In the Interest of R.V., C.V., T.V., and J.V., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0689
Filed November 2, 2022
IN THE INTEREST OF R.V., C.V., T.V., and J.V.,
Minor Children,
S.V., Mother,
Petitioner-Appellant,
J.V., Father,
Respondent-Appellee.
DEAN A. FANKHAUSER, Guardian ad Litem,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Sioux County, Daniel P. Vakulskas,
District Associate Judge.
A mother and her children’s guardian ad litem appeal the denial of the
mother’s petition to terminate the father’s parental rights to their four children.
REVERSED AND REMANDED WITH DIRECTIONS.
Rosalynd J. Koob of Heidman Law Firm, P.L.L.C., Sioux City, for appellant
mother.
Dean A. Fankhauser of Vriezelaar, Tigges, Edgington, Bottaro, Boden &
Lessmann, L.L.P., Sioux City, attorney and guardian ad litem for minor children.
Jenny L. Winterfeld of Klass Law Firm, L.L.P., Sioux Center, for appellee
father.
Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
2
BADDING, Judge.
A mother of four children petitioned to terminate the parental rights of the
children’s father under Iowa Code section 600A.8(3)(b), (9), and (10) (2021) after
he was convicted of sexual offenses against the mother’s two minor sisters. The
juvenile court determined those grounds had been met, yet found termination was
not in the children’s best interests because the mother raised only “a litany of ‘what
ifs.’” The mother and the children’s guardian ad litem appeal.
I. Background Facts and Proceedings
This family is from a small farming community in northwest Iowa. The
mother is one of eleven children. Her parents operate a large dairy farm and
feedlot. The father began a relationship with the mother when she was only
fourteen years old and he was eighteen. The father married the mother once she
turned eighteen, and they had four children together, born in 2012, 2014, 2015,
and 2017. The couple lived on a farm near both of their families where they raised
heifers and custom fed pigs. The father also worked for the mother’s parents on
their farm, sometimes spending the night if there was bad weather or chores that
needed to be done.
In March 2018, the father was charged with two counts of second-degree
sexual abuse, three counts of third-degree sexual abuse, and lascivious conduct
with a minor. His victims were two of the mother’s minor sisters, who still lived at
home with their parents at the farm where the father worked. The trial information
alleged that the father began sexually abusing one of the sisters when she was
under the age of twelve. The father ultimately agreed to plead guilty to third-degree
sexual abuse, a class “C” felony, under Iowa Code section 709.4(1)(b)(2) (2015)
3
and an amended charge of indecent exposure, a serious misdemeanor, under
section 709.9 (2011).1 He was sentenced in July 2018 to an indeterminate term
not to exceed ten years in prison for the sexual abuse conviction.2 The father was
also sentenced to a lifetime special sentence of parole under Iowa Code
section 903B.1 and ordered to register as a sex offender for life upon his release
from custody. His tentative discharge date from prison is February 2023.
At first, the mother was supportive of the father, expressing a desire to stay
married to him and keep their family together. She allowed the father to live with
her and the children while he was out on bond pending trial. Once the father went
to prison, he was barred from having any contact with the children because of the
nature of his sex offenses. But he talked to the mother every day on the phone,
and she visited him in prison. The mother also wrote the father letters, telling him
how much she and the children missed him. And she stayed in contact with his
family and had weekly dinners with his parents. For a time, the prison allowed the
1 As to the crimes the father pled guilty to, section 709.4(1)(b)(2) (2015) stated that
a “person commits sexual abuse in the third degree when the person performs a
sex act under any of the following circumstances. . . . [t]he act is between persons
who are not cohabiting as husband and wife” and “[t]he other person is twelve or
thirteen years of age.” Section 709.9 (2011) stated that a “person who exposes
the person’s genitals or pubes to another not the person’s spouse . . . commits a
serious misdemeanor if” the person “does so to arouse or satisfy the sexual desires
of either party” and the person “knows or reasonably should know that the act is
offensive to the viewer.” Although the trial information, plea agreement, and
judgment were admitted as exhibits at trial, the factual basis for the father’s guilty
pleas is not in the record before us. Nor are the minutes of evidence that
accompanied the trial information.
