Opinion
No. 5-903 / 05-1738
Filed December 21, 2005
Appeal from the Iowa District Court for Polk County, Joe E. Smith, District Associate Judge.
A mother's appeal challenges juvenile court orders adjudicating a child to be in need of assistance and overruling her motion to vacate the adjudication. AFFIRMED.
Jeffrey Mains of Mains Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John P. Sarcone, County Attorney, and William Sales, Assistant County Attorney, for appellee.
James Waters, Ankeny, for father.
Christine Milligan-Ciha, Des Moines, guardian ad litem for minor child.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Marcy is the mother of ten-year-old Chantelle. Marcy appeals a July 2005 juvenile court order adjudicating Chantelle to be a child in need of assistance (CINA) and orders overruling Marcy's motion to vacate the adjudication. We affirm.
In May 2005 the State sought and secured a juvenile court order for the temporary removal of Chantelle from Marcy's legal custody. The removal was based on allegations, including a report from Marcy's twelve-year-old son, that Marcy and others were actively using illegal drugs in Marcy's home and exposing Chantelle to their use. Marcy had tested positive for methamphetamine use.
The State shortly thereafter filed a petition alleging Chantelle was a CINA. At a temporary removal hearing Marcy consented in writing to Chantelle's removal, based on Marcy having tested positive for methamphetamine on a screening test, a result which had been confirmed on further testing. At a pretrial conference held the same day all parties agreed the case should be set for a stipulated CINA adjudication. At a mid-July hearing the parties stipulated to Chantelle's adjudication as a CINA. As part of that hearing the State introduced in evidence a report showing Marcy had tested positive for methamphetamine in May, again in June, and again in July, and a founded, confirmed report of Marcy's abuse/neglect of Chantelle. The juvenile court adjudicated Chantelle a CINA pursuant to Iowa Code sections 232.2(6)(b), (c)(2), and (n) (2005).
The juvenile court set a disposition hearing for early September. On the day set for hearing Marcy, now represented by her third attorney in this case, sought and secured a two-week continuance. On the last day before the rescheduled hearing Marcy filed a motion to vacate the CINA adjudication. Following hearing on the motion the court overruled it and then proceeded to dispositional hearing and a dispositional order. Marcy filed a motion for enlarged findings and conclusions and to reconsider certain matters, including the court's overruling of the motion to vacate. The court entered an "Order Nunc Pro Tunc" concerning a prior no contact order, and an order reiterating and further explaining its reasons for denial of the motion to vacate, but otherwise denying the motion for enlarged findings, conclusions, and to reconsider. Marcy appeals, challenging the CINA adjudication and the overruling of her motion to vacate.
Our review of CINA proceedings is de novo. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). We give weight to the fact 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). Our fundamental concern is the best interests of the child. K.N., 625 N.W.2d at 733. The State has the burden of proving the allegations by clear and convincing evidence. Iowa Code § 232.96(2). "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)).
Marcy first claims she did not authorize her (first) attorney to stipulate to an adjudication of Chantelle as a CINA. She argues that counsel "did not communicate the offer to stipulate to the adjudication to her," that as shown by her testimony (at the hearing on the motion to vacate) she did not have full knowledge of the facts and circumstances, and she did not know an adjudication would admit the allegations of the CINA petition. She urges that without a valid stipulation the documents introduced at the adjudicatory hearing standing alone are insufficient to support the adjudication. The juvenile court found Marcy's testimony in support of this claim to be totally lacking in credibility and rejected the claim. Giving due weight to the court's credibility findings, for the following reasons we agree and affirm on this issue.
The CINA adjudicatory hearing was reported by an official court reporter. The assistant county attorney stated he understood the parties would stipulate that clear and convincing evidence showed Chantelle to be a CINA. Marcy stated, through counsel, her agreement with the recommendations of the State. Those recommendations included a CINA adjudication and an order concerning visitation, drug testing of Marcy, substance abuse evaluation and treatment for Marcy, Marcy's mental health issues, and other matters.
At the hearing on the motion to vacate Marcy testified that when she signed a consent to Chantelle's temporary removal she did not know what she was signing, her (first) attorney had told her it was nothing, and the attorney had hidden under some paper the document Marcy was signing. She testified that no court reporter was in the courtroom during the adjudicatory hearing. She did not believe a judge had been present in the room at the adjudicatory hearing, and despite a report showing she had testified positive for marijuana and methamphetamine on July 7 she testified she had not been using any drugs in that time period. She also testified, repeatedly, and again directly contrary to the record of the adjudicatory hearing, that her attorney had not stated Marcy was in agreement with the recommendations of the State.
