                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0793
                               Filed July 27, 2016


IN THE INTEREST OF I.S.,
Minor child,

Q.S., Father,
Appellant.
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       Appeal from the Iowa District Court for Cerro Gordo County, Annette L.

Boehlje, District Associate Judge.



       A father appeals removal, adjudication, and disposition orders with respect

to his child. AFFIRMED IN PART AND REVERSED IN PART.



       Michael J. Moeller of Sorenson & Moeller Law Office, Clear Lake, for

appellant father.

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

General, for appellee State.

       Crystal L. Ely, North Iowa Youth Law Center, Mason City, for minor child.



       Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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VAITHESWARAN, Judge.

       A father appeals removal, adjudication, and disposition orders with respect

to his child, born in 2008. He contends the district court should not have found

the child to be in need of assistance or ordered the child’s “continued removal”

from his care. On our de novo review, we disagree.

       The facts leading up to the filing of the child-in-need-of-assistance petition

are essentially undisputed. The child’s mother was a licensed day care provider

who had a toddler in her care. One day, the toddler started bleeding profusely

from her vagina.      It was determined that someone had inserted something,

resulting in “positive physical findings of an injury to her vaginal area.” The only

adults in the home were the mother and father. Their child who is the subject of

this proceeding was also in the home.

       The department of human services sought immediate removal of the

parents’ child. The district court granted the application and ordered the child

placed in foster care. The department began an investigation that resulted in

founded child abuse reports against the mother based on the toddler incident.

Later, police executed a search warrant on the home that uncovered drug

paraphernalia in the basement. A child abuse report was issued against the

father for failure to supervise his child.

       The district court adjudicated the child in need of assistance over the

father’s objection.    Following a dispositional hearing, the court ordered the

adjudication to continue, with the child remaining in the department’s custody for

placement with a relative. The child was transferred to the home of her maternal

grandmother. The father appealed.
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       As noted, the father appears to challenge the removal orders.             That

challenge is moot.     See In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994).

Custody of the child was transferred to the department and any error in the

temporary orders cannot now be remedied. Id. Accordingly, we confine our

analysis to the adjudicatory and dispositional orders.

       The district court adjudicated the child in need of assistance pursuant to

Iowa Code section 232.2(6)(b), (c)(2), (d) (2015).       The father challenges the

evidence under each of these provisions. Proof of any of the grounds would

suffice to support the adjudication. See In re D.T., 435 N.W.2d 323, 331 (Iowa

1989). But because the adjudication grounds could have legal implications in a

future termination action, we address all three. See In re J.S., 846 N.W.2d 36,

41 (Iowa 2014).

       The cited provisions define a child in need of assistance as a child:

       b. [w]hose parent, guardian, other custodian, or other member of
       the household in which the child resides has physically abused or
       neglected the child, or is imminently likely to abuse or neglect the
       child.

       c. [w]ho has suffered or is imminently likely to suffer harmful effects
       as a result of . . . (2) [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.

       d. [w]ho has been, or is imminently likely to be, sexually abused by
       the child’s parent, guardian, custodian, or other member of the
       household in which the child resides.

Iowa Code § 232.2(6)(b), (c)(2), (d). It is undisputed that the father was living in

the mother’s home when the toddler for whom she was caring was abused.

Additionally, although his child was in the home, the State did not assert she was
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physically or sexually abused. Instead, the State focused on the “imminently

likely” language of the provisions: whether the father was imminently likely to

physically or sexually abuse his child in light of what happened to the toddler and

whether his child was imminently likely to suffer the harmful effects of parental

failures in supervision.

       The Iowa Supreme Court addressed the phrase “imminently likely” in J.S.,

a case involving parental addiction to methamphetamine. 846 N.W.2d at 42-43.

The court acknowledged that “[c]ase law supports a liberal interpretation of the

phrase . . . in the CINA context” and cited an opinion strikingly similar to the facts

of this case—a child’s vulnerability to sexual abuse based on possible parental

contact with other children.     Id. at 43.    Although the court found “general

statements about methamphetamine addiction” insufficient “by themselves to

prove that a child is imminently likely to suffer physical harm,” the court

distinguished those types of statements from “specific prior instances of sexual or

physical abuse committed by a caregiver.” Id. at 42-43. The court reiterated,

“we do not require neglect or physical or sexual abuse to be on the verge of

happening before adjudicating a child as one in need of assistance.” Id. at 43.

       Turning to the evidence in this case, a department social worker testified

that the father was a suspect in a criminal investigation of the toddler’s abuse.

She stated the investigation was pending at the time of the dispositional hearing

and described her concern as follows:

       The biggest concern is we have a two-year-old child with a first
       degree sex abuse investigation that was severely hurt and harmed
       while in that home, and I don’t know who sexually abused that
       child. So I think there will always be an ongoing concern about
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       children’s safety with either [the father or mother] until we have
       some answers as to what happened to the two-year-old victim.

While the department did not issue a founded child abuse report against the

father based on the toddler’s abuse, the social worker emphasized that the child

abuse assessment for sex abuse against the toddler was “ongoing.”

       This evidence supports the district court’s finding that the father was

imminently likely to physically or sexually abuse his child. Accordingly, we affirm

the adjudication under section 232.2(6)(b) and (d).

       We are less sanguine about the adjudication under section 232.2(6)(c)(2).

The department social worker did not rely on the toddler’s abuse to support

adjudication under this provision. She testified this ground was based on the

discovery of “illegal drug paraphernalia” in a rubber tote box in the basement of

the home, two prescription pill bottles upstairs, and a drug test of the father that

was positive for marijuana. However, she conceded the amount of marijuana

detected in the drug test was small and the test could have reflected usage much

earlier. Notably, the father introduced evidence of a separate drug test result that

was negative for the presence of drugs.

       We conclude there is less than clear and convincing evidence that the

father’s child was imminently likely to experience harmful effects as a result of

the father’s failure to supervise, where that failure was premised on the discovery

of drug paraphernalia in a closed tote in the basement and a dated positive drug

test. See In re J.S., 846 N.W.2d at 37 (concluding “a parent’s methamphetamine

addiction by itself can result in ‘harmful effect[s]’ to the child, hereby justifying
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state intervention to protect the child.”) (emphasis added).          Accordingly,

adjudication was not warranted under section 232.2(6)(c)(2).

      We are left with the father’s challenge to the dispositional order continuing

custody of the child with the department. The father argues “it is in the minor

child’s best interest to be in [his] care as there is no evidence that [he] did

anything to precipitate this investigation.” As discussed, the investigation of the

toddler’s sex abuse was pending at the time of the dispositional hearing.

Accordingly, the district court appropriately declined to change custody.

      We affirm the district court’s adjudication of the child as in need of

assistance under section 232.2(6)(b) and (d). We also affirm the dispositional

order continuing custody of the child with the department.        We reverse the

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

      AFFIRMED IN PART AND REVERSED IN PART.
