In the Interest of C.M. and F.M., Minor Children

• Court: Court of Appeals of Iowa
• Decided: December 7, 2022
• Docket: 22-1212
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1212 Filed December 7, 2022

IN THE INTEREST OF C.M. and F.M., Minor Children,

T.M., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Monroe County, William Owens,

Associate Juvenile Judge.

A mother appeals following the entry of a dispositional order in a child-in-

need-of-assistance proceeding. AFFIRMED.

Julie De Vries of De Vries Law Office, PLC, Centerville, (until withdrawal)

and T.M., Albia, self-represented appellant mother.

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

General, for appellee State.

Kevin S. Maughan, Albia, attorney and guardian ad litem for minor children.

Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ. 2

SCHUMACHER, Judge.

A mother appeals the removal of her children from her custody, the

children’s adjudication as children in need of assistance (CINA), and the juvenile

court’s dispositional order continuing their placement out of their mother’s custody.

The mother contends the children could safely be returned to her custody or, in the

alternative, her adult daughter could live with her and the children. She also claims

the Iowa Department of Health and Human Services (DHHS) has not provided

reasonable efforts to reunite the family. We affirm.

I. Background Facts & Proceedings

DHHS became involved with this family on January 5, 2022, following

reports of the mother’s drug use and failure to supervise the two children—C.M.,

age fourteen, and F.M., age ten. A child-protection worker (CPW) with DHHS

attempted to speak to the mother at her home on January 10 but could not make

contact. As a result, the report was modified from a family assessment to a child

abuse investigation.

The mother eventually met with DHHS at the DHHS’s offices on January

12. She denied all allegations. Later that day, the CPW attempted to inspect the

mother’s home but was denied entry. The mother relented three hours later. The

CPW noted behavioral indicators of drug use by the mother. No drugs were found

in the home. The mother failed to participate in family preservation services the

next day. She provided a hair sample positive for methamphetamine and

amphetamines. The CPW testified that the mother’s methamphetamine levels

were consistent with drug use multiple times a day. 3

The children were removed on January 18 and placed in separate foster

placements. The State filed a CINA petition on January 24. The removal was

confirmed by the juvenile court on January 31. The children were adjudicated

CINA on May 1, 2022, pursuant to Iowa Code section 232.2(6)(c)(2) (2022). A

dispositional hearing was held June 13. Following the dispositional hearing, the

court continued the children’s out-of-home placements. The mother appeals the

removal order, the adjudicatory order, and the dispositional order.

II. Standard of Review

“We review CINA proceedings de novo. In reviewing the proceedings, we

are not bound by the juvenile court’s fact findings; however, we do give them

weight. Our primary concern is the children’s best interests. CINA determinations

must be based upon clear and convincing evidence.” In re J.S., 846 N.W.2d 36,

40-41 (Iowa 2014) (internal citations omitted).

III. Removal Order

The mother claims removal was improper because the State did not

establish removal was necessary for the children’s welfare. See Iowa Code

§ 232.95(5)(a). She also contends the State did not make reasonable efforts to

eliminate the need for removal. See id. But after the ex parte removal of the

children and subsequent removal order, the juvenile court entered a dispositional

order on July 5 placing custody of the children with DHHS. Once a court enters a

dispositional order, “[w]e cannot go back in time and restore custody based on

alleged errors in the initial removal order.” In re A.M.H., 516 N.W.2d 867, 871

(Iowa 1994). As such, the claims concerning the initial removal are moot. See id. 4

IV. CINA Adjudication

The mother contends there was not clear and convincing evidence to

support adjudicating the children as CINA. The juvenile court found the children

were CINA pursuant to Iowa Code section 232.2(6)(c)(2).1 A juvenile court may

find a child to be in need of assistance when “[t]he child has suffered or is

imminently likely to suffer harmful effects as a result of . . . the failure of the child’s

parent . . . to exercise a reasonable degree of care in supervising the child.” Iowa

Code § 232.2(6)(c)(2). That finding is appropriate “when there was harm to a

child’s physical, mental, or social well-being or such harm was imminently likely to

occur.” J.S., 846 N.W.2d at 42.

We determine on this record that clear and convincing evidence supports

the court’s determination. The mother tested positive for methamphetamine in

January at levels that the CPW testified indicated drug use multiple times a day.

