IN THE COURT OF APPEALS OF IOWA
No. 1-322 / 11-0403
Filed May 11, 2011
IN THE INTEREST OF J.S. and J.D.,
Appeal from the Iowa District Court for Clarke County, Monty Franklin,
District Associate Judge.
A mother appeals from adjudication and disposition rulings concerning her
two children, which were based on June 2009 events. REVERSED.
Leanne M. Striegel-Baker of Booth Law Firm, Osceola, for appellant
Marc Elcock, Des Moines, for father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, and Michelle Rivera, County Attorney, for appellee State.
Jane Rosien, Winterset, for minor children.
Considered by Sackett, C.J., and Doyle and Danilson, JJ.
The question before us is whether there is clear and convincing evidence
that J.S. and J.D. are children in need of assistance (CINA) as defined by Iowa
Code sections 232.2(6)(b), (c), or (n) (2009). Because the statutory grounds are
not shown by clear and convincing evidence existing at the time of the CINA
hearing, we reverse the juvenile court‟s adjudication and disposition rulings.
I. Background Facts and Proceedings.
On July 1, 2009, a child abuse investigation concerning J.S., born in June
2004, and J.D., born in May 2003, resulted in a founded abuse report against the
children‟s mother, A.S., and her husband. A.S. had been physically abused by
her husband (who is not the father of these children) in the presence of the
children. A.S. was found to have denied her children critical care and to have
failed to provide them proper supervision. The investigation also revealed the
husband smoked marijuana in front of the children and A.S. admitted smoking
marijuana. A.S. voluntarily placed the children with their paternal great-uncle and
great-aunt, with whom she had lived as a teen.1
A Family Safety, Risk, and Permanency (FSRP) services provider, Katy
Jamison of Children and Families of Iowa, provided supervised visits between
A.S. and the children without court involvement for several months.
Department of Human Services (DHS) social worker John Adams worked with
the family. Family counseling was provided. Family team meetings were held in
The children‟s father, F.D., has never had custody of the children and only
recently sought visitation.
September, October, and December 2009, and January, February, March, and
In June 2010, Adams recommended to A.S. that the children be placed
under the legal guardianship of their great-uncle and great-aunt. A.S. did not
agree, and Adams stated DHS would then file a CINA petition.
Supervised visits continued and, in October 2010, A.S. asked Adams to
view her home and allow in-home visits. Adams refused to view the home until
after court adjudication. He also told A.S. in-home visits would not be considered
until a parenting assessment was completed.
Not until October 27, 2010, was a CINA petition filed asserting the children
were CINA under Iowa Code sections 232.2(6)(b) (“Whose parent . . . or other
member of the household in which the child resides has physically abused or
neglected the child . . . .”) and 232.2(6)(n) (“Whose parent‟s or guardian‟s mental
capacity or condition . . . or drug or alcohol abuse results in the child not
receiving adequate care.”). Attached to the petition was a statement by Adams
alleging FSRP services began August 12, 2009; the mother “has not
demonstrated her ability to understand the effects of violence in her home and
the children want to protect their mother instead of their mother wanting to
protect them”; A.S. “has been inconsistent throughout the case in maintaining
visitations and telephone contact”; the children “are angry at their mother when
she does not show up for visits”; A.S. had moved in with a man on whom DHS
completed a child abuse assessment suspecting he was manufacturing
methamphetamines─“the assessment was not confirmed,” but the sheriff‟s
department “express[ed] concerns” about the man‟s home; and A.S. did not
agree to a guardianship with the current family where the children were placed.
A CINA adjudication hearing was held on January 19, 2011, and the
juvenile court adjudicated J.D. and J.S. CINA pursuant to sections 232.2(6)(b),
(c)(2)2, and (n). The court made the following findings of fact: “The parents lack
the ability to ensure the safety of the children; ongoing and substantial DV
inconsistent visitation.” The court also found that placement outside the parental
home was necessary due to “lack of ability of parents to ensure the child‟s safety
+ due to necessity for therapy for the mother + children; history of D.V. + S.A.”
The court ordered A.S. to complete a psychosocial/parenting assessment.
A disposition hearing was held on February 23, 2011, and the juvenile
court found the return of the children to A.S. “is currently contrary to the best
interest of the [children] due to the need for continued services + the continued
safety + supervision concerns.”
A.S. appeals, arguing DHS failed to provide reasonable reunification
efforts; she was denied due process where the children were adjudicated CINA
on a ground not included in the petition; there was not clear and convincing
evidence the children were CINA; and placement with the great uncle and aunt
was not in the best interests of the children.
Subparagraph (c)(2) was not alleged in the petition. It provides CINA means an
Who has suffered or is imminently likely to suffer harmful effects
as a result of . . . [t]he failure of the child‟s parent, guardian, custodian, or
other member of the household in which the child resides to exercise a
reasonable degree of care in supervising the child.
