Opinion
No. 4-248 / 04-0231
April 28, 2004.
Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge.
The guardian ad litem and mother appeal from the juvenile court's order adjudicating the children to be in need of assistance. AFFIRMED AS MODIFIED.
Kathryn Miller, Juvenile Public Defender, Des Moines, guardian ad litem for appellants-minor children.
Jesse Macro, of Kuntz, Laughlin Macro, Des Moines, for appellant-mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Celene Coffman, Assistant County Attorney, appellee-State.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
The guardian ad litem and mother appeal from the juvenile court's order adjudicating the children to be in need of assistance pursuant to Iowa Code section 232.2(6)(c)(2) (2003). The guardian ad litem contends the district court erred in dismissing the petition alleging the children were physically abused pursuant to Iowa Code section 232.2(6)(b). The guardian ad litem further contends the court erred applying the incorrect standard of proof at the disposition hearing, and in ordering increased visitation between the children and their mother. The mother cross-appeals, contending the court erred in adjudicating the children to be in need of assistance under section 232.2(6)(c)(2).
The children at issue, G.R. and J.R., have received a significant amount of medical care since their respective births in 2000 and 2001. The mother regularly gave G.R. enemas until he was three months old, although no medical records reveal any instruction from medical personnel to do so. It is not advisable to give regular enemas to newborns.
In late 2002, the mother sought medical attention for J.R., who she claimed suffered from vomiting and diarrhea. The mother's claims continued into early 2004, when J.R. began to suffer from dehydration. Medical causes for J.R.'s condition were ruled out after extensive testing, and J.R.'s doctor began to suspect J.R. had been exposed to laxatives. Once J.R.'s family was restricted to supervised visits with J.R., her health steadily improved. Laboratory tests showed the presence of bisocodyl, a common ingredient in over-the-counter laxatives, in J.R.'s urine. In order for a test to detect the presence of bisocodyl, a significant amount must be present. Bisocodyl can produce gastritis, vomiting, distress, pain, loose stools, and dehydration. All these symptoms were present in J.R. Laxative use is the only medical explanation for J.R.'s symptoms.
On February 20, 2003, a petition was filed alleging both children to be in need of assistance, and a no contact order was entered prohibiting the mother from having contact with her children. The children were placed in the custody of their father, where J.R.'s health continued to improve.
On September 2, 2003, the juvenile court entered an order adjudicating G.R. and J.R. children in need of assistance pursuant to section 232.2(6)(c)(2). However, the court concluded there was not clear and convincing evidence to adjudicate the children in need of assistance pursuant to section 232.2(6)(b). The children were ordered to remain with their father, under DHS supervision.
On January 28, 2003, the court entered its dispositional order, continuing placement of the children with their father. In addition, the court ordered the appointment of a CASA and increasing visits with the mother, up to overnight visits.
We review CINA proceedings de novo. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). While we give weight to the trial court's findings of fact, we are not bound by them. Id. It is the State's burden to prove the allegations by clear and convincing evidence. In re B.B., 598 N.W.2d 312, 315 (Iowa Ct.App. 1999).
We conclude clear and convincing evidence supports the court's order adjudicating the children to be in need of assistance under section 232.2(6)(c)(2). Under this section, a child is in need of assistance when he or she 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." Iowa Code § 232.2(6)(c)(2). The evidence clearly shows J.R. was harmed by ingesting large amounts of an over-the-counter laxative. The mother has failed to properly supervise these children. As we can predict future behavior based on the past, we conclude the children are imminently likely to suffer harmful effects in the future as a result of mother's failure to properly supervise. See In re T.B., 604 N.W.2d 660, 662 (Iowa 2000).
We further conclude the clear and convincing evidence supports a finding the children are in need of assistance pursuant to section 232.2(6)(b). This section states a child is in need of assistance 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." J.R. was admitted to Blank Children's Hospital suffering from ten percent dehydration, a condition that was life threatening. She suffered severe gastritis, such that her physician had never seen before in a toddler. As a result of her condition, J.R. was subjected to invasive medical tests, including drawing blood, two endoscopies, catherization, and a sigmoidoscopy. Once J.R.'s contact with her mother and maternal grandmother was limited to supervised visitation, her health began to improve. G.R. has likewise been hospitalized on numerous occasions and subjected to medical testing. The mother has traits consistent with Munchausen Syndrome by Proxy. The children were in the custody of their mother when J.R. was given the laxative and when G.R. was hospitalized. The inability of the doctors to testify to a reasonable degree of medical certainty as to who abused these children does not require the conclusion that the mother is not responsible for the abuse these children suffered. Given the evidence regarding J.R.'s improvement after her mother's visits were supervised, the burden of proof is satisfied. We conclude the mother caused her children to be ill, or exaggerated their illnesses and subjected them to painful medical procedures, as well as risked their lives.
Finally, the guardian ad litem contends the court erred in applying a clear and convincing proof standard in entering its disposition order, and in allowing the mother four hours of daily visitation, with an increase to eight hours after two weeks, followed by overnight visitations. The standard of proof at the disposition hearing is clear and convincing evidence. See In re of A.M.H., 516 N.W.2d 867, 872 (Iowa 1994). The visitation arrangement requires visitations to be supervised and under the approval of a CASA. This will provide adequate protection for the children. We agree with the juvenile court's dispositional order as modified.