                     IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0592
                               Filed July 16, 2014


IN THE INTEREST OF A.C. AND A.J.,
Minor Children,

J.C., Father,
Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Floyd County, Karen R. Salic,

District Associate Judge.



       A father appeals adjudicatory and dispositional orders in a child-in-need-

of-assistance action. AFFIRMED.



       David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles

City, for appellant father.

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

General, and Normand Klemesrud, County Attorney, for appellee State.

       Cynthia Schuknecht of Noah, Smith & Schuknecht, Charles City, attorney

and guardian ad litem for minor children.



       Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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VAITHESWARAN, P.J.

        A father appeals adjudicatory and dispositional orders in a child-in-need-

of-assistance action.    He contends (1) the district court “erred in admitting

evidence related to [an] ex parte order for drug testing and other evidence

derived from that order” and (2) his trial attorney was ineffective in “failing to

object to questioning of a witness by the court.”

I.      Background Facts and Proceedings

        A mother and father shared “50/50 custody” of their two children, born in

2006 and 2007. In 2013, the Iowa Department of Human Services received a

complaint that the children’s father was seen in his home with drugs.         The

department employee in charge of investigating the complaint interviewed the

father, who denied using drugs “at this time” but refused to volunteer for a drug

test.

        The investigator obtained an ex parte court order requiring the father to

undergo drug testing.     After receipt of the drug test result and receipt of

information that the father acted out in front of the mother’s home, the

department issued a “founded” child protection service assessment report

concluding the father denied the children critical care and failed to supervise

them properly.

        The father underwent a substance abuse evaluation and appeared to

meet the diagnostic criteria for amphetamine, cannabis, and alcohol abuse. It

was recommended that he begin extended outpatient treatment services. The

father began services as scheduled, with the focus on drug screening options. A

drug patch was applied but, several days later, a service provider determined the
                                          3


patch had been “compromised” and could not be sent in for testing. A second

drug patch also could not be sent in for testing because the father was

unavailable to have it removed.       The father declined a third drug patch and

refused therapeutic services. He was “discharged due to a lack of readiness to

resolve his problems.” Meanwhile, he agreed to have only supervised contact

with the children.

       After affording the father approximately five months to address his drug

addictions, the State filed a petition alleging the children to be in need of

assistance.   At an adjudicatory hearing, the State offered several documents

including the “founded” child protection service assessment report. The father’s

attorney objected to the admission of this report, asserting,

       [T]he report contains reference to a drug test that was conducted
       pursuant to a court order, and it is our position that that court order
       was done with no—there was no statutory authority for that court
       order, and a drug test does—does bring into play the Fourth
       Amendment, and I don’t think there was any—in addition to no
       statutory authority for it, I think that the court order also violates my
       client’s rights under the Fourth Amendment to be free from
       unreasonable search and seizure, and a drug test clearly is at the
       heart of his protected interests.

The court overruled the father’s objection and admitted the exhibit. Following the

hearing, the court concluded

       the children are in need of assistance . . . based on their father’s
       drug use and based on the testimony that’s a long-standing issue
       and would have resulted—because of the nature of that drug and
       the frequency of use that the children would have been in a
       situation which they were not receiving appropriate supervision or
       care.

The court ordered the father to resume substance abuse treatment and submit to

drug testing, and the children to continue in the mother’s custody “with visitation
                                         4


with [the father], supervised or unsupervised at the discretion of the Department.”

At a subsequent dispositional hearing, the court maintained the status quo. The

father appealed.

II.    Analysis

A.     Admission of Drug Test Result

       As noted, the father contends the court should not have admitted evidence

relating to the ex parte order for drug testing or any evidence derived from the

order. The State responds with an error preservation concern. In its view, the

father “had the obligation to resist the drug testing order” when it was entered

“and, if unsuccessful, to seek appellate relief from it.” While that was certainly a

route the father could have taken,1 his failure to appeal the order does not

foreclose our review of his timely objection to the report and the court’s ruling on

the objection, which reaffirmed the reasoning of the ex parte order.            Error

preservation is not a concern and we proceed to the court’s ruling on the

objection.

