In the Interest of J.D. and E.D., Minor Children, Z.D., Father ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0599
Filed August 13, 2014
IN THE INTEREST OF J.D. AND E.D.,
Minor Children,
Z.D., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette L.
Boehlje, District Associate Judge.
The father appeals the termination of his parental rights to his children,
J.D. and E.D. AFFIRMED.
Dylan J. Thomas, Mason City, for appellant father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Carlyle D. Dalen, County Attorney, and Nichole Benes,
Assistant County Attorney, for appellee State.
Nicole Olson of Heiny, McManigal, Duffy, Stambaugh & Anderson, P.L.C.,
Mason City, for appellee mother.
Mark Young and Crystal L. Ely of Young Law Office, Mason City,
attorneys and guardians ad litem for minor children.
Considered by Danilson, C.J., and Vogel and Bower, JJ.
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PER CURIAM
The father appeals the termination of his parental rights to his children,
J.D. and E.D. He asserts that, because the State did not petition that his rights
should be terminated under Iowa Code section 232.116(1)(h) (2013), the juvenile
court improperly found termination warranted on that paragraph. He further
argues that the requirements for termination were not met, because the children
were never removed from his care, and they could have been returned to his
care at the time of the termination hearing. He also argues termination was not
in the children’s best interest and that the bond between him and the children
should have precluded termination. We conclude the juvenile court properly
terminated the father’s parental rights under the county attorney’s petition cited
paragraph (f) and that the citation to paragraph (h) in the disposition was merely
a scrivener’s error. Furthermore, due to the father’s consistent violent behavior
toward the mother and complete unwillingness to engage in services to correct
his behavior, termination is in the children’s best interest, and none of the
considerations under Iowa Code section 232.116(3) preclude termination.
Consequently, we affirm.
I. Factual and Procedural Background
J.D., born June 2003, and E.D., born August 2005, first came to the
attention of the Department of Human Services (DHS) in December 2011. In the
DHS report, it was noted the mother was using bath salts and abusing
prescription drugs, the father had severely beaten the mother on several different
occasions, and he had also hit J.D. over the head with a toy plastic gun.
Specifically, the report stated:
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Throughout the assessment it was reported that [the father] would
physically hit [the mother] and lock her out of the house. [The
mother] reported that he tied her hands behind her back, and [the
father] would force her to make self-deprecating statements like
she is a junkie or a whore, and then record those statements. [The
mother] shared that she had suffered from physical abuse in the
past from [the father]. For example, [the father] broke her nose
while they were living in South Carolina. She reported that she was
a victim of recent domestic violence as [the father] had beaten her
up badly on or around November 24, 2011. [The mother] was
taken to the ER in Mason City after [the father] hit her in the head
leaving bumps, dragged her across the room and threw her down
the stairs, as well as [the father] reportedly stepping on her neck
and kicking her. [The mother] reported that [the father] had used
zip-ties to tie her hands together to restrain her. While she was in
the ER on 11-24-11 it was noted that [the mother] had several
bruises in various stages of development. [The mother] and her
grandmother reported that these bruises were due to the domestic
violence that was inflicted upon her by [the father].
The allegations of abuse regarding the November 2011 beating were supported
by photographs, which were entered into evidence at the termination hearing.
The mother and father separated in 2011.1 While the original DHS
investigation was focused on the mother and her substance abuse issues, once
the physical abuse was discovered, the investigation focused on the father. The
children were residing with the mother until a civil order of protection was
dismissed, at which point the father picked the children up at school, citing
concerns the mother was not able to parent them adequtely. He then took the
children home with him.
The children were adjudicated in need of assistance on February 23,
2012, following a hearing, in which the juvenile court found it was not in their best
1
The mother and father were married in 2003, separated in 2009, then reconciled for a
brief period of time in 2011. Following their separation in 2011, a dissolution decree was
entered on May 29, 2013. The decree ordered joint legal custody with the mother as the
primary caretaker. The mother cooperated with all DHS services and the children
remain in her care.
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interest to remain with the father. In its recitation of facts, the court noted the
mother was no longer abusing substances, and was otherwise complying with
DHS services. The father, on the other hand, was an abuser who took no
responsibility for his actions. The children were removed from the father’s care
on February 27.
Services were offered to the father, including: family safety, risk, and
permanency services; psychological evaluations; mental health counseling; drug
testing; substance abuse evaluations and treatment; supervised visitation;
transportation; crisis intervention (domestic violence) services; family team
meetings; CASA; and coordination with the Department of Corrections.
The father was granted supervised visitation. While the children clearly
shared a bond with the father, service providers and psychologists were
concerned this bond was not healthy. For example, the father told the children
that the mother, DHS, and other case workers were sinners who would suffer the
consequences when it came time for judgment, and would implicitly encourage
the children to defy the mother, despite the service providers informing him this
behavior was inappropriate. The father also recorded all visitation sessions.