II. Standard of Review.
Our scope of review in juvenile court proceedings is de novo. In re K.N.,
625 N.W.2d 731, 733 (Iowa 2001). We review both the facts and the law and
adjudicate rights anew.
Although we give weight to the juvenile court‟s
factual findings, we are not bound by them. Id. The State has the burden of
proving the allegations in the CINA petition by clear and convincing evidence.
Iowa Code § 232.96(2). Clear and convincing evidence means no serious or
substantial doubt exists about the correctness of the conclusions drawn from the
evidence. In re S.J.M., 539 N.W.2d 496, 500 (Iowa Ct. App.1995).
Let us begin by saying that had this petition been filed in July 2009 the
allegations that the children were then CINA would hardly be in doubt. However,
the 2010 CINA petition alleged events that occurred in June 2009. The petition
was not filed until October 2010 and not heard by the juvenile court until January
2011. Based on allegations and evidence of physical abuse and marijuana use
in 2009, the juvenile court determined these children were presently CINA. We
cannot countenance this post hoc adjudication where the facts have changed,
and we therefore reverse.
In In re K.M., 653 N.W.2d 602, 607-08 (Iowa 2002), our supreme court
restated the principle that the parent-child relationship is constitutionally
Normally, there is no justification for the State‟s interference
in the private relations of a family or for the State‟s examination of
the judgment of parents in making decisions concerning the well
being of their children. Troxel v. Granville, 530 U.S. 57, 68-69, 120
S. Ct. 2054, 2061, 147 L. Ed. 2d 49, 58 (2000). That is because “a
parent‟s desire for and right to „the companionship, care, custody
and management of his or her children‟ is an important interest that
„undeniably warrants deference and, absent a powerful
countervailing interest, protection.‟” Lassiter v. Dep’t of Social
Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 2159-60, 68 L. Ed. 2d
640, 649-50 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651,
92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972)). Thus, “the
Due Process Clause would be offended „[i]f a State were to attempt
to force the breakup of a natural family, over the objections of the
parents and their children, without some showing of unfitness and
for the sole reason that to do so was thought to be in the children‟s
best interest.‟” Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct.
549, 555, 54 L. Ed. 2d 511, 520 (1978) (citation omitted).
See also In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994) (“A parent‟s interest in
maintaining family integrity is best protected by the Due Process Clause.”);
Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484,
494 (1972) (“[D]ue process is flexible and calls for such procedural protections as
the particular situation demands.”).
As noted above, the juvenile court based its CINA adjudication on sections
232.2(6)(b), 232.2(6)(c), and 232.2(6)(n). Section 232.2(6)(b) provides a child is
CINA “[w]hose parent . . . or other member of the household in which the child
resides has physically abused or neglected the child . . . .”) (emphasis added).
Section 232.2(6)(c), which was not alleged in the petition, but was asserted by
the guardian ad litem in closing arguments at the adjudication hearing, similarly
speaks to a child‟s present living arrangement, providing that a CINA is one:
Who has suffered or is imminently likely to suffer harmful effects as
a result of . . . [t]he failure of the child‟s parent, guardian, custodian,
or other member of the household in which the child resides to
exercise a reasonable degree of care in supervising the child.
(Emphasis added). Section 232.2(6)(n) defines a child CINA “[w]hose parent‟s or
guardian‟s mental capacity or condition . . . or drug or alcohol abuse results in the
child not receiving adequate care.”
This provision is phrased in the present
tense: it is aimed at a parent‟s current mental capacity or condition or drug or
alcohol abuse that results in the child not receiving adequate care. By their very
terms, sections 232.2(6)(b), 232.2(6)(c), and 232.2(6)(n) require that present
circumstances support a CINA adjudication. Thus, statutorily the showing of
“unfitness,” described in Quilloin as being a required showing to interfere with
parental rights, must be a present unfitness.
Sections 232.2(6)(b) and (c) are inapplicable here as both are based upon
circumstances existing in the household “in which the child resides” and because
these children did not reside with either of their parents at the time of the
As for 232.2(6)(n), this record does not contain clear and convincing
evidence of any present problem with A.S.‟s mental capacity or condition, or of
any present abuse of drugs or alcohol.
Adams and Jamison questioned A.S.‟s ability to protect her children from
further abuse. When asked, “And if the children were returned home today, what
imminent danger are they in at this point?” Adams responded, “Again, I don‟t
know whether A.S. is capable of keeping the boys safe. That would be my
concern returning them today.” Similarly speculative, Katy Jamison, the person
assigned to supervise visits stated, “My fear is that if [A.S.] were to become
involved with someone again, that she would not be able to protect the children,
as she hasn‟t in the past, I assume, because she herself was being injured.”
