In the Interest of L.F., Minor Child ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0002
Filed April 14, 2021
IN THE INTEREST OF L.F.,
Minor Child,
C.F., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Stephen A. Owen,
District Associate Judge.
The mother of L.F. appeals from the juvenile court order dismissing the
child-in-need-of-assistance action. REVERSED AND REMANDED.
Christine E. Branstad of Branstad & Olson Law Office, Des Moines, for
appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Jesse A. Macro Jr. of Macro & Kozlowski, L.L.P., West Des Moines, for
father.
Shannon M. Leighty, Nevada, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., Tabor, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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VOGEL, Senior Judge.
The mother of L.F. appeals from the juvenile court order dismissing a child-
in-need-of-assistance (CINA) action. We agree with the mother that the purposes
of the CINA adjudication have not been accomplished and the child remains in
need of juvenile court supervision. Therefore, we reverse and remand for further
proceedings.
I. Background Facts and Proceedings
L.F. was born in 2005. She has intellectual disabilities and functions at
about a second-grade level. She needs at least occasional assistance dressing,
bathing, and toileting. She cannot speak, but she can communicate limited
concepts using an assistive electronic device or nonverbal signals.
The mother and father were previously married. They had four children
together—two boys and two girls, L.F. and her older sister S.F.1 The mother filed
a petition for dissolution of marriage in February 2016. In October 2016, the
mother contacted the Iowa Department of Human Services (DHS) to report she
suspected the father sexually abused S.F. and L.F. As part of the investigation,
the mother also reported she suspected the father sexually abused her female
cousin K.S. DHS noted L.F., as a child with special needs, was “very vulnerable”
and the father showed “very concerning sexualized behaviors,” but DHS ultimately
determined the allegation of abuse against S.F. and L.F. was not founded. In
December 2017, the district court entered a decree that dissolved the parents’
1S.F. was a minor at the start of the CINA action, but she reached age eighteen
before dismissal of the action.
3
marriage, granted joint legal custody, placed physical care with the mother, and
ordered visitation with the father that included supervised overnight visits with L.F.2
The family again came to the attention of DHS in July 2018 when the mother
reported a witness saw L.F.’s hand on the father’s crotch over his clothes and the
father did nothing to move or redirect L.F. The juvenile court soon ordered L.F.
temporarily removed from her father’s care. In September, DHS determined the
allegation of abuse against L.F. was unfounded in light of an ongoing criminal
investigation into the matter that limited the DHS investigation. 3 In October, the
court entered a stipulated order finding L.F. was a child in need of assistance
(CINA).
On November 26, 2018, the juvenile court held a dispositional hearing in
which the mother submitted evidence of the father’s prior alleged sexual
misconduct. First, the mother testified that when S.F. was three years old, the
father “accidentally” put his finger inside her vagina while bathing her. Second, the
mother provided records from the father’s conviction of a sex offense in Minnesota
for a 2012 incident in which he fondled a female physician’s breast during a
medical appointment for one of the children. Third, K.S. provided a letter accusing
the father of multiple incidents of sexual misconduct in or around 2007 when K.S.
was fifteen years old and staying with the family. According K.S.’s letter, the father:
encouraged K.S. to sit on his lap in a hot tub; stayed in and around K.S.’s room for
an extended time right before she planned to undress to take a shower and go to
2 The mother has since filed a petition to modify visitation. On December 13, 2019,
the juvenile court authorized concurrent jurisdiction with the district court. Trial on
the mother’s petition to modify visitation is scheduled for April 2021.
3 The criminal investigation did not result in charges.
4
sleep; and rode with K.S. on a four-wheeler and fondled her breasts when they
were alone. Fourth, S.F., who was seventeen years old at the time of the hearing,
provided a letter and testified to allegations the father engaged in sexual
misconduct toward her. S.F. alleged the father: cuddled and spooned S.F. in bed
and on the couch; frequently walked into the bathroom while S.F. was showering;
looked down S.F.’s shirt and stared at her buttocks while she was bent over; and
repeatedly pressed his body against hers as he walked past. Additionally, S.F.
said the father continued bathing L.F. and told S.F. to lie and say she was bathing
L.F.
On November 28, 2018, the juvenile court issued the dispositional order at
issue here. The court found the father “has a very concerning history
of . . . sexualized contact primarily involving minor females.” The juvenile court
noted there is no supporting evidence for the allegations of sexual misconduct
presented at the hearing—other than the Minnesota incident that resulted in
conviction—but the court specifically found the father groped K.S. and digitally
penetrated S.F.’s vagina. The court also noted a 2016 psychosexual evaluation
of the father concluded he does not have a serious mental impairment and is
treatable. The court continued the CINA adjudication with a long-term goal of
establishing a safe relationship with both parents, and the court allowed L.F. to
visit the father with full supervision and restrictions preventing the father from
assisting L.F. with toileting, bathing, or dressing.
