Opinion
23-1400
10-25-2023
IN THE INTEREST OF A.S. and N.S., Minor Children, A.S., Mother, Appellant.
Kevin J. Huyser of Rensink, Pluim, Vogel & Huyser, Orange City, for appellant mother. Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney General, for appellee State. Alexandria Celli Smith of Sandy Law Firm, Spirit Lake, attorney and guardian ad litem for minor children.
Appeal from the Iowa District Court for O'Brien County, Shawna L. Ditsworth, District Associate Judge.
A mother appeals the termination of her parental rights to her two children. Affirmed.
Kevin J. Huyser of Rensink, Pluim, Vogel & Huyser, Orange City, for appellant mother.
Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney General, for appellee State.
Alexandria Celli Smith of Sandy Law Firm, Spirit Lake, attorney and guardian ad litem for minor children.
Considered by Greer, P.J., and Ahlers and Buller, JJ.
GREER, PRESIDING JUDGE
The mother appeals the juvenile court's termination of her parental rights to A.S., born in 2011, and N.S., born in 2018. The mother argues that the State failed to meet its burden to prove a statutory ground for termination and that the Iowa Department of Health and Human Services failed to make reasonable efforts to offer her in-home visitation and increase its frequency. Because we find the State proved termination under Iowa Code section 232.116(1)(d) (2023) and the department offered reasonable visitation services based on the best interests of A.S. and N.S., we affirm the termination of the mother's parental rights.
I. Background Facts and Prior Proceedings.
We previously reviewed some of the background facts and prior proceedings in the mother's appeal of the juvenile court's dispositional review order in the child-in-need-of assistance (CINA) cases of these children and the juvenile court's finding of reasonable efforts. See In re A.S., No. 22-0260, 2022 WL 1100304, at *1-2 (Iowa Ct. App. Apr. 13, 2022). We review the key background facts and prior juvenile court proceedings to this action here.
This family came to the attention of the department in February 2021. At that time, A.S. and N.S. were living in the same home as the father, N.P.S., and their half siblings, K.S. and B.S. The mother also lived in the home. Following allegations by B.S. that she, K.S., and A.S. were being sexually abused by their father, that month the department facilitated an ex parte removal of the four children from the home and placed them in foster care. The allegations of sexual abuse were founded through a Child Protective Services (CPS) investigation in March 2021 and resulted in a founded assessment against the father for sexual abuse of B.S., A.S., and K.S. and a founded assessment against both the mother and father for denial of critical care for B.S. because of medical issues. Following a contested adjudicatory hearing in May 2021, A.S. and N.S. were adjudicated as CINA under Iowa Code section 232.2(6)(c)(2) and 232.6(d) (2021). This determination was based on a finding that the father had sexually abused the children and due to the mother's lack of protective capacity to prevent the sexual abuse. The mother was required to cooperate with Family Centered Services, participate in family team meetings, and complete and follow the recommendations that came with both a mental-health and substance-abuse evaluation. Visitation between the parents and children was to begin in a community setting and be supervised and eventually progress to in-home visits that were semi-supervised if only the mother was present or supervised if the father was also there. A.S. and N.S. remained in foster care.
Paternity testing performed during these proceedings showed that N.P.S. is not A.S.'s biological father. N.P.S. consented to termination of his parental rights to both A.S. and N.S. in May 2023 and is not a party to this appeal. However, for ease of reading, we refer to him as the father in this opinion.
To her credit, the mother completed a substance-abuse evaluation in April 2021; she began and was successfully discharged from the recommended outpatient treatment services. And in June, the mother participated in a mentalhealth evaluation and began attending counseling sessions with a therapist. As part of her work with the therapist, the mother completed two programs that teach parents to recognize signs, symptoms, and warning marks for children who have been sexually abused and parenting strategies for addressing trauma. The mother attended all supervised and semi-supervised visits with the children except for the one time she had COVID-19.
At the dispositional hearing in August, the parents agreed to the department's recommendations but asked for a review hearing in three months, rather than the required six months. In addition to those requirements set at the adjudicatory hearing, the mother was to submit to random drug testing. The children remained in foster care with visitation as approved by the department. At the November review hearing, the mother made an oral motion for reasonable efforts but, because the matter was contested, the juvenile court continued the hearing. After hearing evidence on the motion for reasonable efforts in December and then in January 2022, the juvenile court found the mother refused to acknowledge the father's sexual abuse, the father still denied all abusive behavior, and progress as to the sexual abuse findings had not occurred. Supervised visitation was ordered to protect the children from the risk of sexual abuse. The mother appealed this reasonable efforts ruling in February 2022. Hearings were cancelled pending resolution of the appeal.
