In the Interest of W.D., A.D., F.D., Z.D., and S.D., Minor Children ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-2028
Filed February 20, 2019
IN THE INTEREST OF W.D., A.D., F.D., Z.D., and S.D.,
Minor Children,
W.D., Sr., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Winneshiek County, Linnea M. N.
Nicol, District Associate Judge.
A father appeals the termination of his parental rights to his five children.
AFFIRMED.
Karl G. Knudson, Decorah, for appellant father.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Whitney L. Gessner of Gessner Law Office, Monona, guardian ad litem for
minor children.
Considered by Doyle, P.J., and Mullins and McDonald, JJ.
2
DOYLE, Presiding Judge.
A father appeals the termination of his parental rights to his five children. 1
Upon our de novo review, we affirm.
I. Standard of Review and Statutory Framework.
Under Iowa Code chapter 232 (2018), parental rights may be terminated if
the following three conditions are true: (1) a “ground for termination under section
232.116(1) has been established” by clear and convincing evidence, (2) “the best-
interest framework as laid out in section 232.116(2) supports the termination of
parental rights,” and (3) none of the “exceptions in section 232.116(3) apply to
preclude termination of parental rights.” In re A.S., 906 N.W.2d 467, 472-73 (Iowa
2018). Our review is de novo, which means we give the juvenile court’s findings
of fact weight, especially the court’s credibility assessments, but we are not bound
by those findings. See id. at 472. “For evidence to be ‘clear and convincing,’ it is
merely necessary that there be no serious or substantial doubt about the
correctness of the conclusion drawn from it.” Raim v. Stancel, 339 N.W.2d 621,
624 (Iowa Ct. App. 1983); see also In re M.W., 876 N.W.2d 212, 219 (Iowa 2016).
II. Background Facts and Proceedings.
W.D. is the father and K.D. is the mother of five children, all of whom were
born before 2013. The parents were married in or about 2005, and their oldest
child was born in March 2006. In October 2006, the Iowa Department of Human
Services (DHS) received a report of child abuse allegedly perpetrated by the father
1
Though the mother filed a notice of appeal, her petition on appeal was untimely and
consequently dismissed by our supreme court. Therefore, she is not part of this appeal.
3
against the infant. The DHS determined the report that the father denied the infant
critical care in failing to provide proper supervision was founded.
In January 2013, the family again came to the attention of the DHS after it
received reports of child abuse. Following a DHS assessment, the reports against
both parents for denying their children critical care in failing to provide proper
supervision were determined to be founded. Services were offered to the family,
and the case was closed in the late summer or early fall of 2013.
In August 2013, the DHS received a report that the family was living in an
RV-type home, a fifth-wheel trailer that was not suitable for children.
The parents and [five] children were residing in [a] camper at a
relative’s home. Law enforcement [officials] observed piles of
garbage on [the] floor of the camper, animal feces accessible to the
children, food items on the floor, dirty dishes and piles on the floor
leaving it difficult for the children to maneuver through the items.
Through the assessment . . . it was discovered that there were many
concerns with the parents’ parenting ability.
At the conclusion of the assessment, the DHS found the new reports against the
parents for denying their children critical care in failing to provide adequate housing
were founded. Services were again offered to the family. The DHS has continued
to be involved with the family since that time.
After the August 2013 report, the family moved in with the father’s mother
and her husband. In October 2013, it was alleged the father kicked one of the
children in the shin causing a bruise, but the report was not confirmed. There were
other concerns about the father’s anger and aggression, including that he was
making threatening statements towards the children’s school. The mother and the
children then moved into a new place, and the father continued to live with his
mother. The parents have remained separated.
4
In November 2013, it was relayed to the DHS that the mother reported
“inappropriate sexual contact between the children.” The mother told the DHS
worker that the parents’ four-year-old “daughter had come out of the bathroom
prior to a visit with [the father] and asked if [the father] was going to touch her
anymore and grabbed her private area.” The mother set up counseling
appointments for the children, and the children were interviewed at the child
protection center. Following protective interviews, the professionals did not find
the information obtained from the children was congruous; the children were not
able to give any details and appeared to be reporting things that they had heard.
The report of sexual abuse was not confirmed.
