                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0154
                                Filed May 1, 2019


IN THE INTEREST OF H.S.,
Minor Child,

J.P., Mother,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Clay County, Andrew Smith, District

Associate Judge.



       A mother appeals removal and adjudication orders involving her child.

AFFIRMED IN PART AND REVERSED IN PART.



       Scott A. Johnson of Hemphill Law Office, PLC, Spencer, for appellant

mother.

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

General, for appellee State.

       Shannon L. Sandy of Sandy Law Firm, P.C., Spirit Lake, attorney and

guardian ad litem for minor child.



       Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.
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VAITHESWARAN, Judge.

       A mother appeals removal and adjudication orders involving her child. She

contends the district court erroneously relied on her refusal to take a drug test in

adjudicating the child in need of assistance and the court erroneously required

participation in pre-adjudication services, including drug testing. She also argues

the grounds for adjudication cited by the district court were not satisfied.

I.     Background Facts and Proceedings

       The child involved in this proceeding was born in 2008. A child-abuse

investigator with the department of human services suspected the child’s mother

was using methamphetamine. She recommended the filing of a child-in-need-of-

assistance petition.    The State filed a petition, alleging several grounds for

adjudication of the child.

       After the petition was filed but before the adjudication hearing, the State

filed an ex parte application to have the child removed from parental custody. The

application alleged in part that the mother refused a drug test requested by a

department child-abuse investigator.       The State asserted, “Based upon the

[mother’s] refusal . . . to submit to drug testing, safety of the [child] cannot be

assured in [the mother’s] care.”

       The district court granted the application and ordered the child temporarily

removed from the mother’s custody. Following an emergency removal hearing,

the court ordered the child to remain out of the mother’s custody. The court also

required the mother to participate in a substance-abuse evaluation, follow

treatment recommendations, and “submit to random drug testing.”
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       In time, the district court adjudicated the child in need of assistance. The

court later filed a dispositional order requiring the child to remain out of the mother’s

custody. The mother appealed.1

II.     Mother’s Refusal of Drug Test; Compelled Pre-Adjudication Drug-

Test Order

       The mother contends the district court erroneously used her “refusal to take

a drug test as evidence that the child should be adjudicated” in need of assistance.

On our de novo review, we disagree.

       We begin with the removal orders. Iowa Code section 232.78(1)(b) (2018)

authorizes the juvenile court to enter an ex parte order directing a peace officer or

juvenile court officer to take custody of a child if “[i]t appears that the child’s

immediate removal is necessary to avoid imminent danger to the child’s life or

health.” One of “[t]he circumstances or conditions indicating the presence of such

imminent danger” is “[t]he refusal or failure of the person responsible for the care

of the child . . . to comply with a request of a peace officer, juvenile court officer,

or child protection worker for such a person to submit to and provide to the

requester the results of a medically relevant test of the person.” Iowa Code

§ (1)(b)(2). A medically-relevant test means a test that produces reliable results

of exposure to several drugs, including methamphetamine. See id. § 232.73(2).

       Under these statutory provisions, the child protective worker was authorized

to ask the mother to submit to a drug test and the district court was authorized to

find that her refusal of the test was indicative of imminent danger to the child.


1
 The father does not challenge the district court orders on appeal. Instead, he joins the
State’s response to the mother’s petition on appeal.
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Accordingly, the district court acted appropriately in basing the temporary removal

order on the mother’s refusal to take the test requested by the child protection

worker.

         In reaching this conclusion, we recognize the district court’s additional

language compelling pre-adjudication drug testing is inconsistent with this court’s

opinion in In re A.C., 852 N.W.2d 515, 519 (Iowa Ct. App. 2014), where we found

“no statutory authority to support the district court’s ex parte pre-adjudication

parental drug-testing order.” But the child’s removal in this case was based on the

mother’s history of illicit drug use, family suspicions of relapse, and her refusal to

comply with the child protective worker’s request for drug testing rather than a

compelled drug-test result, as was the case in A.C.

         We turn to the district court’s adjudicatory order. There, the court cited the

mother’s refusal to comply with its pre-adjudication drug-testing order. But, again,

the court also cited other factors to support adjudication of the child as a child in

need of assistance. For that reason, the court’s reliance on the compelled drug-

testing portion of the removal order does not require reversal of the adjudicatory

order.

