In the Interest of B.S., J.S., and K.S., Minor Children , 919 N.W.2d 768 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0238
Filed June 6, 2018
IN THE INTEREST OF B.S., J.S., and K.S,
Minor Children,
H.S., Mother,
Appellant,
B.S., Father,
Appellant.
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Appeal from the Iowa District Court for Polk County, Susan C. Cox, District
Associate Judge.
A father and mother appeal an order adjudicating their three children as
children in need of assistance. AFFIRMED ON BOTH APPEALS.
Ryan R. Gravett of Oliver Gravett Law Firm, Windsor Heights, for appellant
mother.
Robb D. Goedicke of CGR & R Law Firm, P.C., West Des Moines, for
appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem
for minor children.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.
A father and mother appeal an order adjudicating their three children as
children in need of assistance. The adjudication was based on a founded
department of human services child-abuse assessment determining the father
sexually abused an older half-sibling. The parents contend the State failed to
prove the grounds for adjudication by clear and convincing evidence. They
suggest there was no harm to the three children, born in 2006, 2014, and 2017.
They also contend they complied with a voluntary safety plan proposed by the
department, obviating the need for judicial intervention.
The district court adjudicated the children pursuant to Iowa Code section
232.2(6)(c)(2) and (d) (2017). We address both provisions because “[t]he grounds
for a CINA adjudication have ‘important legal implications beyond the
adjudication.’” In re J.S., 846 N.W.2d 36, 41 (Iowa 2014) (quoting In re L.G., 532
N.W.2d 478, 480 (Iowa Ct. App. 1995)).
Iowa Code section 232.2(6)(c)(2) defines a child in need of assistance as
someone “[w]ho 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.” “Although chapter 232 does not contain a definition of
‘harmful effects,’” the phrase “pertains to the physical, mental or social welfare of
a child.” Id. (quoting In re Wall, 295 N.W.2d 455, 458 (Iowa 1980)).
Our de novo review of the record reveals the following facts. The parents
stipulated that the half-sibling was adjudicated as a child in need of assistance in
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a separate action. They also stipulated that the father faced pending criminal
charges arising from his interactions with the half-sibling.
In light of the pending criminal charges, the father testified he would not be
willing “to admit” he did anything to the half-sibling. See In re C.H., 652 N.W.2d
144, 150 (Iowa 2002) (“The State may not penalize [a parent] for noncompliance
with a court order impinging on his right against self-incrimination.”). He also
stated he might have some issues with following department recommendations for
treatment, given the department’s failure to identify the nature of the treatment.
Nonetheless, he pointed to his compliance with a voluntary safety plan prohibiting
unsupervised contact with the children.
The department social worker overseeing the case acknowledged the
father’s willingness to follow the safety plan but agreed the three children were “at
risk of being sexually abused if the father [did] not engage in services.” She
testified, “[I]t has been founded that [the father] sexually abused [the half-sibling]”
and “[i]t would be important to be able to work with the family, and provide services,
and support to not only [the father] in the [half-sibling’s] case, but also to [the
mother] and any services that her children may need ongoing in this case.” While
recognizing the father “was unable to participate in services” that required him to
“make any kind of admission of guilt,” she testified there were other services in
which the parents could participate. As to the mother, the social worker testified
she lacked the capacity to protect the children from abuse.
The mother’s testimony bolstered the social worker’s opinion. When asked
whether she would believe the father did anything inappropriate if the half-sibling’s
allegations against the father proved to be true, she responded, “I don’t know.”
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She also testified she would allow the father to return to the home if the safety plan
were not in place.
We conclude the State proved an imminent likelihood the children would
suffer harmful effects from the parents’ failure to exercise a reasonable degree of
care in supervising the child, as required by Iowa Code section 232.2(6)(c)(2).
Without court intervention there was a significant risk the father would groom the
younger children for sexual abuse, as he was alleged to have done with the older
half-sibling, and the mother would turn a blind eye. We turn to the second provision
under which the children were adjudicated.
Section 232.2(6)(d) defines a child in need of assistance as someone “[w]ho
has been, or is imminently likely to be, sexually abused by the child’s parent,
guardian, custodian, or other member of the household in which the child resides.”
The Iowa Supreme Court recently reaffirmed the holding of an opinion applying
this provision to strikingly similar facts. See In re L.H., 904 N.W.2d 145, 150 (Iowa
2017) (citing In re D.D., 653 N.W.2d 359, 361 (Iowa 2002)). The court stated,
“[W]e have previously upheld the CINA adjudication of an eight-year-old boy under
Iowa Code section 232.2(6)(d) where the record showed the father ‘exceeded all
bounds of sexual propriety between himself, his daughter and her eight-year-old
friend’ yet did not exceed those bounds with the boy.” Id. (quoting D.D., 653
N.W.2d at 361). The court explained, “In finding that the boy was in imminent
danger, we took note of ‘the common sense notion that, ordinarily, all siblings are
at risk when one child has been sexually abused.’” Id. (quoting D.D., 653 N.W.2d
at 362)).
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The mother argues In re D.D. is distinguishable because she and the father
agreed to and complied with a safety plan. As discussed, compliance with the
safety plan was insufficient to protect these children from the risk of imminent
abuse, given the father’s non-participation in treatment pending resolution of the
criminal charges and the mother’s equivocation on whether she would accept the
half-sibling’s allegations if they were found to be true. We conclude the State
proved an imminent likelihood of sexual abuse as required by Iowa Code section
232.2(6)(d).
We affirm the adjudication of the three children as children in need of
assistance.
AFFIRMED ON BOTH APPEALS.