In January 2014, the DHS received another allegation the father had
sexually abused a relative. In that instance, the father’s minor nephew reported
the father had touched the nephew “on the private part of his body” on top of his
pants. This report of sexual abuse was determined to be founded, and the case
was referred for criminal prosecution. Thereafter, the DHS suggested the father
participate in a “psycho-sexual evaluation to determine risk of re-offense, risk to
the children, and if any treatment is recommended.” The DHS stated the visitation
with his children would remain supervised minimally until the father was evaluated,
and, if the father did not participate, “the visitation [would] stay supervised long-
term.” The juvenile court in its October 2014 dispositional order adopted the DHS’s
case plan, including the recommendation that the father participate in the psycho-
sexual evaluation. The father refused to participate “until he [was] either officially
charged or the charges [were] dropped.” The father did continue to have
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supervised visits with the children every other weekend, and those visits were
without any incident.
The father was charged with indecent contact with a child relating to the
allegations by his nephew in March 2014. The case was ultimately “resolved with
a plea to the lesser included charge of assault for which the children’s father was
sentenced to ten days in jail on June 23, 2015.” The father then “agreed to
participate in a psycho-sexual evaluation.” At the time of the September 2015
discretionary-review hearing, the father had an evaluation scheduled for
November of 2015, and the court allowed the frequency of the father’s supervised
visits to be increased.
A discretionary-review hearing was held in April 2016, and the court entered
an order thereafter continuing the child-in-need-of-assistance (CINA) matter. The
court indicated the father had participated in the evaluation as directed, stating:
The children’s father participated in a psycho-sexual
evaluation . . . due to there being a founded child abuse report
concerning a relative child as the victim. [The parents’ oldest child]
has made repeated reports of sex abuse against his father and
concerns were raised that the child was coaching his siblings as to
what to report, although the other children have not been good
reporters as to what happened. The children’s father is diagnosed
with major depressive disorder (recurrent, severe with psychotic
features), intermittent explosive disorder, alcohol dependence in
partial remission, and schizoid and paranoid personality disorders. It
remains strongly recommended that his contact with his children
continues to be supervised by a third party until such time as the
counselors for the children and their father recommend that relatives
be considered. It is also recommended that the children’s father
have a psychiatric evaluation to determine if medication is
appropriate for his psychiatric disorders and that he engage in
individual counseling to include dealing with his sexuality, family
therapy, co-parenting and joint therapy with the children. He will
attempt to obtain services . . . as well as participate in [Family Safety,
Risk and Permanency (FSRP)] services and the children’s play
therapy.
6
The children remained in the mother’s care, and a review hearing was scheduled
for October 2016.
Prior to the scheduled review hearing, the DHS filed an application for
removal of the children from the mother’s care. The application stated the children
had continued to act out sexually, either as a perpetrator of sexual abuse or as the
victim of his or her sibling’s sexual abuse. The application alleged the mother’s
failure to properly supervise the children prevented the mother from stopping the
actions from taking place and allowed the children the opportunity to perpetrate
abuse on each other. The application further stated the father’s whereabouts at
that time were
unknown. He was participating in DHS services and he had been in
communication with [the DHS social worker] in the month of August.
Since then, his cell phone number has been disconnected, he has
not participated in FSRP services, he has missed supervised
visitation with his children, and correspondence has been returned
to DHS unopened.
The children were removed from the mother’s care, and the children could not be
placed in the father’s care. Because the children were abusing each other and it
was recommended each child have a separate sleeping arrangement, the two
oldest boys were placed together in one foster home, the two girls were placed
together in another foster home, and the other child was placed in the care of his
paternal grandmother. Additionally, because “the children had been much more
open during [their most recent] interview [with the DHS protective worker] than
ever before during a number of prior child protective assessments,” the court
directed the children be re-interviewed at the child protection center “to get to the
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reason(s) why the children were sexually active” and to hopefully prevent the
behaviors from reoccurring.
Following a hearing, the court subsequently modified the dispositional order
to continue the children’s removal from the parents’ care and their placement in
foster care. The court noted three of the children were receiving play therapy, and
their therapist reported the children continued “to claim that they were sexually
touched by their father, although the reports could not be corroborated.”
Additionally, the court reported the father was “currently unemployed, without a
driver’s license, and living in a trailer on a friend’s property.” No other progress
was indicated.
A review hearing was held in January 2017. At that time, the father was
employed and had regained his driver’s license. He stated he was living with a
friend but was in the process of obtaining a home. The father had begun individual
counseling and had signed a release of information for the DHS. He continued to
have supervised visitation with the children. The court directed the DHS to provide
the father a “refrigerator or responsibility list” specifically detailing what the father
needed to do to regain custody of the children. The court scheduled a
permanency-review hearing in six months.
Following the June 2017 permanency-review hearing, the court entered its
order granting the parents an additional six months for reunification. The court
noted the father remained employed but had still not found suitable housing and
generally slept in his vehicle. Though the father may have been eligible for housing
assistance, he had not filed a request for assistance until two weeks before the
June 2017 hearing, despite DHS involvement with the family since at least 2013.