5
The juvenile court held a series of permanency review hearings and issued
corresponding orders over the next several months.4 Beginning with the May 13,
2019 permanency order, the court allowed L.F. to visit the father at DHS’s
discretion. DHS developed a safety plan that allowed for supervised visitation and
largely kept the court’s initial restrictions in place. By the time of the final hearing
on December 21, 2020, DHS primarily provided the safety plan and at least
monthly meetings with the family. DHS also allowed either the paternal
grandmother or the father’s live-in friend to supervise L.F.’s visitations with the
father. On December 21, the court issued its order dismissing the CINA action
and closing the case. The mother appeals.
II. Standard of Review
We review CINA proceedings de novo. In re K.N., 625 N.W.2d 731, 733
(Iowa 2001). “We review ‘both the facts and the law, and we adjudicate rights
anew.’” Id. (quoting In re H.G., 601 N.W.2d 84, 85 (Iowa 1999)). “Although we
give weight to the juvenile court’s factual findings, we are not bound by them.” Id.“As in all juvenile proceedings, our fundamental concern is the best interests of the
child.” Id.III. Analysis
The juvenile court may terminate a CINA dispositional order if it determines
“[t]he purposes of the order have been accomplished and the child is no longer in
need of supervision, care, or treatment.” Iowa Code § 232.103(4)(a) (2018); see
4Review hearings were held May 13, 2019; December 13, 2019; June 12, 2020;
and December 21, 2020. Orders were entered shortly after each hearing, with an
order for termination of the dispositional order entered December 21, 2020.
6
also K.N., 625 N.W.2d at 733. In the dispositional order here, the court found
“appropriate protective services” are needed to protect L.F. from “imminent danger
of sexual abuse while in her father’s care and custody.” The court set a goal of the
CINA action as “establishing long-term safety for [L.F.] so that she can enjoy a safe
and lasting relationship with her parents.”
In dismissing this CINA action, the juvenile court found the father showed
“growth and change” since the CINA adjudication. While we recognize the father
has made progress, after our de novo review of the record, we conclude the same
concerns about the father that prompted the CINA action continue to exist.
Throughout this CINA action, the father has sought to minimize and avoid
responsibility for his sexual misconduct. In 2016, prior to the CINA adjudication,
the father underwent a psychosexual evaluation. The evaluation generally
determined the father’s responses were within normal or acceptable ranges, but
the evaluation also noted the father “has explanations that keep him from being
able to accept that he is the one responsible for his sex deviance problem” and
these explanations prevent “him from accepting full responsibility for his actions.”
Similarly, the juvenile court in the dispositional order found the father “rationalizes
his behavior to minimize the seriousness of his sexual behavior and he holds the
victims responsible.” The father underwent another psychosexual evaluation in
February 2019, which again found the father’s responses within normal or
acceptable ranges. However, this evaluation still found the father “has
explanations which keep him from taking full responsibility for his sexual
behaviors.”
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More recently, the father’s therapist submitted two letters for this CINA
action. In an October 2019 letter—which the juvenile court found is “entitled to
substantial evidentiary weight”—the therapist wrote the father has shown
“concerning behavior” and “has been reluctant to discuss certain things,” but the
father “has become more acutely aware of how he positions himself when
interacting with others, particularly females.”5 The therapist also noted the father
admitted to “boundary violations” with K.S. but has consistently denied he
“intentionally or unintentionally abused his children for sexual gratification or to
satisfy his curiosity.” In a November 2020 letter, the therapist wrote the father
continues working on “keeping safe boundaries” as the father believes “that due to
his positive outlook on things[,] he doesn’t always consider how his behavior might
be considered questionable to outsiders.”
During the final review hearing, the father testified therapy has helped him
recognize “boundaries” with other people. When questioned about specific
incidents of sexual misconduct, the father only vaguely replied that he “addressed
all aspects in therapy.” As the juvenile court found in the dispositional order, the
father has shown a “striking and dangerous” pattern of sexual misconduct by
“isolating” females—often minor females—“in a vulnerable position.” This
behavior goes far beyond merely violating “boundaries,” and the father’s refusal to
fully acknowledge his misconduct remains highly concerning for this “very
5 The therapist also noted the father believes the mother “is fueled by her hatred
of him more than actual fear of him abusing the children.” Despite never interacting
with the mother or children beyond one session with L.F., the therapist spends
considerable space in her letter negatively opining on the actions and motivations
of the mother. While the therapist seemingly endorses the father’s opinion of the
mother, we place little weight on the therapist’s opinion of the mother.
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vulnerable” child. Our supreme court recently emphasized the importance for a
parent to acknowledge the abuse that occurred before dismissing a CINA action.