While the appeal of the dispositional review order was pending, criminal charges were filed against the parents. In March 2022, the mother and the father separated after he was charged with crimes related to the CINA findings involving A.S. and N.S.-one count of sexual abuse in the second degree, one count of child endangerment with bodily injury, two counts of child endangerment, and three counts of indecent contact with a child. Then, in April 2022, the mother was criminally charged with two counts of child endangerment for actions related to the CINA proceedings involving A.S. and N.S. It was at this time that a panel of our court determined that the mother's "refusal or inability to address the danger of sexual abuse" amounted to a safety risk to the children. See A.S., 2022 WL 1100304, at *3. Thus, we affirmed the juvenile court's ruling that reasonable efforts were being made and its denial of the mother's request for increased visitation. See id. at *2-3. Then, the father moved out of the home in June. For a short period, the mother moved between homes so there was some instability as far as her housing was concerned, but she moved back into the family home alone around June. Despite their separation, the parents had yet to file for divorce. With no divorce action pending, the department was skeptical that the mother and father had actually separated and stopped living together, and it did not permit visits between the mother and A.S. and N.S. to take place in the home until November- after it completed a walk-through of the father's separate residence. Further, the father had also previously requested to receive service of court documents at the home. Likewise, yet another CPS investigation conducted in September resulted in a founded assessment of second-degree sexual abuse against one of A.S. and N.S.'s step-siblings by the father.
The mother pled guilty to one of the counts of child endangerment in December 2022; the State dismissed the second count pursuant to its plea agreement with the mother. The mother completed her seven-day jail sentence in January 2023 and was ordered to be on probation for two years, until January 2025.
Procedendo issued May 24, 2022.
The State filed a petition to terminate the mother's parental rights to both children under Iowa Code section 232.116(1)(d), (e), (f), (g), (i), and (I) in October 2022; the State filed an amended petition and a second amended petition in February 2023 regarding A.S. The matter came to trial in May 2023, with a second day of testimony in June and a third in July.
At trial, the department caseworker testified that the father was residing in a camper during the summer of 2022, and that when she came to do a walkthrough of the father's apartment in September 2022 he still had not moved in. When she attempted random drop-ins, the father either did not answer the door to the apartment or was not home; the same was true for random drop-ins at the mother's residence. Once the walk-through of the father's apartment was completed, visits between the mother and A.S. and N.S. were moved back into the mother's home in October 2022. The caseworker also testified that through the date of trial the father still received mail at the family home and still had his shampoo, soaps, and video games there. Likewise, the father had not retrieved his truck from the property. When asked about concerns regarding the mother, the caseworker said that the mother denied being able to recall the events underlying her child endangerment charge. And, when A.S. reported that she felt uncomfortable with the way that the father was looking at her at the February 2023 hearing, the mother discounted the child's report and said that the father was not looking at A.S. inappropriately.
Going to the department's concern over the mother's acceptance of the father's abuse of the children, she still maintained at trial that she did not believe that the father had sexual intent when he touched A.S. over her clothing on her buttocks. Further, the mother stated that she did not believe that the father ever licked A.S. or K.S. in their privates and that she believed instead that B.S. had an active imagination. When asked what the mother would need to keep her children safe, she responded, "[A.S.] being uncomfortable around [the father], not feeling safe around him. The allegations ...." The mother "acknowledge[d] [A.S's] feelings and how it made her feel." Not mentioning the concerns about the children's safety, the mother offered that the reason for her separation from the father was that "he is not a very faithful person."
A.S. was twelve years old at trial. She testified that she was scared that if she went to live with the mother that the father would show up. She said that she did not think that the father was really out of the picture because she heard video game sounds in the background during one of her phone calls with the mother, and the mother does not play video games; the father does. A.S. also saw a new game downloaded on the video game system, which she attributed to the father being present. She also testified that she was worried about her and her brother's safety if they returned to the mother's care.
