In the Interest of R.G., Minor Child

• Court: Court of Appeals of Iowa
• Decided: September 1, 2021
• Docket: 21-0684
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-0684 Filed September 1, 2021

IN THE INTEREST OF R.G., Minor Child,

K.H., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,

District Associate Judge.

A mother appeals the termination of her parental rights to a daughter.

AFFIRMED.

Thomas Hurd of Law Office of Thomas Hurd, Des Moines, for appellant

mother.

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

General, for appellee State.

Magdalena Reese of Juvenile Public Defender, Des Moines, attorney and

guardian ad litem for minor child.

Considered by Tabor, P.J., Greer, J., and Doyle, S.J.*

* Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021). 2

TABOR, Presiding Judge.

Kathrine appeals the termination of her parental rights to her one-year-old

daughter. The court found R.G. could not be returned to parental care at the

present time because of Kathrine’s ongoing substance abuse. Kathrine now

contends the juvenile court abused its discretion and denied her right to counsel

and due process because it did not order the drug testing she requested.

R.G. is Kathrine’s third child. The court terminated her rights to the two

older children because her addiction prevented her from being a safe parent.

Because of her history, the Iowa Department of Human Services (DHS) contacted

Kathrine in the hospital after R.G.’s birth in June 2019. R.G. stayed with Kathrine.

But the next month, Kathrine overdosed on heroin in a gas station bathroom while

the infant was waiting in the car outside.

The court removed R.G. from Kathrine’s custody in July 2019. To secure

the child’s return, Kathrine pursued goals of maintaining her sobriety and obtaining

mental-health treatment. To show her sobriety, Kathrine took random drug tests.

She also submitted to drug testing on probation.1 A substance-abuse counselor

diagnosed Kathrine with opioid use disorder in July 2019. The counselor

recommended intensive outpatient treatment, and Kathrine started medication

management with methadone in August.

Over the next year, Kathrine’s progress was mixed. In November 2019, she

tested positive for methadone, but also for marijuana. In late February 2020, the

court approved returning custody of R.G. to Kathrine. But the same day, Kathrine

1The gas station incident led Kathrine to be charged with child endangerment, but she was placed on probation. 3

was arrested and charged with operating while intoxicated and tested positive for

opiates. She had negative drug tests in March, May, and September 2020. But in

December, she was charged with public intoxication and admitted to drinking

alcohol several days that month. Her sweat patches tested positive for THC that

same month and again in February 2021. Kathrine also fell behind in her mental-

health treatment goals; she began treatment in December 2020 but as of March

2021 had attended only nine of sixteen scheduled appointments.

At a contested permanency hearing (held over two days in December 2020

and January 2021), Kathrine requested different drug testing: a hair test and

secure continuous remote alcohol monitoring (SCRAM).2 Kathrine also asked the

State Public Defender to reimburse the cost of such continuous testing so that she

could use that information to contest the State’s petition to terminate her parental

rights. The court found it was unreasonable to order the added testing because

“DHS does not have funding for such a device,” and “DHS is able to test for alcohol

through random drug screens.” It found the DHS made reasonable efforts to

provide drug testing. As to Kathrine’s request that the State reimburse the costs

of additional testing, the juvenile court was “not aware of any authority to authorize

such an expense.”

The State believed Kathrine made insufficient progress toward the case

goals. So in February 2021, the State petitioned to terminate her parental rights.

2 The State contends Kathrine failed to preserve error on her request for continuous monitoring. But she did ask about SCRAM testing and received a ruling. According to her testimony, she used a SCRAM device requiring breath samples four times a day. We consider the issue preserved for review. See State v. Zacarias, 958 N.W.2d 573, 587 (Iowa 2021) (rejecting error preservation argument when district court considered issue and ruled on it). 4

At the termination hearing, Kathrine renewed her requests for different drug tests

and declared the court’s denials violated her rights to counsel and due process. 3

In its termination order, the court pointed out:

The court left drugs screens at DHS discretion, but did not limit the type of drug screen to be utilized. The court did not prohibit a hair test from being offered to the mother. The mother had previously been offered a hair test. She did not provide a hair test when requested. She presented herself several days later after altering her hair. Hair tests test for chronic use but do not test for alcohol.

It also pointed out that her probation officer had placed Kathrine on a SCRAM

device, and it detected alcohol one time. The court rejected the notion that the

mother was “entitled to a specific manner of testing in order to prove her sobriety.”

