                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0116
                                 Filed March 25, 2015

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

S.P., Mother,
       Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Rachel Seymour,

District Associate Judge.



       A mother appeals from the juvenile court order adjudicating her child in

need of assistance. AFFIRMED IN PART AND REVERSED IN PART.



       Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.

       Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, John P. Sarcone, County Attorney, and Jennifer Galloway, Assistant

County Attorney, for appellee.

       Todd Babich of Babich Goldman, P.C., for father.

       Erin Mayfield of Youth Law Center, attorney and guardian ad litem for

minor child.



       Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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MULLINS, J.

      A mother appeals from a juvenile court order adjudicating her child, A.H.,

in need of assistance pursuant to Iowa Code section 232.2(6)(c)(2) and (n)

(2013). She contends the State failed to prove the grounds for adjudication by

clear and convincing evidence.      We reverse the adjudication under section

232.2(6)(n) and affirm under section 232.2(6)(c)(2).

I.    BACKGROUND FACTS & PROCEEDINGS.

      The mother was previously involved in a child-in-need-of-assistance

(CINA) case involving two older children, B.C. and E.P. That case was opened

in February 2012; the children were removed due to a domestic violence incident

in which the mother assaulted the older children’s father. The court terminated

the mother’s parental rights to the children in March 2014, citing the mother’s

substance abuse issues with methamphetamine, domestic violence issues, and

her inability or unwillingness to make the necessary changes to have the children

returned to her care.

      The mother was arrested in February 2014 and remained in custody until

April. In April, she entered inpatient substance abuse treatment at MECCA. She

completed inpatient treatment successfully and entered a half-way house

program at Bernie Lorenz. She completed that program successfully in August

2014. The mother was scheduled to complete ten weeks of aftercare services on

an outpatient basis but attended only two of ten sessions.

      The child in interest in this case, A.H., was born October 2014, removed

from the mother’s care two days after birth, and placed with the maternal
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grandparents. The DHS alleged the mother had used illegal substances while

pregnant, but the cord blood test was negative for drugs.         The State filed a

petition to adjudicate A.H. a CINA under Iowa Code section 232.2(6)(b), (c)(2),

and (n).   Following a contested hearing, the court adjudicated A.H. a CINA

pursuant to section 232.2(6)(c)(2) and (n), but dismissed the petition as to

section 232.2(6)(b). The court found the follow facts supported its conclusion:

       Mother has previously had services through two older children
       [B.C.] and [A.P., children to whom the mother previously lost
       parental rights]. [The caseworker assigned to the previous case]
       indicated that Mother never participated in services during that
       case, and in fact, she reported intravenous[] drug use in December
       of 2012, towards the end of the case. During that case, Mother had
       the opportunity of residential programming at House of Mercy and
       Beacon of Life but neither program was successful in resolving
       Mother’s substance abuse issues. Mother reported to FSRP
       provider she had participated in domestic violence classes, but she
       never provided verification.          Mother’s parental rights were
       terminated to those children in February of 2014, due to her inability
       to maintain sobriety. Regarding this child, the DHS worker testified
       Mother failed to follow through with aftercare services just prior to
       the child’s birth. While Mother testified she was not able to go due
       to her pregnancy, she continued to work during that same time.
       Father is currently in a residential program called Bridges to
       address his unresolved substance abuse issues . . . . Father has
       been in a relationship with Mother for an extended period of time.
       On his weekend[] passes he returns to an apartment he shares with
       Mother. Ultimately, the DHS worker testified that given the child’s
       age, her inability to self-protect, parent’s history of substance abuse
       issues, and their history of domestic violence she believes this child
       is in need of the Court’s protection. The Court agrees and finds this
       child is inherently at risk due to the parent’s recent history of
       substance abuse and domestic violence . . . . Neither parent has
       shown the ability to meet their older children’s needs and has not
       shown an ability to maintain sobriety.

In its disposition order, which it filed at the same time as the adjudication order,

the court awarded the mother temporary legal custody of A.H. as long as the
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mother resided with the maternal grandparents.            The mother appeals the

adjudication.

II.    STANDARD OF REVIEW.

       We review CINA proceedings de novo. In re J.S., 846 N.W.2d 36, 40

(Iowa 2014). “In reviewing the proceedings, we are not bound by the juvenile

court’s fact findings; however, we do give them weight.”          Id.   “Our primary

concern is the children’s best interests.” Id. “CINA determinations must be a

based upon clear and convincing evidence.” Id.

III.   ANALYSIS.

       On appeal, the mother contends the State failed to prove the grounds for

adjudication by clear and convincing evidence. She argues she has been sober

for ten months and the current adjudication is based on factors influencing the

previous termination proceedings that no longer exist. The court adjudicated

A.H. in need of assistance pursuant to Iowa Code section 232.2(6)(c)(2) and (n).

       At the adjudication hearing, the DHS worker testified that A.H. should be

adjudicated in need of assistance for the following reasons: “The mother’s prior

drug history, her inability to maintain sobriety outside of [a] structured setting and

treatment, [and] the lack of follow through in the past.” However, the worker

admitted her recommendation was based entirely on her past interactions with

the mother through the previous CINA case, rather than the current case. She

also testified she was unaware of any harm the mother had done to the child

since she was born.      The FSRP worker described the mother as a loving,

nurturing, and capable parent. The case progress reports continually state there
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are no concerns regarding the mother’s ability to parent appropriately. The DHS

worker also testified there was no concern about the mother using illegal

substances since the case was opened.

