                       IN THE COURT OF APPEALS OF IOWA

                                       No. 18-0141
                                    Filed May 2, 2018


IN THE INTEREST OF A.M. and A.M.,
Minor Children,

S.M., Father,
       Appellant.
________________________________________________________________


          Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District

Associate Judge.



          A father appeals from the dispositional order confirming the removal of his

children from his care. AFFIRMED.




          Christine L. Sand of Wild, Baxter & Sand, P.C., Guthrie Center, for appellant

father.

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

General, for appellee State.

          Yvonne C. Naanep, Des Moines, guardian ad litem for minor children.




          Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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DANILSON, Chief Judge.

       A father appeals from the dispositional order confirming the removal of his

children from his care. He contends he has complied with all of the juvenile court’s

requirements and objects to the court’s order that he obtain a hair-stat test. Upon

our de novo review, see In re J.S., 846 N.W.2d 36, 40 (Iowa 2014), we find no

reason to disturb the juvenile court’s dispositional order. We therefore affirm.

       In mid-2016, the children—a boy, age ten, and a girl, age four—came to the

attention of the department of human services (DHS) due to methamphetamine

use by their mother and a lack of proper supervision by their father. There was no

custody order between the parents but the mother allowed the children to reside

with   the father, and     the mother entered       substance-abuse treatment.1

Unfortunately, the father was distrustful of DHS involvement. DHS asked that he

provide a hair-stat test, which he refused.

       On June 9, 2017, both parents were ordered to undergo hair-stat tests on

Monday, June 12, and submit the results to DHS. They were also ordered to

cooperate with the Family Safety, Risk, and Permanency (FSRP) worker. On June

23, an order for ex parte removal was entered after the court found the

       mother’s hair stat test showed positive results which were higher
       than expected; the father has not complied with a drug test as
       previously agreed. The children could not be placed with a non-
       custodial parent because both parents are involved. The children
       could not be placed with another relative because other appropriate
       relatives are unknown.




1
 DHS considered this placement with the father as a relative placement with the goal
being reunification with the mother.
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       On June 27, a hearing was held at which the father agreed to allow service

providers to come into his home. The court ruled the father “did not comply with

the court’s order to get a hair stat test” but found “there is no evidence of drug use”

by the father. At the hearing, the court told DHS to accept the urinalysis (UA)

results from samples provided by the father to his employer. The court’s written

order also provided: “[T]he court orders that the child be returned to [the father’s]

custody immediately; he is still ordered to obtain a hair stat test, from the provider

of his choice, with results to be provided to the court by July 12, 2017.”

       A child-in-need-of-assistance (CINA) adjudication hearing was scheduled

but was continued a number of times.

       In August, the father was allowing FSRP service providers into his home.

The father was told the mother was not to provide unsupervised care of the

children. At the CINA adjudication hearing on September 6, the father contested

the adjudication, and the hearing was rescheduled for October 24.

       Despite agreeing not to allow the mother to be with the children

unsupervised, DHS learned the mother was providing unsupervised care for the

children. DHS social worker Sheila Aunspach informed the father DHS would be

seeking a removal order for the children. The father did not attend work for the

next several days and pulled the children out of school. A removal order issued

on October 23, but the children’s whereabouts were unknown.

       The father did appear for the October 24 adjudication hearing and, upon

questioning by the court, the father informed the court the children were at his

home. He had left the children there without adult supervision.
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       Social worker Ashley Laughlin, who had been the case manager until

September, testified:

