In the Interest of L.F., Minor Child ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0749
Filed June 29, 2022
IN THE INTEREST OF L.F.,
Minor Child
B.F., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Stephen A. Owen,
District Associate Judge.
A father appeals the denial of his motion to close the child-in-need-of-
assistance case. AFFIRMED.
Jesse A. Macro, Jr. of Macro & Kozlowski, LLP, West Des Moines, for
appellant father.
Christine E. Branstad of Branstad & Olson Law Office, Des Moines, for
appellee mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Shannon M. Leighty of the Public Defender’s Office, Nevada, attorney and
guardian ad litem for minor child.
Considered by May, P.J., and Greer and Chicchelly, JJ.
2
GREER, Judge.
The father of a teenaged child1 appeals the juvenile court’s denial of his
request to close the child–in-need-of-assistance (CINA) case, as recommended
by the Iowa Department of Human Services (DHS)—but opposed by the mother.2
The juvenile court, after dismissing the case once, says not this time. Notably, the
State, on behalf of DHS, indicated it would not file a response to the father’s appeal
as it could not defend the juvenile court order. The juvenile court considered the
motion to close the case at the permanency hearing held in March 2022, but it
denied the motion. The father timely appeals from that order.
To open, a panel of our court considered the juvenile court’s dismissal of
this CINA action over a year ago. See In re L.F., No. 21-0002, 2021 WL 1400086,
at *4 (Iowa Ct. App. Apr. 14, 2021) (reversing the juvenile court’s dismissal of the
CINA proceeding “[b]ecause the father continues to minimize and deny the sexual
misconduct, and because L.F. has limited ability to recognize and communicate
any sexual misconduct she may experience”). The detailed history of the case
was set out in that decision:
L.F. was born in 2005. She has intellectual disabilities and
functions at about a second-grade level. She needs at least
occasional assistance dressing, bathing, and toileting. She cannot
speak, but she can communicate limited concepts using an assistive
electronic device or nonverbal signals.
The mother and father were previously married. They had
four children together—two boys and two girls, L.F. and her older
sister S.F. The mother filed a petition for dissolution of marriage in
1 These parents share legal custody of the child with the mother providing physical
care. There are other children in this family; they are not a part of this proceeding.
2 The State did not file a notice of appeal and informs it will not file a response
defending the juvenile court order given DHS’s position supporting case closure.
On the other hand, the mother timely filed a response after the case was
transferred to us and we consider her arguments in this appeal.
3
February 2016. In October 2016, the mother contacted [DHS] to
report she suspected the father sexually abused S.F. and L.F. As
part of the investigation, the mother also reported she suspected the
father sexually abused her female cousin K.S. DHS noted L.F., as a
child with special needs, was “very vulnerable” and the father
showed “very concerning sexualized behaviors,” but DHS ultimately
determined the allegation of abuse against S.F. and L.F. was not
founded. In December 2017, the district court entered a decree that
dissolved the parents’ marriage, granted joint legal custody, placed
physical care with the mother, and ordered visitation with the father
that included supervised overnight visits with L.F.
The family again came to the attention of DHS in July 2018
when the mother reported a witness saw L.F.’s hand on the father’s
crotch over his clothes and the father did nothing to move or redirect
L.F. The juvenile court soon ordered L.F. temporarily removed from
her father’s care. In September, DHS determined the allegation of
abuse against L.F. was unfounded in light of an ongoing criminal
investigation into the matter that limited the DHS investigation. In
October, the court entered a stipulated order finding L.F. was a
[CINA].
