IN THE COURT OF APPEALS OF IOWA
No. 16-1064
Filed September 14, 2016
IN THE INTEREST OF C.D., C.D.,
AND A.F.,
Minor children,
D.F., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,
District Associate Judge.
The mother appeals from the juvenile court’s adjudication of her children
as children in need of assistance, removal, and disposition. AFFIRMED.
Natalie Hope Cronk of Cronk & Waterman, P.L.C., Iowa City, for appellant
mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Kimberly A. Opatz of Linn County Advocate, Cedar Rapids, guardian ad
litem for minor children.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2
POTTERFIELD, Presiding Judge.
The mother appeals from the juvenile court’s adjudication and
dispositional order involving her three minor children.1 All three children were
adjudicated as children in need of assistance (CINA) pursuant to Iowa Code
section 232.2(6)(c)(2) and (6)(n) (2015). The mother maintains there is not clear
and convincing evidence to support the adjudication of the children under either
of the subsections. Additionally, she challenges the continued removal of the
children from her care, and she maintains she was denied effective assistance by
counsel during the proceedings.
I. Standard of Review.
We review CINA proceedings de novo. See In re D.D., 653 N.W.2d 359,
361 (Iowa 2002). We examine both the facts and law, and we adjudicate anew
those issues properly preserved and presented. See In re L.G., 532 N.W.2d 478,
480 (Iowa Ct. App. 1995). CINA determinations must be based upon clear and
convincing evidence. Iowa Code § 232.96(2).
II. Discussion.
A. Adjudication.
The mother maintains there is not clear and convincing evidence to
support the juvenile court’s adjudication of the children as in need of assistance.
A child is a CINA pursuant to section 232.2(6)(c)(2) if they have suffered
or are imminently likely to suffer “harmful effects” as a result of the failure of the
parent to exercise a reasonable degree of care in supervising the child. The
1
The children have been placed in the care of their respective fathers under the
protective supervision of the Iowa Department of Human Services (DHS); the fathers do
not appeal.
3
mother admitted to using methamphetamine and marijuana within a few months
of DHS’s involvement with the family, and she has provided a drug test that was
positive for each substance. Although the mother denied using while caring for
the children, the older two children—ages sixteen and fourteen at the time of
removal—told providers that their mother used drugs in the basement of the
family home while they were there. Both children stated their mother frequently
smoked marijuana and both believed their mother was using methamphetamine
based on the report of a friend who saw her with a white substance. Additionally,
the hair stat test of the youngest child—approximately two-and-a-half-years old at
the time of removal—was positive for marijuana.2 “We have no difficulty
concluding . . . that a parent’s methamphetamine addiction[3] by itself can result in
‘harmful effects’ to the child, thereby justifying state intervention to protect the
child.” In re J.S., 846 N.W.2d 36, 37 (Iowa 2014) (citing Iowa Code
§ 232.2(6)(c)(2)).
A child is a CINA pursuant to Iowa Code section 232.2(6)(n) if their
parent’s mental capacity or condition, imprisonment, or drug or alcohol abuse
results in the child not receiving adequate care. Both the sixteen-year-old and
fourteen-year-old reported that the fourteen-year-old was the primary caregiver
for the youngest child. Additionally, the older children reported the mother would
often be up for forty-eight hours and then spend rest of the week feeling unwell or
sleeping. The children had to “force” the mother to go buy groceries and other
2
The sixteen-year-old’s test was also positive, but he admitted that he smokes
marijuana.
3
While the mother has only provided one positive test for methamphetamine since DHS
became involved with the family in early March 2016, she testified she had used
methamphetamine once in October 2015, twice in November, and once in December.
4
necessities. While the mother had not yet received an official diagnosis
regarding possible issues with mental health, the caseworker described the
mother as erratic and overwhelmed by her emotions. The mother agreed to
obtain mental-health and substance-abuse evaluations as part of the CINA
proceedings. Additionally, the caseworker testified that both of the older children
as well as the mother’s mother and brother had expressed concern regarding the
mother’s mental well-being. Specifically, the older children reported the mother
seemed to see things that were not there and had acted impulsively. Clear and
convincing evidence supports the juvenile court’s adjudication of the children
pursuant to section 232.2(6)(n).
B. Removal.
The mother challenges whether there was substantial evidence to
continue the removal of the children from her care. 4 Although the mother had
recently provided a few “clean” drug tests, the mother did not begin substance-
abuse treatment until after the CINA adjudication. She continued to act
erratically, contacting several government agencies claiming the State had
illegally stolen her children. She testified she believed DHS was engaged in a
conspiracy with the youngest child’s father so the father could have custody.
Additionally, the mother tried to take the youngest child from daycare, and the
local police had to intervene in the situation. Although she admitted at the
disposition hearing that she had used methamphetamine several times in late
4
The mother challenges the continued removal following both the adjudication hearing
and the disposition hearing. However, at the time of the disposition hearing, the
mother’s attorney stated she did not object to the State’s recommendation that the
children remain in the placement of their fathers. As a result, we consider only the
continued removal of the children following the adjudication hearing on May 9, 2016.
5
2015 and marijuana until February 2016, on appeal, the mother continues to
claim that DHS should not have accepted the results of the positive drug test
because it was diluted and below the accepted standard. She continues to
question the department’s lack of physical evidence about her drug use—
ignoring her own admissions and the statements of her teenage children.
Additionally, although the mother had taken steps to obtain one, she had not yet
had a mental-health evaluation.
Substantial evidence supports the continued removal of the children from
the mother’s care.
C. Ineffective Assistance.
The mother maintains she received ineffective assistance from counsel
during the proceedings. The test for ineffective assistance of counsel in CINA
cases is generally the same as in criminal proceedings. See In re A.M.H., 516
N.W.2d 867, 870 (Iowa 1994) (stating a parent has due process rights, including
the appointment of counsel, relating to a CINA proceeding); see also In re J.P.B.,
419 N.W.2d 387, 390 (Iowa 1988) (applying the same standard from criminal
appeals). The mother has the burden to establish counsel’s performance was
deficient and she suffered prejudice as a result. J.P.B., 419 N.W.2d at 390.
Here, the mother makes a laundry list of claimed failures by her counsel,
but she does not establish how counsel’s actions would have changed the result
of the proceeding. For example, she maintains counsel failed to challenge the
admission of hearsay regarding the older children’s statements about her drug
use and parenting. But “[h]earsay statements are permitted in adjudicatory
hearings in a CINA case.” A.M.H., 516 N.W.2d at 873. Additionally, she claims
6
counsel was ineffective for failing to challenge the admission of the results of the
diluted drug test, but she ignores her own admissions at the disposition hearing
regarding her past drug use. Our scrutiny of CINA counsel’s performance is
“highly deferential” and we “indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” J.P.B., 419
N.W.2d at 390. The mother has not established that she received ineffective
assistance.
IV. Conclusion.
Because clear and convincing evidence supports the juvenile court’s
adjudication of the children as in need of assistance, substantial evidence
supports the continued removal of the children from the mother’s care, and the
mother has not met her burden to establish that she received ineffective
assistance, we affirm the adjudication and dispositional orders of the juvenile
court.
AFFIRMED.