In the Interest of D.S., Minor Child, T.K., Mother

• Court: Court of Appeals of Iowa
• Decided: February 25, 2015
• Docket: 14-2021
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-2021 Filed February 25, 2015

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

T.K., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Daniel L.

Block, Associate Juvenile Judge.

A mother appeals a child-in-need-of-assistance adjudication order.

AFFIRMED.

Nina Forcier of Forcier Law Office, P.L.L.C., Waterloo, for appellant

mother.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Kathleen Hahn, Assistant

County Attorney, for appellee State.

Melissa Anderson Seeber of the Waterloo Juvenile Public Defender,

Waterloo, attorney and guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2

VAITHESWARAN, P.J.

A mother appeals a child-in-need-of-assistance adjudication order. She

contends (1) the district court erred in “finding the contents of an [Iowa

Department of Human Services] child abuse assessment, that was unverified

and unsubstantiated by any professionals, as facts adequate to support a [child

in need of assistance adjudication]” and (2) she was “denied due process of law

under both the sixth and fourteenth amendments to the U.S. Constitution

because she was not allowed to confront witnesses against her and hearsay was

the basis for the finding of a [child in need of assistance] adjudication.” The

second issue was neither raised in the district court nor decided. Accordingly,

the issue was not preserved for our review. See In re K.C., 660 N.W.2d 29, 38

(Iowa 2003) (“Even issues implicating constitutional rights must be presented to

and ruled upon by the district court in order to preserve error for appeal.”). We

begin and end with the first issue.

The Department of Human Services became involved with the family after

police found an unsupervised toddler running around outside a residence. The

department investigated the matter and issued a report of founded child abuse

against the mother for failure to provide proper supervision. The State applied to

have the child temporarily removed from the mother’s care. The district court

granted the application. At a hearing on the application, the mother stipulated to

continued removal of the child.

The State petitioned to have the child adjudicated in need of assistance.

The case proceeded to a contested adjudicatory hearing at which the State

offered the child abuse assessment report as an exhibit. The mother’s attorney 3

did not object to the report and it was admitted. The State called the report’s

author as a witness. She explained how the report was prepared, summarized

its contents, and was cross-examined by the mother’s attorney.

At the end of the hearing, the mother’s attorney challenged the evidence

supporting the State’s petition as follows:

Iowa Code 232.96(4) [(2013)] says that the Department’s report is admissible in evidence, but that shall not alone be sufficient to support a finding that the child is a child in need of assistance. You’ve heard no other evidence other than that child abuse assessment. There are no witnesses that my client had an opportunity to cross-examine to come forth with these allegations. The only thing that the State is producing is this report. And I believe in the code it’s clear that that alone cannot be enough.

The district court implicitly rejected this argument by not only citing the report but

“the credible testimony of” the department employee and the mother’s failure or

refusal to complete offered services.

As the mother concedes, the child abuse assessment report was

admissible. See Iowa Code § 232.96(4) (stating “[a] report made to the

department of human services pursuant to chapter 235A [Child Abuse] shall be

admissible in evidence.”). The mother also correctly observes that the report

alone is not sufficient to support a child-in-need-of-assistance finding. See id.

(“[S]uch a report shall not alone be sufficient to support a finding that the child is

a child in need of assistance unless the attorneys for the child and the parents

consent to such a finding.”). But the mother is incorrect in asserting the report

was the sole basis for the adjudication. As explained, the district court also relied

on the department employee’s testimony in adjudicating the child in need of 4

assistance. While this testimony was based on hearsay evidence, the mother

concedes hearsay is admissible. See id. § 232.96(6).1

We recognize the district court and the department additionally relied on

the mother’s refusal to undergo drug testing at the time of the child abuse

investigation—testing we have held a district court and, by extension, the

department, lacks authority to require at the pre-adjudication stage. See In re

A.C., 852 N.W.2d 515, 518 (Iowa Ct. App. 2014) (“[W]e find no statutory authority

to support the district court’s ex parte pre-adjudication parental drug testing-

order. . .”). But, even without this evidence, the record contained ample other

evidence to support the adjudication, not the least of which was the more-than-

momentary presence of the two-year-old child outside the home near what the

department employee characterized as a busy street. Additionally, the mother

agreed to recommended services at the time of the removal hearing and failed to

follow through.

We conclude the evidence in the record—minus the evidence of drug test

refusals at the child-abuse investigation stage—supported the child’s

adjudication as a child in need of assistance. Accordingly, we affirm the

adjudicatory order.

1 A report . . . made by the department of human services . . . relating to a child in a proceeding under this division is admissible notwithstanding any objection to hearsay statements contained in it provided it is relevant and material and provided its probative value substantially outweighs the danger of unfair prejudice to the child’s parent, guardian, or custodian. The circumstances of the making of the report, study, record or other writing or an audiotape or videotape recording, including the maker’s lack of personal knowledge, may be proved to affect its weight.