2 For the indecent exposure conviction, the father was sentenced to 365 days in
jail with all but thirty days suspended, to run concurrently with his prison sentence
for the sexual abuse offense.
4
father to communicate with the children in writing who, at the mother’s urging, sent
him some letters, cards, and drawings.
That limited contact with the children stopped in September 2020 because
the father started sex offender treatment, a condition of which prohibited him from
having contact with minors. The father told the mother that another condition of
the program required him to make a full disclosure to her of his sexual offenses.
The father made this disclosure during one of his phone calls with the mother in
October or December. According to notes the mother took, the father’s victims
included male and female children ranging in age from five to fourteen years old. 3
The acts that he performed on these children encompassed everything from
hugging, kissing, and unspecified “grooming” type behavior, to fondling,
“exposure,” digital and oral penetration, and “forced masturbation.” The father also
disclosed that he had engaged in voyeurism, along with masturbating and
watching porn “a lot.” Finally, the father revealed that he had sexual contact with
dogs, cats, goats, pigs, and a cow.
A few months after learning this information, and faced with the reality of
the father being released from prison, the mother decided to cut off contact with
him. She explained:
I am a 14-year-old victim of [the father’s] also, I have been groomed
since the age of 14, and I never knew anything different, so yes, now
I’ve finally come out of my shell, I’m my own person, and I refuse to
let my kids back in his hands.
3 The father also listed some same-age and adult sexual partners. It is unclear
from the mother’s notes whether these were consensual sexual encounters or not.
5
The mother filed for divorce in March 2021, followed by the petition to terminate
the father’s parental rights under Iowa Code section 600A.8(3)(b), (9), and (10)
(2021) in July.
The father completed the sex offender treatment program around the same
time the mother filed for divorce. He requested early parole in August, which was
denied the next month due to the seriousness of the father’s crime. In October,
the father falsely believed he had permission to contact his children, so he called
the house phone multiple times. The oldest child answered one of those times
and hung up when she realized it was her father. None of the children have seen
the father in person since he went to prison in July 2018. According to the mother,
the youngest child has no memory of the father and the others haven’t asked about
him in years.
Other than that phone call which, according to one of the children’s
therapists “shocked” the oldest child, the children are thriving in the mother’s care.
The therapist described them as “clean, polite . . . honest, they have just delightful
sense[s] of humor. They’re truly wonderful kids, very well-adjusted.” The therapist
worried that if the father was reintroduced into the children’s lives, “that would be
a big upheaval, which could potentially come with a variety of mental health
concerns,” like stress, anxiety, and difficulty sleeping. Without the father in their
lives, the mother has been able to expand the couple’s business, adding more
heifers to raise and pigs to custom feed. She also started a pig vaccination
business, mostly for pigs owned by one of her brothers. The mother has received
no financial assistance from the father since his incarceration. Instead, when she
was still in contact with him, the mother was sending him money.
6
In its ruling denying the mother’s petition after the termination hearing ended
in February 2022, the juvenile court gave her credit for the “admirable job of raising
the children as a single parent.” But the court was concerned that she needed
help from “her family, the State, and her church” to do so.4 Though there was little
evidence of the mother’s financial situation, the court found the “children would
clearly benefit from another gainfully-employed parent.” In doing so, the court
dismissed the therapist’s concerns about the harm the father’s reappearance could
cause them, finding “therapeutic intervention is available for situations just like
this.” The court also dismissed the mother’s concerns that the father “may
perpetrate a sex act upon the children” because safeguards “could be put into
place . . . to prevent such an incident.” In the end, the court found that while the
father “should be ashamed of himself for having put his family in an unenviable
place based on his actions,” termination of his parental rights was not in the
children’s best interests.
