IN THE COURT OF APPEALS OF IOWA
No. 16-0673 Filed June 15, 2016
IN THE INTEREST OF A.G., T.G., AND E.G., Minor children,
A.G., T.G., AND E.G., Minor Children, Appellants. ________________________________________________________________
Appeal from the Iowa District Court for Appanoose County, William S.
Owens, Associate Juvenile Judge.
A guardian ad litem appeals the juvenile court’s dismissal of the State’s
child-in-need-of-assistance petitions. AFFIRMED.
Julie R. DeVries of DeVries Law Office, Centerville, for appellants minor
children.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Jonathan Willier, Centerville, for appellee mother.
James R. Underwood of Underwood Law Office, Centerville, for appellee
father.
Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ. 2
TABOR, Judge.
The guardian ad litem for three children—ages seven, five, and four—
appeals the juvenile court’s dismissal of the State’s petitions seeking to have
them adjudicated in need of assistance under Iowa Code section 232.2(6)(c)(2)
and .2(6)(n) (2015). The State’s concern was drug paraphernalia found in the
mother’s home during execution of a search warrant. The juvenile court decided
the State did not meet its burden to show by clear and convincing evidence that
the children had suffered or were imminently likely to suffer harmful effects as a
result of their mother’s failure to exercise a reasonable degree of care in
supervising them. Because our review of the record likewise reveals insufficient
evidence to justify adjudication, we affirm.
I. Facts and Prior Proceedings
B.E. and R.G. have five children together, ranging in age from twelve to
four years old. The children were living with their mother, B.E., in January 2016
when Centerville police officers executed a search warrant at their home. The
police were investigating the mother for identity theft, but during the search
officers seized seven items of drug paraphernalia containing residue, described
as follows:
1. Light bulb converted to pipe (test for meth) found under [B.E.’s] bed 2. Glass pipe (test for meth) found under [B.E.’s] bed 3. Glass pipe (test for meth) found in box in the hallway 4. Glass pipe (test for meth) found in kitchen cabinet above sink 5. Spoon (test for meth) found on basement stairs 6. Pepsi can converted to pipe with marijuana residue found on floor of basement 7. Glass bong with marijuana residue found on floor of basement 3
The presence of the drug paraphernalia prompted the police to contact the
Iowa Department of Human Services (DHS) for emergency removal of the
children. DHS child protection worker Melissa Weeks responded to the police
call and spoke with B.E., who denied the paraphernalia belonged to her and said
she wasn’t aware the items were in the home. B.E. suggested the items may
have been left behind by her former live-in boyfriend. The mother did not appear
to be under the influence of drugs or alcohol when she spoke to the police and
the DHS workers. Other than the residue on the paraphernalia, the police did not
find any illegal drugs in the home. Weeks interviewed the older children, and
they did not report witnessing any substance abuse or drug use in their mother’s
home. The DHS did not test the children for exposure to illegal drugs. The DHS
placed the children with their father based on a safety plan entered into with the
mother.
DHS case worker Marybeth McCulley-Hoffman also arrived at B.E.’s home
during execution of the search warrant. B.E. had been participating in voluntary
services with the help of DHS and McCulley-Hoffman for about six months during
late 2015. The services followed a report that the mother’s boyfriend had
pinched and twisted seven-year-old A.G.’s ear, causing a bruise. In a family
case plan dated October 20, 2015, McCulley-Hoffman opined the children were
well-bonded to their mother and father; the parents had age-appropriate
expectations for the children; the children were well-behaved, followed directions,
and appeared to have their needs met. McCulley-Hoffman had visited B.E.’s
home on several occasions and reported it was “clean and appropriate with no
observable safety concerns.” 4
On January 22, 2016, the State filed petitions alleging all five children—
M.G., I.G., A.G., T.G., and E.G.—were children in need of assistance (CINA)
under section 232.2(6)(c)(2) and (n). The juvenile court held an adjudicatory
hearing on March 31, 2016. In an order dated April 4, 2016, the court dismissed
the petitions, finding insufficient evidence to support the State’s allegations. See
Iowa Code § 232.96(8).
