Opinion
No. 3-802 / 03-1587
Filed October 29, 2003
Appeal from the Iowa District Court for Dubuque County, Jane Mylrea, Associate Juvenile Judge.
A father appeals the juvenile court's finding his two children are children in need of assistance. AFFIRMED.
Timothy G. Goen of the Law Offices of Timothy G. Goen, Dubuque, for appellant-father.
Monica Ackley, Dubuque, for mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Fred H. McCaw, County Attorney, and Jean A. Becker, Assistant County Attorney, for appellee-State.
Mary Kelley, Dubuque, guardian ad litem for minor children.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Mike, the father of Mariah and Jordan, appeals a finding they are children in need of assistance under Iowa Code sections 232.2(6)(n) and 232.2(6)(o) (2003). He contends the evidence does not support a finding the children were not receiving adequate care. He also argues the juvenile court improperly admitted drug test results over his hearsay objections. We affirm.
Jordan and an older half-brother, Josh, were removed from their home in May 2003 after they both tested positive for methamphetamine. Mike claims he had not been living in the home for two months because he and his wife Barb, the mother of Jordan and Josh, were having marital difficulties. Mike had legal custody of Mariah from the dissolution of his marriage to Linda, Mariah's mother. Mike contends he asked Linda to care for Mariah because he had no stable home during his separation from Barb. Mike and Barb are unemployed. Both have tested positive for methamphetamine use. Mariah, who had been living with her mother for about two months before the testing, tested negative.
At the hearing, Barb, the mother of Josh and Jordan, stipulated that the children were children in need of assistance. Linda, Mariah's mother, made the same stipulation as to Mariah. Mike challenged the finding that Mariah and Jordan were children in need of assistance. The State offered as exhibits the positive test results for Josh and Jordan. Mike objected. Concerning the test results for Jordan, the objection was, "I object on the hearsay foundation." The court overruled the objection. The child protective worker, Lisa Foley, testified concerning the test results without objection. The State offered the child protective report without objection. It contained the founded and confirmed reports of denial of critical care for Jordan and the presence of illegal drugs in Jordan.
The juvenile court found,
that Mariah and Jordan should be adjudicated Children in Need of Assistance pursuant to Iowa Code Section 232.2(6)(n) as both Mariah and Jordan were living in a home where drug use was admittedly used by both parents during their custodial placement with parents from January through March 2003 per admission. Further, the Court finds that given the toxic and hazardous nature of methamphetamine use and abuse and the inability of parents to provide proper care while under the influence of methamphetamine addiction that the children did not receive adequate care as noted by child protective concerns of May 2003 referral that electricity not connected in the home, Joshua another child placed out of the home, uncertain where he would be living, and noting drug trafficking and paraphernalia, and positive hair stat for Josh and Jordan, indicating exposure to methamphetamine, a toxic and hazardous drug, which would place the children at imminent risk. Although the child Mariah was sent to live with her mother at the end of March or Early April 2003, during the three months of admitted methamphetamine use as well as any visits to the home would have created a hazardous and toxic environment for the child and that the father would be unable to provide appropriate care while under a methamphetamine use and addictive pattern, and further, that Barb . . . resided in said home and admitted a daily use.
. . . .
The father requested immediate return of Jordan and Mariah to his care; however, he was unable to give an address and has not kept in touch with the DHS for purposes of visits or services.
. . . .
The Court hereby finds that the children, Joshua, . . . Mariah, . . . and Jordan are hereby adjudicated Children in Need of Assistance pursuant to Iowa Code Sections 232.2(6)(n)(o).
These subsections provide, in pertinent part:
6. "Child in need of assistance" means an unmarried child:
n. Whose parent's or guardian's mental capacity or condition, imprisonment, or drug or alcohol abuse results in the child not receiving adequate care.
o. In whose body there is an illegal drug present as a direct and foreseeable consequence of the acts or omissions of the child's parent, guardian, or custodian.
Our review of CINA cases is de novo. Iowa R.App.P. 6.4; In re D.D. and V.D., 653 N.W.2d 359, 361 (Iowa 2002). The State bears the burden of proving the allegations by clear and convincing evidence. Iowa Code § 232.96(2). Clear and convincing evidence is evidence that leaves "no serious or substantial doubt about the correctness of the conclusion drawn from it." Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct.App. 1983); see also In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Mariah. Although there is evidence of methamphetamine exposure between January and March 2003, Mariah tested negative after being out of Mike and Barb's home for two months. We do not find evidence to support a finding she was a child in need of assistance under section 232.2(6)(o). We find clear and convincing evidence supports a finding Mariah is a child in need of assistance under section 232.2(6)(n), however, based on (1) her living in Mike and Barb's home when she was exposed to methamphetamine; (2) Mike's admitted use of methamphetamine, lack of housing and employment, which would prevent him from giving her adequate care; (3) her mother's stipulation that she be found a child in need of assistance; and (4) the risk to Mariah if Mike were to act on his demand she be returned to him when he has not provided proof of adequate shelter and has not addressed his methamphetamine use.
Jordan. We find clear and convincing evidence in the record that Jordan tested positive for methamphetamine, even without considering the challenged exhibit. We affirm the finding that he is a child in need of assistance under section 232.2(6)(o). We also find the record supports a similar finding under section 232.2(6)(n) based on (1) his living in a home where both parents used methamphetamine; (2) his mother's stipulation that he was a child in need of assistance at a time when she was the only parent living in the home; (3) his parents' failure to provide adequate housing; and (4) the founded and confirmed report of denial of critical care.
Exhibits. Mike objected to the State's offer of exhibits 2 and 3 on hearsay and foundational grounds. He did not object to exhibit 1. Both exhibit 1 and the child protective worker's testimony reveal the positive test results for Josh and Jordan. We need not address Mike's claim the court abused its discretion in admitting exhibits 2 and 3, as we find no prejudice from their admission because the same evidence came in several times without objection. See Iowa R. Evid. 5.103(a); State v. Wells, 437 N.W.2d 575, 578 (Iowa 1989).
We affirm the finding that Mariah is a child in need of assistance under Iowa Code section 232.2(6)(n) and the finding Jordan is a child in need of assistance under sections 232.2(6)(n) and 232.2(6)(o).