II. Standard of Review
Petitions to terminate parental rights under Iowa Code chapter 600A are
reviewed de novo. In re B.H.A., 938 N.W.2d 227, 232 (Iowa 2020). “Although we
are not bound by them, we give weight to the trial court’s findings of fact, especially
when considering credibility of witnesses.” Id. (quoting In re R.K.B., 572 N.W.2d
600, 601 (Iowa 1998)).
4 The only assistance the children were receiving from the State at the time of the
trial was Medicaid. But, as the mother pointed out, the children were on Medicaid
before the father went to prison.
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III. Analysis
Terminations under Iowa Code chapter 600A require a two-step analysis.
In re Q.G., 911 N.W.2d 761, 770 (Iowa 2018). The mother must prove by clear
and convincing evidence that (1) grounds for termination exist under section
600A.8 and (2) termination is in the children’s best interests. B.H.A., 938 N.W.2d
at 232.
On the first step, the juvenile court found the mother met her burden as to
all of the grounds alleged in her petition—section 600A.8(3)(b)
(abandonment), 600A.8(9) (the parent has been imprisoned and it is unlikely that
the parent will be released for a period of five or more years), and 600A.8(10)
(convicted of a sex offense against a minor, never married to the minor’s other
parent, and serving a minimum sentence of confinement of at least five years for
that offense). But the court found she failed on the second step of the analysis—
whether termination is in the children’s best interests. Id. So that’s where our
analysis starts.
A. Best Interests
The best interests of the children is “‘the paramount consideration in
interpreting’ the private termination of parental rights,” though the “parent’s interest
must also be given due consideration.” Id. (quoting Iowa Code § 600A.1). The
best-interests standard under section 600A.1(2) requires
that each biological parent affirmatively assume the duties
encompassed by the role of being a parent. In determining whether
a parent has affirmatively assumed the duties of a parent, the court
shall consider, but is not limited to consideration of, the fulfillment of
financial obligations, demonstration of continued interest in the child,
demonstration of a genuine effort to maintain communication with the
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child, and demonstration of the establishment and maintenance of a
place of importance in the child’s life.
(Emphasis added.) Our supreme court has also determined that we can borrow
“from the statutory best-interest framework outlined in Iowa Code chapter 232,”
which directs us to “give primary consideration to the child’s safety” and “to the
best placement for furthering the long-term nurturing and growth of the child.”
B.H.A., 938 N.W.2d at 232 (quoting Iowa Code § 232.116(2)). Also of importance
“is the child’s emotional and psychological health” and the closeness of the parent-
child bond. Id. (citing Iowa Code § 232.116(2), (3)).
In its best-interests analysis, the juvenile court first determined that
“[d]espite his multiple sex acts and crimes, the evidence showed [the father] was
an active parent prior to his incarceration,” noting he was “employed, helped
support the family, and helped raise the children.” But these children were young
when the father went to prison—the oldest was six years old and the youngest was
one. At the time of the termination hearing, he had not seen them in person or
provided any support for them for close to four years. The youngest child does not
remember the father, and the oldest three, according to their therapist, are “very
unattached [to him], to the point of family-type questions or activities do not include
him.” With this lack of bond, see id., we do not find the father’s involvement in the
children’s lives before his incarceration to carry much weight. Further, while the
father was being “an active parent,” he was also being an active sexual abuser.
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The father admitted to the mother that he started sexually abusing her little
sister when she was only seven years old.5 Over a seven-year period, on at least
one hundred occasions, that abuse included “forced masturbation,” oral sex, digital
penetration, fondling, and “exposure”—basically “everything but actual penis
penetration.” His abuse of the mother’s other sister started when she was fourteen
years old and encompassed much of the same. The father’s sexual abuse was
not limited to the mother’s family—he admitted to sexually abusing his own cousins
and children that he babysat when he was younger.
