Opinion
No. 3-991 / 03-1301.
Filed January 14, 2004.
Appeal from the Iowa District Court for Scott County, James A. Weaver, District Associate Judge.
A child's guardian ad litem and the Department of Human Services appeal from a juvenile court order denying and dismissing a mother's petition to terminate a father's parental rights to one child. AFFIRMED.
Lucy Valainis, Davenport, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, William Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellant-State.
Cheryl Newport of Newport Newport, P.L.C., Davenport, guardian ad litem for minor child-appellant.
Angela Reyes, Davenport, for appellee-father.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
A child's guardian ad litem and the Iowa Department of Human Services (DHS) appeal from a juvenile court order denying and dismissing a mother's petition to terminate a father's parental rights to one child. We affirm.
The mother also filed a notice of appeal, but it was untimely and the mother has not filed a petition on appeal.
I. Background Facts and Proceedings.
U.A. is the mother, and C.A. the father, of a son, K.A., born in March 1998. They were married in about 1995. U.A. had three children. C.A. had three children from a prior marriage which had ended in divorce. One of C.A.'s children is a daughter, B.A., both in September 1988.
In June 1997 the State filed a child in need of assistance (CINA) petition concerning B.A. It alleged that C.A. had improperly touched B.A. in a sexual manner on some three or more occasions about three years earlier, when B.A. was five or six years old. In late December 1997 C.A. pled guilty to a charge of lascivious acts with a child, and B.A. was adjudicated a CINA. A February 1998 dispositional order directed C.A. to comply with a psychological evaluation required by a sexual abuse treatment program and allowed therapeutic contact between him and B.A. and her siblings.
C.A. lived with U.A., her children, and K.A. until late July 1998 when C.A. was sentenced to a term of no more than five years imprisonment based on his conviction of lascivious acts with B.A. While imprisoned C.A. participated in a sexual offender treatment program. He completed phases I and II of the three-phase program, but apparently reached his discharge date about one month into phase III and was released from imprisonment without completing Phase III. An evaluation of his participation in the sexual offender treatment program, based on a score of from zero (lowest — "Not applicable or displays none [of the desired behavior]") to four (highest — "Very high, or displays a very high level of the behavior and continuous pattern") gave C.A. all two's, three's and four's on fourteen criteria, and an average of three ("High, or displays a high level or more than average amount [of the desired behavior]") on the fourteen criteria.
C.A. was released from prison in early January 2001. While incarcerated he had maintained contact and communication with U.A. and, to the extent K.A.'s young age permitted, with K.A.U.A. had maintained a relationship with C.A.'s extended family, which consisted of his parents, his children from his prior marriage, several siblings, and some two dozen nieces and nephews.
When released from prison C.A. went to live with his mother and work in a family-owned business. He began sex offender counseling and treatment in February 2001 with Dr. McEchron. Dr. McEchron has a Ph.D. in psychology, has practiced from some twenty-five years, and works primarily with sex offenders and families. Dr. McEchron had originally counseled C.A. in 1998, after C.A. pled guilty to lascivious acts with B.A.
C.A. was interested in preserving his marriage, and following his release from prison still believed it was possible to do so. He did not have unsupervised contact with K.A. and K.A.'s half-siblings, but was encouraged to visit them and U.A. and did so. With some regularity the family did such things as going out to eat and going to parks. One of these occasions involved a meal together at a Buffet King restaurant on March 18, 2001.
By early July 2001 C.A. had come to believe his marriage to U.A. could not be preserved. On July 3 he filed for divorce. In August 2001 he secured an order allowing him several hours of unsupervised visitation per week with K.A. Shortly thereafter U.A. complained to the DHS about an incident that had occurred at the Buffet King some five months earlier, on March 18.
Although the underlying facts concerning the incident of March 18, 2001, are not in significant dispute, there is substantial conflict in the interpretation the numerous persons and entities involved in this case place on those facts. C.A., with U.A.'s knowledge and consent, took K.A. and one or more of the other children to the buffet line to get food. K.A. was partly but not completely potty-trained, and would sometimes act shy or hide when he had to go to the bathroom. K.A. appeared to act as if he had to go to the bathroom, one of his sisters asked if he had to go to the bathroom, and C.A. took him to the bathroom, apparently inadvertently entering the women's bathroom rather than the men's bathroom. U.A. became concerned because C.A. and K.A. did not timely return from the buffet line, and after looking for them briefly elsewhere found them in the bathroom by calling K.A.'s name, to which he responded.
