In the Interest of D.A., Minor Child

• Court: Court of Appeals of Iowa
• Decided: July 3, 2024
• Docket: 24-0094
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0094 Filed July 3, 2024

IN THE INTEREST OF D.A., Minor Child,

K.G., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Warren County, William A. Price

(adjudication) and Mark F. Schlenker (disposition), Judges.

The mother appeals the child-in-need-of-assistance adjudication and the

removal of her child from her custody. AFFIRMED.

Lori M. Holm, Des Moines, for appellant mother.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

Magdalena Reese of Juvenile Public Defender Office, Des Moines,

attorney and guardian ad litem for minor child.

Considered by Schumacher, P.J., Ahlers, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024). 2

BLANE, Senior Judge.

K.G. appeals the child-in-need-of-assistance (CINA) adjudication and

disposition regarding her child, D.A. K.G. contends that the State failed to prove

the grounds for adjudication and removal of the child from her custody was

required. Because we find the State proved a statutory ground for adjudication by

clear and convincing evidence and it was contrary to the welfare of the child to be

in K.G.’s parental custody, we affirm.

I. Background facts and proceedings.

This family has been the subject of previous child-welfare interventions due

to K.G.’s use of methamphetamine and other drugs. K.G. lost parental rights to

her three older children;1 the most recent termination was in September 2021.

K.G. gave birth to D.A. in March 2022. At birth, D.A. tested positive for

amphetamines. Both K.G. and the father, C.A., also tested positive for

methamphetamine. The State filed a CINA petition. After the parents received

services, the case was closed in January 2023 with a bridge order providing for

D.A.’s joint custody and shared care between his mother and father. K.G. and

C.A.’s relationship disintegrated, but they continued to follow the custody

arrangement. C.A. remained in Lucas County while K.G. relocated to Indianola in

Warren County in August 2022.

In late July 2023, the Iowa Department of Health and Human Services

received two reports and initiated two child abuse assessments for D.A. The first

1 K.G. testified she gave her first child up for adoption voluntarily.Our record shows CINA and termination-of-parental-rights proceedings for only three children other than D.A. 3

was directed at C.A. for bruises and bite marks or scratches sustained while in

C.A.’s care. The department did not confirm that report. The second report was

directed at K.G. for alleged substance use while living with D.A. The tipster stated

K.G. had sores on her face and “appears to have lost 40–50 lbs. within the last

month.” That report was also not confirmed.2 The investigator, a child protective

worker (CPW), agreed that K.G. did not appear to have lost that much weight. And

she explained the sores on her face as due to a medical condition.

On September 8, 2023, the State petitioned alleging D.A. was a CINA under

Iowa Code section 232.96A(3)(b) (2023). The State asserted D.A. “has 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” him. The

petition alleged that during the assessment, K.G. demonstrated little or no

cooperation with the department “given the concerns that were being alleged.” The

petition noted K.G.’s history with the department based on her drug use, that K.G.

had “sores visible on her face” and had “refused to submit to drug testing . . . on

[three] separate occasions.” Because K.G. was “displaying behavior indicators

such as these,” the department urged finding eighteen-month-old D.A. was a

CINA.

At the November adjudication hearing, the CPW testified that upon being

assigned he met with K.G. at her residence, requested she submit to a drug test

on July 28 and provided her the testing information.3 He reported that K.G. was

2 K.G. theorized that C.A. made this anonymous report because he was angry at

her and wanted to deprive her of custody by accusing her of using drugs. 3 After their August 28 meeting, during which K.G. had D.A. in her care, the CPW

spoke with C.A. and advised him to act “protectively” toward D.A. regarding his 4

adamant she did not want to do any hair test, but the CPW explained the testing

site selected the type of test at random. K.G. acknowledges not following the

CPW’s directions regarding that July 29 test, testifying that the test site was not a

clinic or hospital but a hotel. She explained, “I thought maybe I was at the wrong

place because I’ve never heard of a drug test being performed at a hotel.” She

tried to call the CPW, but he did not respond. She then had to report for work, so

she left. She admitted that she never went into the hotel to check if there was a

testing site located there. The next morning, though, she went to MercyOne in

Indianola and obtained a urine drug screen, which was negative. On August 1, the

department worker again requested K.G. submit to a drug test at a location in Des

Moines.4 K.G. testified the test was for “three o’clock in the afternoon, and there

was no way [she’d] find a ride before they closed” so she instead went to

Broadlawns Hospital and obtained another urinalysis that same day, which was

negative.

