Opinion
No. 5-347 / 05-0250
Filed May 11, 2005
Appeal from the Iowa District Court for Cerro Gordo County, Gerald W. Magee, Associate Juvenile Judge.
A mother appeals from a juvenile court order terminating her parental rights to one child. AFFIRMED.
Timothy L. Lapointe of Lapointe Lapointe, P.C., Mason City, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Paul L. Martin, County Attorney, Gregg R. Rosenbladt, Assistant County Attorney, for appellee-State.
Mark Young, Mason City, guardian ad litem for minor child.
R. David Eastman, Clear Lake, for father.
Considered by Vogel, P.J., Miller and Hecht, JJ.
Jean is the mother, and Bruce the father, of Adam, born in March 1996, and Katie, born in August 1998 ("the children"). Jean appeals from a January 2005 juvenile court order terminating her parental rights to Adam. The order also terminated Bruce's parental rights to Adam, but his rights are not involved in this appeal. Upon our de novo review, we affirm the juvenile court.
The children came to the attention of the Iowa Department of Human Services (DHS) in October 2001 when Adam was five years of age and Katie was three. The DHS began child abuse investigations upon receiving allegations that Bruce had on occasions had the children and the children's two young cousins, a female and male of about the same age as the children, wrestle naked while videotaping them, and had upon occasion himself wrestled with the children and cousins while naked. The allegations were investigated, were determined to be "founded" with Bruce as the perpetrator and the children and their cousins as the victims, and the founded assessments were placed on the State's central abuse registry. During investigation of the allegations authorities found that Bruce had stored on his home computer thousands of pictures of naked young children, generally of about five to twelve years of age, with many in sexually explicit situations. Bruce was charged in federal court with possession of child pornography. Jean adamantly refused to believe that Bruce had done anything wrong with the children or their cousins.
The children were adjudicated children in need of assistance (CINA) in January 2002, but were allowed to remain with Jean provided Bruce did not live with them and had only supervised visits. Services began in late 2001. The services included family and individual therapy, parental skills development for Jean, supervised visitation, and psychological evaluations, including several psychological evaluations for Jean over time.
Adam had earlier been diagnosed with attention deficit/hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD) and had demonstrated very aggressive behavior and sexual acting out. His behavior did not improve and in fact escalated. Jean engaged in denial and defensiveness, developed little or no insight into the nature and causes of Adam's problems and behavior, and made only the most minimal progress in therapy.
In February 2003 Bruce began serving a term of incarceration upon his conviction for possession of child pornography. Jean and Adam had made little progress toward treatment goals. Adam had upon earlier occasions been told to keep certain matters related to possible sexual abuse secret. He had been made to feel responsible for Bruce's absence from the home. His severe behavior improved little if at all. In February 2003, at about the same time Bruce went to prison, Adam was removed from his parent's physical custody and placed in therapeutic family foster care, where he continued to reside at the time of the termination of parental rights hearing.
In May 2004 the State filed a petition seeking termination of Jean's and Bruce's parental rights to Adam. A lengthy and somewhat contentious hearing was held in September, October, and November 2004. In January 2005 the juvenile court order filed detailed findings of fact, conclusions of law, and an order terminating Jean's and Bruce's parental rights to Adam pursuant to Iowa Code section 232.116(1)(f) (2005). Jean appeals.
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).
Jean claims the juvenile court erred in finding that reasonable efforts for reuniting her with Adam had been utilized. Before parental rights may be terminated, the State must offer reasonable services to preserve the family unit. In re H.L.R.B., 567 N.W.2d 675, 679 (Iowa Ct.App. 1997). While the State has this obligation, a parent has the obligation to demand any other, different, or additional services prior to the termination hearing. In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App. 1999). Any objection to services or demand for services should come early in the process so appropriate changes can be made. In re C.B., 611 N.W.2d at 493-94. Challenges to services should be made when the case plan is entered. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997).
Jean states this issue was preserved "[t]hrough testimony at trial, cross-examination of case worker, etc. and argument in trial brief." She makes no claim or showing the issue was otherwise preserved by any objection, request, or demand at any time prior to the termination hearing. Having made no demand or request for other, different, or additional services prior to the termination hearing, she has thus not preserved for appellate review her claim that the trial court erred in finding reasonable efforts had been utilized. See In re S.R., 600 N.W.2d at 63 (holding that where appellant did not, prior to termination hearing, demand services other than those provided, the issue of reasonable reunification services had not been preserved for appellate review). Even if this issue had been preserved, we note that extensive and intensive services to the family and its members were provided for two and one-half years before the State sought termination of parental rights and conclude reasonable efforts for reunification were made.
