In the Interest of T.W., B.W., and B.W., Minor Children ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1161
Filed November 30, 2020
IN THE INTEREST OF T.W., B.W., and B.W.,
Minor Children,
J.W., Father,
Appellant,
V.W., Mother of B.W. and B.W.,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor,
District Associate Judge.
A mother and father separately appeal the termination of their parental
rights. AFFIRMED ON FATHER’S APPEAL; REVERSED ON MOTHER’S
APPEAL.
Patricia A. Rolfstad, Davenport, for appellant father.
G. Brian Weiler, Davenport, for appellant mother.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Victoria Noel of The Noel Law Firm, P.C., Clinton, attorney and guardian ad
litem for minor children.
Considered by Bower, C.J., and Vaitheswaran and Greer, JJ. Tabor, J.,
takes no part.
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VAITHESWARAN, Judge.
A mother and father appeal the termination of their parental rights to two
children, born in 2016 and 2017. The children’s father also appeals the termination
of his parental rights to a third child, born in 2010.
I. Grounds for Termination
Both parents contend the State failed to prove the statutory grounds for
termination cited by the district court.
A. Mother
As noted, the mother and father had two children together. The younger
child was born with low oxygen, and medical staff had problems getting
intravenous oxygen started. The child was immediately airlifted to the University
of Iowa Hospitals and Clinics. According to the mother’s therapist, these traumatic
circumstances surrounding the child’s birth informed subsequent events.
When the child was one year old, she was hospitalized for gastrointestinal
issues. Medical staff inserted several tubes and performed various procedures,
some of which were later deemed unnecessary. A physician reported that the
mother provided “false and exaggerated information about [the child’s] symptoms”
and this was “a clear case of Munchausen Syndrome by Proxy which is now called
‘factitious disorder imposed on another.’” The department of human services
intervened.
The parents agreed to have the child placed with a relative. The parents’
older child remained at home under a safety plan that restricted the mother to
supervised contact.
3
In time, the State filed a child-in-need-of-assistance petition. The district
court adjudicated the children in need of assistance under several statutory
provisions. Shortly thereafter, the children’s guardian ad litem reported that the
parents were “in complete denial regarding the abuse perpetrated by [the mother]
on [the younger child].” In a dispositional order, the court left the younger child
with the relative and transferred the older child to the custody of his paternal
grandmother.1 The court also required supervision of parental visits. The State
ultimately filed a petition to terminate parental rights.
Following a hearing, the district court found that “the adjudicatory harm in
this matter was “[f]actitious [d]isorder on [a]nother.” The court further found, “The
mother [would] not admit that her actions were the reason for the underlying
adjudication.” The court terminated the mother’s parental rights pursuant to Iowa
Code section 232.116(1)(d), (h), and (i) (2019).
The mother takes issue with the district court’s finding that she failed to
acknowledge the harm she caused her younger child. She asserts that, “In fact,
[she] and her therapist testified at length about her recognition and understanding
of the harm to her child.” The State responds that the mother did not “sufficiently
address[] the underlying why of her . . . [d]isorder.” In its view, the mother needed
“to acknowledge that her actions constituted child abuse.”
“[T]he court may not compel [a parent] to admit . . . guilt in order to be
eligible to regain custody of [a child].” See In re C.H, 652 N.W.2d 144, 149 (Iowa
2002). “The court may, however, require [a parent] to comply with the case
1That child was later transferred to the home of the relative caring for the younger
child.
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permanency plan which includes treatment” and “[f]ailure to do so may result in
termination of his parental rights.” Id.The department of human services case plan required the mother to meet
with an in-home service provider and participate in the “Safe Care” parenting
curriculum, obtain a psychological evaluation, cooperate with any recommended
mental-health treatment services, and attend couples counseling. At the
termination hearing, one of the department employees overseeing the case did not
dispute that the mother participated in these services but asserted she simply
checked the boxes without internalizing what she learned. The employee testified
the mother attended therapy sessions but failed to really engage in them and she
failed to “acknowledge[] that [the youngest child] was harmed due to her actions.”
A service provider similarly stated the mother “still hasn’t recognized that her
overreacting to the doctor caused harm to the [child].”
The mother directly contradicted this testimony. She stated, “I agree that I
over-reported and it caused harm to [the child].” Later, she was asked if she
understood her overreactions caused her child harm. She responded, “Yes.”
The mother underscored the significance of the difficult birth on her later
actions. She testified she was required to take the child to the hospital every other
week for the first six months, to follow-up on “the initial problems.” She conceded
that, after that point, “every little spit-up, every little puke, every little everything”
became “alarming” to her and she began “over-informing” the doctors about the
child.
Recognizing her severe anxiety about the welfare of the child, the mother
sought therapy even before the department intervened. She continued with that
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therapy throughout the proceedings, even after successfully completing a special
protocol to address the birth trauma. She believed her therapist informed the
department of her successful completion of the protocol more than nine months
before the termination hearing. She also noted that the therapist attended a family
team meeting several months before the termination hearing and informed
department personnel of her ability to serve as a safe caretaker.