As noted above, U.A. reported this incident to the DHS some five months later. The State filed a petition on August 28, 2001, alleging K.A. was a CINA pursuant to Iowa Code sections 232.2(6)(b) (parent has physically abused or neglected child or is imminently likely to do so), 232.2(6)(c)(2) (failure of child's parent to exercise reasonable degree of care in supervising child), and 232.2(6)(d) (child who has been, or is imminently likely to be, sexually abused by the child's parent) (2001). In a September 13, 2001 order, following an uncontested hearing, the juvenile court placed K.A. with U.A. and ordered that C.A. have two hours of visitation per week with K.A., supervised by the DHS. The DHS investigated the incident and on September 19, 2001, determined: "The report of sexual abuse of [K.A.] by his father [C.A.] is Founded and Confirmed, under assault with intent to commit sexual abuse." In a March 12, 2002 order, based on a stipulation of the parties the juvenile court adjudicated K.A. to be a CINA within the definition of section 232.2(6)(c)(2), stating that [t]he basis for the adjudication is the failure or refusal of the father to provide appropriate supervision for the child because he had unsupervised contact with the child when he is a convicted child sex abuser.
In an April 30, 2002 dispositional order the juvenile court confirmed that K.A. was a CINA, on the same basis as in its adjudication order; continued K.A.'s placement with U.A., but subject to DHS supervision; and ordered that C.A.'s visitation with K.A. be at the discretion of the DHS and "be supervised by a professional who shall be paid by the father for the service."
The CINA case involving B.A. was closed in May 1999. Dr. McEchron began treating C.A. in February 2001, shortly after his release from prison. About six months after the April 30, 2002 dispositional order concerning K.A. the State moved for dismissal of its CINA case involving K.A. The juvenile court denied the motion on November 12, 2002.
In October 2002 U.A. filed her petition in his case. As subsequently amended it sought termination of C.A.'s parental rights to K.A. pursuant to Iowa Code sections 232.116(1)(d) (child or another child who is a member of the same family previously adjudicated as a CINA based on physical or sexual abuse or neglect as a result of acts or omissions of a parent, circumstances continue to exist despite offer or receipt of services), 232.116(1)(i) (child meets the definition of a CINA based on physical or sexual abuse or neglect as a result of acts or omissions of a parent, the abuse or neglect posed a significant risk to the life of the child or constituted imminent danger to the child, offer or receipt of services would not correct conditions within reasonable period of time), and 232.116(1)(m) (child adjudicated CINA based on physical or sexual abuse or neglect as a result of acts or omissions of a parent, parent has been convicted of a felony and imprisoned for physically or sexually abusing or neglecting the child, child's sibling, or child in the household) (2003). The juvenile court held a hearing on the petition. In an order filed July 16, 2003, together with a nunc pro tunc order filed July 31, 2003, it denied and dismissed U.A.'s petition. In doing so it found, in part:
The boy was adjudged to be in need of assistance in March 2002. The legal basis was § 232.2(6)(c)(2) of the Code of Iowa. The factual basis was "the failure or refusal of the father to provide appropriate supervision for the child because he had unsupervised contact with the child when he is a convicted child sex abuser." The harmful effects inherent in the finding were not identified. No finding was made regarding actual sexual abuse, physical abuse, or the imminent likelihood of either. No reference to § 232.2(6)(b) or (d) was included in the adjudicatory order.
The juvenile court's "Order" provides the following:
The legal bases pled for termination of parental rights are all premised on an adjudication of the child as a child in need of assistance due to physical or sexual abuse with one exception. That exception is for a child who is a member of a family of which another child has been adjudged to be in need of assistance due to being sexually or physically abused.
The petition cannot be granted based on the allegations that require the child be a child in need of assistance due to physical or sexual abuse. [K.A.] was not adjudged to be in need of assistance on either basis.
The remaining basis for the termination requires that this child be a member of a family of which one other child has been sexually abused. It is known that a child of father was adjudged to have been sexually abused. The evidence presented during the hearing does not support, by clear and convincing evidence, a finding that the circumstances that led to the adjudication still exist.
