IN THE INTEREST OF K.R.H., Minor Child, K.K.H., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-941 / 06-1591
Filed December 28, 2006
IN THE INTEREST OF K.R.H., Minor Child,
K.K.H., Father,
Appellant.
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Appeal from the Iowa District Court for Warren County, Richard B. Clogg,
Judge.
A father appeals from the adjudicatory and dispositional orders concerning
one of his children. AFFIRMED.
Leanne M. Striegel, Des Moines, for appellant-father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Gary Kendell, County Attorney, and Jane Orlanes, Assistant County
Attorney, for appellee-State.
Cynthia Lange of Marberry Law Firm, Des Moines, for appellee-mother.
Christine Milligan-Ciha, Clive, guardian ad litem for minor child.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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SACKETT, C.J.
Kelly, the father of eleven-year-old Kelsey, appeals from the juvenile court’s
adjudicatory order finding her to be a child in need of assistance and the
dispositional order for the continued involvement of the Department of Human
Services. He contends there is not clear and convincing evidence to support the
statutory grounds for adjudication and the court abused its discretion in allowing
certain testimony. We affirm.
I. Background
In late March of 2006, the Department of Human Services received
information that Kelly uses marijuana in front of his children several times a day.
The department received information in early April that Kelly admitted using
methamphetamine, smoking marijuana in his children’s presence, and buying
methamphetamine. The department requested that Kelly submit to drug testing. He
did not come for testing until two days after the request. The diluted sample tested
positive for marijuana. The department issued a founded child abuse report naming
Kelly as the perpetrator for failure to supervise Kelsey.
The State petitioned to have Kelsey found to be a child in need of assistance.
Following a hearing on June 28 and July 27, the juvenile court found Kelsey to be in
need of assistance. Specifically, the court found:
There is clear and convincing evidence of the father’s regular use of
marijuana; Susan . . . the father’s paramour, who is a member of the
household in which the child resides, has admitted using
methamphetamine and tested positive for methamphetamine on June
22, 2006; father has history of substance abuse and has admitted to
use of illegal drugs; history of diluted U.A. tests and delay in providing
test samples by father and paramour; in a pending juvenile case
Susan . . . is not permitted unsupervised visits with her children due to
her drug abuse.
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The court allowed Kelsey to remain with her father. After a dispositional hearing in
September, the court continued Kelsey’s placement with her father, but ordered that
she not be left unsupervised with Susan.
II. Scope of review
Appellate review of child-in-need-of-assistance proceedings is de novo. Iowa
R. App. P. 6.4; In re K.N., 625 N .W.2d 731, 733 (Iowa 2001). We give weight to the
findings of the juvenile court, especially when considering the credibility of
witnesses, but are not bound by those findings. In re L.L., 459 N.W.2d 489, 493
(Iowa 1990). The State has the burden of proving the allegations by clear and
convincing evidence. Iowa Code § 232.96(2) (2005). “Clear and convincing
evidence” is evidence leaving “no serious or substantial doubt about the correctness
of the conclusion drawn from it.” In re D.D., 653 N.W.2d 359, 361 (Iowa 2002)
(quoting Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct. App. 1983)).
III. Discussion
Kelly raises three claims on appeal. He claims the State failed to prove the
grounds for adjudication by clear and convincing evidence. He also claims the court
abused its discretion in allowing the testimony of Susan’s case worker and hearsay
testimony from another case worker.
A. Clear and convincing evidence. Kelly contends there was not sufficient
evidence Kelsey had suffered or was imminently likely to suffer harmful effects as a
result of his failure to supervise her. See Iowa Code § 232.2(6)(c)(2). He argues
the evidence shows that he exercises a reasonable degree of care in supervising
Kelsey. He admits using marijuana, but argues he does not use it in front of the
children. Kelly argues almost all the State’s witnesses testified he is appropriate
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with his children and they have no concerns about his ability to parent. He asserts it
is mere speculation that he was not providing reasonable care for Kelsey.
The State has a duty to assure that every child within its borders receives
appropriate care and treatment. In re D.T., 435 N.W.2d 323, 329 (Iowa 1989). The
provisions of Iowa Code chapter 232 are designed to effectuate that duty. See In re
M.M., 483 N.W.2d 812, 814 (Iowa Ct. App. 1992). They are preventative as well as
remedial. In re L.L., 459 N.W.2d 489, 494 (Iowa 1990). The goal of our statutory
scheme is to prevent probable harm to the child; our statutes do not require delay
until after the harm has happened. Id.
We find clear and convincing evidence supports a finding Kelsey is a child in
need of assistance. Despite Kelly’s denials, his children have seen him use drugs.
There is evidence his substance abuse extends beyond marijuana to include
methamphetamine. He lives with a woman whose drug use prevents her from
having unsupervised contact with her children. He has attempted to defeat drug
tests by delaying the test and diluting the sample. We agree with the findings of the
juvenile court quoted above.
B. Testimony of Marilyn Fowler. Kelly contends the juvenile court erred in
allowing the testimony of Susan’s in-home service provider because she is not
involved in the case before us and her testimony is not relevant. We first note that
the court allowed the testimony subject to counsel’s objection, which is the proper
procedure in equity cases so that a full record is preserved for our de novo review
on appeal. Davis v. Roberts, 563 N.W.2d 16, 20 (Iowa Ct. App. 1997). We
conclude the juvenile court did not abuse its discretion in allowing the testimony
because it is relevant to the case before us. Susan lives in the home with Kelly and
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his children. Iowa Code section 232.2(6)(c)(2) includes “members of the household
in which the child resides” in considering whether the child is in need of assistance.
Because Susan’s methamphetamine use prevents her from unsupervised contact
with her children, it is clear she could be a risk to Kelly’s children. Her presence in
his household makes the proffered testimony relevant.
C. Testimony of Kelly Brown. The father contends the juvenile court erred in
allowing Kelly Brown, a case worker, to testify. We find no objection to her
testimony in the record. Consequently, this claim is not preserved for our review.
See In re C.D., 508 N.W.2d 97, 100 (Iowa Ct. App. 1993).
AFFIRMED.
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