The mother’s therapist confirmed the mother’s testimony. She reported:
[The mother] has made therapeutic progress throughout my time of
providing services to her. [She] has been consistent in attending her
sessions and is actively engaged in her therapeutic services. At this
time I have no concerns regarding [her] mental health or her ability
to healthily regulate her emotions as they arise.
At the termination hearing, the therapist testified she worked with the mother
“behaviorally” on what would cause her “to report every little thing” to “help [her]
not [to] be as hypersensitive when [the child] does show a symptom . . . . And so
then [the mother] is able to stop, look, look at the symptoms, and maybe take it
more of a step at a time versus immediately going into a fight or flight mode.” When
asked if she had “any significant concerns about” the mother’s emotional health or
behavioral effects that her emotional health might trigger,” she responded, “No, I
don’t.” She also agreed the youngest child’s traumatic birth had a logical
relationship to over-reporting of medical symptoms.
In sum, the mother voluntarily sought therapy to address the anxiety that
led to over-reporting; successfully completed a therapeutic protocol directed at the
underlying cause of that anxiety; categorically admitted to the harm the over-
reporting of symptoms caused her younger child; and came to the termination
hearing with a recommendation from her long-term therapist that she would be a
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safe caretaker. To have required the mother to also admit to committing child
abuse would have run afoul of the Fifth Amendment right against self-incrimination,
discussed in C.H. See id.2 We conclude the mother’s refusal to incriminate herself
could not serve as grounds for terminating her parental rights where she fully
followed the case plan requirements including the department’s requirement that
she admit to harming the child. We turn to the remaining factual grounds cited by
the State to support termination of her rights.
The service provider who worked with the mother on the “Safe Care”
parenting curriculum testified the mother failed to complete the modules. However,
the service provider conceded she had to curtail in-person contact with the mother
two and one-half months before the termination hearing in light of the COVID-19
pandemic. The provider also conceded the mother followed an example in one of
the modules concerning treatment at home versus treatment in an emergency
room. Specifically, during a semi-supervised visit with her older child, the mother
determined the child had a fever and she contacted the service provider to confirm
her preliminary determination that the child should be taken to the emergency
room. The service provider assured her that was the proper course of action in
this circumstance. When asked if the mother “did everything properly,” the
provider responded, “Yes.” As for the provider’s testimony that the mother failed
to heed home safety admonitions contained in one of the modules, she could point
to little more than hanging cords as supporting evidence. The mother explained
2 The mother testified that her prior attorney told her not to make such an
admission.
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that her home did indeed have cords for certain appliances including her phone
and “there [was] no way we can hide all those cords.”
Notably, the parents’ home was deemed appropriate for semi-supervised
in-person visits with the children. Those visits occurred three days a week, with
Sunday visits running six hours. Supervision was limited to twenty to thirty minute
drop-ins by the service provider. Visits continued on that schedule until the onset
of the COVID-19 pandemic, which resulted in the cancellation of in-person contact
in March, April, and part of May 2020. A department employee who took over the
case testified that during the three visits she attended, she did not discern any
safety concerns or any concerns with the home environment.
Finally, the service provider pointed to the mother’s difficult marital
relationship as a ground for termination. Neither she nor the department employee
overseeing the case reported any concerns with domestic violence in the home.
Their testimony coincided with the mother’s testimony that the father did not
physically or verbally abuse her. According to department reports, the stressor
was the uncertain custody status of the father’s oldest child, a factor the mother
openly addressed with department personnel.
By the time of the termination hearing, the parents had agreed to divorce
but, in light of financial burdens caused by the COVID-19 pandemic, continued to
live together without incident. We agree with the district court that the parents’
“current marital status” was “irrelevant to a placement decision.”
That said, the department also asserted the mother’s conceded anxiety
about the marital relationship was a factor to consider in the termination decision.
Assuming without deciding this type of anxiety was a legitimate factor, the mother
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worked hard to address it. She attended marriage counseling as required by the
case plan, and her marriage counselor reported she “was engaged and
forthcoming” and “demonstrated a willingness to do what was required by DHS in
order to be reunified with her children.” She also heeded a department employee’s
instruction to address marital stress in individual therapy.
After setting aside the department’s reliance on the mother’s refusal to
admit to commission of a crime and its reliance on the parents’ marital status, we
find scant evidence to support the remaining factual grounds for termination cited
by the State. We turn to the legal grounds cited by the district court.
Iowa Code section 232.116(1)(h) requires proof of several elements,
including proof a child cannot be returned to parental custody. The mother testified
she was able to have the children returned to her care immediately. She also
stated she had a good relationship with the relative who was serving as caretaker
and the relative was supportive of having the children returned to her care. The
fact that lengthy visits took place in the home without incident and with minimal
supervision supports her belief. We conclude the State failed to prove by clear
and convincing evidence that the children could not be returned to parental custody
under section 232.116(1)(h)(4).