               April to July [2017] mom would not address her substance
       abuse issue and said she no longer had a problem and was reporting
       that she was the one taking care of the kids when dad was at work.
       I believe it was in July that we asked for a hair test. That hair test
       came back positive for methamphetamine.
               Q. Was that for mom? A. That was for mom, yes.
               Q. Does it cause you concerns that the mother was watching
       the children at this point? A. It did at the time. However, the father
       reported that he did not know what things to look for with
       methamphetamine use. It concerned me that mom had put her
       children in that position. It concerned me that the father who has
       known this woman for ten plus years didn't know what any of her real
       indicators looked like.
               Q. Did the children’s mother indicate that she had a history of
       methamphetamine use? A. The children’s mother did.
               Q. How long of a history? A. It didn’t really say a length. [The
       boy] did talk about the time . . . that he was asked to pee in the cup.
               Q. So in July these concerns about the mom watching the kids
       came up, is that right? A. That had been a concern throughout, but
       I believe that’s the time where it was really addressed because her
       hair test came back positive.
               Q. So what type of arrangements were made with the parents
       regarding mom and seeing the kids? A. I believe it was around that
       time that I asked for the removal. Mom then reengaged in treatment.
       The children returned to the father, and mom was engaged in
       treatment at that time. And then on August 4th, 2017, I received an
       email from mom’s probation officer that basically said that she had
       admitted to continued methamphetamine use and would be like two
       weeks off, two weeks on.

       When asked why DHS was not requiring professionally supervised

visitation, Laughlin stated:

              Legally we don’t have removal from either parent at this point
       in time, so FSRP does not supervise contact without a removal.
       Even with that, being a new FSRP provider, the trauma the children
       had just gone through [being removed from home] and the fact that
       dad was cooperative at that point in time and stated that he was not
       going to allow mother to be alone with the children, I felt it was in the
       children’s best interest to allow her to come over to their home with
       dad and see the kids.
                                             5


       Laughlin reported that in September the father “was willing to allow me into

his home, but that was about the extent of it. He did not feel like it was his fault

that DHS was involved and that he did not have to engage in services.” Laughlin

testified that more than a year after DHS involvement began, “[t]here still remain

concerns about mother’s substance abuse and father’s ability to be protective of

the children with regard to mother’s substance abuse.”

       Aunspach replaced Laughlin as the supervising social worker on this case

in September 2017.2 Aunspach testified the father’s one-bedroom home was

“minimally adequate,” though dirty, and the children were sharing one mattress.

Aunspach testified the father acknowledged to her that the mother was seeing and

caring for the children without supervision. She also testified the mother was not

currently in treatment and she had concerns about the father’s mental health or

possible substance use. Aunspach summarized her concerns:

               Q. And what would you consider the imminent danger to the
       children’s life or health if they were allowed to remain in the home?
       A. Mom is known to use illegal substances or we can presume that
       she is due to the lack of drug screening and her lack of attendance.
       She is not able to properly supervise these children if she is using
       illegal substances. And dad is allowing mom to continue to watch
       these children. It’s concerning that dad does not have the protective
       capacity to know when mom is using or to question mom and to
       follow up with providers or professionals if she is telling them things
       such as the department and her attorney told her that she’s able to
       be alone with the children. I believe that a reasonable adult would
       follow up on that information and not believe somebody that is a
       known drug user.
               Q. Just to clarify, you never gave mom permission to watch
       the kids? A. No.




2
 Aunspach testified Laughlin “felt that dad had a lack of trust for her and that it would be
best for somebody else to take the case moving forward in order to hopefully be able to
work better with that.”
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She also stated DHS “is very concerned that there had been an order for removal

and that dad has been hiding the children and has not made them available for the

removal to take place and that the children are not in school at this time.”

       The father acknowledged at the adjudication hearing he had used

methamphetamine but stated it was many years ago. He also admitted that he did

leave his daughter in the mother’s unsupervised care “[b]ecause I didn’t have

nobody else to watch her while I was at work.” He stated the mother was alone

with the child “about three hours a day” and the mother had informed him “she had

talked to her lawyer and to one of the DHS ladies and they said it was all right.”

He had not confirmed the information with anyone else. He stated he had no

concerns the mother was still using methamphetamine because “she said she had

been going [to treatment], that she had been dropping clean UAs.” Again, he had

not confirmed the mother’s claims with anyone else.                 The father also

acknowledged he knew the court had ordered the children’s removal but he felt the

children were safer in his care than in DHS’s.

