                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0145
                               Filed August 2, 2017


IN THE INTEREST OF D.R., R.R., O.R., and G.S.,
Minor Children,

M.H., Mother,
      Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Susan C. Cox, District

Associate Judge.



      The mother appeals from the dispositional order confirming the

adjudication of her children as in need of assistance and placing them outside of

her care and custody. AFFIRMED.



      Jeremy M. Evans of Sporer & Flanagan, P.L.L.C., Des Moines, for

appellant mother.

      Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

      Kim S. Ayotte of Youth Law Center, Des Moines, guardian ad litem for

minor children.

      Brent M. Pattison of Drake Legal Clinic, Des Moines, attorney for minor

child G.S.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

       The mother appeals from the dispositional order confirming the children as

in need of assistance (CINA) and maintaining the children outside of her care

and custody.     She claims the juvenile court’s dispositional order placing the

children in foster care1 was not the least restrictive means available. Specifically,

she argues the court should have returned the children to her care and custody

because the reasons for their removal had been resolved. The mother also

argues the State failed to make reasonable efforts toward reunification.

I. Background Facts and Proceedings.

       This mother has been involved with the Iowa Department of Human

Services (DHS) a number of times in the past, both for these children and for an

older child who is now an adult. Most recently, in 2014, D.R. and O.R. were

removed from the mother’s care and adjudicated CINA after the mother tested

positive for marijuana and methamphetamine; O.R. and D.R. also tested positive

for THC.2 The mother was able to work through her issues with substance abuse

and have the children returned to her care.

       The present involvement began in June 2016, when it was reported that

the mother was smoking marijuana in the presence of D.R., O.R., and R.R.—

then five, four, and one, respectively.         It was also alleged the mother was

breastfeeding R.R. after smoking marijuana. When DHS interviewed D.R., he


1
  Only two of the four children were placed in foster care. D.R. and R.R. were in the care
of their father and had been since August 2016—before the children were adjudicated
children in need of assistance—when the father was awarded physical care by the court
in an unrelated family law dispute.
2
  R.R. was not yet born. G.S. and the mother’s oldest child—now an adult and not at
issue in this appeal—did not come to live with the mother until after the previous CINA
case closed.
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reported his mother smoked cigarettes outside the home that looked different

from the cigarettes she smoked inside the home. He also reported his mother

smoked out of a purple tube, and that he and his younger siblings were usually

alone inside the home while she did so.

          DHS was unable to make contact with the mother until mid-August. Once

the social worker made contact, the mother admitted she had smoked marijuana

within the previous two months, but she denied breastfeeding R.R. afterward and

she stated she had not used methamphetamine since the previous DHS case

closed. The mother agreed to participate in a drug test the following Monday.

          In the meantime, the mother took D.R. and R.R. to their father. 3 The

family court had awarded the father physical care of the children on August 1, but

the mother had refused to turn the children over to their father. After she did so,

on August 22, the father called DHS and reported the mother seemed to be

“tweaking.” He explained she was talking rapidly and moving her jaw around.

He believed the mother was high on methamphetamine.

          As of October 17, the mother had yet to participate in drug testing, and

she refused to participate in voluntary services. The State filed petitions alleging

D.R., R.R., O.R., and G.S. were CINA, pursuant to Iowa Code section

232.2(6)(c)(2) and (n) (2016).

          At the pretrial conference on October 31, all parties agreed the mother

would complete a hair-stat test and have a drug patch placed on her that day.

The mother again failed to do so, and O.R. and G.S. were removed from the

mother’s care on November 9. In the temporary removal order, the court stated

3
    O.R. and G.S. have different fathers and were not part of the custody order.
                                        4


custody could not remain with the mother because “the mother’s unresolved drug

abuse issues and her refusal to provide a drug screen prevent[] her from safely

caring for these children. The mother exhibits signs that she abuses drugs but

she will not engage in services and she is not maintaining contact with

professionals.”

      After the children were removed, the mother provided a drug screen that

was positive for marijuana. She continued to refuse to have a drug patch placed

on her.

      The mother completed a substance-abuse evaluation on November 17.

She reported she used marijuana two to three times per week, with her last use

being the day before the evaluation. She reported consuming alcohol five times

in the previous twelve months, and she denied using any other substance since

2014. According to the evaluation, the “[s]taff recommended no treatment. [The

mother] reported that she does not believe she needs treatment.”

      On November 21, the mother was arrested for assault causing bodily

injury. At the time, she was intoxicated and aggravated over losing her children.

According to the police report, the mother was walking near her residence

“engaging in several altercations with other residents” before she “physically

attacked” the victim “by striking her in the face and upper body,” pulling her hair

and throwing her to the ground. It was noted at the next team meeting that the

mother has a history of turning to alcohol in times of stress. DHS noted a safety

plan should be put in place in case the mother felt the urge to drink again, and

the mother indicated she would resume individual therapy and seek support

through her church in order to maintain sobriety.
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       The CINA hearing took place on December 8 and 9. According to the

juvenile court’s written findings, the mother testified on both days of the hearing.

On the first, “[w]hile testifying, she talked very quickly and repeatedly moved her

jaw-consistent with [the father’s] description of the mother tweaking on meth.”

On the second day, the mother “did not talk quickly and did not move her jaw.”

The mother denied ever smoking out of a purple tube. Following the hearing, the

court confirmed the out-of-home placement of O.R. and G.S. and adjudicated all

four children CINA pursuant to section 232.2(6)(c)(2) and (n).