The guardian ad litem (GAL) filed a petition on appeal challenging the
court’s dismissal as to the three youngest children: A.G., T.G. and E.G. The
State filed a statement in support of the GAL’s position. The mother filed a brief
seeking to uphold the juvenile court’s order.
II. Standard of Review
We review CINA proceedings de novo, which means after assessing both
the facts and the law, we resolve the parties’ rights anew. In re J.C., 857 N.W.2d
495, 500 (Iowa 2014). At the same time, we are “influenced by the favorable
vantage point” of the juvenile court and give weight to its factual findings. In re
L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). As in all juvenile proceedings,
our fundamental concern is the best interests of the children. In re K.N., 625
N.W.2d 731, 733 (Iowa 2001).
CINA determinations must be supported by clear and convincing
evidence. Iowa Code § 232.96(2); In re J.S., 846 N.W.2d 36, 41 (Iowa 2014).
“Clear and convincing evidence” means we harbor no serious or substantial
doubts that the conclusions of law drawn from the evidence are correct. In re
C.B., 611 N.W.2d 489, 492 (Iowa 2000). 5
III. Analysis
On appeal, the GAL contends the presence of drug paraphernalia in the
mother’s home, left in places accessible to the children, provided sufficient
grounds for adjudicating A.G., T.G., and E.G. as CINA under section
232.2(6)(c).1 That provision defines a CINA as “an unmarried child . . . who has
suffered or is imminently likely to suffer harmful effects as a result of . . . [t]he
failure of the child’s parent . . . to exercise a reasonable degree of care in
supervising the child.” Neither the State nor the GAL alleged the children
actually suffered harmful effects from their mother’s failure to remove the drug
paraphernalia from their home. Accordingly, the question is whether the State
proved by clear and convincing evidence that the children were imminently likely
to suffer harmful effects as a result of her failure to exercise a reasonable degree
of care.
As the juvenile court recognized, neither “imminently likely” nor “harmful
effects” are defined in Iowa Code chapter 232.
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IN THE COURT OF APPEALS OF IOWA
No. 16-0673 Filed June 15, 2016
IN THE INTEREST OF A.G., T.G., AND E.G., Minor children,
A.G., T.G., AND E.G., Minor Children, Appellants. ________________________________________________________________
Appeal from the Iowa District Court for Appanoose County, William S.
Owens, Associate Juvenile Judge.
A guardian ad litem appeals the juvenile court’s dismissal of the State’s
child-in-need-of-assistance petitions. AFFIRMED.
Julie R. DeVries of DeVries Law Office, Centerville, for appellants minor
children.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Jonathan Willier, Centerville, for appellee mother.
James R. Underwood of Underwood Law Office, Centerville, for appellee
father.
Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ. 2
TABOR, Judge.
The guardian ad litem for three children—ages seven, five, and four—
appeals the juvenile court’s dismissal of the State’s petitions seeking to have
them adjudicated in need of assistance under Iowa Code section 232.2(6)(c)(2)
and .2(6)(n) (2015). The State’s concern was drug paraphernalia found in the
mother’s home during execution of a search warrant. The juvenile court decided
the State did not meet its burden to show by clear and convincing evidence that
the children had suffered or were imminently likely to suffer harmful effects as a
result of their mother’s failure to exercise a reasonable degree of care in
supervising them. Because our review of the record likewise reveals insufficient
evidence to justify adjudication, we affirm.