Following a visit on July 8, 2013, E.D. requested that visitations with the father
cease. Both children demonstrated negative behavior following visits with the
father. While told he could and should contact the children’s therapist, the father
never did so. As the juvenile court noted throughout the dispositional and review
hearings and in the termination order, the father made no progress and showed
no improvement with regard to these issues over the course of two years. Due to
this inability to engage with the children in an appropriate manner, and the
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detrimental effects the visits were having on the children, visitation was
terminated in November 2013.
Throughout the course of proceedings, the father was resistant to
intervention and suggestions. He consistently denied any abuse occurred
between him and the mother and otherwise refused to take any responsibility for
his actions, choosing to blame others. Whenever service providers would
attempt to address his issues, he would refuse to talk about them, denying he
had any problems, and instead focusing on the mother and her perceived faults
as a parent and as a person. The service providers noted he obsessed over her.
Even on appeal, he continues to assert the multiple injuries the mother suffered
were self-inflicted. While he avoided a number of drug tests for inexplicable
reasons, he tested positive for marijuana in June 2012.
A psychological evaluation of the father, dated June 2012, stated:
Persons with test results like [the father] may harbor a good
deal of hostility as well as rebellious impulses. They may typically
control their anger only to have sudden and dramatic temper out
bursts. [The father’s] MMPI-2 profile suggests that he does not
take responsibility for his problems in living and that he is instead
prone to rationalizing and justifying his actions. According to the
test results, he also is one to engage in displacement of blame. He
may sometimes engage in guilty self-reproach that evolves into
self-pity. At present, he seems to be feeling particularly mistreated
and victimized.
....
He also appears to be an angry person who may have
periodic and dramatic temper outbursts that punctuate longer
periods of control. There would seem to be a narcissistic quality to
his personality with associated inability to assume responsibility for
his problems.
The father submitted as an exhibit a letter from his psychologist, who met
with him ten times between January and July 2013, though by the time the
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termination hearing occurred, there had been approximately thirty visits. The
letter stated:
In these 10 sessions, we further reviewed the concerns raised by
Dr. Harper in his evaluation of June 2012, which I continue to
consider to be more extrapolation from records of accusation
against [the father] rather than based on assessment with relevant
and valid psychological instruments . . . . We have continued to
work on perspective and emotional regulation around what he has
felt is a very biased and distorted portrayal of him and his concerns
that the welfare of his children is not being prioritized in the way
that his ex-wife is being supervised . . . . [W]e have also been
working on a course of anger management . . . . He has been open
and responsive to this material despite his contention that he has
never had issues with his temper other than during the brief time
when he found himself hurt and betrayed by his wife’s infidelity five
years ago, which is the one occasion when he admits that he hit
her. In summary, [the father] continues to comply with the
requirement to be in therapy and to address issues pertaining to the
proper perspective in raising children and in how to best manage
difficult emotions including anger.
However, during the termination hearing, the same psychologist testified that “in
terms of needing to improve in the way that he has managed his frustration and
aggravations, he would maintain that he didn’t feel that there was that much to
improve upon.”
The father has a nursing background and was employed in the Army
National Guard for thirteen years. As of January 3, 2014, the father’s
employment situation was unknown. He claimed he was employed but refused
to supply DHS or the court with any of his employment information. At the time
of the hearing he was living with relatives.
The father also has a criminal history. He was convicted of operating
while intoxicated and assault causing bodily injury on January 24, 2014. His
victim in this case was a man who had dated the mother after her and the
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father’s separation, with the assault taking place on September 22, 2013, and
resulting in the victim’s broken clavicle. He was also convicted of two counts of
domestic assault causing bodily injury—due to the 2011 beating of the mother—
on September 16, 2013. However, at the termination hearing, he refuted
responsibility for these actions, claiming he acted in self-defense and the mother
in fact caused him to assault her. He was also jailed for thirty days for failing to
comply with his pretrial release requirements, from April 9 to May 10, 2013.
Due to the father’s unwillingness to engage in services and his complete
lack of progress over the course of two years, the State filed a petition to
terminate his parental rights. A contested hearing was held on January 24, 27,
28, and 31, 2014, in which service providers, psychologists, character witnesses,
the mother, and the father testified. The juvenile court terminated the father’s
parental rights on March 31, 2014. The father appeals.
II. Standard of Review
We review termination proceedings de novo. In re S.R., 600 N.W.2d 63,
64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear
and convincing evidence. Id. Our primary concern is the children’s best interest.
Id.
III. Merits
As an initial matter, the adjudicatory section in the juvenile court’s order,
which cited Iowa Code section 232.116(1)(h),2 was clearly a scrivener’s error.