As for her request the state pay for other testing, including the hair test, the

court—citing the administrative code for reimbursements through the State Public

Defender—found no statutory authority to reimburse such expenses. On top of

that, the court found the expense was “not necessary” because the State was

already paying for drug testing through DHS and probation services. And those

results “demonstrated that [Kathrine] was not maintaining sobriety from marijuana

or from alcohol.” The court also rejected her denial-of-counsel argument finding

her attorney had adequate opportunity to test the State’s evidence. Finally, the

court terminated her parental rights to R.G. under Iowa Code section 232.116(1)(h)

(2021).4

3 The court allowed the parties to brief the right-to-counsel issue after the hearing. The guardian ad litem and the State agreed that the lack of hair test or continuous monitor drug testing did not violate Kathrine’s right to counsel. 4 The court found insufficient proof to terminate Kathrine’s rights under section

232.116(1)(e) (failure to maintain significant and meaningful contact) and (l) (chronic substance abuse). The court also terminated the parental rights of R.G.’s father. He does not join this appeal. 5

On appeal, Kathrine does not challenge the sufficiency of the evidence to

terminate her parental rights under that statutory ground. Nor does she argue it is

not in R.G.’s best interests to terminate, nor that another factor applies to avoid

termination. See Iowa Code § 232.116(1)–(3). Instead, she renews her

contentions the juvenile court abused its discretion in denying her request for hair

drug testing at state expense, and that decision violated her rights to counsel and

due process.

We deal first with Kathrine’s argument that the trial court abused its

discretion in denying her request to bill the state for alternative forms of drug

testing.5 She contends the code authorizes such expenses. The juvenile court

analyzed the question under the Iowa Administrative Code. The administrative

code allows a court-appointed attorney representing an indigent person to be

reimbursed for “necessary” expenses for transcripts, “investigators, foreign

language interpreters, evaluations, and experts.” Iowa Admin. Code r. 493-

12.7(1). The code does not define “evaluations,” and no cases have interpreted

the term to include drug testing. Kathrine also cites Iowa Code sections 815.10

and 815.11, both of which authorize costs in criminal and juvenile proceedings,

and section 232.141(2)(a) for attorneys in juvenile court proceedings “including

5 Generally, we review child-welfare proceedings de novo. In re A.H., 950 N.W.2d 27, 33 (Iowa Ct. App. 2020). We also review constitutional questions de novo. Id. By contrast, we review issues of statutory interpretation for the correction of legal error. In re J.C., 857 N.W.2d 495, 500 (Iowa 2014). Kathrine contends we review the juvenile court’s denial of alternative drug testing for an abuse of discretion, citing Linn v. State, 929 N.W.2d 717, 729 (Iowa 2019) (reviewing refusal to appoint expert witness for abuse of discretion). But when a district court reviews the state public defender’s denial of a claim for attorney fees, appellate review is for errors at law. Simmons v. State Pub. Def., 791 N.W.2d 69, 73 (Iowa 2010). We opt to apply that standard here. 6

fees and expenses for foreign language interpreters, costs of depositions and

transcripts, fees and mileage of witnesses, and the expenses of officers serving

notices and subpoenas.” None of these sections explicitly authorizes expenses

for drug testing in child-welfare cases. On appeal the State agrees with the juvenile

court that the authority is “unclear.” The State leans on the court’s conclusion that

the expenses were not “necessary.”

Assuming without deciding that the court could order such testing at state

expense, we agree it was unnecessary under the circumstances. Kathrine

contends alternative drug testing was critical to defending against the termination

petition. She argues “for the purpose of demonstrating sustained sobriety over a

period of time, a urine test and a patch test are vastly inferior to a hair test.” She

points to the DHS social worker’s testimony that the hair tests detect “chronic use”

while urine and sweat-patch tests identify more immediate use, in the one-to-five-

day timeframe. She also cites In re A.W., No. 18-0382, 2018 WL 2084913 (Iowa

Ct. App. May 2, 2018), in which a forensic toxicologist testified “a sweat-patch test

is designed to detect smaller amounts of drugs that [urine analyses (UAs)] and hair

tests may not detect.” 2018 WL 2084913, at *2. That expert explained UAs can

detect use within the prior two days; sweat patches test for up to a week; and a

hair test can measure use as far as eighty-eight days back. Id.

On the evidence before this juvenile court, the alternative testing requested

by Kathrine was unnecessary to address the State’s allegations that R.G. could

not safely return home. The court gave DHS discretion to set up a procedure for

testing Kathrine’s substance use, and Kathrine tested positive periodically through

most of the case. Although she logged a brief period of sobriety between March 7

and September 2020, she picked up a public intoxication charge in December and

admitted drinking several days that month. Her sweat patch tests also detected

marijuana use in December 2020 and February 2021.6 Two weeks before the

termination hearing, she tested positive for alcohol on her SCRAM unit. Under

Kathrine’s own logic, this raft of positive tests reveal she did not maintain sobriety.