8
However, the court did credit the father’s participation in and completion of
individual therapy, as well as his continued visits with the children. The court
determined “substantial progress toward reunification has been made and that it is
reasonably likely that the children can safely be returned home with an additional
six months of reunification services.” The court specified the father was to
(a) participate in weekly family therapy to re-develop and attachment
to the children as well as FSRP services during which he
demonstrate the ability to properly care for and supervise the children
with knowledge of the children’s sexual perpetration against each
other and his own history; (b) attend medical and therapy
appointments for the children; (c) have regular visitation or
interaction with the children with the approval of his counselor and
the children’s counselor moving from supervised to monitored to
unsupervised and overnight visitation; (d) obtain and maintain safe
and stable housing for the children adequate to their number;
(e) maintain employment or other legitimate source of income to be
able to support the children; and (f) participate in a psychiatric
evaluation to determine if he should be prescribed any psychotropic
medication for the mental disorders for which he is diagnosed and
take such medication as prescribed.
The court set another permanency-review hearing to be held within three months.
After rescheduling, a permanency-review hearing commenced on
November 15, 2017, with a second day of hearing held on December 13, 2017. In
between those dates, the State filed criminal charges against the father for second-
degree sexual abuse and incest, alleging the father committed sexual acts with
one of the children “during the time frame of January 2013 through and including
November 2013.” Following the conclusion of the permanency-review hearing, the
court entered its order directing the State to file a petition for termination of the
parents’ parental rights, finding both parents failed to comply with its previously
detailed specifications to achieve reunification. As to the father, the court reported
he
9
continued to have no suitable home to which the children could
return. The very housing from which the children were removed, a
camper, remains the only long-term housing the children’s father has
made available. He has lost employment and is no longer employed.
He lost his driver’s license due to failure to pay fines. He was recently
arrested, is unable to make bond and remains in . . . jail. The
children’s father has not complied with all of the requirements for
reunification outlined in the order following the first permanency
hearing. In particular he has not participated in FSRP services, but
has been rude and belligerent, has failed to obtain suitable housing
and refused the assistance of the provider to aid him, telling her his
housing is none of her business, and has failed to maintain
employment or sought other legitimate sources of income to support
the children.
The court stated the children had been moved together to one pre-adoptive foster
home, and the court included adoption as a permanency goal. Thereafter the State
filed its petition for termination of the parents’ parental rights.
A termination-of-parental-rights hearing was held May 9 and June 6, 2018.
The father did not testify, but he argued, through counsel, that the court should
dismiss the termination-of-parental-rights petition or enter an order pursuant to
Iowa Code section 232.100, “which would protect the children but would allow the
father additional time to dispose of his pending criminal case and secure suitable
housing for the children, so that the family could reunite with him.” The father
maintained the mother had coached the children to accuse him of sexual assault,
a conclusion some professionals had previously reached. He also denied sexually
abusing his nephew, stating he entered an Alford plea in that case to the lesser
crime of “simple misdemeanor assault in order to avoid the risk and expense of
trial.” He further explained he did not appeal the founded DHS assessment
concerning the report that he sexually abused his nephew because the father did
10
not have an attorney appointed to him. Because he had “been accused of being
a child molester,” the father asserted he
was unable to sustain suitable employment in his community. Lack
of employment creates extreme financial difficulty, in turn making it
difficult to pay child support, keep a driver’s license, and pay rent to
maintain suitable housing for himself and 5 children who were not
living with him and who would not have been allowed to live with [him]
at any time during this case.
....
Had the criminal charge not been brought, and had the new
child protective assessment not been brought and founded against
the father, he would have had a fighting chance of obtaining housing
and employment and regaining custody of his children by this time.
Therefore, the falsity of the sexual abuse allegations are relevant
here.
Following the termination-of-parental-rights hearing, the juvenile court
entered its order terminating the parents’ parental rights pursuant to Iowa Code
section 232.116(1)(f). The father now appeals.
III. Discussion.
On appeal, the father first argues the juvenile court
erred in finding the Father’s rights should be terminated pursuant to
Iowa Code § 232.116(1)(f) rather than making findings and avoiding
termination under § 232.116(3)(e) or entering a dispositional order
under § 232.117(5) and § 232.100 which would protect the children
but would allow the father additional time to dispose of his pending
criminal case and secure suitable employment and housing for the
children and meet other reunification requirements.