No matter how involved the father was in the children’s lives before his
sexual abuse surfaced, we cannot discount his past acts as the juvenile court
seemed to do in dismissing the mother’s concern that the father “may perpetrate
a sex act upon the children.” The court reasoned: “That is certainly a justifiable
concern for any parent; however, that generalized fear with no objective basis is
not enough to terminate one’s parental rights. It is simply too far attenuated from
his actual acts to convince this [c]ourt that [it] is an urgent concern at this time.”
Given the father’s decades-long sexually deviant behavior, which crossed
gender, age, and animal boundaries, we do not agree the mother’s “fear” was
generalized or without an “objective basis,” particularly considering the children
are now the same age as many of the father’s victims. See id. at 233 (noting
insight for a child’s future in a parent’s care “can be gained from evidence of the
5 When the father was asked at trial about the abuse the mother had documented
during his disclosure to her, he invoked his Fifth Amendment privilege. Because
this is a civil case, we are able to draw adverse inferences from his refusal to
answer those questions. See State v. Heard, 934 N.W.2d 433, 440 n.4 (Iowa
2019).
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parent’s past performance” (citation omitted)). Though “‘caselaw has limited utility’
when considering the best-interest-of-the-child framework,” id., there are many
cases from this court holding that it is not in a child’s best interest to be in proximity
to a sex offender. See, e.g., In re A.K., No. 19-0406, 2019 WL 5424964, at *1–2
(Iowa Ct. App. Oct. 23, 2019) (terminating rights of father who sexually abused
another child in the household); In re O.H., No. 18-0136, 2018 WL 3060273, at *1–
3 (Iowa Ct. App. June 20, 2018) (terminating rights of father who was currently
incarcerated for sexually abusing another child in the home); In re D.G., No. 03-
2010, 2004 WL 240320, at *1 (Iowa Ct. App. Feb. 11, 2004) (terminating father’s
rights because he sexually abused his child’s half-sister and physically abused the
child’s half-brother); In re B.M., No. 02-0873, 2002 WL 31314870, at *4 (Iowa Ct.
App. Oct. 16, 2002) (finding a child could not be returned to his father because the
father’s half-brother molested the child).
The juvenile court found the mother’s arguments on the best-interests
question revolved “around a litany of ‘what ifs.’” However, “[t]he best-interest-of-
the-child framework has backward-looking and forward-looking components.”
B.H.A., 938 N.W.2d at 222. And courts “must act to prevent probable harm to the
child and need not delay until actual physical harm has occurred.” In re T.C., 522
N.W.2d 106, 108 (Iowa Ct. App. 1994); accord In re J.E., 723 N.W.2d 793, 801
(Iowa 2006) (Cady, J., concurring specially) (stating the children’s safety is
paramount). When we look backward in this case, we do not see a “litany of what
ifs.” Instead, we see a litany of sexual assaults and victims.
Looking forward, we do not put as much stock into the father’s completion
of sex offender treatment as the juvenile court seemed to, considering that he has
11
not shown an ability to not reoffend outside a prison setting. See B.H.A., 938
N.W.2d at 236 (“Rather than speculate about what the future holds for Dad while
at a secure facility where he is under the constant watchful eye of armed
correctional officers and video surveillance, it is more accurate to look in the rear-
view mirror and make a decision for [the child] based on what has already
happened in his life.”). As one of the children’s therapists testified, even with
treatment, “[t]here’s quite a high recidivism rate” for offenders like the father whose
victims include “children, both male and female, adults, and animals.”
The juvenile court also pointed to unspecified “safeguards” that could be put
into place to ensure the father’s contact with the children was appropriate. Cf.
Q.G., 911 N.W.2d at 773 (discussing safeguards the parents agreed to in their
dissolution decree for contact between the father and children). And the father
relies on the support system he will have in place once released from prison “to
support his reentry into society and to help avoid relapse.” But that support system,
consisting of the father’s family, does not know the extent of his sexual offenses.