At the pre-trial conference in late September the parties reached an

agreement that K.G. would submit to a drug patch test and if it came back negative

the State would dismiss the CINA petition. The sweat patch test was applied to

K.G. on September 27, but the PharmChem employee5 testified that when she

suspicions of K.G.’s drug use. So, in defiance of the bridge order, C.A. kept D.A. and refused to return him to K.G. as required by their shared care arrangement. So D.A. was not formally removed from K.G.’s custody until the adjudication order. K.G. testified she tried to file a contempt action against C.A. for violating the custody order, but the record is not clear about the progress of that action. 4 K.G. denies the worker requested this second drug test. 5 PharmChem is the private company that contracts with the department to provide

patch testing. The PharmChem employee testified she does not have scientific training, only on-the-job training applying and removing patches. The employee 5

went to remove it on October 6, the patch appeared to have been tampered with.

The State offered several photographs of the patch: one showed K.G.’s shortly

after the collection patch and plastic overlay were applied. Another showed the

plastic overlay after its removal. The PharmChem employee testified she believed

the patch was tampered with based on the smearing of ink from the printed

PharmChem label and identification code on the patch overlay and the jagged

edge of the overlay. K.G. denied any tampering. But she testified she was

suspicious of the drug patch test and was “suspicious of all drug tests through [the

department].” The PharmChem employee did not notify K.G. she believed the

patch was tampered with; she also testified that the general policy of her employer

is to not disclose that suspicion to the client. When tested the patch was negative.

K.G. testified that from the commencement of the assessment in July to the

hearing she cooperated with the department. She also produced records showing

that on August 1 and 13, while at an emergency room, she was administered a

toxicology (blood/serum) screen which came back negative for drugs. In addition,

on August 28, she obtained a private hair screen test that was also negative. She

testified her sobriety date was her son’s birthday in March 2022. As for the sores

on her face, K.G. testified that she was being treated for an auto-immune condition

that was the source of the lesions. She also submitted a letter dated October 27,

2023, from her oncological hematologist at MercyOne who was treating her for a

blood condition. The letter explained that, starting August 8, K.G. underwent a

course of treatment in preparation for a bone marrow biopsy and was receiving

who testified about the patch removal was not the employee who applied the patch on K.G. 6

weekly blood infusions of iron. This required blood tests before each infusion that

included a drug screen, and all of those screens were negative. K.G. testified that

she had two infusion appointments and thus two drug screens while she was

wearing the patch, and both screens were negative for drugs.

In the adjudication order, the juvenile court made explicit findings that the

CPW and PharmChem employee were credible and K.G. was not credible, and

held that K.G. had tampered with the patch test and, although the patch was

negative for drugs, it was not a valid test result. Following the hearing, the court

concluded:

Mother, despite her long experience with DHS elected to ignore the request to provide specimen and relied on not doing random test and expect it to suffice. The Court considers her [department] history and that she is not a babe in the woods. Mother decided to do it on her own terms. Due to her history and the child being positive at birth, that the overlay was tampered with and that mother had only one visit and elected to use the visitation time to argue with [the department] and threating to leave with the child and either caused or requested the police to come to the visitation, the child is imminently likely to not have a reasonable degree of care if the child remained in the mother’s custody. The child shall be removed from the mother and placed with dad under [department] supervision.

D.A.’s guardian ad litem supported the adjudication. Ultimately the court agreed

with the State that the mother was not “cooperat[ing] with the [department] to

ensure the child is safe.” It ordered D.A. removed from K.G. and placed him in the

legal custody of his father.

The court held a disposition hearing in January 2024. K.G. failed to attend.

The department worker reported that K.G. had not yet completed updated

substance-use or mental-health evaluations, despite the department’s requests

and her assurances that she had one scheduled. K.G.’s counsel requested that 7

the bridge order be reinstated as the least restrictive disposition. But the

disposition order confirmed the CINA adjudication and continued D.A.’s placement

with his father under department supervision. K.G. appeals.

II. Standard of review.

We review CINA proceedings de novo. In re J.S., 846 N.W.2d 36, 40 (Iowa

2014). In engaging in such a review, we give weight to the juvenile court’s findings

of fact but are not bound by them. Id. “The State bears the burden of proving child

in need of assistance allegations by clear and convincing evidence.” In re D.D.,

653 N.W.2d 359, 361 (Iowa 2002). To meet that standard, we must “harbor no

serious or substantial doubts about the accuracy of the legal conclusions drawn

from the evidence.” In re S.O., 967 N.W.2d 198, 201 n.1 (Iowa Ct. App. 2021).

“The most important consideration in any CINA case is the best interests of the

child.” D.D., 653 N.W.2d at 362.

III. Discussion.

On appeal, K.G. contends she presented evidence of at least three negative

drug tests, including one hair stat test, and two emergency room records that

reported weekly blood tests negative for drugs. K.G. points out that the department

did not investigate any of the medical information she submitted showing negative

drug tests that support her claim to be substance free. She argues that this

evidence is more compelling and overrides the court’s finding of clear and

convincing evidence.