       Iowa Code section 232.96(6) (2013) governs the admissibility of

department reports, including child protective assessment reports. It states:

              A report . . . made by the department of human services . . .
       relating to a child in a proceeding under this division is admissible
       notwithstanding any objection to hearsay statements contained in it
       provided it is relevant and material and provided its probative value
       substantially outweighs the danger of unfair prejudice to the child’s
       parent, guardian, or custodian. The circumstances of the making of
       the report, study, record or other writing or an audiotape or


1
  We find it unnecessary to decide whether that order was appealable or subject to
discretionary review. See In re C.S., 516 N.W.2d 851, 857 (Iowa 1994) (stating “[a]
juvenile court decision is not final unless it disposes of all the issues”).
                                         5


       videotape recording, including the maker’s lack of personal
       knowledge, may be proved to affect its weight.

See also Iowa Code § 232.96(4) (stating “[a] report made to the department of

human services pursuant to chapter 235A [Child Abuse] shall be admissible in

evidence, but such a report shall not alone be sufficient to support a finding that

the child is a child in need of assistance unless the attorneys for the child and the

parents consent to such a finding”).

       In admitting the report, the court cited its authority to provide for “the

safety of the children without the trauma of removal if that can be done.” We

have no quarrel with this laudable goal; the exhibit was clearly relevant and

material to the question of the children’s safety, a paramount consideration in a

child-in-need of assistance action. See id. § 232.116(2); In re P.L., 778 N.W.2d

33, 37 (Iowa 2010). That said, we are not convinced the probative value of the

exhibit substantially outweighed the danger of unfair prejudice to the father. Iowa

Code § 232.96(6). The exhibit and, in particular, the exhibit’s reference to the

drug test result obtained pursuant to an ex parte pre-adjudication order, raised

serious statutory concerns.

       The only statutory authority the county attorney cited in support of ordering

such a test was Iowa Code section 232.78, a provision that authorizes medical

procedures to be performed on a child, not a parent. The county attorney was

left to argue in favor of the court’s “inherent authority” to issue such an order.

The county attorney was correct in noting that a court may have inherent

authority to act in a child’s best interests. See In re K.N., 625 N.W.2d 731, 735

(Iowa 2001) (noting the State’s duty “as parents patriae, to ensure that the aims
                                         6


of the juvenile justice code are applied to each child in need of the code’s

assistance”).   However, that authority cannot be used “to circumvent the

expressed legislative policies woven into the law.” Id. at 734.

      The legislature has specified precisely what the department can do on

receipt of a child abuse complaint. See Iowa Code § 232.71B. Nothing in that

provision authorizes a department employee to obtain an ex parte court order

mandating parental drug testing for the purpose of confirming child abuse

allegations. To the contrary, the provision only authorizes the department to

furnish voluntary services to families and then only to families of “abused

children,” not families being investigated for abuse. See id. § 232.71B(13).

      We recognize that a separate code provision, section 232.71C, allows the

department to seek juvenile court action at any time during the assessment

process if the department believes such action is necessary “to safeguard a

child.” See id. § 232.71C(1). This provision cannot be read as authorizing the

department to seek a pre-adjudication, ex parte order for mandatory parental

drug testing because another provision permits such testing only “[f]ollowing an

adjudication that a child is a child in need of assistance” and only “after a

hearing.” See id. § 232.98(2).

      In sum, we find no statutory authority to support the district court’s ex

parte pre-adjudication parental drug-testing order, nor do we find that the court

had inherent authority to enter such an order.

      What was inherent was the prejudice to the father. Because the original

order was entered ex parte, the father had no opportunity to raise the absence of

authority to support drug testing at this stage. While he could have refused to
                                             7


comply with the order, he then would have faced immediate removal of the

children.     We conclude the probative value of those portions of the child

protective assessment report making reference to the drug test and drug test

result was substantially outweighed by the danger of unfair prejudice to the

father.     Those portions of the report should not have been admitted. 2               The

remainder of the report, including the summaries of the investigator’s interviews

with the father and others and the department’s opinions and conclusions were

admissible. See In re Long, 313 N.W.2d 473, 480-81 (Iowa 1981).

