In the Interest of M.O. and Z.O., Minor Children

Court of Appeals of Iowa

In the Interest of M.O. and Z.O., Minor Children

DecidedOctober 6, 2021

Docket21-0242

StatusPublished

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In the Interest of M.O. and Z.O., Minor Children, (iowactapp 2021).

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Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-0242 Filed October 6, 2021

IN THE INTEREST OF M.O. and Z.O., Minor Children,

E.I., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Carrie K. Bryner,

District Associate Judge.

A mother appeals adjudicatory and dispositional orders filed in a child-in-

need-of-assistance proceeding. AFFIRMED IN PART AND REVERSED IN

PART.

Katie Eastvold, North Liberty, for appellant mother.

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

General, for appellee State.

Julie Trachta, Cedar Rapids, attorney and guardian ad litem for minor

children.

Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ. 2

VAITHESWARAN, Judge.

A mother appeals adjudicatory and dispositional orders filed in a child-in-

need-of-assistance proceeding. She contends (1) the State failed to prove the

grounds for adjudication cited by the district court; (2) the State failed to make

reasonable reunification efforts; and (3) the district court should not have placed

the children with their father.

I. Grounds for Adjudication

This appeal involves two of the mother’s children, born in 2007 and 2013.

The children were removed from the mother’s custody following her altercation

with their father and an adult child. The children were placed with their father.

The district court adjudicated the children in need of assistance (CINA)

under three statutory grounds: Iowa Code sections 232.2(6)(b), (c)(2), and (n)

(2020). Because those grounds may affect subsequent proceedings, we address

each of them. See In re J.S., 846 N.W.2d 36, 41 (Iowa 2014) (stating “[t]he

grounds for a CINA adjudication do matter” because the grounds “have important

legal implications beyond the adjudication” (citation omitted)).

Section 232.2(6)(b) defines a “[c]hild in need of assistance” as “an

unmarried child . . . [w]hose parent . . . has physically abused or neglected the

child, or is imminently likely to abuse or neglect the child.” “‘[P]hysical abuse or

neglect’ and ‘abuse or neglect’ mean ‘any nonaccidental physical injury suffered

by a child as the result of the acts or omissions of the child’s parent . . . .’” J.S.,

846 N.W.2d at 41 (citing Iowa Code § 232.2(42)).

The State does not point to a nonaccidental physical injury suffered by

either child involved in this proceeding. Instead, the State relies on a “physical 3

altercation” with the mother’s adult child and a “serious assault” on the child’s

father. Neither qualifies as physical abuse or neglect under section 232.2(6)(b).

See Iowa Code § 232.2(5) (defining “[c]hild” as “a person under eighteen years of

age”), (42) (referring to injuries “suffered by a child”).

The question, then, is whether the mother was “imminently likely to abuse

or neglect” the children. Id. § 232.2(6)(b). “[W]e do 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.” J.S., 846 N.W.2d at 43. We do require “specific prior

incidents of abuse or neglect.” Id. As in J.S., “the State failed to prove any specific

prior incidents of abuse or neglect” with respect to these children. Id. As noted,

its case for adjudication under section 232.2(6)(b) was based on the mother’s

physical abuse of adults. While a department of human services social worker

mentioned the older child’s report of “physical violence by her mom, scratches,

being hit, things of that nature in the past,” she admitted that the department did

not perform an assessment of the allegation “because there was no proof of any

injuries at this time.”

The State also cites the “mother’s issues with her mental health and

explosive anger,” the children’s lack of “adequate care as evidenced by their

ongoing exposure to violence and emotional abuse,” and one of the children’s

“ingestion of methamphetamine.” These circumstances do not qualify as “specific

prior incidents” of abuse or neglect. See id. at 42–44 (citing opinions involving

prior acts of physical or sexual abuse and stating “we do not believe general

statements about methamphetamine addiction are enough by themselves to prove

that a child is imminently likely to suffer physical harm under section 232.2(6)(b)”). 4

We conclude the State failed to prove the elements of section 232.2(6)(2)(b). We

reverse the adjudication under that provision.

We turn to section 232.2(6)(n), which defines a child in need of assistance

as a child “[w]hose parent’s or guardian’s mental capacity or condition,

imprisonment, or drug or alcohol abuse results in the child not receiving adequate

care.” The State relies on the mother’s mental capacity and drug abuse to support

this ground for adjudication. The State failed to prove either circumstance by clear

and convincing evidence.

With respect to mental health, the department social worker testified the

mother “seems to have some very significant mental health issues,” but she

provided no professional documentation of those issues. The social worker had

yet to obtain an order requiring a psychological evaluation of the mother and she

stated she did not know the mother’s mental health diagnoses, whether the mother

took any medication to address any mental health diagnoses, and whether she

attended therapy. The record lacks clear and convincing evidence to support a

determination that the mother’s mental capacity resulted in the children’s receipt

of inadequate care. See In re S.S., No. 21-0121, 2021 WL 1400774, at *3 (Iowa

Ct. App. Apr. 14, 2021) (“The State failed to establish any nexus between the

father’s mental health and the father’s assault of the mother or, in turn, the children

receiving inadequate care as a result thereof.”); In re I.N., No. 20-0793, 2020 WL

5651595, at *6 (Iowa Ct. App. Sept. 23, 2020) (finding “insufficient reason to

believe the mother’s mental condition would result in the children not receiving

adequate care in her custody”); In re M.B., No. 20-0404, 2020 WL 2065965, at *2

(Iowa Ct. App. Apr. 29, 2020) (concluding “the State failed to prove the mother’s 5

‘mental capacity or condition’ resulted in deprivation of care” where the child

protective worker acknowledged the mother had not undergone a mental-health

evaluation and she declined to characterize the abuse as a mental-health

diagnosis).

As for drug use, the social worker expressed “concerns about

meth[amphetamine] use” based on a hair test of the younger child that was positive

for the drug. Although the positive test result led to a founded child abuse report

for “presence of illegal drugs,” the perpetrator was listed as “[u]nknown” and the

department reported “[t]here was no information to support that either parent is

abusing substances.” The social worker acknowledged the department had yet to

obtain a court order requiring the mother to undergo drug testing and she could

only speculate on the source of the methamphetamine.

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