On November 26, 2018, the juvenile court held a dispositional
hearing in which the mother submitted evidence of the father’s prior
alleged sexual misconduct. First, the mother testified that when S.F.
was three years old, the father “accidentally” put his finger inside her
vagina while bathing her. Second, the mother provided records from
the father’s conviction of a sex offense in Minnesota for a 2012
incident in which he fondled a female physician’s breast during a
medical appointment for one of the children. Third, K.S. provided a
letter accusing the father of multiple incidents of sexual misconduct
in or around 2007 when K.S. was fifteen years old and staying with
the family. According [to] K.S.’s letter, the father: encouraged K.S.
to sit on his lap in a hot tub; stayed in and around K.S.’s room for an
extended time right before she planned to undress to take a shower
and go to sleep; and rode with K.S. on a four-wheeler and fondled
her breasts when they were alone. Fourth, S.F., who was seventeen
years old at the time of the hearing, provided a letter and testified to
allegations the father engaged in sexual misconduct toward her. S.F.
alleged the father: cuddled and spooned S.F. in bed and on the
couch; frequently walked into the bathroom while S.F. was
showering; looked down S.F.’s shirt and stared at her buttocks while
she was bent over; and repeatedly pressed his body against hers as
he walked past. Additionally, S.F. said the father continued bathing
L.F. and told S.F. to lie and say she was bathing L.F.
On November 28, 2018, the juvenile court issued the
dispositional order at issue here. The court found the father “has a
very concerning history of . . . sexualized contact primarily involving
minor females.” The juvenile court noted there is no supporting
4
evidence for the allegations of sexual misconduct presented at the
hearing—other than the Minnesota incident that resulted in
conviction—but the court specifically found the father groped K.S.
and digitally penetrated S.F.’s vagina. The court also noted a 2016
psychosexual evaluation of the father concluded he does not have a
serious mental impairment and is treatable. The court continued the
CINA adjudication with a long-term goal of establishing a safe
relationship with both parents, and the court allowed L.F. to visit the
father with full supervision and restrictions preventing the father from
assisting L.F. with toileting, bathing, or dressing.
The juvenile court held a series of permanency review
hearings and issued corresponding orders over the next several
months. Beginning with the May 13, 2019 permanency order, the
court allowed L.F. to visit the father at DHS’s discretion. DHS
developed a safety plan that allowed for supervised visitation and
largely kept the court’s initial restrictions in place. By the time of the
final hearing on December 21, 2020, DHS primarily provided the
safety plan and at least monthly meetings with the family. DHS also
allowed either the paternal grandmother or the father’s live-in friend
to supervise L.F.’s visitations with the father. On December 21, the
court issued its order dismissing the CINA action and closing the
case. The mother appeals.
Id. at *1–2 (footnotes omitted). In that earlier proceeding, the juvenile court found
the purposes of the CINA order had been accomplished and the child was no
longer in need of supervision, care, or treatment under Iowa Code section
232.103(4)(a) (2018). Id. at *2. After the mother appealed and based on that
record, our court reversed the juvenile court and returned the case for continued
DHS supervision and court oversight. Id. at *3–4. The main concern in the first
appeal related to the father’s “concerning behavior,” his “boundary violations,” and
his avoidance of “taking full responsibility for his sexual behaviors.” Id. at *2–3.
Given the child’s limited ability to communicate and self-protect and the father’s
minimization and denial of sexual misconduct, our court found juvenile court
supervision remained a need. Id. The case was remanded for further
proceedings. Id. at *4.
5
With that directive from the court of appeals and after a permanency review
hearing on July 9, 2021,3 the case returned to juvenile court oversight and visits
continued as had been set before the appeal.4 In September 2021, the father
moved to “close the case” and again urged that the purposes of the previous orders
were accomplished and continuation of supervision was “unjustified and
unwarranted.” In late March 2022, another permanency review hearing was held,
and the juvenile court considered the “motion to close the case,” filed under Iowa
Code section 232.103(2)(b) (2022). In April, the juvenile court ordered the CINA
adjudication to continue. The father appeals the April order denying case closure.
We review CINA proceedings de novo. In re D.D., 955 N.W.2d 186, 192
(Iowa 2021). We give weight to the juvenile court’s findings but are not bound by
them. Id. Overall, our principal concern is the best interests of the child. In re
L.H., 904 N.W.2d 145, 149 (Iowa 2017). There must be clear and convincing
evidence to support the grounds asserted. See id. In determining the best
interests of the child, “we look to the parent[’s] past performance because it may
indicate the quality of care the parent is capable of providing in the future.” In re
J.E., 723 N.W.2d 793, 798 (Iowa 2006) (quoting In re C.K., 558 N.W.2d 170, 172
(Iowa 1997)).