          Our resolution of the admissibility issue on statutory grounds makes it

unnecessary to address the father’s constitutional objection to the exhibit. See In

re S.P., 672 N.W.2d 842, 846 (Iowa 2003) (confining analysis to statutory law). 3


2
  The existence of an objection and a ruling allows us to assess the probative value and
prejudicial affect and determine the admissibility of the document. Alternately, we could
affirm the admission of the entire exhibit and determine that the drug test result was
entitled to no weight. See Iowa Code § 232.96(6) (“The circumstances of the making of
the report, study, record or other writing or an audiotape or videotape recording,
including the maker’s lack of personal knowledge, may be proved to affect its weight.”);
In re A.B., 815 N.W.2d 764, 773 (Iowa 2014) (noting that in absence of objection to
exhibit it was still “fair for the court of appeals to comment on the limitations of the test
report”).
3
  The Fourth Amendment to the United States Constitution affords people a right to be
free from unreasonable searches and seizures. See Missouri v. McNeely, 133 S. Ct.
1552, 1558 (2013). “A court-ordered blood test [] is a search for Fourth Amendment
purposes.” State v. Washington, 832 N.W.2d 650, 658 (Iowa 2013) (citing McNeely,
133 S. Ct. at 1558). Several courts have weighed in on the constitutionality of
mandatory drug testing orders under similar circumstances. See Marchwinski v.
Howard, 113 F. Supp. 2d 1134, 1143 (E.D. Mich. 2000) (holding State failed to show
special need grounded in public safety for suspicion-less drug testing of FIP recipients,
establishing a strong likelihood of succeeding on the merits of their Fourth Amendment
claim), aff’d by 60 Fed. Appx. 601 (6th Cir. 2003) (affirming on rehearing by evenly
divided en banc panel); Wainright v. Superior Court, 100 Cal. Rptr. 2d 749, 753 (Cal
App. 2000) (finding “serious constitutional difficulties” with reading statute that empowers
family court to demand independent corroboration before considering allegations of a
parent’s drug abuse to authorize court-ordered drug testing); State v. Jane Doe, II and
John Doe, I, 233 P.3d 1275, 1282 (Idaho 2010) (holding order requiring parents of
juvenile to undergo drug testing as condition of juvenile’s probation was “presumptively
                                          8


       Although portions of the exhibit were inadmissible, we need not reverse

because our review is de novo and we are able to address the merits without

resort to the objectionable testimony. See In re Adkins, 298 N.W.2d 273, 278

(Iowa 1980). Accordingly, we proceed to the question of whether there was clear

and convincing evidence to support the adjudicatory and dispositional orders, a

question that was not explicitly raised but that underlies the father’s appeal. In re

L.G., 532 N.W.2d 478, 481 (Iowa Ct. App. 1995) (“The state has the burden to

prove the allegations of the petition by clear and convincing evidence.”).

       The admissible portions of the child assessment report reveal that the

father was coy about his drug use when interviewed by the department

investigator. While he denied present drug use, he indicated that, if a drug test

were taken, it might be positive for legitimate reasons. Later, in a meeting with

the investigator, he opined that methamphetamine use while away from the

children was not a safety issue.      He also admitted to relapsing four months

before the meeting.

       In addition to indications of drug use independent of the drug test, the

child assessment report made reference to an altercation outside the mother’s

home that scared the children.         This alternate basis for adjudication was

discussed by the court in its adjudicatory order.



invalid under the Fourth Amendment of the U.S. Constitution . . . absent a warrant”);
State v. Moreno, 203 P.3d 1000, 1012 (Utah 2009) (holding order requiring parent of a
delinquent juvenile to undergo drug testing absent probable cause to believe the parent
was using drugs conflicted with the Fourth Amendment to the United States
Constitution); but see Luminella v. Marcocci, 814 A.2d 711, 725 (Pa. 2002) (concluding
order compelling mother to undergo drug testing in connection with child custody case
was reasonable under the Fourth Amendment).
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       After the department issued its “founded” child protective assessment

report but before the child in need of assistance petition was filed, the father

agreed to participate in therapeutic services. As noted, he did not cooperate with

the service provider and those services were curtailed.