       The following exchange occurred on cross-examination:

              Q. So do you normally just accept [the mother] at her word?
       A. No. But when I’m stuck in a position of not having a baby-sitter
       and I have to get to work, I didn’t feel like she was high.
              Q. Can you recognize when she’s high? A. Sometimes. I
       mean—
              Q. Well, what sort of symptoms do you see from her when
       she’s using? A. She is—she doesn’t do what she says she’s going
       to do. She doesn’t come around.
              Q. So do you truthfully feel you’re able to identify when she’s
       using and when she’s not? A. If she tried to hide it, I probably couldn’t
       tell.
              ....
              Q. So why wouldn’t you follow up, sir, to make sure that she’s
       clean and sober? A. Because I don’t feel that they’re in danger.
                                             7


              Q. Why don’t you feel that that’s any danger? A. Because it’s
       their mother. I mean, I don’t know.

       The State and the guardian ad litem argued the children were in need of

assistance and the mother stipulated to the children’s being adjudicated as CINA.

The father objected to any CINA adjudication.

       The court orally ruled the children were in need of assistance. The court

expressed its concerns about the mother’s ongoing substance-abuse issues and

the father’s lack of supervision. The court noted the father admitted to leaving the

boy home alone when he was sick and to leaving the boy home alone the day of

the hearing in charge of his younger sister. The court found most concerning,

however, that after learning of the court order to remove the children, the father

decided to evade the court’s order. The court confirmed the order to remove the

children and place them in the custody of DHS for relative placement. 3

       On November 1, the State made application for a change of placement,

asserting that since the October 24 ruling, “the two relatives that were being

considered as relative placements are no longer available. . . . Three relatives

have stated to DHS that they believe the children’s father is using

methamphetamine.        The children have not been attending school since the




3
 The court added:
      I only want this to be until [the father] has worked with DHS to try to help
      with some of these supervision issues like before and aftercare at school,
      if that would help with your work situation, locating an in-home daycare or
      something like that that would be close enough and where if you have a
      sick child or—you know, or locate a person that you can line up so that that
      is in effect kind of a safety plan that you could work out, then I am happy to
      get those kids back to you just as fast as I can.
A maternal aunt had agreed to provide care for the children.
                                         8


October 24 hearing.” The court granted the application, and DHS placed the

children with other relatives who had been found to be appropriate caretakers.

      A dispositional hearing was held on December 5 and 20, 2017.           Social

worker Aunspach testified the children were in the care of a paternal uncle and

aunt and were doing “very well.”       She stated FSRP services and daycare

assistance were being provided to the family. The mother had been participating

in supervised visits with the children, though not on a consistent basis. The mother

was reportedly pregnant and not participating in substance-abuse treatment. The

father was working full time but expected to be laid off from the end of December

2017 until March 2018.     He had received some transportation assistance to

supervised visits with the children. Aunspach recommended the children remain

in the care of the relatives, expressing concern about possible substance abuse

by the father. In her written report to the court and testimony, Aunspach pointed

to behavioral indicators such as paranoia, mood swings, lack of cleanliness of the

home, and poor hygiene. She noted the father’s ongoing distrust of DHS and lack

of cooperation and communication with her. She also noted the father’s refusal to

comply with the court-ordered drug testing earlier in the proceedings and the post-

adjudication statements by the mother and maternal relatives that the father had

used methamphetamine for the past fifteen years. Aunspach also testified the

maternal relatives reported “they have no reason to believe he’s not still using.”

She recommended the father have a mental-health assessment and a substance-

abuse evaluation. She also asked that the father be required to provide a hair test

for analysis or random UAs.
                                            9


       FSRP consultant Jody Phillips testified that soon after she began working

with the family in July or August 2017, she believed the father had been using

some type of drug. She observed the father exhibiting signs of drug use:

       I observed his right side of his body to be having muscle spasms
       continuously for about an hour. When asked he said he didn’t notice
       that. And he was very talkative to me that evening, which in the
       beginning when I took over this case it was hard to get him to
       communicate with me, so it was abnormal for him to be talkative and
       allow me into the home.

Phillips stated she raised her concern with DHS. She also testified she had a

telephone conversation with the mother’s sister-in-law while she had the children

in her care following removal and she “told [Phillips] that she believes that [the

father] has always used and has not stopped using.”

