                    IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0144
                                Filed March 23, 2016

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

J.P., Mother,
Appellant,

S.H., Father,
Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Floyd County, Karen Kaufman

Salic, District Associate Judge.



       The mother and father appeal the adjudication order of the district court

finding their child, C.H., remains in need of assistance. AFFIRMED ON BOTH

APPEALS.

       William P. Baresel of Prichard Law Office, P.C., Charles City, for appellant

mother.

       Danielle M. DeBower of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C.,

Charles City, for appellant father.

       Thomas J. Miller, Attorney General, and Janet Hoffman and Mary Triick,

Assistant Attorneys General, for appellee State.

       Cynthia Schuknecht of Noah,Smith & Schuknecht, P.L.C., Charles City,

attorney for minor child C.H.



       Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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VOGEL, Judge.

       The mother and father separately appeal the dispositional order of the

district court finding their child, C.H., should remain adjudicated a child in need of

assistance (CINA). They assert the State failed to prove by clear and convincing

evidence C.H. was imminently likely to suffer abuse or neglect or was not

receiving adequate care, as required for an adjudication pursuant to Iowa Code

section 232.2(6)(c)(2) and (n) (2015). We conclude the evidence establishes the

district court properly found C.H. to be in need of assistance, given the volatility

of the parents’ relationship and continued concern over the father’s relapse on

methamphetamine and its effect on the family.         Consequently, we affirm the

dispositional order of the district court.

       The mother’s older child C.L.1—C.H.’s half-sibling—came to the attention

of the Iowa Department of Human Services (DHS) in May 2015, when the mother

was pregnant with C.H. DHS noted concerns the mother and C.H.’s father were

in a violent relationship and they had likely relapsed on methamphetamine. C.L.

was adjudicated CINA and removed from the mother’s care.

       C.H. was born in early November 2015. There were ongoing concerns

regarding the father’s abuse of methamphetamine, and while C.H. was still in the

hospital, a temporary removal order was entered with regard to the father. C.H.

was placed with the mother where he has remained since birth. DHS requested

the father submit a drug test, but he did not show up to several of the scheduled

testings, citing personal and work-related reasons. The father denied he used


1
 While the underlying CINA proceedings included both C.H. and C.L., this appeal only
concerns C.H.
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methamphetamine in the past six months but stated he had smoked marijuana

more recently. He finally submitted to a hair stat test on December 1, 2015.

        On December 2, a hearing was held and C.H. was adjudicated CINA

pursuant to Iowa Code section 232.2(6)(c)(2) and (n).        C.H. continued his

placement with the mother but remained out of the father’s care. On December

7, before the dispositional hearing, the father’s drug test came back negative.

Also following the adjudication, the mother and father agreed to follow the

recommendations of DHS and made progress on their reunification plan such

that by late December 2015, the father was able to have four hours of

unsupervised contact with C.H. on a daily basis. The father regularly participated

in visitation.

        The record included evidence of domestic violence in the home, in which

the father abused the mother with C.L. present. Additionally, the father suffers

from mental health issues, which include ADHD and bipolar disorder. To assist

in reunification, the following services were offered to the mother and father:

family safety, risk, and permanency services; substance abuse and mental health

treatment; drug testing; supervised visitation; sibling visits; transportation

assistance; and family team meeting referrals. Neither party requested additional

services.

        A dispositional hearing was held on January 7, 2016, after which the

district court ordered C.H. to remain adjudicated CINA, pursuant to Iowa Code

section 232.2(6)(c)(2) and (n), and continued placement with the mother.        A

review hearing was scheduled for March 17, 2016. Though C.L. is not a party to

this proceeding, the district court took judicial notice of C.L.’s CINA case file,
                                           4


relying in part on the facts contained in that proceeding when adjudicating C.H.

CINA. The mother and father appeal.2

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

(Iowa 2014). Though we are not bound by the district court’s findings of fact, we

give them weight. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). Our primary

concern is the child’s best interests. J.S., 846 N.W.2d at 40.

          To adjudicate the child in need of assistance pursuant to Iowa Code

section 232.2(6)(c)(2), the State must show the parent failed to exercise a

reasonable degree of care in supervising the child, resulting in the child suffering

harm or being in imminent danger of suffering harm. Iowa Code § 232.2(6)(c)(2).

Under paragraph (n), the State must establish the parent’s mental capacity or

condition, imprisonment, or drug or alcohol abuse results in the child not

receiving adequate care. Id. § 232.6(n).

          In its December 2, 2015 adjudicatory order, the district court found the

father:

          has dodged Hair Stat testing for a month. He has a lengthy list of
          inadequate excuses to justify his failure to follow through with
          things. He finally completed a substance abuse evaluation on
          December 1, 2015, and submitted a Hair Stat test [on December 6].
          He complains of not being able to live with his family but has not
          met a single expectation of this Court.

