of assistance adjudication of her child. DECISION OF
COURT OF APPEALS VACATED; JUVENILE COURT JUDGMENT
REVERSED AND REMANDED.
Per curiam.
Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for
appellant mother.
Thomas J. Miller, Attorney General, Ellen Ramsey-Kacena,
Assistant Attorney General, and Kevin J. Brownell and Lily Dayton,
Assistant County Attorneys, for appellee.
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PER CURIAM.
On April 2, 2021, we reversed the termination of Mom’s parental
rights to three children, A.B., A.C.1, and A.C.2, in In re A.B., 957 N.W.2d
280, 299 (Iowa 2021). This appeal involves Mom’s fourth child, A.W., born
in April 2020 and adjudicated a child in need of assistance (CINA) shortly
thereafter. We explored Mom’s history in detail in the termination case,
much of which formed the basis of the juvenile court’s decision to
adjudicate A.W. a CINA and to order removal of A.W. from Mom’s care. As
discussed below, we reverse the juvenile court’s adjudication.
After A.W.’s birth, A.W.’s paternal grandmother took her to Michigan
with the intention of serving as guardian to A.W. Mom and the Iowa
Department of Human Services (DHS) disagree over whether DHS
authorized placement with the paternal grandmother out of state. Mom
has provided emails indicating DHS communicated to her that she should
have A.W.’s grandmother take A.W. to Michigan, despite DHS—at the same
time—petitioning the court to remove A.W. Emails sent to Mom’s attorney
also indicate DHS communicated that it planned to remove A.W. only if
Mom did not find a suitable relative placement. As DHS points out, its
approval of an out-of-state placement would require an order pursuant to
the Interstate Compact on the Placement of Children (ICPC), which it did
not have at the time the child was taken to Michigan. See Iowa Code
§ 232.158 (2020). Nonetheless, we do not construe this back-and-forth
between DHS and Mom as Mom’s attempt to thwart DHS’s involvement in
A.W.’s case, as did the district court.
The juvenile court adjudicated A.W. as a CINA based on two
grounds: Iowa Code section 232.2(6)(n) and section 232.2(6)(c)(2). Mom
appealed the adjudication of A.W. as a CINA, contending adjudication was
improper or, in the alternative, at least removal was improper. We
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transferred the case to the court of appeals, which reversed the
adjudication based on section 232.2(6)(n) grounds but affirmed on section
232.2(6)(c)(2) grounds. We granted Mom’s application for further review
in light of our subsequent resolution of In re A.B.
“We review child-in-need-of-assistance proceedings de novo.” In re
D.D., 955 N.W.2d 186, 192 (Iowa 2021). Through our review of the facts
and law we “adjudicate rights anew.” Id. (quoting In re K.N., 625 N.W.2d
731, 733 (Iowa 2001) (en banc)). The State must prove grounds for CINA
adjudication by clear and convincing evidence. In re J.S., 846 N.W.2d 36,
41 (Iowa 2014).
Iowa Code section 232.2(6)(n) declares a child is in need of
assistance if the child’s “parent’s or guardian’s mental capacity or
condition, imprisonment, or drug or alcohol abuse results in the child not
receiving adequate care.” For the reasons we explained in In re A.B., 957
N.W.2d at 296–98, we agree with the court of appeals that the State failed
to provide clear and convincing evidence that Mom had a substance abuse
problem resulting in A.W. not receiving adequate care.
With respect to the second ground for adjudication, Iowa Code
section 232.2(6)(c)(2) declares a child in need of assistance is one,
c. Who has suffered or is imminently likely to suffer
harmful effects as a result of any of the following:
(1) Mental injury caused by the acts of the child’s
parent, guardian, or custodian.
(2) The 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.
“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 J.S., 846 N.W.2d at 41 (quoting In re Wall, 295 N.W.2d 455,
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458 (Iowa 1980)). “Case law supports a liberal interpretation of the phrase
‘imminently likely’ in the CINA context.” Id. at 43.
Many of the facts in this case overlap with the facts in In re A.B., and
the State advances the same reasoning for CINA adjudication as it did for
termination of Mom’s parental rights, including her having a clandestine
relationship with Dad and ongoing concerns about drug use and domestic
violence. We discussed in In re A.B. why the State failed to prove those
claims by clear and convincing evidence. 957 N.W.2d at 294–99. Mom’s
toxic relationship with a former boyfriend and his other girlfriends led
Mom to the poor parenting decisions that brought her to DHS’s attention.
Indeed, other than the December 2019 domestic assault incident with
Dad, the vast majority of Mom’s criminal history is tied directly to her
relationship with the former boyfriend. But as we made clear in In re A.B.,
Mom successfully removed the drama related to the former boyfriend from
her life and has made significant progress in her relationships and in her
commitment to her children. Id. at 298–99. The district court and the
court of appeals failed to recognize Mom’s progress through therapy and
the distinction between the events surrounding the former boyfriend and
the events involving Dad. Mom’s relationship with Dad is not the type of
toxic relationship she had with her former boyfriend that led her to make
poor parenting decisions in the past. Again, we do not minimize the
domestic problems Mom has had with Dad and the resulting protective
order in place between them. But we do not deem it in the same category
as Mom’s former relationship, particularly with respect to Mom’s ability to
parent A.W.
We concluded in In re A.B. that the State failed to present clear and
convincing evidence that Mom was engaged in a clandestine relationship
with Dad. The State offered one additional piece of evidence here, not
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presented in that case, to support the CINA adjudication for A.W.
Specifically, DHS presented testimony that on or around March 2, 2020,
Dad posted two photos to Facebook of Mom and Dad together. Mom
testified she no longer used Facebook and so did not know about the
photos.
The photos from March are certainly stronger proof of a continuing
relationship than the record presented in In re A.B. The DHS caseworker
testified that the photos appeared recent because she believed they showed
Mom was pregnant with A.W. but admitted she could not determine, based
on the posting date, when the photo was actually taken.
We reiterate that the record demonstrates Mom has been committed
to her children and, apart from the initial founded report of abuse against
A.C.1, has not placed A.W. or her other children in any identifiable risk of
harm. She has followed DHS recommendations, attended therapy and
substance abuse treatment, taken parenting classes, stayed out of legal
trouble since December 2019, and otherwise appears to have turned her
life around. That is not to say Mom has been perfect. And as we explained
in In re A.B., the domestic violence incident with Dad is troubling. But our
review of the evidence reveals that Mom has made significant
improvements between her behavior in 2018 involving her other children
and her behavior in 2020.
We again conclude that “[w]hile Mom has had some contact with
Dad, the State has failed to present clear and convincing evidence that she
is in the harmful and clandestine relationship suggested by DHS.” In re
A.B., 957 N.W.2d at 299. In any event, the State failed to offer clear and
convincing evidence A.W. is at imminent risk of harm from Mom’s failure
to “exercise a reasonable degree of care in supervising” A.W., as required
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to support adjudication under section 232.2(6)(c)(2). Iowa Code
§ 232.2(6)(c)(2). A.W. should not have been adjudicated CINA.
We note that DHS continues to be involved with Mom’s other
children, and nothing in this opinion affects its ability to respond should
events with A.W. warrant a response.
DECISION OF COURT OF APPEALS VACATED; JUVENILE
COURT JUDGMENT REVERSED AND REMANDED.
This opinion shall not be published.