In the Interest of M.N., Minor Child

• Court: Court of Appeals of Iowa
• Decided: September 4, 2024
• Docket: 24-1006
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-1006 Filed September 4, 2024

IN THE INTEREST OF M.N., Minor Child,

S.B., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Erik I. Howe, Judge.

The mother appeals the juvenile court’s dispositional order, which ordered

the child’s continued removal from the mother’s custody. AFFIRMED.

Jesse A. Macro Jr. of Macro Law, LLP, Des Moines, for appellant mother.

Brenna Bird, Attorney General, and Michelle R. Becker, Assistant Attorney

General, for appellee State.

Megil D. Patterson of Youth Law Center, Des Moines, attorney and guardian

ad litem for minor child.

Considered by Greer, P.J., and Ahlers and Badding, JJ. 2

GREER, Presiding Judge.

The mother of one-year-old M.N. appeals from a dispositional order in the

child-in-need-of-assistance (CINA) proceedings, challenging the juvenile court’s

decision the child could not yet be returned to her custody.1 “We review decisions

in CINA proceedings de novo.” In re L.H., 904 N.W.2d 145, 149 (Iowa 2017)

(citation omitted). “While we are not bound by the juvenile court’s factual findings,

we accord them weight.” Id. “Our primary concern is the child[]’s best interests.”

In re J.S., 846 N.W.2d 36, 40 (Iowa 2014). After our review, we affirm the

dispositional order of the juvenile court.

Under Iowa Code section 232.99(4) (2024), after the dispositional hearing,

the juvenile court is required to “make the least restrictive disposition appropriate

considering all the circumstances in the case.” From least to most restrictive, the

court is permitted to enter an order suspending judgment and continuing the

proceedings for up to twelve months, Iowa Code § 232.100, allowing the parent to

retain custody subject to specific terms and conditions, id. § 232.101, appointing a

guardian, id. § 232.101A, or transferring legal custody of the child to the Iowa

Department of Health and Human Services (the department). The court can only

transfer (or keep) the child out of parental custody if it finds by clear and convincing

evidence that the “child cannot be protected from physical abuse without transfer

of custody” or “from some harm which would justify the adjudication of the child as

1 M.N. is also removed from his father’s custody. While the father filed a notice of appeal from the dispositional order, he voluntarily dismissed his appeal before the supreme court transferred the case to this court for resolution. 3

a [CINA] and an adequate placement is available.” Iowa Code § 232.102(4)(a)(1)–

(2).

In her petition on appeal, the mother argues that while there was an issue

or two that may have justified the involvement of the department and the juvenile

court with her family, those issues were isolated and are not ongoing. Advocating

that “minimally adequate” parenting is all that is required of her, the mother

questions whether it was ever appropriate to remove M.N. from her custody.2 She

urges that there is no reason for his continued removal. But the mother’s version

of the facts are at odds with those found by the juvenile court, with which we agree.

The department became involved with the family in July 2023 when it was

alleged that the mother drove intoxicated with M.N. and his then-eight-year-old

sibling, M.M.,3 in the car, but that incident was resolved without referral. The

department again became involved in December 2023 after learning that the

mother left one-year-old M.N. alone in a car twice that month while she went

tanning at a tanning salon. The mother was criminally charged with child

endangerment, to which she pled guilty, received a deferred judgment, and was

placed on probation for two years. Pointing to a recent Iowa Supreme Court case,

the mother questions whether her action of leaving one-year-old M.N. alone in a

vehicle during winter was even illegal. See generally State v. Cole, 3 N.W.3d 200

2 Insofar as the mother is challenging the initial removal of M.N.—as opposed to

the child’s continued removal—that issue is now moot. See In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994) (“Any error committed in granting the temporary [removal] order cannot now be remedied. We cannot go back in time and restore custody based on alleged errors in the initial removal order.”). 3 M.M. was also removed from the mother’s custody and placed with his father

(who is different than M.N.’s father). M.M. is not at issue in this appeal. 4

(Iowa 2024) (vacating conviction for child endangerment where mother left five

children—ages twelve to five years old—at home sleeping while she went to buy

groceries). And she argues that, whether it was illegal or not, she learned her

lesson and will not repeat the mistake.