Additionally, the father contends termination of his parental rights was not in the
children’s best interests because of the close relationship between him and his
children. For the following reasons, we disagree.
A. Suspending Judgment or Other Option to Avoid Termination.
The father does not dispute that the State proved the grounds for
termination found by the juvenile court. Rather, he argues the court should have
11
entered an order pursuant to Iowa Code section 232.116(3) paragraph (e). Under
section 232.116(3), the court does not have to terminate parental rights if any of
the circumstances contained in section 232.116(3) exist, even if the court
determined “that termination is appropriate under section 232.116(2).” In re P.L.,
778 N.W.2d 33, 37 (Iowa 2010). The specific circumstance set out in paragraph
(e) allows the court to continue the parent and child relationship if the court finds
“[t]he absence of a parent is due to the parent’s admission or commitment to any
institution, hospital, or health facility or due to active service in the state or federal
armed forces.”
The word “institution” is not defined in chapter 232. See Iowa Code
§§ 232.2, .68. According to Black’s Law Dictionary, an “institution” means “[a]n
established organization, esp. one of a public character, such as a facility for the
treatment of mentally disabled persons. — Also termed public institution.” There
is no evidence that, at the time of the termination-of-parental-rights hearing, the
father was admitted or committed to any “institution.” Moreover, this case
commenced in 2013. As the father’s brief indicates, the father was charged and
arrested in November 2017, held on a cash bond, “which was changed a couple
of months later to allow release with an ankle bracelet.” Upon our de novo review,
we agree with the juvenile court that “[c]lear and convincing evidence has not been
shown that termination should not occur due to the existence” of the exception set
forth in section 232.116(3)(e).
Alternatively, the father argues that instead of proceeding to terminate his
parental rights as permitted by 232.117(3), the court should have entered an order
under section 232.117(5), which states:
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If after a hearing the court does not order the termination of parental
rights but finds that there is clear and convincing evidence that the
child is a child in need of assistance, under section 232.2, subsection
6, due to the acts or omissions of one or both of the child’s parents
the court may adjudicate the child to be a child in need of assistance
and may enter an order in accordance with the provisions of section
232.100 . . . .
By way of section 232.117(5), the father asserts the court should have entered an
order in accordance with section 232.100, which permits the juvenile court to
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. . . . 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.
Although the parent-child relationship is constitutionally protected, see
Quilloin v. Walcott, 434 U.S. 246, 255 (1978); In re M.S., 889 N.W.2d 675, 678
(Iowa Ct. App. 2016), the “State has a duty to assure that every child within its
borders receives proper care and treatment.” In re A.M., 856 N.W.2d 365, 376
(Iowa 2014). If a parent abdicates his or her responsibility to properly care for his
or her child, “the State has an obligation to intercede and provide the necessary
care.” In re K.M., 653 N.W.2d 602, 608 (Iowa 2002). “Iowa Code chapter 232
codifies the balance our legislature has struck between [the] competing interests”
of parents and the State. M.S., 889 N.W.2d at 678.
“While the law requires a ‘full measure of patience with troubled parents
who attempt to remedy a lack of parenting skills,’ Iowa has built this patience into
the statutory scheme of Iowa Code chapter 232.” In re C.B., 611 N.W.2d 489, 494
(Iowa 2000) (quoting In re D.A., Jr., 506 N.W.2d 478, 479 (Iowa Ct. App. 1993)).
When a child is removed from his or her parents’ care, the parents have a limited
13
time frame, based upon their child’s age, to demonstrate the child can be safely
returned to the parents’ care. See A.S., 906 N.W.2d at 474; see also Iowa Code
§§ 232.102(6)(2)(b), .116(1)(f)(3). For children aged four and above, the
legislature has determined that time frame is one year. See Iowa Code
§ 232.116(1)(f)(3) (“The child has been removed from the physical custody of the
child’s parents for at least twelve of the last eighteen months, or for the last twelve
consecutive months and any trial period at home has been less than thirty days.”);
A.S., 906 N.W.2d at 473-74.
The record shows the juvenile court continued to grant the parents
additional time to work for reunification, not because of the father’s efforts, but
because the children remained in the mother’s care. Services were offered to the
father from the get go—before the father was criminally charged—and his interest
seemed minimal. He was not working at the end of 2013 when this case began,
and he was unemployed at the time of the termination-of-parental-rights hearing.
At the start of the case, though the father clearly had free time to remedy the
home’s horrible conditions, the father chose to let his children live in filth. There
were also concerns at the start of the case regarding the father’s mental health
and anger-management issues; those concerns still existed at the time of the
termination-of-parental-rights hearing.
