                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0291
                               Filed May 17, 2017


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

C.M., Mother,
      Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Adams County, Monty W. Franklin,

District Associate Judge.



      A mother appeals the juvenile court’s adjudicatory and dispositional orders

in child-in-need-of-assistance proceedings. AFFIRMED.




      Bryan J. Tingle of Tingle Law Office, Des Moines, for appellant.

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

General, for appellee State.

      Jane A. Orlanes of Orlanes Law Office, P.L.C., for minor child.




      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

       A mother appeals the juvenile court’s adjudicatory and dispositional orders

in a child-in-need-of-assistance (CINA) proceeding. We find the juvenile court

properly denied the mother’s motion to dismiss, the CINA adjudication was

supported by clear and convincing evidence, and the court did not abuse its

discretion in denying the mother’s request for a suspended judgment. We affirm

the decision of the juvenile court.

       I.     Background Facts & Proceedings

       On July 30, 2016, C.M. appeared at an emergency room with her son,

D.R., stating they were both covered with bugs.         No bugs were seen by

emergency room personnel or a social worker from the Iowa Department of

Human Services (DHS). C.M. was given a drug test, which was positive for

methamphetamine and oxycodone. D.R., who was six years old, is autistic, non-

verbal, and hyperactive.     The social worker discussed removal of the child

because it was unsafe for C.M. to care for him at that time. C.M. voluntarily

agreed to have the child placed in foster care.

       An ex parte temporary removal order was filed on August 2. On August 8,

the mother revoked her consent for removal of the child. On August 10, the

State filed a CINA petition.    The mother filed a motion to dismiss the CINA

proceedings, claiming the CINA petition was untimely under Iowa Code section

232.78(3) (2016), because it was not filed within three days after the temporary

removal order. The juvenile court entered an order stating:

               The Court finds that good cause exists for the delay in the
       filing of the Petition herein based upon the fact that the initial
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        removal was made with the consent of the mother of the child and
        the Removal Order simply confirmed the voluntary placement
        agreement of the child’s mother; that it was reasonable for the
        State to assume that it was not necessary to file a Petition herein
        within the three day time limit as there was an agreement by the
        child’s custodial parent, the child’s mother, that removal was
        appropriate and consented to by the custodial parent; and that
        when Notice of the Revocation of that voluntary placement was
        filed herein by the child’s mother, the State did then in fact file the
        Petition herein within two days after the filing of the Notice. The
        Court further finds that the child’s parents have not been prejudiced
        by the short delay in the filing of the Petition herein for the reasons
        set out above.

The court determined the child was properly removed from the mother’s care.

        The mother had a hair test, which was positive for amphetamine but not

methamphetamine. The mother stated she was positive for amphetamine due to

a prescription medication.      The juvenile court adjudicated the child a CINA,

pursuant to section 232.2(6)(c)(2), finding there was clear and convincing

evidence the mother was under the influence of a substance on July 31 and her

erratic behavior placed the child at risk.      The court found the mother had a

delusional condition which caused her to hallucinate there were bugs on herself

and the child.

        The mother had a psychological evaluation and was diagnosed with

post-traumatic stress disorder, obsessive compulsive disorder, and dysthymia.1

The juvenile court entered a dispositional order on January 9, 2017, denying the

mother’s request for a suspended judgment under section 232.100. The court

determined the child could not be immediately returned to the mother’s care

because she still needed to address her mental-health problems and follow

through with any recommended substance-abuse treatment. The court directed
1
    Dysthymia is a continuous long-term form of depression.
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the establishment of a transition plan for the orderly return of the child to the

mother’s care.

       The mother filed a motion pursuant to Iowa Rule of Civil Procedure

1.904(2), again asking for the child to be returned to her care. The motion was

denied by the court.      The mother now appeals the CINA adjudication and

dispositional orders.

       II.    Standard of Review

       Our review in CINA proceedings is 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. “As in all juvenile

proceedings, our fundamental concern is the best interests of the child.” In re

K.N., 625 N.W.2d 731, 733 (Iowa 2001).