See In re D.D., 955 N.W.2d 186, 193 (Iowa 2021) (“We find little comfort in the
claim that therapy has achieved sufficient measures of protection and prevention
when the primary agents of that protection and prevention—the mother and the
stepfather—refuse to believe that any abuse ever occurred.”); see also In re C.H.,
652 N.W.2d 144, 150 (Iowa 2002) (“A parent’s failure to address his or her role in
the abuse may hurt the parents’ chances of regaining custody and care of their
children.”). Contrary to the juvenile court’s finding that the father testified “without
attempting to minimize or avoid the subject matter of the questions,” we see no
evidence in the record the father ever acknowledged any sexual misconduct
directed at K.S., S.F., or L.F.6 Instead, at the final hearing the father specifically
testified he has “never been sexually inappropriate with” S.F. or L.F. S.F. also
testified at the hearing that the father has repeatedly denied even crossing
boundaries with her. While the juvenile court found the father credible in testifying
that his motivation is L.F.’s best interests, we cannot overlook his consistent refusal
to acknowledge or accept responsibility for his sexual misconduct.
L.F.’s limited ability to communicate and therefore self-protect is an
additional concern. In the dismissal order, the juvenile court found L.F. “is able to
communicate her wants, needs, desires, feelings and emotions” and “can
6 We are cognizant the father cannot be required to incriminate himself as a
condition of regaining care. See C.H., 652 N.W.2d at 150 (“The State may not
penalize [the father] for noncompliance with a court order impinging on his right
against self-incrimination.”). However, the father has not raised self-incrimination
as a barrier to acknowledging the sexual misconduct. Additionally, some of the
father’s alleged acts or behavior would not constitute a crime.
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communicate to others when something is wrong.” This finding overstates L.F.’s
ability to communicate as described by the uncontroverted testimony of the people
who regularly work with her. One aide testified L.F. could express being
uncomfortable or hurt but she could not communicate being a victim of abuse or
identify who was previously in a room with her. Another aide testified L.F. could
not communicate she was a victim of fondling. L.F.’s special education teacher
testified L.F. could not communicate she was the victim of sexual abuse and she
could not identify “bad touches.” The June 2020 DHS report is consistent with this
testimony, stating L.F. “relies on her caregivers to be safe and keep her safe from
harm. [L.F.] requires supervision 100% of the time. She does not have the same
protective capacities of other children her age.” Thus, the record establishes L.F.
remains particularly vulnerable because she cannot differentiate between “good”
and “bad” touches, and she cannot effectively communicate a bad touch even if
she recognized the difference. These limitations leave her unable to self-protect if
faced with any additional sexual misconduct.
The juvenile court noted DHS involvement was minimal before it dismissed
the CINA action. However, we do not believe DHS involvement was without value.
DHS developed a safety plan that required full supervision and prevented the
father from assisting L.F. with her most vulnerable activities. That plan from the
June 2020 DHS report specifically provides:
1. [The father] will not toilet or assist [L.F.] with the toilet or
changing her clothes or undergarments.
2. [The father] will not bathe or shower [L.F.].
3. [The father] will not undress or be in the same room where
[L.F.] is in any state of undress
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4. Under no circumstance shall [the father] occupy the same
bed or sleeping arrangement as [L.F.] nor shall he lay with[,] “spoon,”
[or] “cuddle” with her.
5. [The father] will not be in any car, truck, vehicle, home,
building or structure alone with [L.F.].
6. [The father] will not be in a room where the doors are
closed, alone with [L.F.].
7. During overnights, [L.F.] will be at [the maternal
grandmother’s] home; [the father] will NOT sleep in the same home.
An approved supervisor will always be within earshot (50–60
feet) of [L.F] in order to identify if she has any concerns or needs.
DHS also provided monthly meetings with the family to assist with following the
safety plan. Without the CINA proceeding, the applicable visitation provisions
revert back to the decree of dissolution, which only requires supervision on L.F.’s
overnight visitations with the father. While the father testified he will not engage in
risky behavior with L.F. even without the DHS safety plan, ending DHS
involvement is not appropriate at this time due to the father’s refusal to
acknowledge his sexual misconduct. Of critical importance is L.F.’s limited ability
to recognize and communicate any sexual misconduct she experiences. Her “very
vulnerable” status has not changed, and therefore her ability to self-protect
remains the same as when this case began. While DHS’s involvement and the
juvenile court’s oversight may be very limited, keeping the safety plan in place
gives L.F. a level of protection she was not afforded in her parents’ dissolution of
marriage decree.
IV. Conclusion
We recognize the father has dutifully participated in therapy. However,
merely participating in therapy does not justify dismissing a CINA proceeding. See
D.D., 955 N.W.2d at 192–93 (“Progress in therapy and similar efforts to ‘put the
work in’ are unquestionably important. But the statute doesn’t ask whether all the
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boxes have been checked or the work put in; it asks whether the child remains in
need of supervision, care, or treatment.”). We also recognize the father has not
been accused of new sexual misconduct during the two-plus years of this CINA
action, but as noted above, L.F.’s vulnerability remains the same.
Because the father continues to minimize and deny the sexual misconduct,
and because L.F. has limited ability to recognize and communicate any sexual
misconduct she may experience in order to self-protect, the purposes of the CINA
adjudication have not been accomplished and L.F. remains in need of juvenile
court supervision. Therefore, we reverse the juvenile court order dismissing the
CINA action and remand for further proceedings. In light of our disposition, we do
not address the mother’s other arguments on appeal.
REVERSED AND REMANDED.