                     IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0869
                               Filed August 1, 2018


IN THE INTEREST OF J.R.,
Minor Child,

W.R., Father,
      Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda,

District Associate Judge.



       A father appeals the adjudication of his child as a child in need of

assistance. REVERSED AND REMANDED.



       Larry J. Pettigrew of Pettigrew Law Firm, P.C., Ankeny, for appellant father.

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

General, for appellee State.

       Dusty L. Clements of Clements Law and Mediation, LLC, Newton, guardian

ad litem for minor child.



       Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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POTTERFIELD, Judge.

       A father appeals the adjudication of his child, J.R., as a child in need of

assistance (CINA), arguing the State failed to present clear and convincing

evidence under Iowa Code section 232.2(6)(b) and (c)(2) (2018).

       I. Background Facts and Proceedings.

       J.R. was born in December 2017. Shortly after his birth, it was reported that

the mother and father had difficulties maintaining a clean and safe home.1 A

worker from the Iowa Department of Human Services (DHS) visited the home

where the mother, father, J.R., the mother’s father, and the mother’s step-mother

reside together.   The DHS worker found the home to be adequately clean,

organized, and appropriate for the family. The parents agreed to work with family

safety, risk, and permanency (FSRP) services, and a worker came to their home

every day for a thirty-day period between December and January. The FSRP

worker reported the parents complied with requests, but the worker expressed

concerns about both parents’ mental health and whether the home would be

adequately safe once J.R. becomes mobile. The State requested the court to

adjudicate J.R. as a child in need of assistance.

       At the adjudication hearing, the State presented evidence the father’s

parental rights to other children had previously been terminated.         The father

testified he has six children, including J.R. The father testified his first child was

adopted by other parents. Three of his children are residing with their mother, the




1
 The mother filed a petition on appeal, but the supreme court dismissed her appeal as
untimely. We acknowledge adjudication of the child as a CINA will continue as to the
mother in the absence of an appeal.
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father’s ex-wife, and the father is unsure of their whereabouts. His parental rights

to his fifth child, B.R., born to J.R.’s mother, were terminated in Minnesota in the

summer of 2017.

       At the hearing, the State submitted a parental-capacity evaluation and the

termination order from the Minnesota termination proceedings. The parental-

capacity evaluation included concerns the father was not able to follow medical

recommendations, was overfeeding the child, did not have appropriate knowledge

of developmental milestones, inappropriately held the baby, and had a history of

mental-health and domestic-violence issues. In the Minnesota termination order,

the court found there were concerns about the home being dirty, cluttered, and

unsafe for a child, and concerns about the father’s understanding of child

development and ability to properly feed, dress, or bathe the child.

       The Minnesota parental-capacity evaluation reflects the father has been

admitted to inpatient mental-health services multiple times for suicidal ideation,

with the most recent hospitalization in 2014. The Minnesota termination order

found the father had a history of untreated mental-health issues, including bipolar

disorder, generalized anxiety disorder, and other personality disorders with

antisocial traits. The father was not taking his medications as prescribed at that

time and had not followed through after multiple psychiatric evaluations. The

evaluation found the father to have cognitive limitations. The father admitted in the

Minnesota termination proceedings that he was unable to properly parent the child

or meet the child’s needs and would not be able to do so in the reasonable

foreseeable future.
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       At the adjudication hearing in this matter, the father testified he was

planning to move to another apartment with the mother and J.R. The mother

testified they could better manage the cleanliness of their home in a new apartment

because it would not be shared with the mother’s father, step-mother, and their

multiple cats. The father testified he was not currently taking any mental-health

medication because his last doctor discontinued his medication. The father has

not engaged in therapy as recommended by DHS. He also testified he was on the

waiting list for mental-health services; his wife had made the appointment the day

prior to the hearing. The parents submitted a letter from J.R.’s doctor stating J.R.

is in good health, showing good growth, and is up to date on his vaccinations.