       As part of the CINA order, the court ordered the mother “to immediately

cooperate with DHS for drug patch testing.” The mother did have a drug patch

placed on her, but she did not do it until four days later. The test results came

back negative.

       The disposition proceedings took place on January 6 and 9, 2017. The

mother testified the issue with her jaw popping that the court had identified in the

CINA hearing was a result of her anxiety; she denied it had anything to do with

the use of illegal substances. She stated she would be able to provide medical

documentation about the condition; she did not bring it with her to the hearing.

The mother also testified that she did not put the drug patch on the day she was

ordered to do so because she was “angry” and “frustrated.” When asked if she

had used any illegal substances lately, the mother admitted she had “a couple

hits of weed” “within the last week.” The mother also testified about missing

visits with the children, including the two most recent scheduled visits.

       Following the hearing, the court confirmed the CINA adjudication of the

children and found G.S. and O.R. should remain in out-of-home placement “due
                                          6


to the mother’s unresolved substance abuse and mental health issues.” The

court ordered that the mother should receive transportation assistance and DHS

needed to establish a phone call schedule and sibling visits.

       The mother appeals.

II. Standard of Review

       We review child-in-need-of-assistance proceedings de novo. In re K.N.,

625 N.W.2d 731, 733 (Iowa 2001). “Although we give weight to the juvenile

court’s factual findings, we are not bound by them.” Id. Our primary concern is

the best interests of the children. Id.

III. Discussion

       The mother argues the juvenile court’s dispositional order placing the

children in foster care was not the least restrictive means available. Specifically,

she argues the court should have returned the children to her care and custody.

Although the mother does not specify, we note that her argument only applies to

G.S. and O.R., as the other two children were in the care of their father pursuant

to an unrelated custody determination made by the district court before the

children were adjudicated CINA.

       The mother maintains the children should have been returned to her care

because the issues that led to removal had been resolved and there was no

evidence to suggest thaechildren would suffer adjudicatory harm if they were

returned to her care. We disagree. Iowa Code section 232.2(6)(n) provides that

a parent’s drug or alcohol abuse that results in the child not receiving adequate

care is an adjudicatory harm. Here, the mother has a history—according to her

five-year-old child—of leaving her young children in the home while she smokes
                                        7


marijuana outside. According to her own testimony, the mother has continued to

smoke marijuana since the children were removed, including within one week of

the disposition hearing and the day before her drug-abuse evaluation. She did

not testify about an intention to quit, and she has not taken any steps toward

doing so. Additionally, we note that DHS and the juvenile court had concerns the

mother was using methamphetamine again. The mother points to the results of

both of her drug tests, which were negative for the substance, as proof the

concerns were unfounded, but we note the mother only tested twice out of the

handful of the times she was asked and never within the time period she was

asked to do so. Similarly, although the mother’s use of alcohol was not an initial

reason for DHS’s involvement with the family, in considering whether the children

could be returned without risk of further adjudicatory harm, we note the mother’s

intoxicated state during her arrest for assault causing bodily injury and her own

statements to caseworkers that she has a history of turning to alcohol during

times of stress.

       We also note that after the children were removed, it was learned that a

number of the children had dental issues that needed to be addressed, including

rotting teeth that required surgery. Even after the children were removed, the

mother was expected to make the necessary appointments for the children.

However, at the time of the disposition hearing, the mother had not yet done so,

and she was being asked to sign releases so the foster parents could take over

the medical care. Iowa Code section 232.2(6)(e) provides a child in “need of

medical treatment to cure, alleviate, or prevent serious physical injury or illness

and whose parent, guardian, or custodian is unwilling or unable to provide such
                                        8


treatment” suffers adjudicatory harm. While this was not the adjudicatory harm

that originally led to the children’s removal, “[t]he adjudicatory harm requiring

continued removal does not need to be the harm that necessitated the initial

removal from the home.” In re A.A.G., 708 N.W.2d 85, 91 (Iowa Ct. App. 2005).

       Because the children were still at risk of adjudicatory harms, we agree

with the juvenile court that out-of-home placement was still necessary at the time

of the disposition hearing.

       The mother also argues the State failed to make reasonable efforts to

reunify her with her children. Specifically, she complains she should have been

receiving more visits with the children. The mother states that she made the

request for additional visits at previous hearings. The mother did not make a

request for more visits at the disposition hearing, and we do not have a record of

the CINA hearing. Assuming the issue is preserved, we cannot say the State

has failed in its reasonable-efforts mandate. Although DHS had scheduled only

once-weekly visits between the children and the mother, the mother had

struggled to consistently attend those. At the disposition hearing, she testified

she had missed the two most recent visits.         She stated it was due to a

transportation issue, and the court ordered DHS to help assist with transportation

so the mother could be more consistent in the future. Additionally, the court

ordered a daily call schedule to be established so the mother could have more

contact with children. We note the mother was receiving more visits previously

because the foster parents initially agreed to supervise a weekly visit between

the children and the mother, but they had revoked their offer to do so after the

mother cancelled a visit approximately thirty minutes before it was due to start
                                       9


because her oldest, adult daughter could not attend. When the foster parents

explained how excited the children were for the visit, the mother responded, “If

[other daughter] can’t be there, it’s not worth seeing them.” On these facts, we

conclude the State has made reasonable efforts.

      We affirm the out-of-home placement of the children.

      AFFIRMED.