One of the children informed a provider that the child witnessed the mother use

methamphetamine. One of the children also reported to DHHS that the child had

found needles and a clear substance in a bedroom within the family home. Using

methamphetamine undermines the parent’s ability to supervise the children. See

State v. Petithory, 702 N.W.2d 854, 858 (Iowa 2005) (describing how those using

methamphetamine are unavailable to supervise children during both the initial high

after consuming the drugs and once they crash and sleep for hours). Additionally,

our supreme court has noted that “methamphetamine addiction by itself can result

in ‘harmful effects’ to the child.’” J.S., 846 N.W.2d at 37. We also note that at the

1 That section has since been moved by legislative amendment to Iowa Code section 232.96A(3)(b). See 2022 Iowa Acts ch. 1098, § 33 (effective July 1, 2022). 5

time of the CINA hearing, the mother had not attempted the recommended

substance-abuse treatment.

F.M. also informed the CPW that the mother sometimes leaves the children

alone overnight. While one of the children was about fourteen at the time, DHHS

doubted her ability to spend extended time alone safely because of problems the

child has encountered with juvenile delinquency services and at school.2 While

the mother disputes the allegation of leaving the children home alone, the juvenile

court was better placed to gauge witness credibility. The drug use and lack of

supervision and supports the juvenile court’s finding that the children were at an

imminent risk of harm. The children were properly adjudicated to be children in

need of assistance.

V. Dispositional Order

The mother raises several claims related to the dispositional order. First,

she claims the State did not undertake reasonable efforts to reunite the family.

She also claims that the court did not order the least restrictive placement

available. And she argues the court should have dismissed the CINA petition and

immediately reunified the family because dismissal is in the best interests of the

children.

A. Reasonable Efforts

As an initial matter, the mother failed to preserve her claims related to

reasonable efforts. The mother specifically points to the option of having one of

her adult children reside with her and C.M. and F.M. She also generally points to

2 DHHS indicated C.M. was expelled for bringing a gun to school. 6

an alleged lack of services. However, “if a parent fails to request other services at

the proper time, the parent waives the issue and may not later challenge it at the

termination proceeding.” In re L.M., 904 N.W.2d 835, 840 (Iowa 2017). Here, the

mother filed a motion for reasonable efforts, but that motion only requested

changes to visitation that the court subsequently granted. The mother never

objected to any other efforts, or the lack thereof, provided by DHHS. As such, her

claim is not preserved.

Even if we were to consider the mother’s claims about reasonable efforts,

those claims lack merit. First, the mother contends her adult daughter could have

lived with her, thereby offering another adult to supervise the children. However,

that option would not rectify the mother’s substance abuse nor eliminate the real

and present danger to the children resulting from living in the same home with drug

use by their caretaker. And at the time of the disposition hearing, the mother was

“essentially homeless,” staying at a friend’s home. It is unclear where the adult

daughter would stay under the mother’s plan.3 Therefore, contrary to the mother’s

assertions, it would not have been a reasonable alternative to removing the

children from the mother’s custody.

Moreover, DHHS provided ample services, including solutions-based

casework to address issues with the mother’s lack of employment, housing, and

transportation; offering a parent-partner for the mother, which the mother cursed

at and rejected as a service; and providing drug testing, family preservation

3 The mother requested at the dispositional hearing that an Interstate Compact on the Placement of Children home study be conducted on another adult daughter living in Colorado. The case manager for DHHS testified he was in support of the court ordering this home study. 7

services, and assistance in facilitating drug and mental-health treatment. Other

than financial assistance with gas and obtaining a birth certificate—which the court

ordered DHHS to assist with—when asked at the dispositional hearing what

services she wanted increased, the mother did not identify any specific programs.

We conclude DHHS provided reasonable efforts.

B. Reunification

The mother contends the CINA petition should have been dismissed and

the children returned to her custody. As part of this claim, she contends the

children do not face a risk of harm under her custody, that their return to her

custody is in the children’s best interests, and that less restrictive options were

available.

A juvenile court can terminate a CINA proceeding in a dispositional order

and return the child to their parent’s custody under certain circumstances. Iowa

Code § 232.103(4). However, these children cannot be safely returned to their

mother’s custody at present. As noted above, the mother’s drug test indicated

daily use of methamphetamine. She received a substance-abuse evaluation that

recommended outpatient treatment. While the mother testified that she was

scheduled to begin the treatment soon, she had not yet started the treatment. And

she had not completed a mental-health evaluation or any mental-health treatment.

The mother lacks stable housing and employment. She testified that she “would

have to wing it” to support the children financially. The children would face

significant harm if they were returned to the mother at the time of disposition. While

we recognize the hardship removal can cause children, returning to their mother’s

custody is not currently in their best interests. 8

Finally, as explained above, the mother’s plan of living with her adult

daughter does not rectify the danger to the children. Other than that plan, the

mother could not explain what viable alternatives would be less restrictive than the

children’s current placements. We affirm.

AFFIRMED.