Opinion
No. 4-886 / 04-1466
Filed January 13, 2005
Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge.
The guardian ad litem for two minor children appeals from the juvenile court order denying the guardian ad litem's petition to adjudicate the children as in need of assistance. AFFIRMED.
Rachael Seymore of the Juvenile Public Defender's Office, Des Moines, guardian ad litem, for appellants-minor children .
Thomas Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John P. Sarcone, County Attorney, and Andrea Vitzthum, Assistant County Attorney, for appellee-State.
Alexandra Nelissen of the Nelissen Law Office, Des Moines, attorney for minor children.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
Michael is father of Robert, born February 23, 1987, Brad, born September 23, 1989, and Cristen, born October 16, 1991. In March of 2004 Cristen was removed from Michael's care due to allegations of his drug use and sexual abuse of Cristen. The juvenile court later adjudicated her as in need of assistance (CINA) based on these allegations. The children's guardian ad litem subsequently filed a CINA petition on behalf of Robert and Brad. The petition alleged the children were in need of assistance due to the father's sexual abuse of Cristen and his drug use. Following a hearing on the matter, the juvenile court denied the petition, finding the children were not in need of the court's aid. The children's guardian ad litem appeals from this ruling.
We review CINA proceedings de novo. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). While we give weight to the trial court's findings of fact, we are not bound by them. Id. It is the State's burden to prove the allegations by clear and convincing evidence. In re B.B., 598 N.W.2d 312, 315 (Iowa Ct.App. 1999).
We conclude the State failed to show by clear and convincing evidence the children were in need of assistance under section 232.2(6)(c)(2) (2003). Under this section, a child is in need of assistance when he or she 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." Iowa Code § 232.2(6)(c)(2). No evidence supports a finding that Michael has failed to adequately care for Robert or Brad. It is significant that the boys are doing well in school and participate in extra-curricular activities. Moreover, both boys are now involved in counseling and are making significant progress.
Adjudication under section 232.2(6)(d) requires proof that the child has been, or is imminently likely to be, sexually abused by the child's parent. Neither Robert, age seventeen, nor Brad, age fifteen, has made an allegation of sexual abuse against them by Michael. The counseling provided to Robert and Brad allowed them the opportunity to disclose any history of abuse against them, and was calculated to inform the counselor of any significant risk of future abuse. We affirm the juvenile court's determination that clear and convincing evidence does not support adjudication under this provision.
Finally, the State has failed to show by clear and convincing evidence the children are in need of assistance under section 232.2(6)(n). This section provides a child is in need of assistance when a parent's "mental capacity or condition, imprisonment, or drug or alcohol abuse results in the child not receiving adequate care." Iowa Code § 232.2(6)(n). As the juvenile court noted, Michael had not used illegal drugs for over five months at the time of the hearing, and was engaged in treatment for his past use. The State has failed to meet its burden to prove Michael's drug use caused him to fail to adequately supervise or care for Robert and Brad.
In conclusion, we find the juvenile court's resolution was both prudent and practical. Clear and convincing evidence does not support adjudication under any of the sections alleged in the petition. We therefore affirm the order denying the petition.