In the Interest of H.H., Minor Child, A.H., Mother, J.H., Father

• Court: Court of Appeals of Iowa
• Decided: September 23, 2015
• Docket: 15-1217
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-1217 Filed September 23, 2015

IN THE INTEREST OF H.H., Minor Child,

A.H., Mother, Appellant,

J.H., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Jasper County, Steven J.

Holwerda, District Associate Judge.

A mother and father appeal separately from the adjudication and

disposition orders in a child-in-need-of-assistance proceeding. AFFIRMED ON

BOTH APPEALS.

Darrin T. Hamilton of Darrin T. Hamilton Law Office, P.C., Newton, for

appellant-mother.

Larry J. Pettigrew of Pettigrew Law Firm, Newton, for appellant-father.

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

General, Michael K. Jacobsen, County Attorney, and Jonathan Noble, Assistant

County Attorney, for appellee.

Jane Odland of Odland Law Firm, P.L.L.C., Newton, attorney and

guardian ad litem for minor child.

Considered by Doyle, P.J., and Bower and McDonald, JJ. 2

MCDONALD, JUDGE.

A mother and father separately appeal from the adjudication and

disposition orders in this child-in-need-of-assistance (CINA) proceeding. The

mother and father both argue the juvenile court erred in adjudicating and

confirming their child, H.H., to be in need of assistance under Iowa Code section

232.2(6)(o) (2015) and seek dismissal of the CINA petition. We affirm the

juvenile court’s orders on both appeals.

I.

H.H. was born in October 2014. Umbilical cord testing administered at the

time of birth was positive for amphetamine and methamphetamine. The Iowa

Department of Human Services (“IDHS”) learned of the child’s positive test and

removed her on an emergency basis from the care of the parents when both

parents refused drug screens. A few days later, on the day of the removal

hearing, both parents offered clean drug screens.

Following the removal hearing, the juvenile court ordered removal of the

child from the mother’s care and custody finding “substantial evidence to support

the allegations . . . .” Regarding the father, the juvenile court found the

allegations against him were not proved and found that “without evidence of the

father’s drug use, the Court does not find imminent danger if he is living with the

[mother’s parents].” Thus, the court returned H.H. to the father’s care and

custody on the condition that he reside with the child in the home of the father’s

in-laws. The court further required both parents complete a substance abuse

evaluation and follow recommended treatment, submit random drug screens as 3

requested by IDHS, and cooperate with IDHS and Family, Safety, Risk, and

Permanency Services (“FSRP”).

The mother continued to live in her parents’ home with the father and H.H.

and had liberal supervised visitation with H.H. as neither the father nor the

mother were employed. The mother completed an IDHS-requested drug screen

prior to the pre-adjudication hearing in October, which was negative. The mother

was not asked to complete more drug screens because she did not demonstrate

any behaviors that would indicate she was using drugs, returned a clean hair stat

test, and completed a substance abuse evaluation that did not recommend any

further treatment. The father was asked to submit a hair stat test but was unable

to complete one because, on one occasion he was not authorized, on another

occasion he had shaved his body hair and his head hair was too short, and on

another occasion he was unable to get to a testing site because he had a job

interview and could not follow up because of unreliable transportation. The

father completed a self-reported substance-abuse evaluation that did not

recommend further treatment.

In January 2015, the juvenile court held an adjudicatory hearing at which

H.H. was adjudicated in need of assistance pursuant to section 232.2(6)(o)

because of the presence of methamphetamine and amphetamine in her umbilical

cord at birth. The juvenile court ordered that H.H. remain in the care and custody

of her father and be returned to the care and custody of her mother, provided that

the parents reside with the maternal grandparents until IDHS approved other

suitable housing for the family. The court noted the mother was being 4

cooperative and that all of her drug screens had been negative. The juvenile

court also ordered the father to cooperate with a hair stat test.

Following the adjudicatory hearing, IDHS did not request any hair stat

tests from the father. The father produced clean urine tests; however, these

tests did not comply with the drug-screen requirement because IDHS did not

request them and they were not random. Instead, IDHS approved sweat patch

testing. On one occasion, the father received a sweat patch for testing but later

claimed it fell off the day he received it but did not report the problem until the

scheduled removal. In May 2015, the father submitted a sweat patch that came

back positive for methamphetamine and amphetamine. The juvenile court

ordered H.H. removed from his custody but remain in the mother’s care and

custody.1

In June 2015, the juvenile court held a dispositional hearing confirming

H.H. to be in need of assistance. The juvenile court ordered the child to remain

in the care and custody of her mother and remain out of her father’s care and

custody. In regards to the mother, the juvenile court found she “remains in

contact with [IDHS], is cooperating with services, and all of her recent drug tests

have been ‘clean’. Her only remaining issue is one of stable housing except for

the continued housing arrangements provided by her parents.” The juvenile

1 It is unclear whether the father continued to live with the mother and H.H. at the mother’s parents’ house following the removal of H.H. from the father’s custody in May. At some point before the dispositional hearing in June, the father moved out and did not have a place to live, but he did so at the request of his in-laws rather than by court order or IDHS direction. 5

court again ordered that the mother and H.H. continue to reside with the mother’s

parents until IDHS approved other suitable housing.

