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In re A.W.

Court of Appeals of Iowa

May 2, 2018

IN THE INTEREST OF A.W. and T.W., Minor Children, K.W., Mother, Appellant.

          Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.

         A mother appeals a juvenile court removal order.

          Jeannine L. Roberts, Cedar Rapids, for appellant mother.

          Angela M. Railsback of Railsback Law Office, Cedar Rapids, for appellee father.

          Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee State.

          Julie G. Trachta of Linn County Advocate, Inc., Cedar Rapids, guardian ad litem for minor children.

          Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          POTTERFIELD, JUDGE.

         The mother appeals a juvenile court order removing A.W., born December 2005, and T.W., born November 2010, from her custody. The mother claims the children should have remained in her custody under Iowa Department of Human Services (DHS) supervision and she should have been relieved from sweat-patch testing due to skin irritation.

         A.W. and T.W. were brought to the attention of DHS in July 2016 due to concerns of drug abuse and domestic violence between the father and mother. Both parents admit to regular cocaine use prior to March 2016. The children were adjudicated children in need of assistance (CINA) in September 2016. The father and mother are separated, and the mother lives with her parents. Prior to the children's removal, the parents shared care of the children.

         In December, the children were removed after the mother submitted a sweat patch that tested positive for cocaine. The mother denied drug use and claimed the patch had fallen off and was contaminated. The children were returned to her care on May 1, 2017. On May 11, the children were again removed from their mother's care due to a positive sweat-patch test. The children's removal was reviewed in an October hearing, and the court ordered custody of the children remain with their father. The mother appeals.

         The mother argues the court erred in finding the children could not remain in the mother's home. See Iowa Code § 232.102 ("Custody of the child should not be transferred unless the court finds there is clear and convincing evidence that . . . [t]he child cannot be protected from some harm which would justify the adjudication of the child as a [CINA]." She argues there is not clear and convincing evidence of her continued drug use. The mother argues the court should not have relied upon her positive sweat-patch tests as sufficient proof of cocaine use but instead should have relied on her negative urine analyses (UAs) and hair test.

         Our review of an order arising out of a CINA proceeding is de novo. In re K.B., 753 N.W.2d 14, 15 (Iowa 2008). In reviewing the proceedings, we are not bound by the juvenile court's fact findings; however, we do give them weight. In re J.S., 846 N.W.2d 36, 40 (Iowa 2014). "Our primary concern is the children's best interests." Id. "Evidence is clear and convincing when there is no serious or substantial doubt as to the correctness [of] conclusions of law drawn from the evidence." In re D.W., 791 N.W.2d 703, 706 (Iowa 2010) (citations omitted).

         The mother contests the reliability of sweat-patch testing. Since November 2016, the mother has tested positive for cocaine use on six sweat-patch tests. She refused sweat-patch testing after August 2017. A sweat-patch test involves an absorbent pad placed on clean skin and sealed to the skin with an adhesive. The patch then remains on the body for a period of days. The mother contests her positive sweat-patch results because she ...


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