I. Facts and Prior Proceedings
B.E. and R.G. have five children together, ranging in age from twelve to
four years old. The children were living with their mother, B.E., in January 2016
when Centerville police officers executed a search warrant at their home. The
police were investigating the mother for identity theft, but during the search
officers seized seven items of drug paraphernalia containing residue, described
as follows:
1. Light bulb converted to pipe (test for meth) found under [B.E.’s] bed 2. Glass pipe (test for meth) found under [B.E.’s] bed 3. Glass pipe (test for meth) found in box in the hallway 4. Glass pipe (test for meth) found in kitchen cabinet above sink 5. Spoon (test for meth) found on basement stairs 6. Pepsi can converted to pipe with marijuana residue found on floor of basement 7. Glass bong with marijuana residue found on floor of basement 3
The presence of the drug paraphernalia prompted the police to contact the
Iowa Department of Human Services (DHS) for emergency removal of the
children. DHS child protection worker Melissa Weeks responded to the police
call and spoke with B.E., who denied the paraphernalia belonged to her and said
she wasn’t aware the items were in the home. B.E. suggested the items may
have been left behind by her former live-in boyfriend. The mother did not appear
to be under the influence of drugs or alcohol when she spoke to the police and
the DHS workers. Other than the residue on the paraphernalia, the police did not
find any illegal drugs in the home. Weeks interviewed the older children, and
they did not report witnessing any substance abuse or drug use in their mother’s
home. The DHS did not test the children for exposure to illegal drugs. The DHS
placed the children with their father based on a safety plan entered into with the
mother.
DHS case worker Marybeth McCulley-Hoffman also arrived at B.E.’s home
during execution of the search warrant. B.E. had been participating in voluntary
services with the help of DHS and McCulley-Hoffman for about six months during
late 2015. The services followed a report that the mother’s boyfriend had
pinched and twisted seven-year-old A.G.’s ear, causing a bruise. In a family
case plan dated October 20, 2015, McCulley-Hoffman opined the children were
well-bonded to their mother and father; the parents had age-appropriate
expectations for the children; the children were well-behaved, followed directions,
and appeared to have their needs met. McCulley-Hoffman had visited B.E.’s
home on several occasions and reported it was “clean and appropriate with no
observable safety concerns.” 4
On January 22, 2016, the State filed petitions alleging all five children—
M.G., I.G., A.G., T.G., and E.G.—were children in need of assistance (CINA)
under section 232.2(6)(c)(2) and (n). The juvenile court held an adjudicatory
hearing on March 31, 2016. In an order dated April 4, 2016, the court dismissed
the petitions, finding insufficient evidence to support the State’s allegations. See
Iowa Code § 232.96(8).
The guardian ad litem (GAL) filed a petition on appeal challenging the
court’s dismissal as to the three youngest children: A.G., T.G. and E.G. The
State filed a statement in support of the GAL’s position. The mother filed a brief
seeking to uphold the juvenile court’s order.
II. Standard of Review
We review CINA proceedings de novo, which means after assessing both
the facts and the law, we resolve the parties’ rights anew. In re J.C., 857 N.W.2d
495, 500 (Iowa 2014). At the same time, we are “influenced by the favorable
vantage point” of the juvenile court and give weight to its factual findings. In re
L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). As in all juvenile proceedings,
our fundamental concern is the best interests of the children. In re K.N., 625
N.W.2d 731, 733 (Iowa 2001).
CINA determinations must be supported by clear and convincing
evidence. Iowa Code § 232.96(2); In re J.S., 846 N.W.2d 36, 41 (Iowa 2014).
“Clear and convincing evidence” means we harbor no serious or substantial
doubts that the conclusions of law drawn from the evidence are correct. In re
C.B., 611 N.W.2d 489, 492 (Iowa 2000). 5
III. Analysis
On appeal, the GAL contends the presence of drug paraphernalia in the
mother’s home, left in places accessible to the children, provided sufficient
grounds for adjudicating A.G., T.G., and E.G. as CINA under section
232.2(6)(c).1 That provision defines a CINA as “an unmarried child . . . who has
suffered or is imminently likely to suffer harmful effects as a result of . . . [t]he
failure of the child’s parent . . . to exercise a reasonable degree of care in
supervising the child.” Neither the State nor the GAL alleged the children
actually suffered harmful effects from their mother’s failure to remove the drug
paraphernalia from their home. Accordingly, the question is whether the State
proved by clear and convincing evidence that the children were imminently likely
to suffer harmful effects as a result of her failure to exercise a reasonable degree
of care.