Regarding the father, the juvenile court found it “would be contrary to the

child’s welfare due to the father’s ‘positive’ drug screen for methamphetamine

and amphetamine as well as his overall refusal to submit or avoidance of

requested drug testing.” The juvenile court found the father had provided two

clean results from his own drug screens, but found these screens did not comply

with IDHS’s requirements. The juvenile court also noted the father was currently

wearing a sweat patch but had failed to have it timely removed so that the results

would be available for the hearing. This appeal followed.

II.

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

(Iowa 2014). “In reviewing the proceedings, we are not bound by the juvenile

court’s fact findings; however, we do give them weight.” Id. “Our primary

concern is the children’s best interests.” Id. “CINA determinations must be

based upon clear and convincing evidence.” Id. Evidence is clear and

convincing when there is no serious or substantial doubt as to the correctness of

the conclusions of law drawn from the evidence. In re D.W., 791 N.W.2d 703,

706 (Iowa 2010). The parties raise several substantive and procedural

challenges to the adjudication and disposition orders, and we address each in

turn. 6

III.

A.

Both the mother and the father contend the State did not meet its burden

of establishing H.H. is in need of assistance pursuant to section 232.2(6)(o) by

clear and convincing evidence. Section 232.2(6) provides:

“Child in need of assistance” means an unmarried child: .... (o) In whose body there is an illegal drug present as a direct and foreseeable consequence of the acts or omissions of the child’s parent, guardian, or custodian. The presence of the drug shall be determined in accordance with a medically relevant test as defined in section 232.73.

Iowa Code § 232.2(6)(o).

The mother argues the only positive test for either the mother or the child

has been the test performed on the child’s umbilical cord following her birth.

Both parents contend the State failed to prove H.H. had an illegal drug present in

her body by clear and convincing evidence because the specimen collection form

was completed incorrectly and therefore the test was flawed.2 They argue the

form does not identify the donor, who collected the specimen, the date and time it

was collected, and is not certified by the laboratory. Thus, the improper

paperwork, combined with both of the parents’ clean drug tests following the

child’s birth, “raise serious and substantial doubts” as to their exposing the child

to illegal drugs.

2 Both parents also argue that the State failed to meet its burden of proof because the meconium and urine testing procedures have a high false positive rate. However, neither meconium nor urine testing were conducted in this case for the child and neither party has put forth evidence to suggest false positives or any other discrepancies in umbilical cord testing. 7

Upon our review, we find the form and test results present sufficient

evidence that the child was exposed to methamphetamine and amphetamine in

utero. The form includes the child’s name and date of birth, as well as the name

and signature of the nurse who sealed the specimen container and the date and

time of when the container was sealed. Further, the test results page includes

handwritten notations of the child’s first name and a case number, identifies the

collector as the same nurse who was identified on the other form as the person

who sealed the specimen container, and matches the date and time of the

collection to the date and time the specimen container was sealed. Accordingly,

we find the State proved by clear and convincing evidence that an illegal drug

was present in the child’s body as determined by a medically-relevant test and

thus the juvenile court did not err in adjudicating H.H. a CINA. See Iowa Code

§ 232.2(6)(o).

B.

The mother next challenges the disposition order. In the disposition order,

the juvenile court found the mother’s “only remaining issue is one of stable

housing.” The juvenile court ordered the mother to “continue to reside with the

maternal grandparents unless other suitable housing is approved by [IDHS].”

The mother argues that she continues to reside with the maternal grandparents,

that there are no continuing issues for her to address, and that the juvenile court

should have thus dismissed the CINA petition as to her.

As stated above, the State proved by clear and convincing evidence the

child was in need of assistance pursuant to Iowa Code section 232.2(6)(o). The 8

juvenile court entered an order adjudicating H.H. in need of assistance. See

Iowa Code § 232.96(9) (“If the court concludes that facts sufficient to sustain the

petition have been established by clear and convincing evidence and that its aid

is required, the court may enter an order adjudicating the child to be a child in

need of assistance.”). Following entry of the adjudication order, the juvenile court

was required to hold a dispositional hearing and enter the least restrictive

disposition appropriate under the circumstances. See Iowa Code §§ 232.99(1)