3 Between the closing of the CINA case on December 21, 2020, and the reversal
of that order in April 14, 2021, the father went about four months without
supervision by DHS. There were no allegations of any problems during those
months, so permanency review hearings were set to occur every nine months, the
safety plan was to continue, and DHS would provide any necessary services. At
the time of this permanency hearing, the child was fifteen and a half years old. The
juvenile court noted the parents were “headed to district court in the autumn to
address [the mother’s] motion to modify custody.”
4 As of June 2020, the father’s visits comported with the custody ordered visitation.
6
By stipulation, the CINA adjudication related to a failure to supervise under
Iowa Code section 232.2(6)(c)(2).5 Although two grounds were initially alleged,
the other ground—that the child had been or was imminently likely to be sexually
abused by a parent—was withdrawn. See Iowa Code § 232.2(6)(d).6 No one
appealed the order of adjudication following disposition. See In re Long, 313
N.W.2d 473, 477 (Iowa 1981) (concluding a pre-dispositional order for adjudication
is not a final order appealable as a matter of right). Thus, the father emphasizes
that the case is not over sexual abuse, but was filed as a failure-to-supervise case
and, under that rubric, the case is resolved. He argues since our previous decision,
he accepted responsibility for his behaviors and, as confirmed by his therapist, did
the necessary work in therapy. To be sure, from the July 2021 hearing until the
March 2022 hearing on the motion to close, the child appeared to be doing well
and enjoyed visits, showing no fear of her father. DHS felt she looked to her father
for guidance and attention. The report also confirmed the child’s communication
skills have improved. With that backdrop, DHS requested case closure. No one
reported any new concerns and so DHS was conducting only monthly checks on
the family. The DHS social work case manager felt permanency had been
achieved for L.F. and, with the achievement of maximum benefits for the family,
there were no new or different services DHS could offer.
5 Under section 232.2(6)(c)(2), a child can be adjudicated CINA if the child has
suffered or is imminently likely to suffer harmful effects from “[t]he failure of the
child’s parent . . . to exercise a reasonable degree of care in supervising the child.”
6 Section 232.2(6)(d) relates to a child “[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.”
7
But this time, the juvenile court disagreed and summarized the status of the
case in detail in its April order. Several matters troubled the juvenile court. Some
of those matters concerned the mother as well. Pointing to the March 2022 DHS
report, the mother quotes from the text that the child still has difficulty recognizing
boundaries or concerns for her own safety coupled with a limited ability to
communicate. With those concerns still at hand, she contends the protection
afforded under CINA proceedings is necessary. Yet, the child returned to the care
of both parents in June 2020 and no reports of abuse or neglect have surfaced.
Even though he denies sexual misconduct, the father admitted to past poor
choices that he claims to have addressed in therapy. DHS maintains the father
followed all conditions and expectations required to meet the safety plan crafted
for the child. As a part of the proceedings before the juvenile court, the father’s
therapist opined that the CINA case should be closed as the father will voluntarily
adhere to the safety plan and therapy. The father sees his therapist monthly, and
she specializes in treating sex offenders.
Still, the juvenile court saw red flags. While the father referenced a safety
plan he would put in place, developed with the help of his therapist, he surprisingly
could not describe it for the juvenile court at the hearing. And he did not present
the plan in writing for consideration by the court. As to the father, the juvenile court
found his testimony to be “guarded” and that he seemed to “avoid details in his
answers.” See In re T.P., No. 19-0162, 2019 WL 3317346, at *4 (Iowa Ct. App.
July 24, 2019) (“[W]e defer to the juvenile court’s credibility finding that the
mother’s denial was ‘completely unbelievable.’”). Those impressions became
more important over the father’s answers about his therapy and the safety plan he
8
claimed to have in place. Even with the clear crossing of sexual boundaries, the
father continues to deflect his responsibility, noting that in therapy he talks about
how certain actions can affect other people and “how even some of the simplest
action can be taken wrong.”
