In the Interest of M.W. and L.W., Minor Children

• Court: Court of Appeals of Iowa
• Decided: February 16, 2022
• Docket: 21-1816
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-1816 Filed February 16, 2022

IN THE INTEREST OF M.W. and L.W., Minor Children,

J.W., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Carroll County, Joseph McCarville,

District Associate Judge.

A father appeals the removal of two children from his care following a

dispositional review hearing in a child-in-need-of-assistance proceeding.

AFFIRMED.

Kelsea M. Hawley of Minnich, Comito & Neu, P.C., Carroll, for appellant

father.

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

General, for appellee State.

Mary M. Lauver of Lauver Law, Lake City, attorney and guardian ad litem

for minor children.

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

CHICCHELLY, Judge.

This appeal concerns the removal of two teenage children from their father’s

care following a dispositional review hearing in a child-in-need-of-assistance

(CINA) proceeding. The father appeals this removal, challenging the evidence

supporting the modification and arguing removal is not in the children’s best

interests. We disagree and affirm the modification.

This family came to the attention of the Iowa Department of Human Services

(DHS) in February 2021 based on concerns that both parents were using

methamphetamine in the home, the home was unsafe because of unsanitary

conditions, and the children were not attending school. Because the parents were

unwilling to work with the DHS, the State filed a CINA petition, which the juvenile

court granted in a July 2021 order.1

Since the CINA adjudication, the parents have separated and taken

different paths. The mother has been open and cooperative with the DHS,

admitting that both she and the father used marijuana and methamphetamine. The

mother claimed she stopped using both when the DHS began investigating the

family, and she supported this claim with a drug test that was negative for all

substances. By the time of the dispositional review hearing in November 2021,

the DHS had no continuing concerns about the mother’s ability to care for the

children.

Concerns, however, persist about the father. Although he obtained clean

and suitable housing, the father was unequivocal in refusing to test for drug use.

1 The juvenile court adjudicated the children as CINA under Iowa Code section 232.2(6)(b), (c)(2), (g), and (p) (2021). 3

He also allowed the maternal aunt, who admits methamphetamine use, to move

into his home. After the review hearing, the juvenile court modified the

dispositional order to remove the children, place them in DHS custody, and prohibit

them from going to the father’s home “until he has submitted a clean drug test and

all people living with him are approved by DHS.”

The father now appeals, arguing that removal is not in the children’s best

interests and challenging the evidence supporting the modification. “We review

CINA proceedings de novo.” In re J.S., 846 N.W.2d 36, 40 (Iowa 2014). We give

weight to the juvenile court’s fact findings, although they are not binding. See id.

Our primary concern is the best interests of the children. See id.

The juvenile court may modify a dispositional order if “[t]he efforts made to

effect the purposes of the order have been unsuccessful and other options to effect

the purposes of the order are not available.”2 Iowa Code § 232.103(4)(c). Here,

the juvenile court adjudicated the children as CINA because of substance use in

the home. Although four months passed, the safety concern remained because

the father refused drug testing and has allowed a known methamphetamine user

to live in his home. The State proved the grounds for modification under

section 232.103(4)(c).

2 The father challenges the modification because the juvenile court failed to find a “material and substantial change” in circumstances since entry of the August 2021 dispositional order. But this court has recognized that the statute no longer requires the party seeking modification to show a material and substantial change in circumstances to modify a dispositional order. See, e.g., In re M.M., No. 16- 0548, 2016 WL 4036246, at *3-4 (Iowa Ct. App. July 27, 2016). “To the contrary, [the statute] implicitly recognizes the absence of a change in circumstances may demonstrate the purposes of a prior dispositional order cannot be achieved and modification is warranted.” Id. at *4. 4

We turn, then, to whether removal is warranted. Although the court should

permit the children to remain in the home when possible, removal is appropriate if

there is clear and convincing evidence that the children cannot be protected from

some harm that would justify a CINA adjudication and an adequate placement is

available. Iowa Code § 232.102(4)(a)(2). The court must also determine that the

children’s continuation in the home would be against their welfare and identify the

reasonable efforts that have been made. Id. § 232.102(4)(b).

As stated, the safety concerns that led to the CINA adjudication remain for

the father. The father repeatedly stated his refusal to take a drug test to show

sobriety, even claiming “he would rather have his parental rights terminated than

to take a drug test.” Later, the father claimed he was unavailable due to work but

his claims are met with skepticism in light of the fact that he is self-employed and

has demonstrated his availability to meet with the DHS worker during work hours

for other reasons. Further, his overall conduct since February 2021—including his

continued interaction with known drug users and his argumentative demeanor,

which he was unable to control even during the modification hearing—supports

this skepticism. Although the father claims there is no evidence to suggest there

is drug use in the home, the DHS worker testified that when a person refuses to

take a drug test, the department “typically assume[s] it is positive.” See, e.g., In re

C.F., No. 20-1067, 2020 WL 6482073, at *1 (Iowa Ct. App. Nov. 4, 2020). And the

mother admitted that she and the father used marijuana and methamphetamine.

Concern about the father’s drug use is compounded by his indifference over

whether the people he allows into the home use drugs. Without the father’s

cooperation with the DHS or participation in the services offered to him, the only 5

way to ensure the children’s safety is through removal. Because these facts

warrant removal, we affirm the modification of the dispositional order.