(“Following the entry of an order pursuant to section 232.96, the court shall, as

soon as practicable, hold a dispositional hearing in order to determine what

disposition should be made of the petition.”), 232.99(4) (“When the dispositional

hearing is concluded the court shall make the least restrictive disposition

appropriate considering all the circumstances of the case.”). The IDHS worker

testified he believed the case should remain open with regards to the mother so

that IDHS could further test and observe her with the help of FSRP services to

ensure that substance abuse was not an issue. The juvenile court concluded

that the child was still in need of supervision and that housing remained a

concern. This was not in error. See In re K.N., 625 N.W.2d 731, 734 (Iowa

2001) (“[W]e have consistently observed that a juvenile court may not terminate

CINA adjudication status unless the purposes of the original dispositional order

have been fulfilled and the child is no longer in need of supervision, care or

treatment.”) (internal quotation marks omitted); In re C.A.H., No. 06-2052, 2007

WL 1062971, at *3 (Iowa Ct. App. Apr. 11, 2007) (holding termination of

disposition order and dismissal of CINA petition not warranted where mother 9

continued to be in need of some services). If continued supervision is

unwarranted, the mother may move to terminate the disposition order and

discharge the child. See Iowa Code § 232.103(1).

C.

The father argues the juvenile court erred in denying his request for

counsel at the adjudicatory hearing. He contends he had the right to counsel at

the adjudicatory hearing pursuant to Iowa Code section 232.89. He claims he

asserted the right to counsel at the hearing and his rights were prejudiced when

the juvenile court determined he was eligible to have counsel appointed to

represent him but proceeded in the hearing instead of ordering a continuance.

The father contends he attempted to find private counsel to represent him up

until the morning of the adjudicatory hearing but was unsuccessful. The father

testified he “[did not] feel comfortable proceeding without an attorney” and

requested a continuance. The juvenile court acknowledged that the father had

failed to file a request for appointment of counsel until the afternoon of the

adjudicatory hearing despite consenting to a withdrawal of his private counsel

two weeks before the hearing and found it was in H.H.’s best interests to proceed

with the hearing.

“We review [a juvenile court’s denial of] a motion for continuance under an

abuse of discretion standard and will only reverse if injustice will result to the

party desiring the continuance. Denial of a motion to continue must be

unreasonable under the circumstances before we will reverse.” In re C.W., 554

N.W.2d 279, 281 (Iowa Ct. App. 1996) (citation omitted). The father failed to file 10

a request for court-appointed counsel until approximately one hour before the

start of the hearing. The father was able to cross-examine the witnesses.

Further, the adjudicatory hearing had been scheduled at ninety days from the

date of the pre-adjudication hearing for good cause shown instead of the sixty

days required by statute. See Iowa R. Civ. P. 8.11. The father was represented

by private counsel prior to the adjudicatory hearing and was represented by

court-appointed counsel at the dispositional hearing. Therefore, because we find

it was in the child’s best interests to proceed with the adjudication and the father

did not suffer an injustice, the juvenile court’s did not abuse its discretion in

denying the father’s motion to continue.

D.

The father next argues the juvenile court erred in ordering the father to

participate in drug screens. He contends because he did not give birth to the

child, he could not have contributed to the child’s positive umbilical cord results.

He also points to his non-random negative drug screens, the juvenile court’s

adjudication order in which the court stated that the child’s test results were a

“direct and foreseeable consequence of the acts of the child’s mother,” and his

substance abuse evaluation that recommended no further treatment as evidence

that there were no indications the father used drugs. We conclude the argument

is without merit.

The father ignores three critical facts. First, a father can still contribute to

a child’s in utero exposure to a drug by exposing the pregnant mother to that

drug. Second, the juvenile court found the father’s actions regarding his drug 11

testing evidenced an intent to avoid random drug testing, from which an

inference could be drawn that the father was using drugs and trying to conceal

his usage from IDHS and the juvenile court. Third, the father did in fact test

positive for methamphetamine and amphetamine. We find the juvenile court did

not err in ordering the father to participate in drug screens.

E.

The father also argues the juvenile court erred in removing H.H. from his

custody in May 2015 based upon his testing positive for methamphetamine and

amphetamine because the sweat patch test was invalid. He contends the patch

was either contaminated during the collection process or that it was not his

entirely and the juvenile court erred in not ordering a DNA test of the patch. The

father’s argument is moot because the case has progressed to disposition. See

In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994) (“Any error committed in granting

the temporary ex parte [removal] order cannot now be remedied. We cannot go

back in time and restore custody based on alleged errors in the initial removal

order.”).

F.

Finally, the father argues the juvenile court erred in ordering that he reside

with his in-laws because he was unwelcome there and it “likely hindered the

reunification efforts in this case . . . .” We find that the father resided with his in-

laws prior to the adjudicatory hearing for several years and did not present any

evidence at the time that he was unwelcome in their home. Therefore, we find 12

the juvenile court did not err when it ordered the father to continue residing with

the mother’s parents.

IV.

For the foregoing reasons, we affirm the juvenile court’s adjudication and

dispositional orders in both appeals.

AFFIRMED ON BOTH APPEALS.