III.     Grounds for Adjudication

         The district court cited three statutory grounds for adjudication: Iowa Code

subsections 232.2(6)(b), 232.2(6)(c)(2), and 232.2(6)(n). The mother challenges

the evidence supporting all three. We will address each in turn. See In re J.S.,

846 N.W.2d 36, 41 (Iowa 2014) (declining to simply affirm on uncontested ground

because “[t]he grounds for a CINA adjudication” affect the grounds for termination).
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       Iowa Code section 232.2(6)(b) requires the State to prove a parent “has

physically abused or neglected the child, or is imminently likely to abuse or neglect

the child.”   “‘Physical abuse or neglect’ or ‘abuse or neglect’ means any

nonaccidental physical injury suffered by a child as the result of the acts or

omissions of the child’s parent, guardian, or custodian or other person legally

responsible for the child.” Iowa Code § 232.2(42). “‘[P]hysical injury . . . is a

prerequisite’ to finding past physical abuse or neglect.” J.S., 846 N.W.2d at 41

(citation omitted).

       As in J.S., the State did not present evidence of a past physical injury to the

child. Therefore, the case turns on whether the child was imminently likely to suffer

a non-accidental physical injury.     Id. at 43.   “[O]ur precedent governing the

imminent likelihood of abuse establishes that neglect or physical or sexual abuse

need not be on the verge of happening before adjudicating a child as one in need

of assistance under Iowa Code section 232.2(6)(b).” In re L.H., 904 N.W.2d 145,

151 (Iowa 2017). Nonetheless, there must be “specific prior instances of sexual

or physical abuse committed by a caregiver.” J.S., 846 N.W.2d at 43; cf. L.H., 904

N.W.2d at 151 (“[T]he State does present evidence that [the parent] has serious

anger issues that have led him to physically abuse other current and previous

members of his household.”). In J.S., the court stated, “[W]e do not believe

[methamphetamine use] is automatically enough to establish an imminent

likelihood of physical harm to the children.” 846 N.W.2d at 43–44. The court

reversed the adjudication under section 232.2(6)(b). Id.

       We are faced with the same facts here: suspected methamphetamine use

by the mother without past acts of physical or sexual abuse. We conclude the
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State failed to establish the child was in need of assistance under section

232.2(6)(b).

       We turn to section 232.2(6)(c)(2), which requires a showing that the child

“has suffered or is imminently likely to suffer harmful effects” due to a “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.”

See L.H., 904 N.W.2d at 149–50. “[H]armful effects” relate to “the physical, mental,

or social welfare of a child.” J.S., 846 N.W.2d at 41 (quoting In re Wall, 295 N.W.2d

455, 458 (Iowa 1980)).       “A juvenile court could reasonably determine that a

parent’s active addiction to methamphetamine is ‘imminently likely’ to result in

harmful effects to the physical, mental, or social wellbeing of the children in the

parent’s care.” Id. at 42.

       At the temporary removal hearing, the mother’s aunt testified the mother

had a history of methamphetamine use that began when she was a teenager. After

the mother turned eighteen years old, the aunt had no contact with her for several

years. Eventually, the mother contacted her with a plea for help. According to the

aunt, the mother was admitted to a hospital to undergo treatment for “[m]eth use

and alcohol.” The mother left the hospital prematurely. The aunt took her in and,

later, took the child in. Both lived with her for two-and-a-half years.

       The aunt testified the mother consumed alcohol on a daily basis. The aunt

also found signs of methamphetamine use.           She stated the mother was “ill-

tempered” and erratic for several weeks before the hearing. An older child of the

mother, who is not a subject of this proceeding, reported similar signs of drug use.
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       Based on this evidence, we conclude the mother actively used

methamphetamine and her usage was imminently likely to harm the child.

Accordingly, we affirm the adjudication of the child as a child in need of assistance

under section 232.2(6)(c)(2).

       The final provision on which the district court relied is section 232.2(6)(n),

which authorizes the juvenile court to adjudicate a child in need of assistance if the

“parent’s or guardian’s mental capacity or condition, imprisonment, or drug or

alcohol abuse results in the child not receiving adequate care.” See In re M.W.,

876 N.W.2d 212, 222 (Iowa 2016). Based on the evidence cited above, we

conclude this provision was satisfied.

IV.    Disposition

       We reverse the adjudication under section 232.2(6)(b). We affirm the

adjudication of the child under section 232.2(6)(c)(2) and section 232.2(6)(n).

       AFFIRMED IN PART AND REVERSED IN PART.