As to the offenses the family did know about—those involving the mother’s minor
sisters—they did not hold the father fully responsible. The mother testified that the
father’s parents told her they blamed her sisters and believed the sex acts were
consensual. The paternal grandfather confirmed that, testifying as to one of the
sisters that “she has to bear some responsibility.” With this support system, we
are doubtful that the children’s safety would be ensured.
Much of the juvenile court’s focus was on the loss of potential financial
support from the father, with the court finding:
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There is no step-parent in the waiting to adopt these children in the
event of a termination. [The father] is employable (upon release from
prison) and would be able to help support the children at that time.
Cutting off that support is not in the children’s best interests. While
[the mother] has done an admirable job of raising the children as a
single parent, she has also had to utilize her family, the State, and
her church for assistance. The children would clearly benefit from
another gainfully-employed parent.
Our de novo review of the record shows the mother has been doing well
without the father’s financial support. The court correctly noted her family has
helped her, but that was true before the father’s incarceration, and the assistance
the mother received from the family’s church was during the time when she was
visiting the father and sending him money. The mother is industrious and hard-
working, having expanded the business she started with the father since his
incarceration. There is no evidence these children will become a “charge upon the
State.” In re D.S., No. 16-1573, 2017 WL 1733252, at *3 (Iowa Ct. App.
May 3, 2017) (reaching the same finding where the only public support the mother
received for the child was Title XIX health insurance).
Like in B.H.A., aside from the juvenile court’s hope that the father may
develop a “healthy and meaningful relationship with his children upon his release,”
“the record is virtually devoid of any meaningful evidence that terminating [the
father’s] parental rights would be detrimental to [the children] due to any alleged
closeness of relationship.” 938 N.W.2d at 234. Indeed, the record showed the
opposite. Id. Both of the therapists who have treated the children testified that
introducing the father back into the children’s lives would harm them. The juvenile
court discounted their testimony because “therapeutic intervention is available for
situations just like this.” But these therapists were experienced in reintegration
13
therapy. Simply put, we find “the risk of sexual abuse,” along with the number of
years the father has been absent from the children’s lives, outweighs any
“detrimental effect” of terminating his parental rights. In re A.K.S., No. 09–1204,
2010 WL 668758, at *4 (Iowa Ct. App. Feb. 26, 2010).
B. Appellate Attorney Fees
Though the mother’s financial situation was part of why the father argued
termination of his parental rights was not in the children’s best interests, he wants
the mother to pay his appellate attorney fees. The father cites only dissolution of
marriage and custody cases in support of this request. He provides us with no
authority for the award of appellate attorney fees for private counsel under Iowa
Code chapter 600A, most likely because that authority is lacking.
Section 600A.6B(1) “governs the payment of attorney fees in a private
termination action, but it only applies to appointed counsel and does not mention
private counsel.” In re E.E., No. 21-0034, 2021 WL 3907807, at *6 (Iowa Ct. App.
Sept. 1, 2021). The father’s attorney was privately retained. So we deny his
request for appellate attorney fees.
IV. Conclusion
Because we find termination of the father’s parental rights is in these
children’s best interests, we reverse the juvenile court’s denial of the mother’s
termination petition and remand for entry of an order consistent with this opinion.
See B.H.A., 938 N.W.2d at 236 (concluding “chapter 600A’s best-interest factors
weigh in favor of terminating Dad’s parental rights” and “revers[ing] the judgment
of the juvenile court and remand[ing] for entry of an order consistent with this
14
opinion”); In re J.B., No. 21-1420, 2022 WL 9510153, at *8 (Iowa Ct. App. Mar. 30,
2022). The father’s request for appellate attorney fees is denied.
REVERSED AND REMANDED WITH DIRECTIONS.