2
To terminate under Iowa Code section 232.116(1)(h), the State must prove by clear
and convincing evidence the child is three years of age or younger, adjudicated CINA,
removed from home for six of the last twelve months, and the child cannot be returned
home.
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The county attorney’s petition alleged section 232.116(1)(f), and the termination
order set forth the factors to be proved under paragraph (f). The court then went
through the proper analysis for termination under paragraph (f) throughout the
decision. A typographical error is not grounds for reversal. See State v.
Yarborough, 536 N.W.2d 493, 497 (Iowa Ct. App. 1995). Consequently, the
argument that the termination should be reversed because the State did not
prove grounds to terminate under paragraph (h) is without merit.
To terminate parental rights under Iowa Code section 232.116(1)(f), the
State must show the child is four years or older, adjudicated CINA, has been
removed from the parent’s care for the last twelve consecutive months, and
cannot be returned to the parent’s care. The father’s unsupported statement the
children were never removed from his care is unsupported in the record. The
children were clearly removed from his care on February 27, 2012, and never
returned. He was only allowed to see the children during supervised visits, and
he never progressed to unsupervised visits. Consequently, the requirement in
paragraph (f) that the children be removed from his care for twelve consecutive
months has been met.
We also agree with the juvenile court the State proved by clear and
convincing evidence the children cannot be returned to the father’s care, and
more time would not correct the situation. The father has shown no progress or
willingness to engage in services throughout the pendency of this proceeding.
He consistently denies any abuse ever occurred, which evidences an
unwillingness to modify his violent behavior. The fact he abused the mother in
front of the children and yet never acknowledged that any harm occurred to
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either the mother or the children, shows how dangerous it would be to return the
children to his care. As the DHS worker testified:
Domestic violence in homes where children may not directly see
the physical hitting but hear or can sense intimidation or maybe
hear stuff from a different room, still has a very negative impact on
their emotional well-being, how they do in school, can impact their
brain development at an early age, can impact their relationships as
they get older, there’s a whole bunch of stuff that goes into it.
When kids are in a room when there’s domestic violence, there’s
research that says their heart rate increases, their stomachs hurt,
it’s just negatively affecting their whole well-being. So domestic
violence when kids are present or even in the vicinity of it, has a
very negative impact on their overall development.
We also agree that termination is in the children’s best interest pursuant to
Iowa Code section 232.116(2). The father’s testimony at the termination hearing
and behavior in the past two years shows his inability to parent the children
adequately and safely. He adamantly contends there was no abuse. However, it
is vital the parent acknowledge and recognize abuse occurred before any
meaningful change can take place. See In re L.B., 530 N.W.2d 465, 468 (Iowa
Ct. App. 1995). As stated previously, he has refused all attempts to help him
correct his behavior. And as the children’s guardian ad litem noted in the report
to the court:
Had [the father] made a conscious decision at any point over the
past year to comply, even minimally, with the court orders, I do not
believe that we would be at this point. The fact that [the father],
knowing that his future with his children is hanging in the balance,
has still failed to comply with the orders and to challenge the
validity of nearly each and every facet of this case, is truly sad and I
believe, is clear and convincing evidence that no amount of time
and effort on the part of the Department or the Court will result in
compliance. As such, it does not appear that any amount of time or
effort will improve [the father’s] ability to resume positive and
healthy interaction with his children.
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In determining the future actions of the parent, his past conduct is
instructive. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). In this case, the father
has not modified his behavior at all, and it is clear he has no intention of ever
doing so. “[W]hen a parent is incapable of changing to allow the child to return
home, termination is necessary.” In re T.T., 541 N.W.2d 552, 557 (Iowa Ct. App.
1995). Furthermore, the unequivocal opinion of each DHS worker, as well as the
children’s therapist, that the children cannot be returned to the father’s care and
termination is in their best interest, shows that reunification cannot be achieved.
Additionally, none of the considerations in Iowa Code section 232.116(3)
should preclude termination of the father’s parental rights. While the children
share a bond with the father, as a DHS worker testified, “I don’t believe it’s been
an overly healthy relationship . . . and regardless of the type of abuse that
children experience at the hands of a parent or a caregiver, very frequently there
is a bond there.”
The relative-placement consideration should not apply either, given the
father’s violent abuse of the mother. Having this apply would only serve to put
the mother and children in danger. See In re C.K., 558 N.W.2d 170, 174 (Iowa
1997) (“An appropriate determination to terminate a parent-child relationship is
not to be countermanded by the ability and willingness of a family relative to take
the child.”). Moreover, while J.D. expressed some hesitation about the father’s
parental rights being terminated, as the juvenile court noted, this opinion by no
means was unequivocal. Most importantly, however, each expert opinion
counseled against allowing the father to resume care of the children.
Consequently, the considerations listed in Iowa Code section 232.116(3) do not
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preclude termination of the father’s parental rights, and we affirm the juvenile
court’s order.
AFFIRMED.