We turn to section 232.116(1)(d). That provision requires the State to
prove:
(1) The court has previously adjudicated the child to be a child
in need of assistance after finding the child to have been physically
or sexually abused or neglected as the result of the acts or omissions
of one or both parents, or the court has previously adjudicated a child
who is a member of the same family to be a child in need of
assistance after such a finding.
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(2) Subsequent to the child in need of assistance 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.
Iowa Code § 232.116(1)(d). The State proved the first element. The district court
adjudicated the children under several provisions, including section 232.2(6)(b)(2),
which defines a child in need of assistance as a child “[w]hose parent, guardian,
other custodian, or other member of the household in which the child resides has
physically abused or neglected the child, or is imminently likely to abuse or neglect
the child.” A founded child abuse assessment supports the adjudication.
The State did not prove the second element. The mother received services
to correct the circumstances that led to the adjudication—namely her over-
reporting of the younger child’s symptoms—and, according to her therapist, those
circumstances no longer existed. We conclude the State failed to prove by clear
and convincing evidence that termination of the mother’s parental rights was
warranted under section 232.116(1)(d).
That leaves section 232.116(1)(i), which requires proof:
(1) The child meets the definition of child in need of assistance
based on a finding of physical or sexual abuse or neglect as a result
of the acts or omissions of one or both parents.
(2) There is clear and convincing evidence that the abuse or
neglect posed a significant risk to the life of the child or constituted
imminent danger to the child.
(3) There is clear and convincing evidence that the offer or
receipt of services would not correct the conditions which led to the
abuse or neglect of the child within a reasonable period of time.
Again, the State failed to prove the third element. The mother was offered
reunification services, she participated in those services, and the services—in
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particular the individual therapy she received—corrected the condition that led to
the abuse of her younger child.
Because the State failed to prove the grounds for termination of the
mother’s parental rights cited by the district court, we reverse the termination order
with respect to her. In light of the reversal for failure to establish the statutory
grounds, we find it unnecessary to address the remaining arguments raised by the
mother.
B. Father
The district court terminated the father’s parental rights to his three children
pursuant to Iowa Code section 232.116(1)(d), (f), (h), and (i). The father contends
the State failed to prove the grounds for terminating his parental rights to his
younger two children. We find it necessary to address only one of the grounds—
section 232.116(1)(h)—which, as noted, requires proof of several elements,
including proof the children cannot be returned to parental custody. See In re A.B.,
815 N.W.2d 764, 774 (Iowa 2012).
The children were removed from the father’s care because he lacked
sufficient protective capacity. Although he participated in individual therapy to
address the concern, the father’s therapist testified he “didn’t particularly want to
be there” and, although he was not “uncooperative, he was not particularly
forthcoming.” The therapist opined therapy was not beneficial. After five sessions,
it was determined that the father “had reached maximum benefits from the
treatment.”
The father’s failure to address the concern that led to removal of the children
from his care was compounded by his minimal involvement in couples counseling,
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assuming the goal of that counseling was to enhance the parents’ joint protective
capacities. The marriage counselor reported he “was not an active participant and
did not engage in the process.”
The father’s parenting skills also were a concern. A department employee
characterized them as “subpar.” The father had “limited engagement” with the
children during visits and “it appeared that it was more . . . Mom [who] engaged
with the children than Dad.” When visits went virtual, the father failed to participate.
We conclude the State proved the elements of Iowa Code section
232.116(1)(h). The younger two children could not be returned to the father’s
custody at the time of the termination hearing.
II. Best Interests
The father contends termination of his parental rights to his oldest child was
not in the child’s best interests. See Iowa Code § 232.116(2). On our de novo
review, we disagree.
The oldest child began living with his paternal grandmother before the
department became involved. The child experienced several profoundly traumatic
events in his young life. The department planned to help him process the trauma
in the safety of his grandmother’s home and with the assistance of therapy. The
father declined to participate in his son’s counseling sessions.
The father initially was able to see the child whenever he wanted. Three
months before the termination hearing, the department ended those visits out of
“concern that every time [the child] saw his father . . . that it was re-traumatization.”
In light of that re-traumatization, we conclude termination of the father’s parental
rights to the oldest child was in the child’s best interests.
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The father also argues termination of his parental rights to the younger two
children was not in their best interests. Id. The father’s failure to engage in
reunification services meant that the children’s safety would be compromised in
his independent care. That fact alone leads us to conclude that termination was
in the children’s best interests.
III. Due Process
The father contends the district court violated his due process rights during
the termination hearing by not allowing him to obtain a transcript of the
permanency hearing at state expense and by truncating questioning of certain
witnesses. His constitutional argument was not preserved for review. In re M.A.F.,
679 N.W.2d 683, 685 (Iowa Ct. App. 2004) (“Under our rules of civil procedure, an
issue which is not raised before the juvenile court may not be raised for the first
time on appeal.”). Accordingly, we decline to address it.
We affirm the termination of the father’s parental rights to his three children.
We reverse the termination of the mother’s parental rights to her two children.
AFFIRMED ON FATHER’S APPEAL; REVERSED ON MOTHER’S
APPEAL.