       III.   Motion to Dismiss

       The mother claims the juvenile court should have granted her motion to

dismiss the CINA proceedings.         Section 232.78(3), pertaining to ex parte

temporary removal orders, provides, “Except for good cause shown or unless the

child is sooner returned to the place where the child was residing or permitted to

return to the child care facility, a petition shall be filed under this chapter within

three days of the issuance of the order.”         The mother notes the ex parte

temporary removal order was filed on August 2, 2016, and the CINA petition was

filed on August 10, 2016, more than three days later.

       We agree with the juvenile court’s conclusion the State showed good

cause for the slight delay in filing the CINA petition.       The mother signed a
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voluntary foster care placement agreement on July 31, 2016, consenting to the

removal of the child.      We agree with the juvenile court’s finding the State

reasonably believed it was not required to file a petition within three days

because the mother consented to the removal and “the Removal Order simply

confirmed the voluntary placement agreement of the child’s mother.” After the

mother filed notice of her revocation of consent to removal on August 8, 2016,

the State filed a petition two days later, on August 10. We find the juvenile court

properly denied the mother’s motion to dismiss.

       IV.    Sufficiency of the Evidence

       The mother claims there is not sufficient evidence in the record to support

the CINA adjudication. She states there was no credible evidence to show she

was under the influence of methamphetamine. The mother states she had a

prescription for Adderall, which would cause a positive drug test for

amphetamine. The mother claims there is not clear and convincing evidence in

the record to show she was unable to adequately supervise the child.

       Section 232.2(6)(c)(2) permits a CINA adjudication for a child “[w]ho has

suffered or is imminently likely to suffer harmful effects as a result of” “[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.”   Allegations in CINA proceedings must be proven by clear and

convincing evidence. Iowa Code § 232.96(2).

       The medical report from July 31, 2016, shows the mother was

experiencing hallucinations there were bugs all over herself and the child. She
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stated, “they are under her skin and the bugs are red and white and with cold

water, they will crawl out.” A drug test was administered because of concerns

with the mother’s behavior, and it was positive for methamphetamine and

oxycodone.     The mother later had a hair test, which was positive for

amphetamine, but not methamphetamine.         While it is possible the mother’s

hallucinations were caused by mental-health problems rather than the use of

illegal drugs, the fact remains she was in a condition where she was unable to

“exercise a reasonable degree of care in supervising the child.” See Iowa Code

§ 232.2(6)(c)(2). We determine the CINA adjudication was supported by clear

and convincing evidence.

      V.     Suspended Judgment

      The mother claims the juvenile court should have suspended judgment

under section 232.100, which provides:

             After the dispositional hearing the court may enter an order
      suspending judgment and continuing the proceedings subject to
      terms and conditions imposed to assure the proper care and
      protection of the child. Such terms and conditions may include the
      supervision of the child and of the parent, guardian or custodian by
      the department of human services, juvenile court office or other
      appropriate agency designated by the court. The maximum
      duration of any term or condition of a suspended judgment shall be
      twelve months unless the court finds at a hearing held during the
      last month of that period that exceptional circumstances require an
      extension of the term or condition for an additional six months.

      “[T]he decision of whether to suspend judgment is left to the juvenile

court.” In re T.D.H., 344 N.W.2d 268, 271 (Iowa Ct. App. 1983). Our supreme

court has stated, “when there is a suspended judgment, the child remains with

the parent.” State v. Iowa Dist. Ct., 828 N.W.2d 607, 615 (Iowa 2013).
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      The juvenile court determined removal of the child from the mother’s care

was necessary in this case. The mother needed time to address her mental-

health problems and there needed to be a determination of whether substance-

abuse treatment was required. The court concluded, “A suspended judgment

pursuant to Iowa Code Sec. 232.100 is not appropriate since the child is still out

of the mother’s care.” The matter was further addressed in the court’s ruling on

the mother’s rule 1.904(2) motion, where the court stated even if a suspended

judgment was available, it was not appropriate here.

      We find the juvenile court did not abuse its discretion in denying the

mother’s request for a suspended judgment under section 232.100.                A

suspended judgment would be appropriate only if the child could be immediately

returned to the mother’s care. We determine it is in the child’s best interests to

be removed from the mother’s care while she addresses the issues that led to

the CINA adjudication.

      We affirm the decision of the juvenile court.

      AFFIRMED.