Jean claims the juvenile court "erred in sustaining the State's objection to questioning and request for information concerning confidential reporters of alleged child abuse." For the following reasons we find no merit to this claim.
The evidence shows some ten allegations of child abuse against Bruce, Jean, or both, were investigated over a period of just over three years as of the conclusion of the termination hearing. Six resulted in "founded" (also referred to as "confirmed") assessments. Four resulted in "unfounded" or "unconfirmed" assessments, meaning the investigations resulted in findings that a preponderance of the evidence did not demonstrate the existence of abuse. The six "founded" assessments included the two previously mentioned herein; one from November 2001 with Jean and Bruce as the perpetrators and Adam as the victim, for failure to provide proper supervision, based on a December 1999 incident in which Adam started a fire in the home causing extensive damage; one from about June 2002 with Jean and Bruce as perpetrators and the children as victims, based on Jean allowing the children to have prohibited unsupervised contact with Bruce; and one from August 2003 with Jean as the perpetrator and Adam as the victim, based on Jean having prohibited unsupervised contact with Adam.
At various times during the termination hearing Jean sought, through questions of witnesses and requests that the court order the production of DHS documents, the identification of the persons who had reported suspected child abuse by Jean, Bruce, or both. Jean variously asserted she was entitled to such information pursuant to Iowa Code sections 232.71B(2), 235A.15(2)(a), and 235A.15(3) (2003); her rights to confront witnesses against her under the U.S. and Iowa Constitutions; and her rights to due process of law under the U.S. and Iowa Constitutions. The juvenile court ordered that all "founded" and "unfounded" abuse assessments be produced, and Jean received them. It conducted an in camera examination of DHS records that identified persons who had reported possible child abuse perpetrated by Jean or Bruce. The court reported to the parties that the abuse allegations came from five different individuals, more than one person had made more than one report, in every case except perhaps two Adam or Katie was the "accuser"; that with one or two exceptions the reporters were people licensed by the State of Iowa in some capacity; and that the court had found no ulterior motive or pattern that would indicate bias or prejudice against Jean and Bruce. Without deciding whether it had discretion to order identification of the reporters revealed despite what it believed to be statutory prohibitions, the juvenile court declined to do so. For the following reasons we affirm on this issue.
First, none of the statutory provisions relied on by Jean, whether cited in the juvenile court or on appeal, authorize or require disclosure of the identity of persons reporting suspected child abuse. Iowa Code section 232.71B(2) specifically prohibits the DHS from revealing the identity of the reporter of child abuse to a "subject of a child abuse report listed in section 235A.15, subsection 2, paragraph ` a'." The latter provision includes as "subjects" of a report the parents and attorneys for the parents of a child named as a victim, see Iowa Code § 232A.15(2)(a)(2), and the persons and attorneys for the persons reported as having abused a child, see Iowa Code § 232A.15(2)(a)(4). Although sections 232A.15(2) and (3) and the other provisions cited by Jean allow these persons and certain other persons access to "report data" and "disposition data," these are defined terms which do not include the name or identification of the person or persons reporting suspected child abuse. See Iowa Code §§ 235A.13(10) and (5) respectively.
On appeal Jean cites Iowa Code sections 232.71(D)(5), 235A.15, and 217.30.
Second, Jean neither cites any authority in support of her bare claim the due process clauses of the U.S. and Iowa Constitutions require that the names of the reporters of suspected child abuse be revealed nor even states whether she is relying on a claim of procedural due process or substantive due process. To the extent her claim the trial court erred by not ordering reporters' identities revealed is founded on an alleged denial of due process of law we deem it waived. See Iowa R. App. P. 6.14(1)( c) ("Failure . . . to cite authority in support of an issue may be deemed waiver of that issue.").
We do note the record shows that all of the assessment reports were provided to Jean and each one reveals and names all persons who provided information upon which the child abuse investigator relied in determining whether the abuse assessment was "founded" or "unfounded." It thus appears that to the extent any reporter of child abuse provided information based on personal knowledge of relevant facts the reporter's name was in fact revealed by inclusion in the DHS's written assessment of the suspected abuse.
