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In re T.W.

Court of Appeal of Iowa

July 24, 2013

IN THE INTEREST OF T.W., Minor Child, S.B., Mother, Appellant, J.W., Father, Appellant.

Appeal from the Iowa District Court for Linn County, Susan F. Flaherty, Associate Juvenile Judge.

A mother and a father separately appeal juvenile court orders.

Cynthia S. Finley, Cedar Rapids, for appellant mother.

Mark D. Fisher of Nidey, Erdahl, Tindal & Fisher, P.L.C., Cedar Rapids, for appellant father.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Jerry Vander Sanden, County Attorney, and Kelly J. Kaufman, Assistant County Attorney, for appellee State.

Kimberly Opatz, Cedar Rapids, attorney and guardian ad litem for minor child.

Considered by Potterfield, P.J., and Mullins and Bower, JJ.

POTTERFIELD, P.J.

A mother and a father separately appeal the juvenile court's order adjudicating their child as a child in need of assistance (CINA). The mother also appeals the order sustaining the emergency removal of the child. The father also argues the dispositional order continuing the child in the custody of the department of human services (DHS) with discretion to place T.W. with his parents on a trial basis was not the least restrictive placement.

Scope of review. Review of child-in-need-of-assistance proceedings is de novo. In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994). We give weight to the juvenile court's findings, especially with respect to the credibility of witnesses, but are not bound by them. Id.

Removal. The mother first contends the emergency removal was not justified under Iowa Code section 232.78 (2013). The mother argues that "[o]ther than the parent[s'] past actions, there was no current evidence that showed that T.W. would be in imminent danger if he were allowed to remain with his parents." Central to all the parents' arguments is their contention that it was error for the juvenile court to admit evidence from prior CINA and termination proceedings. Consequently, we must address this issue first.

"[I]f relevant and material, evidence from a termination proceeding may be admitted in a later CINA hearing to the extent of its probative value." In re CM., 526 N.W.2d 562, 565 (Iowa Ct. App. 1994); see also In re N.M.W., 461 N.W.2d 478, 480-81 (Iowa Ct. App. 1990) (holding evidence of a parent's past actions that formed the basis of prior CINA proceedings may be considered in new CINA proceeding). We reject the parents' contention the earlier matters were irrelevant for purposes of determining whether T.W. was at risk of imminent harm. The previous CINA and termination proceedings concerned the two older children of the same parents.

"We gain insight into the child's prospects by reviewing evidence of the parent's past performance—for it may be indicative of the parent's future capabilities." In re M.S., 519 N.W.2d 398, 400 (Iowa 1994); accord In re D.W., 791 N.W.2d 703, 709 (Iowa 2010). The parents' past performance was summarized by the juvenile court:

[The mother] and [the father] both have an extensive history of abuse/neglect of children in their care. [The mother] has six prior founded reports of child abuse where she is the named perpetrator and [the father] has been determined to be the perpetrator of child abuse on four separate occasions. These incidents of abuse have involved primarily denial of critical care due to alcohol abuse/use of drugs by [the mother] and acts of domestic violence by both [the mother and the father]. [The mother] has a significant history of substance abuse, dating back to her teenage years. [Her] alcohol and drug abuse has been the primary reason that she has previously been unable to safely maintain a child in her care. [The parents] have had a lengthy but unstable relationship which began when they were both teenagers. Additionally, [the parents] each has an extensive history of criminal activity, multiple arrests and periods of incarceration which has ...

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