Following trial, the juvenile court terminated the mother's rights to both children in August 2023 under Iowa Code section 232.116(1)(d), (e), (f), and (i), finding the State had not proved the other grounds in the petition. In its order terminating the mother's parental rights, the juvenile court stated that the mother "did not see [the father] as a threat to her or the children, despite this court's prior finding that the three children's reports of sexual abuse by [the father] were credible." In addition, the mother's
alleged separation from [the father] was not due to the sexual abuse concerns, nor due to [the father's] arrest for the same concerns, but rather of reports of [the father's] infidelity .... The court was concerned that [the mother] continued to have contact with [the father] as well as minimized her contact and relationship with [the father].
The juvenile court also noted that the mother remained married to the father. The mother now appeals.
II. Standard of Review.
We review the termination of parental rights de novo. In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022). We give careful consideration to the juvenile court's factual findings and in-person observations, but we are not bound by them. In re W.M., 957 N.W.2d 305, 312 (Iowa 2021). "[O]ur fundamental concern" in review of termination proceedings "is the child[ren]'s best interests." In re J.C., 857 N.W.2d 495, 500 (Iowa 2014).
III. Analysis.
In general, we follow a three-step analysis in reviewing the termination of a parent's rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We first consider whether there is a statutory ground for termination of the parent's rights under section 232.116(1). Id. Second, we look to whether termination of the parent's rights is in the children's best interests. Id. (citing Iowa Code § 232.116(2)). Third, we consider whether any of the exceptions to termination in section 232.116(3) should be applied. Id. Here, because the mother only challenges the statutory grounds for termination and whether the department made reasonable efforts toward her reunification with the children, we only address those issues. See Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996) ("[O]ur review is confined to those propositions relied upon by the appellant for reversal on appeal.").
A. Statutory Grounds.
The mother argues that the State failed to prove the statutory grounds for termination of her parental rights under Iowa Code section 232.116(1)(d), (e), (f), and (i). When the juvenile court terminates parental rights on more than one ground, we may affirm on any ground we find supported by the record evidence. In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We choose to focus on the record evidence supporting termination under paragraph (d). Under section 232.116(1)(d) a parent's rights may be terminated if the juvenile court finds: (1) the child or another child in the family has been previously adjudicated CINA based upon a finding of physical or sexual abuse or neglect as a result of the acts or omissions of one or both parents, and (2) "[s]ubsequent to the [CINA] adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services." See In re L.H., 904 N.W.2d 145, 150 (Iowa 2017) (noting "the common sense notion that, ordinarily, all siblings are at risk when one child has been sexually abused"). The mother challenges only the second element.
Here, although we commend the mother for participation in other services, the circumstance that required removal of A.S. and N.S. from the home-the risk associated with the founded sexual abuse of A.S. by the father-continues to exist. The mother has yet to actually acknowledge that the sexual abuse ever took place. And while the mother moved closer to acknowledging the abuse her children faced, the record shows they are still at risk because as the permanency report noted "she has not followed through with support to show she would support her children" if they disclosed sexual trauma. Thus, the mother's lack of protective capabilities remains an issue; she still has not adequately severed her ties with the father and instead maintains some contact with him. Additionally, she has yet to address the abuse directly with the children, which is necessary so they can feel safe with her and trust her. Importantly, A.S. relayed her belief that the father was still involved and that her mother would not keep them safe from him.
The circumstances here are similar to those that our supreme court recently addressed in In re D.D., 955 N.W.2d 186, 192-93 (Iowa 2021). In D.D., our supreme court concluded that a child who was adjudicated CINA and removed from the mother's home based on the stepfather's sexual abuse could not be safely returned to the home while the mother denied that the abuse occurred. Id. at 19395. Furthermore, the court stated, "[w]e find little comfort in the claim that therapy has achieved sufficient measures of protection and prevention when the primary [agent] of that protection and prevention . . . refuse[s] to believe that any abuse ever occurred." Id. at 193; accord In re M.L., No. 11-1326, 2011 WL 5389620, at *4 (Iowa Ct. App. Nov. 9, 2011) ("The fact remains that the parents have 'no insight in what happened so that it's not going to happen again.' Without that insight, the services provided to, and received by, the parents cannot ensure that an abused child . . . would be safe.").
