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In re L.H.

Court of Appeals of Iowa

October 9, 2019

IN THE INTEREST OF L.H., Minor Child, R.H., Father, Appellant, D.G., Mother, Appellant.

          Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.

         A mother and father separately appeal the juvenile court's removal, adjudicatory, and dispositional orders in a child-in-need-of-assistance proceeding.

          Jean Capdevila, Davenport, for appellant father.

          Jack E. Dusthimer, Davenport, for appellant mother.

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

          Rebecca G. Ruggero, Davenport, guardian ad litem for minor child.

          Considered by Tabor, P.J., and Mullins and May, JJ.

          MULLINS, JUDGE.

         A mother and father separately appeal the juvenile court's removal, adjudicatory, and dispositional orders in a child-in-need-of-assistance (CINA) proceeding.[1] Both parents challenge the sufficiency of the evidence supporting (1) the initial removal and continuance of removal at the time of adjudication and disposition, (2) adjudication of the child as a CINA under Iowa Code section 232.2(6)(b) and (c)(2) (2018), [2] and (3) the juvenile court's dispositional finding that the State made reasonable efforts.

         I. Background Facts and Proceedings

         L.H., born in 2015, is the child of R.H. and D.G. The Iowa Department of Human Services (DHS) has been involved with the family in the past. See, e.g., In re L.H., 904 N.W.2d 145 (Iowa 2017).[3] The family again came to the attention of DHS in September 2018 upon allegations of drug use in the home. The parents refused to allow DHS access to the home or cooperate with services. Shortly thereafter, law enforcement executed a search warrant on the family home upon concerns for drug use and distribution. Officers found marijuana in three drawers accessible to the child. They also observed L.H. roaming the home as the mother slept. Police found "approximately 38 grams of marijuana concentrates, 29 'Vyvanse' pills not in a labeled prescription bottle, . . . a box of sandwich baggies, a digital scale, indicia which shows multiple trips to Colorado to purchase marijuana including receipts from CO dispensaries, and handwritten ledgers showing marijuana distribution." Police also found "approximately 100 items of drug paraphernalia including pipes, bongs, grinders, etc." The parents were arrested. The child tested positive for marijuana in late September. The State sought and obtained an order for temporary removal of L.H. and his half-siblings, which was entered on September 19. Following a hearing, the court formally confirmed removal.[4]

         The State petitioned for CINA adjudication. A hearing on the petition was held in December. By this point, while the parents were participating in visitations twice per week, they were otherwise refusing to participate in services. They generally attribute this to the pending criminal cases against them. In January, the court adjudicated the children CINA pursuant to Iowa Code section 232.2(6)(b), (c)(2), and (o), citing the parents' history of drug use and domestic violence in the children's presence, the drug distribution operation in the family home, and concerns for the parents' ability to properly supervise the child.

         In May 2019, the district court found the best interests of the children required continued CINA adjudication and out-of-home placement. The court recounted prior findings regarding the presence and use of illegal substances in the home and the child's positive drug test. However, the court noted the mother's "very good parenting skills," in finding both parents needed to participate in services. The parents had not fully complied with court-ordered random drug tests. Nor had the parents completed court-ordered psychological evaluations to determine why they continue to place the children at risk in light of the mother's ability to appropriately parent. The court also considered the parents' refusal to submit to drug testing as an indication they would test positive for illegal substances. The court concluded:

Parents who use drugs while responsible for the care of children place those children at risk of harm in addition to exposure. Parents under the influence do not provide good supervision. Their judgment and reaction times are affected. Drug trafficking within a child's home exposes the child to dangerous people and situations, including armed police raids.

         The record also shows the mother has placed her relationship with the father above relationships with her children. When the children were initially removed from the home, the mother refused visitation with her two oldest children. She did so because the father was unable to participate in those visits, as he is not the father of either child. Furthermore, the family's prior involvement with DHS shows both parents have engaged in a similar pattern of behavior regarding participation in services. The child's prior CINA adjudication was based on the father's physical violence toward one of the older siblings in 2016. Id. at 146. In those proceedings, our supreme court noted the father's failure to comply with services offered by DHS. Id. at 147, 153. Throughout those proceedings, the mother's behavior showed a priority for protection of her relationship with the father, going so far as to "qualify and modify her . . . statements about the incident" of abuse leading to adjudication. Id. at 147; see also id. at 152-54 (variously discussing the mother's propensity to protect the father).

         Following adjudication, the parents sent a letter to the court in which they, among other things, noted they "have been thrown into financial hardship by DHS placing [L.H.] over 90 miles" away. The parents did not specifically request a change in services to remedy the alleged situation.

         A dispositional hearing was scheduled for February. The hearing was rescheduled for March upon the father's motion for a continuance. Shortly before the dispositional hearing, the parents submitted to drug testing. However, they would only agree to a urine test, and they refused to take a hair-stat test. The morning of the dispositional hearing, the mother filed an objection generally challenging the accuracy and credibility of the evidence supporting removal and adjudication. At the dispositional hearing, the parents generally argued the State was not meeting its reasonable-efforts mandate. The court responded the parents were not abiding by court orders to participate in services. In May, the court entered its dispositional order in which it ordered continued removal and the parents' participation in specific services aimed at reunification. As noted, both parents appeal.

         II. ...


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