Rather than help her show sustained sobriety, hair testing was likely to confirm her

drug use. Even if the hair test was negative, it would not have erased the many

positive drug test results and Kathrine’s admissions to alcohol use.

What’s more, Kathrine was offered hair testing at one point. In September

2020, she appeared for a random drug screen and learned it would be a hair test.

She refused to submit a hair sample and left. Afterward, she cut and dyed her

hair. So when given the opportunity to provide a hair sample, she balked. And as

for continuous testing, when probation services placed her on a SCRAM device,

she tested positive for alcohol one month before the termination hearing.7

In its response to Kathrine’s petition on appeal, the State contends her

argument is “at its core” a reasonable-efforts complaint. See In re C.B., 611

N.W.2d 489, 493 (Iowa 2000) (explaining the DHS must make every reasonable

effort to return the child to the parent). The State contends DHS provided Kathrine

with drug testing that reasonably allowed her to demonstrate her commitment to

sobriety. We agree. Alternative testing at state expense, even if authorized, would

6 Kathrine testified her doctor prescribed CBD oil for her back pain, but did not produce a prescription. 7 Kathrine testified that she consumed alcohol as part of a religious ceremony, but

the district court doubted her credibility on that point. 8

not have provided evidence favorable to Kathrine. The juvenile court did not err in

denying the request.

Next, Kathrine contends the court’s refusal to order alternative drug testing

amounted to structural error. “[T]he court not only denied counsel’s request for

testing but effectively allowed the State to control what testing the mother was

offered and therefore what proof was available to be developed and available to

the mother in the termination of parental rights proceeding.” Structural error occurs

“when: (1) counsel is completely denied, actually or constructively, at a crucial

stage of the proceeding; (2) where counsel does not place the prosecution’s case

against meaningful adversarial testing; or (3) where surrounding circumstances

justify a presumption of ineffectiveness.” Lado v. State, 804 N.W.2d 248, 252

(Iowa 2011). The juvenile court found that Kathrine’s attorney subjected the

State’s case to “meaningful adversary testing” on the available evidence.

Kathrine has been represented at every stage of the underlying CINA proceeding, and fully at the termination of parental rights proceedings. Counsel has had the opportunity to cross-examine the State’s witnesses, make objections, submit evidence, call witnesses, and argue the law. There is no doubt that Kathrine has received zealous advocacy during these proceedings.

We agree. The lack of the alternative testing did not leave Kathrine “constructively

without counsel” or render the proceedings “presumptively unreliable.” Id. at 253.

Next, Kathrine contends the court violated her due process rights. She cites

English v. Missildine, 311 N.W.2d 292 (Iowa 1981), for the proposition that the right

to counsel encompasses reasonable expenses to indigent defendants. Our court

has held that although the Sixth Amendment does not apply to termination cases,

“due process requires counsel appointed under a statutory directive to render 9

effective assistance.” In re B.N., No. 00-0220, 2001 WL 57987, at *2 (Iowa Ct.

App. Jan. 24, 2001) (citing In re D.W., 385 N.W.2d 570, 579 (Iowa 1986)).

To determine what process is due, we balance three competing interests:

“(1) the private interest affected by the proceeding; (2) the risk of error created by

the procedures used, and the ability to avoid such error through additional or

different procedural safeguards; and (3) the countervailing governmental interests

supporting use of the challenged procedures.” In re A.H., 950 N.W.2d 27, 35 (Iowa

Ct. App. 2020) (quoting In re T.S., 868 N.W.2d 425, 432 (Iowa Ct. App. 2015)).

Without question, Kathrine has an interest in the custody of her child. See

T.S., 868 N.W.2d at 432. The State offered testing for Kathrine to demonstrate

her ability to safely parent by refraining from drug and alcohol use, problems that

have persisted through two prior termination cases. See, e.g., In re M.P., No. 19-

0995, 2019 WL 5063337, at *4 (Iowa Ct. App. Oct. 9, 2019). That periodic and

random drug and alcohol testing provided proper safeguards. Her positive tests

and other evidence contributed to the court’s conclusion that R.G. could not be

returned to her mother’s care. In denying the expense of additional testing that

would not have helped Kathrine show sustained sobriety, the court recognized the

governmental interests in efficiency and economy in judicial proceedings. The

court afforded Kathrine due process.

In sum, the court did not err in denying the request for additional expenses

and that denial did not violate Kathrine’s constitutional rights. Kathrine challenges

no other finding of the juvenile court, so we affirm the order terminating her parental

rights to R.G.