Moreover, even accepting for the sake of argument that the mother coached
the children to make false accusations against the father, the father, in a
completely unrelated case, entered an Alford plea to the charge that he assaulted
his minor nephew. The nephew in that case was related on the father’s side of the
family, and the nephew alleged he and the father were alone when the contact
14
occurred. There was no suggestion of coaching occurring in that case. There was
no appeal of the founded child-abuse assessment. Despite these facts, the father
was uncooperative with the caseworkers and refused to get the evaluation the
DHS recommended so that the father could receive the services he needed.
Almost two years after he separated from the mother, the father was finally
evaluated, but the diagnoses raised further questions about the father’s mental
health and necessity of medication. The father was specifically told one of the
requirements for reunification was that he “participate in a psychiatric evaluation
to determine if he should be prescribed any psychotropic medication for the mental
disorders for which he is diagnosed and take such medication as prescribed.” That
requirement still existed at the time of the termination-of-parental-rights hearing,
more than two years after his 2015 evaluation.
Iowa Code section 232.100 permits the juvenile court to suspend judgment
in its discretion. See In re T.D.H., 344 N.W.2d 268, 271 (Iowa Ct. App. 1983). The
juvenile court can “stop the proceeding ( . . . the CINA disposition) and instead
impose terms and conditions that ‘may include’ supervision.” State v. Iowa Dist.
Ct., 828 N.W.2d 607, 614 (Iowa 2013). But suspending judgment “is considered
the ‘least’ restrictive alternative available following a CINA adjudication, in contrast
with section 232.102 which provides for transfer of legal custody of child and
placement.” Id. (cleaned up). Consequently, “when there is a suspended
judgment, the child remains with the parent.” Id. at 615.
Because numerous concerns continue to exist years later, the children
could not have been safely placed in the father’s care at the time of the termination-
of-parental-rights hearing. Rather than continue the CINA proceedings any further,
15
the juvenile court found termination of the father’s parental rights was appropriate.
Upon our de novo review of the record, we find no abuse of the juvenile court’s
discretion in not entering an order pursuant to Iowa Code sections 232.117(5) and
232.100 following the termination-of-parental-rights hearing.
B. Best Interests and Section 232.116(3) Considerations.
Additionally, the father contends termination of his parental rights was not
in the children’s best interests because of the close relationship between him and
his children. In determining whether termination of parental rights is in a child’s
best interests, we “give primary consideration to the child’s safety, to the best
placement for furthering the long-term nurturing and growth of the child, and to the
physical, mental, and emotional condition and needs of the child.” Iowa Code
§ 232.116(2).
Here, the father was given several years to demonstrate his ability to care
for the children. After services were offered, as they were in 2006 and early 2013,
serious concerns remained about the father’s ability to safely parent the children
at the time of the termination-of-parental-rights hearing. Even excluding any
sexual-abuse claims, the father chose to minimally participate throughout the case.
By the end, he had little to no contact with the children, to their detriment. In fact,
the foster parents told the court that, since the children had been placed with them,
“None of the children have ever mentioned their dad.” Except for a few instances,
the children did not mention the mother “in the three months they have lived with
us. Surprisingly, they mention dad even less. He almost always misses his visits.
He has only contacted them twice by phone. On those occasions he really only
16
called to talk to [one of the children].” The evidence does not support the father’s
claim of a close relationship between him and the children.
Furthermore, delaying these children permanency any longer is clearly not
in their best interests. The father was specifically told in the juvenile court’s
January and June 2017 review orders that addressing his mental-health issues
was a prerequisite for reunification. There was no evidence at the termination-of-
parental-rights hearing that he had even attempted to address those issues. There
is no reason to believe the father will do so in the foreseeable future.
These children have thrived in foster care and are adoptable. Considering
the children’s safety, the best placement for furthering the long-term nurturing and
growth of the children, and the physical, mental, and emotional condition and
needs of the children, we agree with the juvenile court that termination of the
father’s parental rights is in the children’s best interests. We find no reason to
disturb the court’s determination that section 232.116(3) was inapplicable under
the facts of this case.
IV. Conclusion.
Upon our de novo review, we conclude termination of the father’s parental
rights is in the children’s best interests and none of the circumstances set forth in
section 232.116(3) exist to make that section applicable. We also believe an order
under section 232.100 was not an option under the facts of this case, but in any
event, find no abuse of discretion in the juvenile court’s decision to proceed with
termination of the father’s parental rights instead of delaying permanency. We
affirm the juvenile court’s order terminating the father’s parental rights.
AFFIRMED.