Then, in the January 7, 2016 dispositional order, the district court found as to the

father:

          In particular [the DHS worker] is concerned about [the mother’s]
          potential relapse if [the father] isn’t committed to recovery and how
          easily [the father] becomes irritated, agitated and defensive, which

2
 The guardian ad litem filed a brief stating she joined in the State’s defense of the
adjudication order.
                                          5


       escalates conversations rapidly. This has been seen by the Court
       as well, and is concerning regarding his ability to contribute
       positively to a safe, stable home environment for [C.L. and C.H.].

With respect to the mother, on January 7, the district court found:

        [The mother] continues to struggle with prioritizing her children,
       especially [C.L.], over her relationship with [the father]. For
       instance, on October 7 she was very open with [DHS workers]
       about her past use, concerns that [the father] was using drugs and
       a desire to find alternative housing and possibly end their
       relationship. She was able to articulate some of the safety
       concerns the Department has with her relationship and described it
       as “flip floppy.” However, by the end of October she had been
       given the opportunity to have [C.L.] with her for extended visits of
       13 of 14 nights, but declined to take advantage of that opportunity
       because she was “torn” by her desire to have [the father] with her.[3]

       Upon our de novo review, we agree with the district court the record

establishes C.H. was appropriately adjudicated CINA pursuant to both

paragraphs.      While    the   parents   are   correct   in   their   assertion   that

methamphetamine use alone is not enough to adjudicate a child CINA under

paragraph (n), that is not the circumstance present here. See, e.g., J.S., 846

N.W.2d at 42 (holding methamphetamine abuse alone is not enough to

adjudicate a child CINA pursuant to paragraph (n)). Rather, as to the father, the

record establishes he would not be able to adequately care for C.H. based on the

evidence regarding the father’s recent past abuse of the mother, as well as the

continued volatility of their relationship. While the father has begun participating

in recommended services, his mental health issues remained a concern at the

adjudicatory and dispositional hearings. The DHS report to the court cited these

issues when recommending C.H. remain adjudicated CINA. Therefore, adequate


3
  Following the same dispositional hearing C.L. was returned to the mother’s care, but
the court ordered any visitation between C.L. and C.H.’s father to be supervised.
                                              6


grounds were proven establishing C.H.’s adjudication pursuant to Iowa Code

section 232.2(6)(n) should continue.

       The State further showed C.H. would be subjected to harmful effects as a

result of the father’s inadequate care if he were left without DHS supervision. We

commend both the mother and the father for complying with services, making

progress, and being motivated to continue their efforts to reunite the family.

However, we agree with the district court the evidence established that C.H.’s

adjudication under paragraph (c)(2) should remain, as there continues to be

concerns regarding the volatile relationship between the parents and their

subsequent vulnerability to relapsing on methamphetamine.4 See Iowa Code

§ 232.2(6)(c)(2); see also J.S., 846 N.W.2d at 41–42 (noting the mother’s active

methamphetamine use resulted in a failure to exercise reasonable care pursuant

to section 232.2(6)(c)(2), as she could not properly care for a child while under

the influence of methamphetamine).             As the district court concluded, “[T]he

problems for which the Court became involved have not resolved.” Thus, it is in

C.H.’s best interests that he remain adjudicated CINA pursuant to Iowa Code

section 232.2(6)(c)(2). See J.S., 846 N.W.2d at 40 (noting our primary concern

is the child’s best interests).

       Additionally, though the parents argue clear and convincing evidence did

not establish grounds for adjudication—in part because the district court relied

heavily on C.L.’s recent and ongoing CINA file, and specific evidence with regard

4
  While the father argues there was no evidence at the dispositional hearing establishing
he was currently using methamphetamine, as well as relying on his negative hair stat
test, of note to both the district court and us is his vulnerability to relapse. See D.D., 653
N.W.2d at 361 (noting the appellate court gives weight to the findings of the district
court).
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to C.H. was not entered—we do not agree. The district court took judicial notice

of the filings in the adjudication of C.L., and therefore, all documents noting the

conduct of the mother and father were properly before the court. See In re T.C.,

492 N.W.2d 425, 429 (Iowa 1992) (noting “[t]he juvenile court was authorized to

judicially notice the pleadings and exhibits from the previous child in need of

assistance proceeding”). Moreover, the conduct of the parents that led to the

adjudication of C.L. and contained in the DHS reports offered in her proceedings

are the same circumstances present with regard to C.H., which supports C.H.’s

continued CINA adjudication. It was clear to the district court, due to his infancy,

that he was particularly vulnerable. As the court commented at the adjudication,

“[C.H.] is not in a position to duck or roll over or get out of the way of whatever is

going on with the [parents], and so we have to be particularly careful given his

inability to self-protect that the two of you are both on the same page.”

       For these reasons, we affirm the district court’s order that C.H. remain a

child in need of assistance.

       AFFIRMED ON BOTH APPEALS.