      At the time of adjudication hearing, the mother had completed inpatient

substance abuse treatment through MECCA. She completed an aftercare half-

way house program at Bernie Lorenz and was engaged in therapy and Narcotics

Anonymous (NA).      She was working through the twelve steps program and

attending NA meetings. She had a sponsor who was also her employer. She

was renting a home, had a car, and was employed.             She had completed a

domestic violence class. She testified she would be graduating from her relapse

prevention class the following week.

      She admitted that she had not utilized services during the previous CINA

case because she had an active addiction. She admitted she did not complete

the ten-session aftercare ordered. She also admitted to using methamphetamine

during her first month of pregnancy with A.H. when she was unaware she was

pregnant. She stated she had been sober since February 2014. She further

acknowledged the importance of drug testing, treatment, and therapy in her life to

prevent relapse. Although she admitted her pregnancy with A.H. was a major

reason for getting sober, she testified she could remain sober without external

motivation:

      I’ve gained a lot of insight these last nine months of being sober,
      I’m employed, I have a sponsor, I’m working with a sponsor,
      therapy, I’ve built up a lot. I have a home, I’m self-sufficient. I don’t
      want to lose that. I don’t want everything that I’ve worked so hard
      for to go down the drain, and it’s not worth it. And I made that
      decision to not use, that’s what I’m going to do.
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      The mother also agreed that A.H. would be at risk of harm if she relapsed.

She acknowledged relapse was a possibility but insisted she had made the

decision not to use and had a treatment plan in place. She also stated that she

was engaged to the father and would be residing with him.

      The DHS worker was concerned about the mother’s plan to live with the

father, although she found the home itself was safe and appropriate. The father

has an extensive drug and criminal history.      She testified the father was

addressing his substance abuse issues, but had previously been unable to

remain sober outside the structure of a program. He had been actively using

methamphetamine until April 2014. He entered an inpatient treatment program in

April 2014 and gave over forty clean drug screens while he participated. At the

time of the adjudication hearing, the father was attending residential substance

abuse treatment. He planned to be discharged at the end of December and

move in with the mother. The father simultaneously was involved in another

CINA case, opened August 2013, regarding his child with a different mother.

That case was proceeding to a termination hearing around the same time as

A.H.’s adjudication hearing. However, in the case progress reports, the FSRP

worker found him to be a loving and competent parent.

      Iowa Code section 232.2(n) provides a child in need of assistance is one

whose parent’s “mental capacity or condition, imprisonment, or drug or alcohol

abuse results in the child not receiving adequate care.” The record does not

support adjudication on this ground. The child was removed from the mother two

days after birth. There is no evidence that the child did not receive adequate
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care during this time. There is also no evidence of either the mother or father

using illegal substances at the time of birth. Although the mother admitted to

using methamphetamine before she knew she was pregnant, the cord blood test

was negative. We reverse adjudication under section 232.2.(6)(n).

      Iowa Code section 232.2(6)(c)(2) provides a child in need of assistance is

one whose parent “has physically abused or neglected the child, or is imminently

likely to abuse or neglect the child.”   Preliminarily, there is no evidence the

parents have physically abused or neglected the child. We assess only whether

the evidence supports a conclusion that the parents are imminently likely to

abuse or neglect the child.

      At the time of the adjudication hearing, the father was in a residential drug

treatment and therapy program. He admitted to being an active drug user until

April 2014, thus his sobriety is relatively recent. He has a long history of drug

use and relapses as well as a long criminal history. The DHS worker testified

this is the longest period of sobriety the father has achieved since he has been

involved with DHS and he has not been able to stay sober without the structure

of a treatment program. At the time of the adjudication hearing, he was the

father in another open CINA case on the eve of a termination hearing. He had

been involved in services to address his drug addiction since that child was

removed in August 2013.

      He and the mother have a long history of using drugs together and making

poor decisions as a result of being impaired, including domestic violence. Yet he

plans to live with the mother when he is discharged from his treatment program.
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We agree with the juvenile court that the father’s sobriety in particular is of such

recent vintage as to still pose a risk of imminent harm to A.H. without court and

DHS supervision. Clear and convincing evidence supports this conclusion. A.H.

is very young, barely three months old at the time of adjudication, and she is

unable to self-protect if either one or both her parents relapse into drug use.

Therefore, we affirm adjudication under Iowa Code section 232.2(6)(c)(2).

       We note that the mother has made good progress toward reunifying with

A.H. and we applaud her efforts. However, adjudication references the child and

not the individual parent.      Adjudication will give both parents more time to

demonstrate they have overcome their addictions and domestic violence issues

and are fully ready to parent A.H. without court and DHS supervision.

IV.    CONCLUSION.

       We reverse adjudication under Iowa Code section 232.2(6)(n) and affirm

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

       AFFIRMED IN PART AND REVERSED IN PART.