Another letter from J.R.’s doctor indicates there were some initial concerns about

overfeeding, but after discussion the parents were able to correct their behavior.

       The court adjudicated J.R. as a child in need of assistance pursuant to Iowa

Code section 232.2(6)(b) and (c)(2). At disposition, the parties were asked to sign

a “stipulation” including a provision that J.R. remain a child in need of assistance.

The parents’ signature lines state “present.” The court ordered custody remain

with the mother and father. The father appeals.

       II. Standard of Review.

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

(Iowa 2014). Our primary concern is the child’s best interests. Id. “While we give

weight to the trial courts findings of fact, we are not bound by them.” In re K.N.,

625 N.W.2d 731, 733 (Iowa 2001).         The State has the burden to prove the

allegations by clear and convincing evidence. In re B.B., 598 N.W.2d 312, 315

(Iowa Ct. App. 1999).
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       III. Discussion.

       The father contends the State did not prove by clear and convincing

evidence that the requirements under Iowa Code section 232.2(6)(b) or (c)(2) were

met. The State asks us to interpret the grounds for adjudication broadly and look

to the father’s past behavior to affirm. The district court stated:

               The father . . . is before the Court with his sixth child. His first
       child “disappeared and was adopted.” He does not know where his
       second, third, and fourth children are or the status of his parental
       rights. His fifth child was [B.R.] and his rights were terminated along
       with the mother’s. The father also completed the “parental capacity
       evaluation” in December 2016 as a part of [B.R.]’s case.

The juvenile court quoted the Minnesota parental capacity evaluation at length,

adopting its findings:

               Despite repeated teaching regarding how to properly care for
       his son, he has either been unable to learn the information or has
       actively defied or refused to comply with requests from providers to
       include properly caring for his son.
               [The father] is currently not adequately caring for his own
       basic needs to include hygiene, keeping his apartment clean, and
       taking his medications.
               ....
               Remediation of the aforementioned problems would be a
       lengthy process taking at minimum years but could also never be
       achieved due to his cognitive limitations. These problems will
       adversely affect his ability to adequately parent his son now as well
       as in the future. He would not be able to care for his son’s basic
       needs, safety, or welfare. He would not be able to adjust his
       parenting techniques as he grows. His son would be at significant
       risk for abuse and/or neglect due to his inability to adequately care
       for him but also due to his unawareness of the danger that his lack
       of appropriate care could pose to him.

The juvenile court concluded by stating:

              The parents’ deficiencies include their cognitive functioning,
       their mental health issues and failure to follow through with therapy
       and medications, their failure or inability to follow the instructions of
       service providers, their inadequate knowledge of child development,
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      their cleanliness/hygiene issues, and overall failure to show progress
      in their parenting after multiple classes and service interventions.

      The court’s findings as to J.R. appear to be based on the documents

submitted in the child protection case in Minnesota involving another child. In

contrast to the information in those documents, the FSRP worker in this case

testified the parents responded to her recommendations.         J.R.’s doctor also

submitted a letter indicating the parents were able to adjust their feeding of J.R.

after receiving instructions on how to not overfeed him. While in the Minnesota

case the home was found to be unsanitary, the DHS worker in this case found the

home to be satisfactory. There is no evidence from this case the father’s untreated

mental health or cognitive functioning poses a risk to the child.        The court

determined the State had failed to prove its case under Iowa Code section

232.2(6)(n) alleging inadequate cognitive functioning.

      A child is a CINA pursuant to Iowa Code section 232.2(6)(b) when a “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.” Physical abuse or neglect in this context 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.”     J.S., 846 N.W.2d at 41. (quoting Iowa Code

§ 232.2(42)).

      To find past “abuse or neglect,” the State must prove three things by clear

and convincing evidence: the child must have sustained a physical injury, the

physical injury must have been the result of acts or omissions of the person legally
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responsible for the child, and the physical injury must have been nonaccidental.