       Phillips also stated she had consistently recommended to the father that he

clean his home and noted a “trash buildup on the floor, food that hadn’t been

cleaned in the kitchen for quite a while, and just the floor in general . . . would pose

a safety concern for younger children.” She testified the father had participated in

discussions with her about securing appropriate daycare after the children were

removed and she provided a list of people for him to call, but two weeks later he

had not made any calls.

       The court orally continued the children’s removal and ordered that before

the children could return to the father, the father was to submit for a hair-stat test.4

The court also ruled that the father needed to clean his residence so it was suitable




4
   The court observed, because the father admitted using methamphetamine in the past
and “you physically are constantly moving, what seems to me be some paranoia . . . but I
would like to eliminate the concerns. I want a hair stat test and then it’s over. You know,
if it comes back clean, we don’t have a problem with it anymore.”
                                         10


for the children and ensure that the children had “appropriate places to sleep”—

“They need to have beds.” In addition, though not required before the children

could be returned, the court ordered the father to have mental-health evaluation,

arrange for daycare for when he returned to work, and ensure the children were

able to continue counseling.

       A written dispositional order was filed on January 4, 2018, which provided

in part:

               (2) The court makes the following specific findings of fact: the
       children have been out of the home since October 19, 2017; the
       children’s mother is pregnant; the children are doing well with their
       uncle and aunt; father is exercising visitation but has had limited
       contact with DHS; mother has reengaged with services; the court has
       found the testimony regarding the father’s family of origin useful;
       based on statements of relatives, DHS still has concerns regarding
       the father using illegal drugs; the testimony of the witness is not
       necessarily reliable regarding possible drug use by the father
       however behavioral indicators and direct observation have
       reaffirmed the concern over possible drug use; the court
       acknowledges that the father has a distrust for the juvenile court
       system that may not be based on his drug use.
               (3) The children shall remain in or be placed in out of home
       placement. Placement outside the parental home is necessary
       because continued placement in or a return to the home would be
       contrary to the child’s welfare due to concerns over mother’s
       substance abuse and concerns over father’s supervision of the
       children.

       The father appeals. He does not challenge the children’s CINA adjudication

but argues the children should be returned to him pursuant to Iowa Code sections

232.102(6)5 and 232.103(4)6 (2017). He asserts he has provided negative UAs

and challenges DHS’s “continual focus” on his “alleged substance abuse.”




5
  Section 232.102(6) provides: “Whenever possible the court should permit the child to
remain at home with the child’s parent, guardian, or custodian.”
6
  Section 232.103(4) provides:
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       “[A] juvenile court is authorized to terminate a dispositional order only if ‘the

purposes of the [dispositional] order have been accomplished and the child is no

longer in need of supervision, care, or treatment.’” In re K.N., 625 N.W.2d 731,

733 (Iowa 2001) (second alteration in original) (citation omitted).

       The father’s continued demonstration of an inability to protect the children

and allowing them to have unsupervised contact with their mother establishes a

risk of inadequate supervision. In addition, in light of the father’s admitted past use

of methamphetamine, his continued refusal to provide a hair-stat drug test despite

court orders, the testimony of the FSRP provider about the father’s behavioral

indicators of drug use, and the court’s observations of the father’s behavioral

characteristics at the dispositional hearing, we conclude the juvenile court had

ample reasons to continue the children’s removal and order the father to obtain a

hair-stat drug test. We find no merit in the argument that there was no evidence

and only speculation the father was using illegal substances when the father

steadfastly refuses—notwithstanding an order of the court—to obtain a hair-stat

drug test. Finding no reason to disturb the dispositional order, we affirm.

       AFFIRMED.




                The court may modify a dispositional order, vacate and substitute a
       dispositional order, or terminate a dispositional order and release the child
       if the court finds that any of the following circumstances exist:
                (a) The purposes of the order have been accomplished and the
       child is no longer in need of supervision, care, or treatment.
                (b) The purposes of the order cannot reasonably be accomplished.
                (c) The efforts made to effect the purposes of the order have been
       unsuccessful and other options to effect the purposes of the order are not
       available.
                (d) The purposes of the order have been sufficiently accomplished
       and the continuation of supervision, care, or treatment is unjustified or
       unwarranted.