A.S.‟s counsel summarized the situation:
Q. So [A.S.] got herself out of a domestic violence
relationship, placed her children in a safe home, or a home that she
thought they were going to be safe, because she had no job. She
renewed the no-contact order to protect her and her children. She
has a job and a home. What other things is DHS requiring of [A.S.]
for her to be able to have her children? A. [Adams] I believe
because my continuing concern has been that she would be able to
protect her children from violent relationships that she should, at
least, have a parenting assessment to determine whether she is
capable of keeping [J.] and [J.] safe.
Q. You‟ve been involved in this case for a year and a half
and you haven‟t done a parenting assessment at this point? A. No.
There is evidence that A.S. was involved in an abusive relationship in
2009, and perhaps another prior to that. But we find no clear and convincing
evidence for the juvenile court‟s finding of “ongoing” domestic violence.
Social worker John Adams asserted A.S. was in an abusive relationship
with C.W. (at some unspecified time) after leaving her husband:
Q. You testified there have been two reported incidents of
domestic violence that [A.S.] has been involved in over the past
year and a half. Do you recall that? A. Yes. One was reported
and one was told to me, yes.
Q. If I understand your question and your answer to that,
when you testified you said that the children were present at both
incidents. That‟s not true, is it? A. No, the children were only
present at the first incident.
Q. And you didn‟t investigate that second incident, did you?
A. No. The children were not present.
Q. And there was no police report done, was there? A. No.
Q. Who was the witness that told you about it? A. I don‟t
know whether I have to disclose that or not, but I believe it was a
Q. With respect to this other domestic violence thing that
you say has happened, you weren‟t there, correct? A. No.
Q. You didn‟t see any injuries on [A.S.], did you? A. I didn‟t
see any injuries. However, [A.S.] has come repeatedly throughout
this case for the last year and a half complaining of several physical
symptoms to virtually almost every time I have seen her in every
family team meeting and every individual meeting and several
visits, she appears to be physically in pain.
Q. And you, it‟s my understanding, that you believe that the
pain comes from this second incident of domestic violence? A. I
don‟t know where it comes from.
Q. And you having gotten any releases to any kind of
physical history with [A.S.] to know what she‟s going through, do
you?  A. No, I have not.
A.S. testified she had been in a relationship with C.W., but ended it when
DHS informed her she had to choose between the relationship and her children.
She stated the relationship had been over for several months. C.W.‟s mother
testified at the adjudication hearing that A.S. and C.W. were no longer in a
Adams testified, “I don‟t know her relationship status.”
conclude there was nothing but innuendo offered to support the allegation that
A.S.‟s relationship with C.W. was abusive. Adams‟ testimony reflects that his
investigation of C.W. provided no proof of domestic violence:
Q. When did she move out of Mr. [W‟s] apartment? A. I‟m
unclear of that. It would, according to what she said, would have
probably been sometime in the spring of 2010.
Q. Did you do a background check on Mr. [W]? A. Yes.
Q. And what was on his background? A. There was no
significant criminal background.
Q. So no domestic violence? A. No.
Q. No drugs? A. No.
Q. And you told A.S. that she had to end that relationship if
she wanted her kids back; correct? A. Yes.
Q. And A.S. now has her own place; correct? A. As far as I
Moreover, Kenneth Hayes, A.S.‟s counselor, testified that in his sessions
with A.S. she had worked on issues of “[d]epression, making changes that she
needed to make in order to provide a home for her sons, looking at the patterns
Jamison‟s notes of a December 13, 2010 visit indicate A.S. stated a doctor told
her she may have fibromyalgia. At trial, A.S. testified she has arthritis in her back.
of past relationships and any problems that might relate to past relationships,”
and that she had internalized the impact domestic violence has had on her
While A.S. admitted smoking marijuana in 2009, the State does not allege,
nor does the record support, that A.S. has a current drug or alcohol abuse
A.S. has had a job since the spring of 2010 (we note DHS provided no
employment assistance or gas vouchers to A.S.); she has attended the majority
of supervised visits offered; has provided only clean UAs; and has been
attending mental health counseling on her own.
A.S.‟s counselor, Kenneth
Hayes, testified A.S. has internalized the effects of domestic violence on her
children. She has her own residence, which DHS has refused to view until after
the CINA adjudication hearing. When A.S. asked for unsupervised visits, Adams
said “that would be one of the topics that we would discuss at this court hearing.”
Upon our de novo review, we conclude the juvenile court‟s CINA
adjudication findings are not supported by clear and convincing evidence as the
facts existed at the time of the CINA hearing. We therefore reverse the juvenile
court‟s rulings adjudicating these children to be CINA.