In re J.W., No. 14-0515, 2014 WL 3749419, at *2 (Iowa Ct. App. July 30, 2014).

There is no evidence of any physical injury to J.R. Further, there is no evidence

of past abuse or neglect from the father’s Minnesota termination case. See J.S.,

846 N.W.2d at 43 (finding there was not an imminent likelihood of abuse or neglect

where there were no specific prior instances of abuse or neglect, just the general

characteristics of methamphetamine addiction). The juvenile court’s apparent

basis for adjudicating J.R. a CINA is the father’s prior termination and untreated

mental-health issues. The State has not presented any current evidence that the

father’s untreated mental health causes an imminent likelihood of abuse or neglect.

       Under section 232.2(6)(c)(2), a child can be adjudicated a CINA if the child

has suffered or is imminently likely to suffer harmful effects as a result of “the failure

of the child’s parent . . . to exercise a reasonable degree of care in supervising the

child.” Harmful effects “pertains to the physical, mental or social welfare of a child.”

J.S., 846 N.W.2d at 41. “[W]e have found such effects established when there

was harm to a child’s physical, mental, or social well-being or such harm was

imminently likely to occur.” Id. at 41–42.

       Here, the primary concerns are the prior termination of the father’s parental

rights and his untreated mental-health issues, as the DHS worker found the home

to be adequately clean and the FSRP worker testified the father complied with her

parenting suggestions. These circumstances are unlike other cases in which we

have affirmed adjudications under Iowa Code section 232.2(6)(c)(2). “Typically,

an adjudication as a child in need of assistance pursuant to Iowa Code section

232.2(6)(c)(2) involves a parent who inadequately or insufficiently supervises a
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child due to inability or lack of concern, placing the child at risk of harm.” In re

E.R., No. 14-0850, 2014 WL 4937999 at *4 (Iowa Ct. App. Oct. 1, 2014). In J.S.,

our supreme court stated, “[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.” 846 N.W.2d at 42. In In re L.H., the supreme court found the child

was imminently likely to suffer harmful effects when the mother continued to

expose herself and her child to the father’s domestic violence. 904 N.W.2d 145,

152 (Iowa 2017). In In re W.I., we found the child was imminently likely to suffer

harmful effects when the mother failed to exercise caution and burned her infant

daughter. No. 00-1751, 2001 WL 1043240, at *3 (Iowa Ct. App. Sept. 12, 2001).

In In re D.T., the supreme court upheld finding the children were CINA under

section 232.2(6)(c)(2) where the children were living in “squalid conditions, eating

garbage, playing in raw sewage,” and were allowed to “play unsupervised in the

street.” 435 N.W.2d 323, 326–28 (Iowa 1989).

       Our courts have declined to affirm adjudication under Iowa Code section

232.2(6)(c)(2) in situations like this one, where there is no evidence the father is

unable to exercise a reasonable degree of care in supervising the child. See In re

J.D., 18-0641, 2018 WL 3060280, at *3 (Iowa Ct. App. June 20, 2018) (finding

evidence of the parent’s health issues, without evidence of how it affected the

parent’s ability to supervise the children, was not sufficient for adjudication under

232.2(6)(c)(2)). We find the State has not proven there is clear and convincing

evidence J.R. is imminently likely to suffer harmful effects. Despite the father’s

mental-health issues, he was able to respond to the FSRP worker’s directions and
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suggestions, and no evidence has been presented that he is unable to exercise a

reasonable degree of care in supervising J.R.

       We conclude the record before us does not contain clear and convincing

evidence the child is imminently likely to be abused or neglected or to suffer

harmful effects as a result of a lack of supervision. See Iowa Code § 232.2(6)(b),

(c)(2); see also J.S., 846 N.W.2d at 40–42.        Accordingly, we reverse the

adjudication of J.R. on those grounds and remand for dismissal of the State’s

petition.

       REVERSED AND REMANDED.