But those arguably isolated incidents of leaving the young child alone in a

vehicle are not the only concerns. While it was those incidents that first caused

the department to recommend services, the record evidence exposes the mother’s

problem with excessive alcohol consumption. In May 2023 the mother was

arrested for operating while intoxicated and eluding.4 And it was M.M.’s interview

at a child advocacy center (for an unrelated reason) that led to the department’s

first child-protective assessment in July 2023, which ended without a referral. In

that interview, M.M. offered up that after spending the day with his mother at an

event at a bar, the mother made him blow into a square “breathing thing” in the

front seat of her car so it would start. He described having to breathe into the

device a second time while the mother was driving when it started to beep while

they were on the road. M.M. reported feeling nervous as his mother drove “crazy”

while he and his brother were in the backseat.

But that was not all. When department workers spoke to M.M. in December

after the department again became involved, he reported things were not so good

at his mother’s home. He stated he is required to watch M.N. while his mother

sleeps and recounted a time when his mother was drinking beers at home and

became too drunk; he could not wake her up when he tried. In other parts of the

4 The mother was convicted of eluding, given a suspended sentence of one year,

and placed on probation. The OWI charge was dropped. 5

same report, department workers summarized concerns the mother was frequently

intoxicated and that, at times, M.M. had to touch her to ensure she was still

breathing. The mother denied having a problem with alcohol. She testified at the

disposition hearing that receiving an OWI charge was a single poor decision rather

than indication of a bigger problem, and she reported to the person conducting her

substance-use evaluation that she consumes alcohol only once every couple

months. Yet, the mother continued exhibiting concerning behavior after the

children were removed in January 2024.

In February, she was charged with domestic abuse assault causing bodily

injury, with M.N.’s father as the victim.5 The police report from the incident

indicated the mother was impaired by alcohol at the time. When asked about the

incident at the disposition hearing, the mother denied she was under the influence

of alcohol. But M.N.’s father—who was in support of M.N. returning to the mother’s

custody—testified the mother was drinking alcohol before the assault took place.

In support of her stance that she does not have a problem with the

excessive consumption of alcohol, the mother testified that she was required to

wear an alcohol monitoring device for about thirty days as part of her probation

requirements. She argues the absence of positive results during that time shows

she does not have a problem with consuming alcohol. But, as the juvenile court

recognized, that report was not introduced at the hearing, and the mother lacks

credibility when it comes to self-reporting her use of alcohol. Additionally, the

mother testified that her substance-use evaluation did not recommend any

5 This charge was later amended to disorderly conduct, to which the mother pled

guilty in May 2024. 6

treatment, but that evaluation was also not introduced as evidence. Based on the

mother’s behavior, the mother’s self-reporting to the evaluator about her use of

alcohol is suspect, at best.

While the father had moved out of state before the dispositional hearing, the

mother and father also have a history of allegations of domestic violence in their

relationship, with each having been the victim and the perpetrator. The mother did

not deny this history; instead she suggested that the issue no longer existed

because she took some online classes about domestic violence and had an hour-

long conversation with the department caseworker. The juvenile court, recognizing

the mother’s inability to grasp the severity of her actions, stated, “[the mother’s]

inability to gain that insight [into the concerns over her behavior] is a large barrier

to reunification and her ability to meaningfully engage in services.”

Overall, as the juvenile court recognized, the mother continues to deny the

reality of the family’s situation and her role in it. While the mother has participated

in some services, she continues to “check boxes” rather than address the core

issues that led to removal and adjudication. See In re D.D., 955 N.W.2d 186, 192–

93 (Iowa 2021) (“[T]erminating a [CINA] proceeding isn’t an exercise in box-

checking. Progress in therapy and similar efforts to ‘put the work in’ are

unquestionably important. But the statute doesn’t ask whether all the boxes have

been checked or the work put in; it asks whether the child remains in need of

supervision, care, or treatment.”). And without that insight or recognition of

changes that need to be made, we agree with the juvenile court that M.N. is still at

risk of adjudicatory harm if returned to the mother’s custody. See, e.g., In re T.C.,

489 N.W.2d 53, 56 (Iowa Ct. App. 1992) (holding the circumstances that led to 7

termination still existed when the parent failed to face substance-abuse problem,

focused on blaming others, and “adamantly deni[ed] a need for services . . . on the

premise that she [did] not have a problem”); In re J.W., No. 02-1359, 2002 WL

31528638, at *3 (Iowa Ct. App. Nov. 15, 2002) (affirming juvenile court’s

conclusion risk of harms resulting in child’s adjudication remained “the same

because of [the parent’s] failure to address these issues”).

Because M.N. would face further adjudicatory harm if returned to the

mother’s custody at this time, we affirm the juvenile court’s dispositional order.

AFFIRMED.