In the Interest of L.B., Minor Child

• Court: Court of Appeals of Iowa
• Decided: November 27, 2019
• Docket: 19-1671
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1671 Filed November 27, 2019

IN THE INTEREST OF L.B., Minor Child,

K.B., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Eric J.

Nelson, District Associate Judge.

A father appeals the adjudication of his daughter as a child in need of

assistance. AFFIRMED IN PART AND REVERSED IN PART.

Amanda Heims, Council Bluffs, for appellant father.

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

General, for appellee State.

Roberta J. Megel, Council Bluffs, guardian ad litem for minor child.

Considered by Mullins, P.J., May, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2

BLANE, Senior Judge.

A father, Kevin, appeals the adjudication of his daughter, L.B., as a child in

need of assistance (CINA). He contends the State did not prove the adjudicatory

grounds by clear and convincing evidence. Finding the adjudication is supported

under paragraph (c)(2) of Iowa Code section 232.2(6) (2019), we affirm as to that

ground.

I. Facts and prior proceedings.

Kevin and his wife, Kathryn, live with their three-year-old daughter, L.B., and

Kathryn’s eleven-year-old son, J.H. In spring 2019, the family came to the

attention of the Iowa Department of Human Services (DHS) following an incident

of domestic violence. A child protective worker (CPW) spoke with J.H. about the

incident. J.H. explained L.B. and her father Kevin had gone out to get food.

Kathryn told J.H. not to unlock the door for Kevin when he returned. When Kevin

was denied entry he “slammed” into the door and broke it down. Kathryn then tried

to call 9-1-1, but Kevin grabbed her phone and threw it on the ground, breaking it.

Kevin and Kathryn began to argue and went to the porch. L.B. and J.H. looked on

through a window, but J.H. eventually went outside onto the front porch. They

watched Kevin and Kathryn argue on the porch until Kathryn punched Kevin in the

arm. Kevin then grabbed Kathryn by the throat, dragged her to the edge of the

porch, and tried to “push her over a railing” or “tried to push her off the deck.” J.H.

stated his sister was crying and screaming at Kevin to stop. A neighbor called

9-1-1, and police officers responded. Kevin told the officers Kathryn threw her

phone at him and he did not touch her. Officers did not detect any physical marks

on either Kevin or Kathryn, but they arrested Kevin. 3

J.H. also told the CPW Kevin and Kathryn normally just go to their room and

talk when they disagree. But Kevin also calls Kathryn vulgar names in front of the

children. Kevin typically drinks one alcoholic drink at a time and acts normally

when he does. But Kathryn drinks more heavily. J.H.’s father reported Kathryn

sometimes drives intoxicated with the children. Kevin reported a personal history

of alcohol and opiate addiction but denied any current misuse. He also admitted

to punching holes in the walls of their home in anger.

The DHS founded a child-abuse report against Kevin for failure to provide

proper supervision. Kevin faced criminal charges for the domestic abuse, and the

district court imposed a no-contact order between him and Kathryn and the

children. But Kathryn asked the court to drop the no-contact order, and eventually

the State dismissed the criminal charges. Kevin reports to DHS that his behaviors

have not impacted the children at all and refuses to participate in the offered

domestic-abuse program. Kathryn reported she was not a victim of domestic

violence and also has not enrolled in a domestic-violence victim’s class.

The juvenile court adjudicated both children as CINA under Iowa Code

section 232.2(6)(c)(2) and (n). Only Kevin appeals.

II. Standard of review.

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

2014). We are not bound by the juvenile court’s findings of fact, but we give them

weight. Id. The State must prove the grounds supporting the CINA adjudication

with clear and convincing evidence. Iowa Code § 232.96(2). 4

III. Discussion.

Kevin contends the juvenile court erred in adjudicating L.B. as a CINA

pursuant to Iowa Code section 232.2(6)(c)(2) and (n). Adjudication under

paragraph (c)(2) requires a showing the child “has suffered or is imminently likely

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

guardian, custodian, or other member of the household in which the child resides

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

§ 232.2(6)(c)(2). Harmful effects can encompass “physical, mental, or social well-

being.” J.S., 846 N.W.2d at 42. And adjudication under paragraph (n) requires

showing the “parent’s . . . mental capacity or condition, imprisonment, or drug or

alcohol abuse results in the child not receiving adequate care.” Iowa Code

§ 232.2(6)(n).

The evidence shows the children have seen Kevin act violently toward their

mother without considering the degree of care necessary to supervise them though

they were present at the time, including three-year-old L.B. She watched as Kevin

angrily broke down the door of their home. When Kathryn tried to call 9-1-1, Kevin

grabbed the phone from her hand and threw it on the ground. L.B. watched Kevin

grab Kathryn by the throat and bend her over the edge of their deck. L.B. cried

and screamed for Kevin to stop. The parents placed L.B. and J.H. in the way of

mental or psychological harm by modelling violent behavior. And J.H. was at risk

of physical harm because he went out on the porch while they were fighting.

The statutory grounds for adjudication are designed to be preventative: we

“do not require delay until after harm has occurred.” J.S., 846 N.W.2d at 42

(quoting In re L.L., 459 N.W.2d 489, 494 (Iowa 1990)). The parents have not 5

engaged in any domestic violence education, yet Kathryn intends to resume her

relationship with Kevin. Kevin denies his actions have harmed the children, and

Kathryn denies she is a victim of domestic violence. Under these circumstances,

the evidence is clear and convincing that L.B. is imminently likely to suffer

additional harm through the parents’ inattention and unwillingness to address the

issues. The juvenile court found “without services provided to cure the domestic

violence issue, the children are imminently likely to be involved in and witness

similar domestic abuse incidents.” We agree and affirm adjudication under

paragraph (c)(2).

Although we affirm under paragraph (c)(2), we note most of the evidence

supporting adjudication under paragraph (n) pertained to Kathryn. The State

presented no evidence that Kevin was intoxicated during the domestic-violence

incident or that he has a history of substance abuse that impacted the children.

We do not comment on whether a single incident of drug- or alcohol-fueled abuse

is enough to show “the child [is] not receiving adequate care.” See Iowa Code

§ 232.2(6)(n). But we conclude the evidence is not clear and convincing that this

particular incident was fueled by Kevin’s use of drugs or alcohol. Therefore, the

State has not proved L.B. is a CINA pursuant to section 232.2(6)(n). We affirm

adjudication of L.B. as a CINA under only paragraph (c)(2). See J.S., 846 N.W.2d

at 40 (“The grounds for a CINA adjudication do matter.”); In re L.G., 532 N.W.2d

478, 480 (Iowa Ct. App. 1995) (“The underlying grounds of adjudication in a child

in need of assistance case have important legal implications beyond the

adjudication.”).

AFFIRMED IN PART AND REVERSED IN PART.