Therefore, IT IS ORDERED that the Petition to Terminate Parental Rights is dismissed.
K.A.'s guardian ad litem and the DHS appeal. Each asserts that U.A. proved the grounds for termination under each of the three pleaded statutory grounds, and each asserts termination is in K.A.'s best interests.
The juvenile court did not reach or address the best interests issue, as it determined the statutory elements for termination were not proven.
II. Scope and Standards of Review.
We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
III. Sections 232.116(1)(i) and (m) (2003).
We agree with the juvenile court that U.A.'s petition cannot be granted based on K.A. having been subjected to physical or sexual abuse, as the CINA adjudication did not find or rely on such grounds and the record contains no substantial evidence that he was physically or sexually abused. The DHS points out, however, that under sections 232.116(1)(i) and (m) a child can be a CINA based on "neglect" as well as being based on physical or sexual abuse. The DHS argues that a broad meaning of the term "neglect" should be seen as incorporating section 232.2(6)(c)(2), under which a child meets a CINA definition if imminently likely to suffer harmful effects, such as physical or sexual abuse, as a result of lack of supervision. In support of its argument it points out that this court has ruled the definition of "physical abuse" is broad enough to include injury as a result of denial of critical care. See In re M.L.W., 461 N.W.2d 609, 613 (Iowa Ct. App. 1990).
Section 232.2(6)(b) expressly defines a CINA as a child who is "neglected." If we were to read section 232.2(6)(c)(2)'s "failure . . . to exercise a reasonable degree of care in supervising the child" to include "neglect," the two provisions would be substantially overlapping and duplicative. We do not believe that the legislature, having expressly defined a CINA under the first of those two provisions as a child who has been "neglected" intended that the immediately following, second of those two definitions also incorporate a concept of neglect.
We note further that section 232.2(6)(b) was one of the three definitions of a CINA that U.A. pled and relied on in this case. However, the juvenile court adjudicated K.A. to be a CINA solely on the basis of section 232.2(6)(c)(2), failure to exercise a reasonable degree of care in supervision. It did not find K.A. to be a CINA as defined in section 232.2(6)(b). "Neglect" means physical injury. See Iowa Code § 232.2(42) (defining "physical abuse or neglect" and "abuse or neglect" as "any non-accidental physical injury suffered by a child . . ."). Because there is no evidence that K.A. suffered any physical injury the juvenile court's implicit rejection of "neglect" as a basis for a CINA adjudication is not only well supported by the record but is arguably compelled by the record.
For the foregoing reasons we conclude the adjudication based on failure of supervision does not, as argued by the DHS, incorporate a finding or adjudication based on neglect and the record contains no substantial evidence of neglect.
V. Section 232.116(1)(d) (2003).
The juvenile court determined that U.A. did not prove by clear and convincing evidence the second essential element for termination under this provision, that the circumstance which led to K.A.'s adjudication as a CINA continues to exist despite the offer or receipt of services. K.A.'s guardian ad litem and the DHS argue U.A. did so.
The circumstance which led to the adjudication was C.A.'s apparently brief, unsupervised contact with K.A., which occurred on March 18, 2001. That contact occurred shortly after C.A. was released from prison, began counseling and treatment with Dr. McEchron, and began having outings with U.A. and the children. U.A. allowed the unsupervised contact, but will apparently not do so again. The March 18 incident appears to have occurred solely as a result of the circumstances in which C.A. found himself and K.A.C.A. testified that he knows he should not have allowed the unsupervised contact to occur, and Dr. McEchron agrees. Dr. McEchron has twenty-five years experience counseling and treating persons such as C.A. He testified that while C.A.'s contacts with K.A. should remain supervised, in his opinion C.A. presents no risk of harm to K.A. A juvenile court order allows C.A. only supervised contact with K.A. There is no substantial evidence that, with the exception of the March 18 incident, C.A. has had or has attempted to have any unsupervised contact with K.A. Upon our de novo review we agree with the juvenile court that there is not clear and convincing evidence the circumstance which led to the adjudication continues to exist.
V. Summary and Disposition.
We conclude, as the juvenile court did, that U.A. did not prove by clear and convincing evidence the present existence of one or more of the statutory grounds for termination upon which she relied. We therefore need not and do not reach the question of whether termination of C.A.'s parental rights would be in K.A.'s best interest.