To support the findings, the juvenile court thoughtfully summarized the
history of the case and detailed over thirty-seven pages the impressions, relevant
facts, and legal authorities that lead to the decision. Observing the father, the
juvenile court found him to be “evasive” and specifically noted:
What is a court to make of a man convicted upon his own
admission of a sex-related crime, with a concerning history of
boundary issues with female youth and a daughter without any
capacity for self-protection? Upon this court’s thorough review of the
last several years of information in this case, the answer appears to
be continued supervision.
This is a case that, at a minimum, involves supervision of
boundaries. That would not have ever been necessary unless the
risk of inappropriately crossing boundaries existed. The risk posed
is two-fold, the father’s history of overstepping boundaries with adult
and minor females and the child’s lack of self-protective capacities.
These pose safety hazards that the court’s aid and supervision have
addressed and continue to address.
[The father] has, according to his uncontroverted testimony,
addressed boundaries and safety in therapy with [his therapist]. As
he plainly stated, he recognizes the harm that inattention to
boundaries has caused, although he suggested it was [the child] who
needs the boundaries checked as well. He goes on to acknowledge
that he wished he handled “it” better.
Therein lies a problem. [The father] acknowledges issues, but
only partially recognizes the risks. When he does he generally
attempts to spread the responsibility for causing or mitigating the risk
to others, including [the child]. He feigns confusion on cross-
examination by the [S]tate over the facts originally asserted in the
statement of facts. He denies any specific[] facts concerning
crossing boundaries with S.F., but also admits some wrong while
also professing accountability.
Overall, the court found the “nature of the harm is failure to supervise and
respect appropriate boundaries.” The juvenile court felt continued supervision was
9
warranted. In this unique situation, the court hit the nail on the head. See, e.g., In
re T.V., No. 02-1746, 2003 WL 21543784, at *2 (Iowa Ct. App. July 10, 2003)
(holding that showing sex videos to a young child justified further oversight and
services). By continuing the CINA case, the juvenile court found the “minimal,
semi-supervised and liberal visitation provided strikes an appropriate balance
between safety and the negligible negative results for [the child].” We agree. The
DHS caseworker acknowledged the child continued to require “100 percent
supervision” and there were no changes in the child’s ability to “recognize
boundaries or concerns for her own safety.” Specifically, the case worker testified:
Q. Would she—you indicated that she would be able to tell
someone in the home and “I don’t want to do that”; correct? A. Yes.
Q. Would she be able to—would she be able to tell someone
later on that an individual made her do something that she did not
want to do? . . . . A. I don’t believe that [the child] would be able to
go into that detail. I do believe, in observing [the child], that she could
express that she’s upset, and that would continue until somebody
knew what she was talking about or trying to explain. [The child]
doesn’t just stop when, you know, you’re like, “Okay, stop.” She’ll
just continue in that emotion.
Q. Would you agree with me that based on your experience,
[the child] would not be able to understand that a touch was good or
bad unless it hurt her? A. Or unless she was able to say it was
uncomfortable, like made her feel uncomfortable; so if it was
something pleasurable, she wouldn’t be able to describe the
pleasure. She wouldn’t be able to describe what happened. If that
makes sense.
“[C]hild protection statutes ‘are designed to prevent probable harm to the
child and do not require delay until after harm has occurred.’” L.H., 904 N.W.2d at
152 (quoting In re L.L., 459 N.W.2d 489, 494 (Iowa 1990)). Here, given the
testimony of the DHS caseworker coupled with the history of crossing sexual
boundaries with little responsibility for those actions, we find protections for the
child are necessary and we need not wait for any crossing of the boundaries to get
10
there. Id. at 150 (noting “we liberally interpret the phrase ‘imminently likely’”
because the abuse is not required “to be on the verge of happening before
adjudicating a child as one in need of assistance”). Because we do not find much
has changed since our earlier decision and agree with the juvenile court that
“sustaining the [permanency] goal and planning for ongoing permanency under the
unique circumstances of this case requires the court’s aid,” we affirm the juvenile
court’s decision.
AFFIRMED.