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In re J.S.

Supreme Court of Iowa

April 25, 2014

IN THE INTEREST OF J.S. & N.S., Minor Children, A.S., Mother, Appellant, STATE OF IOWA, Appellee

On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Woodbury County, Julie A. Schumacher, District Associate Judge. The State seeks further review of a court of appeals decision that reversed, in part, an adjudication of two children as children in need of assistance.


David A. Dawson, Sioux City, for appellant mother.

Thomas J. Miller, Attorney General and Bruce L. Kempkes, Assistant Attorney General, and Diane M. Murphy, Sioux City for appellee State.

Chad C. Thompson of Thompson, Phipps & Thompson, Kingsley, for appellee father.

Tobias Cosgrove, Sioux City, attorney and guardian ad litem for minor children.

MANSFIELD, Justice. All justices concur except Cady, C.J., and Zager, J., who dissent. Cady, C.J., joins this dissent


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This case requires us to determine whether a parent's status as a methamphetamine addict, without more, is enough to support a juvenile court's determination that the parent is " imminently likely to abuse or neglect the child," where " abuse or neglect" means " physical injury suffered by a child as a result of the acts or omissions of the child's parent." See Iowa Code § 232.2(6)( b ), (42) (2013). We have no difficulty concluding under a separate statutory provision that a parent's methamphetamine addiction by itself can result in " harmful effects" to the child, thereby justifying state intervention to protect the child. See id. § 232.2(6)( c )(2). However, the present appeal concerns imminent likelihood of physical injury. Because we conclude that the parent's addiction by itself is not sufficient to establish such a likelihood of injury, we affirm the decision of the court of appeals and reverse in part the order of the juvenile court.

I. Background Facts and Proceedings.

Ashley is the mother of nine-year-old N.S. and five-year-old J.S. On April 2, 2013, the Iowa Department of Human Services (DHS) received information that Ashley

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was " using methamphetamines intravenously while caring for her daughters." That day, a DHS child protection worker met Ashley at her apartment in Sioux City.

The worker found the residence clean and appropriately furnished. Ashley appeared to be very nurturing with the daughter, J.S., who was present. During the interview, Ashley explained she had recently moved to Iowa from Nebraska. J.S. was living with Ashley, but N.S. was staying with Ashley's mother in order to attend school in South Sioux City, Nebraska. Ashley reported that she previously had a job at a retail store, but acknowledged that after she and J.S. became ill, she was fired for missing too much work.

Ashley admitted past methamphetamine use. According to Ashley, she used methamphetamine before N.S. was born. Afterward, she claims she did not use the drug for seven years. In 2012, she relapsed. Ashley admitted that Nebraska authorities had removed her children from her care due to her methamphetamine usage. After she successfully completed the Women and Children's Center program with the children, they were returned to her. She completed the program in September 2012.

Ashley further admitted that she deteriorated again in March 2013. According to Ashley, she used methamphetamine over a weekend while spending time with people she should not have been around. Ashley told the DHS worker that N.S. and J.S., however, were with their grandmother at the time, and Ashley claimed not to have used methamphetamine around N.S. and J.S. Ashley also said that when she did use methamphetamine, she did so by smoking it, not injecting it.

Despite phone calls and attempted visits to Ashley's apartment in the following weeks, DHS workers were unable to meet with Ashley again until May 21. On that date, Ashley came to the DHS office at DHS's insistence and met with DHS staff. Ashley explained that she had been staying with her boyfriend in South Dakota for about a month and that she was without her cell phone or a car. She said that both daughters were staying with her mother and stepfather. Ashley expressed a desire that they remain with her mother and stepfather, who would " take good care of the children." She expressed concern about her children " going through this again," and said she was worried about N.S., who had a lot of anxiety.

During the interview, Ashley acknowledged she had used methamphetamine as recently as a week ago. The child protection worker also observed emotional displays by Ashley. Ashley was angry, laughing, or crying at times throughout the interview. The worker noted she was " not sure what to attribute this to, her usage or an emotional reaction to the situation." Ashley consented to a drug test which came back positive for methamphetamine, amphetamine, cannabinoids, and carboxy-THC.[1] Staff members who administered the drug test suspected Ashley was under the influence at the time of the test because " she appeared extremely scattered."

The next day, the DHS child protection worker met with N.S., J.S., and their maternal grandmother at the grandmother's

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home in South Sioux City. The home was spacious, clean, and appropriately furnished. N.S. and J.S. were neatly groomed and in clean clothes. The grandmother expressed significant concern about Ashley's ongoing drug use. She explained that when she is at her part-time job, she puts the children in day care.

On June 14, the child protection worker spoke with Ashley over the telephone. Ashley explained she had visited the children at their grandmother's home, with their grandmother supervising the visits. Ashley said their grandmother had offered to become N.S. and J.S.'s guardian, but Ashley was willing to do whatever was necessary to get N.S. and J.S. back in her care. Toward that end, Ashley claimed to have changed her phone number and severed some relationships. She also conveyed her willingness to go to inpatient treatment if recommended.

The DHS worker concluded there was " sufficient credible evidence to indicate that Denial of Critical Care, specifically Failure to Provide Proper Supervision[,] has occurred." In support of this finding, the child protection worker noted:

Even if [Ashley] was not caring for [N.S. and J.S.] at the time of her use, risk exists in caring for a child when coming down from methamphetamines.
Parents who are addicted to methamphetamines are not available to their children because under the influence of meth there is an initial high that an individual perceives and very soon after that high comes a downfall or depression, which is very much more severe with methamphetamine than other drugs of abuse. When that happens many meth using adults will fall asleep, and that period can last for hours at a time. In that period of time, they're not capable of providing supervision and care for young children around the household.
Methamphetamine is also a drug that stimulates the sensory nerve system and it also blocks the higher centers that are responsible for the checks and balances of impulses. Perceptions of danger and reasoning ability are hindered from ongoing meth use, so that over a period of time an adult using methamphetamine loses (his/her) capacity to function on a daily basis because of a lack of comprehension of what the risks [are] in the environment, what the children's needs [are] on a day-to-day basis because they don't have the energy level to provide for those needs. And also, because of the poor impulse control and increased risk of losing their temper and anger, the children in an environment where parents use meth are at an increased risk of physical abuse.

As later noted by the court of appeals, this passage is almost a direct quotation from our opinion in State v. Petithory, 702 N.W.2d 854, 857-58 (Iowa 2005). There we were quoting an expert witness's testimony in Petithory's criminal trial. See id.

The DHS report also concluded that it was " certainly not reasonable nor prudent [for Ashley] to use illegal drugs, given the fact that she is the ...

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