As the juvenile court recognized, neither “imminently likely” nor “harmful
effects” are defined in Iowa Code chapter 232. Our supreme court tackled the
task of defining these terms in In re J.S., 846 N.W.2d at 41-43. “Harmful effects”
has been broadly defined as pertaining to “the physical, mental or social welfare
of a child.” Id. at 41. “Imminently likely” has been defined as “ready to take
place,” “near at hand,” “hanging threateningly over one’s head,” “menacingly
near,” “impending or about to occur,” and “on the point of happening.” Id. at 43.
Using these definitions as a framework, the juvenile court reached the
following conclusion:
1 The GAL does not pursue the argument that the children could have been adjudicated under section 232.2(6)(n). Accordingly, we do not analyze that alternative ground. 6
While there is some evidence the children may have had access to some, or all, of the items of drug paraphernalia, there was no evidence presented how contact with those items of drug paraphernalia may have caused harm to the physical, mental or social welfare of the children. In addition, even if evidence had been presented to establish how the drug paraphernalia may have resulted in harm to the children, there is not clear and convincing evidence that any prospective harm was imminently likely to occur.
After our de novo review of the record, we reach the same conclusion as
the juvenile court. The GAL relies on Jones v. Commonwealth, 636 S.E.2d 403,
407 (Va. 2006), for the proposition that “inherent dangers” exist when children
have access to illegal drugs and drug paraphernalia. In Jones, the Virginia court
upheld a conviction for felony child neglect when the mother left heroin capsules
within reach of her eight-year-old son. See id. at 408. But we see an important
distinction between exposing children to controlled substances and possessing
paraphernalia alone. See generally State v. Baker, 912 S.W.2d 541, 545 (Mo.
Ct. App. 1995) (holding mere presence of burnt residue inside pipe did not
support finding of possession of drug itself). No witness testified at the CINA
hearing that access to drug residue on the paraphernalia posed the same danger
to children as access to a measureable amount of an illegal drug. The police
officer who conducted the search testified he could not tell how old the residue
was or when the paraphernalia had last been used to consume drugs.
The GAL also cites J.S., 846 N.W.2d at 37, for the proposition that our
supreme court would have “no difficulty” in justifying state intervention into a
family under section 232.2(6)(c)(2) when a parent has a methamphetamine
addiction. But in the instant case, the State offered no evidence B.E. had been
using illegal drugs, much less suffered from an addiction. Case worker 7
McCulley-Hoffman testified B.E. had tested negative for drugs during the
voluntary provision of services in late 2015. The children did not report any
concerns about drug use by their mother to child protection worker Weeks, and
Weeks opted not to have them tested for exposure to drugs as part of the
protective assessment.
Finally, the GAL argues the children should have been adjudicated CINA
because B.E.’s home was in disarray, the children’s beds were piled with clothing
and other items, and B.E. was sleeping in the basement, “thus leaving
unsupervised young children” to open the door to law enforcement arriving to
execute the search warrant. The officer testified the oldest child, twelve-year-old
M.G., answered the door. We see no merit to the GAL’s claim that a twelve-
year-old must be supervised when answering the door. Likewise, we are not
impressed that the condition of the house constituted clear and convincing
evidence the children were likely to suffer harm from the mother’s failure to
exercise a reasonable degree of care when supervising them. Contra In re M.H.,
444 N.W.2d 110, 111 (Iowa 1989) (upholding CINA adjudication because family
history was marked by instability and variety of factors pointed to need for state
intervention, including denial of medical attention and unclean home).
On this record, we agree with the juvenile court’s determination that the
State did not establish its grounds for CINA adjudication by clear and convincing
evidence.
AFFIRMED.