Simply put, and as found by the juvenile court, Marcy's testimony is on several points directly contradicted by the record and totally lacking in credibility, and that lack of credibility extends to her testimony concerning alleged acts and omissions by her attorney. We agree with and affirm the juvenile court's rejection of Marcy's claims concerning the alleged acts and omissions of her attorney and her own alleged lack of understanding of her stipulation to the CINA adjudication.
We also find without merit Marcy's claim, based on Iowa Code section 232.96(4), that the CINA adjudication is improper because it is based on a child abuse/neglect report alone without consent to a CINA adjudication. The adjudication was based not only on the founded and confirmed report of denial of critical care, but was also based on a report showing Marcy had tested positive for methamphetamine three consecutive months. Further, for the reasons stated above we conclude that Marcy and her attorney did in fact stipulate, and thus consent, to the CINA adjudication.
Marcy next claims the juvenile court erred by presuming harm to a child by parental drug use. In support of her claim she cites three unpublished opinions of the Iowa Court of Appeals, two of which affirm dismissal of CINA petitions and one of which reverses a CINA adjudication. In response, the State cites two unpublished opinions of the Iowa Court of Appeals, both of which affirm CINA adjudications.
The facts in the cases cited by Marcy are readily distinguishable from the facts in this case as well as the cases cited by the State. In one of the cases cited by Marcy this court found an absence of clear and convincing evidence the children were CINA and affirmed the juvenile court's dismissal where the juvenile court had found there was "an isolated incident of drug usage by a parent which did not appear to affect the children." See In re W.G., No. 01-1860, (Iowa Ct.App. Jul. 31, 2002). In another there was no clear and convincing evidence the parent "was using drugs or that she possessed drugs in her home at or near the time of the children's removal." See In re Z.W., No. 04-0383 (Iowa Ct.App. May 14, 2004). In the third, a case in which a parent had been arrested for operating while intoxicated with her eleven-month-old daughter riding with her, there was no substantial, credible evidence the parent continued to drink and drive when a CINA petition was filed nine months later and the trial was held yet another three months thereafter. See In re L.J., No. 04-1386 (Iowa Ct.App. Oct. 27, 2004). By way of contrast, the adjudication of Chantelle as a CINA is supported by (1) a founded, confirmed child abuse/neglect report based on Marcy and others actively using illegal drugs in Marcy's home and exposing Chantelle to their use, (2) evidence Marcy had tested positive for methamphetamine at the time of Chantelle's removal in May and had again tested positive for methamphetamine in June and July, and (3) Marcy's stipulation to the adjudication.
The provisions of Iowa Code chapter 232 are preventative as well as remedial. L.L., 459 N.W.2d at 494. Their goal is to prevent probable harm, and they do not require delay until harm has occurred. In re T.A.L., 505 N.W.2d 480, 483 (Iowa 1993). Marcy's use of methamphetamine, and her exposure of Chantelle to drug use by herself and others, created an imminent likelihood that Marcy would neglect Chantelle, and constituted a failure on Marcy's part to exercise a reasonable degree of care in supervising Chantelle. We conclude that clear and convincing evidence supports the juvenile court's findings that Chantelle is a CINA as defined in Iowa Code sections 232.2(6)(b) (child whose parent is imminently likely to abuse or neglect the child) and 232.2(6)(c)(2) (child who is imminently likely to suffer harmful effects as a result of the failure of the child's parent to exercise a reasonable degree of care in supervising the child). We need not decide whether clear and convincing evidence also supports adjudication under Iowa Code section 232.2(6)(n) (child whose parent's mental condition or drug abuse results in the child not receiving adequate care). Cf. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996) (holding, in termination of parental rights case, that we only need to find grounds to terminate under one of the statutory provisions relied on by the juvenile court in order to affirm its ruling).
Marcy also claims the evidence does not demonstrate that the aid of the juvenile court was required, and asserts dismissal of the CINA petition was thus mandatory. She cites Iowa Code section 232.96(8), which provides in part: "[I]f the court concludes that its aid is not required in the circumstances, the court shall dismiss the petition."
In its adjudication order the juvenile court expressly both found and concluded that the aid of the court was required. These determinations were quite apparently based on Marcy having thrice tested positive for methamphetamine and Marcy and others exposing Chantelle to their illegal drug use. Upon our de novo review we fully agree with the juvenile court's determination that its aid was required, and affirm on this issue.