Third, Jean's assertion that her constitutional rights to confront witnesses against her were violated may be summarily disposed of. By their terms these provisions apply only to criminal cases. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ."); Iowa Const. art. I, § 10 ("In all criminal prosecutions . . . the accused shall have a right . . . to be confronted with the witnesses against him. . . ."). These provisions do not apply to this civil case.
Jean claims the juvenile court erred in concluding Adam could not be returned to her custody. This claim implicates the fourth, final element of the provision under which the juvenile court terminated parental rights. Pursuant to that challenged element the State is required to prove that at the time of the termination hearing Adam could not be returned to Jean's custody without being subject to some harm which would justify his adjudication as a CINA. See Iowa Code §§ 232.116(1)(f)(4), 232.102(5)(b) (2005).
As found by the juvenile court, since at least the year 2000 Adam has a history of aggressive, oppositional, threatening, and sexualized behaviors. A recent comprehensive family centered psychological evaluation determined that Adam is "highly sexualized" (as is his sister, Katie), in all likelihood from sexual abuse, exposure to sexual materials, or both. The evaluation indicates his extreme behaviors are caused by that exposure, rather than being caused by the ADHD and ODD with which he had earlier been diagnosed and to which Jean would attribute his behaviors.
Jean has been diagnosed with learning disabilities, such as reading disorder, mathematics disorder, and disorder of written expression. Her August 2004 psychological evaluation also indicates diagnoses of parent-child relational problem, neglect of child, non-compliance with treatment, and "personality disorder NOS (with features of dependent, schizotypal, and histrionic personality disorders)." As found by the juvenile court, Jean has vacillated about Bruce's sexual conduct with the children, upon occasion reluctantly acknowledging that something probably happened, but generally refusing to believe that he did anything wrong. Despite strong evidence that Adam was sexually abused, Jean cannot bring herself to believe his version of the abuses that have occurred. The juvenile court found, in part:
Despite Adam's many classic symptoms, behaviors and spontaneous statements of sexual abuse, Jean cannot take the steps to believe him, his sibling Katie or the other children — despite lengthy services and multiple attempts to assist her to acknowledge and understand the abuse that occurred. She remains ambivalent, querulous and lacks empathy for Adam's struggles.
These findings are fully supported by the record evidence, which indicates in part that because of her personality characteristics Jean may be incapable of acknowledging Adam's problems and their severity and incapable of developing or sustaining the empathy needed to help him deal with the problems which have arisen from his abuse. As one small in-court example of her vacillation and mindset, in her testimony Jean acknowledged that Adam has had behavior problems and sexual acting out, requiring her to correct him, but then shortly thereafter testified that Adam had never acted out sexually when he had been in her home and she didn't know if he had done so since being in foster care.
As related by the professionals involved in this case and as found by the juvenile court, Adam has critical needs to feel believed and for comfort, nurturing, empathy, high structure, and strong and consistent parenting. Despite years of services designed to understand and deal with Jean's own problems and assist her in understanding and dealing with Adam's problems, by reason of her personality and mindset Jean either cannot or will not firmly believe Adam, empathize with him, and comfort him. He has critical needs which she cannot meet. We conclude, as the juvenile court did, that Adam could not be returned to Jean at the time of the termination hearing without being subject to harm which would justify his adjudication as a CINA.
Jean also claims the juvenile court erred in determining termination of her parental rights was in Adam's best interest. Even if statutory requirements for termination are met, the decision to terminate must still be in the best interest of a child. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994).
Jean argues in part that termination was not in Adam's best interest because of a bond between him and Katie. No such issue was addressed by the juvenile court, and no error was preserved on this aspect of Jean's claim. See, e.g., Benevides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995) ("Issues must ordinarily be presented to and passed on by the trial court before they may be raised and adjudicated on appeal.").
At the conclusion of the termination hearing Adam had been in therapeutic family foster care for about twenty-two months. Subject to occasional backward steps, his behavior had greatly improved over time. His original serious anxiety over abuse and inadequate parenting had subsided, but he was becoming increasingly anxious and angry about the unsettled nature of his placement. He could not be returned to Jean at the time of the termination hearing or within the then reasonably foreseeable future. In the opinion of all professionals and his guardian ad litem, Adam was in serious need of permanency. Termination of Jean's parental rights is necessary to give Adam the opportunity for the stability, security, and permanency he desperately needs, and deserves. We fully agree with the juvenile court that termination of Jean's parental rights is in Adam's best interest.