       At the adjudicatory hearing, the children’s mother testified that she learned

of the father’s drug use five or six years before the hearing. The department

became involved at that time. The mother opined that the father’s drug use had

essentially continued since then.4

       After setting aside the objectionable portions of the child protective

assessment report, we conclude there is still clear and convincing evidence to

support   the   adjudicatory    and    dispositional   orders.      See    Iowa    Code

§ 232.2(6)(c)(2) (failure to supervise), (n) (drug or alcohol abuse results in

inadequate care).

B.     Ineffective Assistance of Counsel

       As discussed above, the father agreed to participate in therapeutic

services before the child-in-need-of-assistance petition was filed.               At the

adjudicatory hearing, the State offered a discharge report summarizing the

father’s pre-petition progress. The father objected to admission of the report on

the basis of a department social worker’s testimony that the referral for these

services was a direct result of his positive drug test. The district court proceeded


4
  We acknowledge the Iowa Supreme Court’s holding in In re J.S., 846 N.W.2d 36, 42
(Iowa 2014) that “general statements about methamphetamine addiction are [not]
enough by themselves to prove that a child is imminently likely to suffer physical harm.”
However, unlike, J.S., the father did not have someone willing and able to step in and
relieve him of parenting duties when he was not up to the task. Id.
                                        10


to ask the department employee whether the father signed a release allowing the

department to obtain the report. The witness answered, “Yes.”

        The father contends his attorney should have objected to this question

because “[t]he court was not acting as an independent arbiter, but rather was

searching out a reason to receive [the exhibit] into evidence.”

               The test for ineffective assistance of counsel in termination
        cases is generally the same as in criminal proceedings. In order to
        establish an ineffective assistance claim, it must be shown that
        (1) counsel’s performance is deficient, and (2) actual prejudice
        resulted. We presume that counsel’s conduct falls within the range
        of reasonable professional competency. The burden of proving
        ineffectiveness is on the claimant.

In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992) (internal citations omitted).

        A court may interrogate witnesses “[w]hen necessary in the interest of

justice.” Iowa R. Evid. 5.614(b). However, “we have cautioned against assuming

the role of an advocate.”     See State v. Cuevas, 288 N.W.2d 525, 533 (Iowa

1980)

        Here, the district court judge came close to the line of impermissible

advocacy by raising a foundational issue that aided the State. However, the

court did not attempt to undermine the father’s position that the document flowed

from the statutorily unauthorized ex parte drug testing order and, as “fruit of the

poisonous tree,” was inadmissible. See Wong Sun v. United States, 371 U.S.

471, 487-88 (1963). On that score, we note that the document focused on the

father’s non-compliance with therapeutic services he agreed to undergo rather

than the compelled pre-adjudication drug test.       For that reason, there is a

reasonable probability that the father’s objection would not have been successful

and the document would have been admitted irrespective of the court’s
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assistance.   In any event, because courts have some leeway in expediting

matters, we conclude counsel’s failure to object to the district court’s question did

not amount to deficient performance. Id. at 531 (“The presiding judge is not a

mere functionary present only to preserve order and lend ceremonial dignity to

the proceedings. . . . [A] trial judge has the duty to control and conduct its court

in an orderly, dignified and proper manner. In fulfilling its role, occasions will

arise when a trial judge is constrained to intervene on its own volition to . . .

require that the proceedings move forward without undue delay . . . .” (internal

citations omitted)).   Accordingly, the father’s ineffective-assistance-of-counsel

claim fails. See Mills v. State, 383 N.W.2d 574, 578 (Iowa 1986) (finding attorney

was not incompetent in failing to object to judge’s questions).

       We affirm the district court’s adjudicatory and dispositional orders.

       AFFIRMED.