As an example of the mother's behavior, here she attempts to downplay the report made by A.S. by claiming that she believed that the touch occurred but that the father likely had no "sexual intent." Yet, to effectively correct the circumstance that led to the CINA adjudication and thus avoid termination under paragraph (d), a parent needs to acknowledge that sexual abuse-not just a neutral touch- occurred. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999) ("[The mother] will not acknowledge the imminent danger of abuse to [the child] under her care. For this reason, she is unable to, and has not, taken any steps to remedy the circumstances which caused the abuse.") For these reasons, when a parent refuses to acknowledge sexual abuse, the statutory ground for termination under Iowa Code section 232.116(1)(d) has been met. See In re W.R., No. 211472, 2022 WL 470890, at *2 (Iowa Ct. App. Feb. 16, 2022) ("The fact that the mother still has no . . . understanding of where she went wrong leaves us with little to no doubt that those unsafe circumstances still exist."). Our court has explained that "[t]he requirement that a parent acknowledge and recognize abuse is essential for any meaningful change to occur. Without this acknowledgment, the services provided were not likely to be effective." S.R., 600 N.W.2d at 65 (citation omitted). Now at over two and a half years since removal, there has been little progress in establishing trust between the mother and the children such that there is still a belief she will not keep them safe. And with the mother's minimization of the father's conduct, we agree with the juvenile court that the "children remain at risk given the lack of [the mother's] protective capacities and insight for future abuse."
B. Reasonable Efforts.
Next, we examine the mother's final claim over the reasonable efforts offered by the department. "The State must show reasonable efforts as a part of its ultimate proof the child cannot be safely returned to the care of a parent." In re C.B., 611 N.W.2d 489, 493 (Iowa 2000); see Iowa Code § 232.102(4)(b). At the same time, "the reasonable-efforts mandate does not create a menu from which discerning parents may order specific services. Rather, it is intended to provide services that facilitate reunification given the parent's circumstances." See In re M.P., No. 19-0995, 2019 WL 5063337, at *4 (Iowa Ct. App. Oct. 9, 2019). Put another way, "[c]hild protection statutes 'are designed to prevent probable harm to the child[ren] and do not require delay until after harm has occurred.'" In re J.S., 846 N.W.2d 36, 43 (Iowa 2014) (citation omitted). They do not "ask whether all the boxes have been checked or the work put in; it asks whether the child remains in need of supervision, care, or treatment." D.D., 955 N.W.2d at 192-93.
Here, the mother asserts that the department failed to timely restore inhome visitation between her and the children and to increase the frequency and duration of those visits. Yet, as the mother acknowledges, "the nature and extent of visitation is always controlled by the best interests of the child." In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996); see also Iowa Code § 232.102(10)(a) ("A child's health and safety shall be the paramount concern in making reasonable efforts."). Applying the best-interest-of-the-child standard to visitation frequency and duration "may warrant limited parental visitation." M.B., 553 N.W.2d at 345; accord id. at 345 (finding no failure to make reasonable efforts when the department did not increase visitation because the mother had "demonstrated an inability to make those changes in her life essential to proper parenting, including her continued codependency on abusive males"). In this instance, because the mother failed to acknowledge fully that the father committed sexual abuse and because the mother remained in contact with the father and allowed him to keep personal items in the family home, the best interests of A.S. and N.S. required limited visitation at locations in the community, despite the mother's insistence otherwise. The mother had over two years at the time of trial-between the children's removal in February 2021 and the termination trial in May 2023-to demonstrate a commitment to remedying and removing the threat of abuse and failed to do so. At the time of trial, she still downplayed her involvement with the father, and the juvenile court found it was likely the father was still involved with the mother and spent time at the home. Therefore, the amount of visitation provided by the department was appropriate and there was no violation of the reasonable-efforts requirement. We conclude that the State proved by clear and convincing evidence the grounds for termination under section 232.116(1)(d).
IV. Conclusion.
After our de novo review of the record, the State proved the grounds for termination under Iowa Code section 232.116(1)(d) based on the mother's failure to acknowledge that sexual abuse by the father occurred and to adequately ensure the children's future safety from him. Furthermore, we find that the department made reasonable efforts in offering visitation that was in the best interests of A.S. and N.S. We affirm the termination of the mother's parental rights to both children.
AFFIRMED.