The juvenile court adjudicated D.A. as a CINA under Iowa Code

section 232.96A(3)(b) for when “[t]he child has suffered or is imminently likely to

suffer harmful effects as a result of . . . [t]he failure of child’s parent . . . to exercise 8

a reasonable degree of care in supervising the child.” The “harmful effects”

referred to in Iowa Code section 232.96A(3)(b) are defined broadly and established

“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 41–42. The State

alleged the harm was imminently likely due to K.G.’s lack of cooperation with the

department “given the concerns that were being alleged.” The safety concern in

this case is K.G.’s alleged drug use. “[A] juvenile court could reasonably determine

that a parent’s active addiction to methamphetamine is ‘imminently likely’ to result

in harmful effects” to the child. Id. at 42. And it need “not require neglect or

physical or sexual abuse to be on the verge of happening before adjudicating a

child as one in need of assistance.” Id. at 43.

The State did not present any direct evidence that K.G. did not maintain her

sobriety throughout this case. It points to the “missed drug tests” and our

unpublished dispositions for the oft-repeated rule that we can presume a missed

test is positive. See, e.g., In re C.W., No. 14-1501, 2014 WL 5865351, at *2 (Iowa

Ct. App. Nov. 13, 2014) (finding the mother “missed several drug screens, which

are thus presumed ‘dirty,’ i.e., they would have been positive for illegal

substances”).

But K.G. presented other evidence to suggest the missed tests would have

been negative and that she was not using drugs. The CPW testified that for

methamphetamine, urine has a detection window of two to five days, and sweat

patches have a detection window of seven to fourteen days. So both the July 30

and August 1 urinalyses and the patch screen in the record should have detected

drugs even if K.G. was late in submitting them. She also points to her negative 9

emergency room toxicology screen on August 13 and the negative blood screens

through her hematologist. The CPW testified those were not valid tests because

they were not “random” and “observed.”

K.G.’s prior terminations centered around her mental-health and substance-

use issues. But the last termination was in 2021, more than two years before this

adjudication. K.G. testified she had been sober since D.A.’s birth and there is no

positive drug test in the record. Even the report initiating the child abuse

assessment was unsubstantiated—the investigator agreed K.G. did not look like

she had lost “40–50 lbs within the last month” and she offered a medical reason

for the sores on her face. The report noted nothing in her behavior or mannerisms

that pointed toward active drug use. And the report was unconfirmed. K.G. has

had shared custody and care of D.A. since the bridge order was entered in January

2023, and there has never been a demonstrated harm to D.A.’s physical, mental,

or social well-being while in her care. K.G. has also maintained an appropriate

home for D.A. as well as steady employment.

Assuming without deciding that we cannot presume the “missed tests”

would be positive, we note we have also considered a parent tampering with or

falsifying a test as evidence that the parent is using a controlled substance. See,

e.g., In re P.W., No. 2014, 2024 WL 1297049, at *2, 3 (Iowa Ct. App. Mar. 27,

2024). The failure of a parent to cooperate with the department and failure to utilize

offered services may also be considered. In re C.B., 611 N.W.2d 489, 494 (Iowa

2000).

The facts in this appeal present a challenging issue. On the one hand, the

mother submitted a substantial amount of evidence that numerous drug tests over 10

a several-month-period were negative. On the other, the State presented evidence

that the mother refused to follow drug testing directed by the department and

tampered with a drug patch test. So is the State’s evidence sufficient to support a

clear and convincing finding that D.A. is “imminently likely to suffer harmful effects

as a result of [K.G.’s] failure . . . to exercise a reasonable degree of care” if the

child remained in the mother’s custody? Iowa Code § 232.96A(3)(b). It is close,

but we think there is sufficient proof.

This is K.G.’s fourth child to be brought into the child-welfare system and

she is familiar with drug testing procedures and expectations. D.A. was born

testing positive for methamphetamine, and K.G. has a long-standing substance-

use problem, yet she never completed an updated substance-use evaluation

despite assuring the department she had an appointment set up. As for testing,

K.G. tampered with the only drug test where both the department requested it and

she submitted to it. All the other tests in this record were more or less on her own

terms and deserve less weight. While we do not suggest such alternative tests

could never establish a parent’s sobriety, K.G.’s history and lack of cooperation

with the department provide clear and convincing evidence that she is unable to

exercise a reasonable degree of care with D.A. in her custody.

On this record, the court was not required to wait for a drug-related harm to

befall D.A. See J.S., 846 N.W.2d at 43 (citing case law supporting a “liberal

interpretation” of “imminently likely”). The evidence supported the court’s finding

that D.A. was “imminently likely to suffer harmful effects as a result of the failure of

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

and continued removal from the mother’s custody was warranted. Iowa Code 11

§ 232.96A(3)(b); accord id. §§ 232.95(2)(a), 232.102. By sustaining the CINA

proceedings, D.A.’s best interests are served by allowing continued juvenile court

supervision while K.G. demonstrates her sobriety to speedily reunify with her son.

AFFIRMED.