In the Interest of N.G., Minor Child ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1732
Filed February 19, 2020
IN THE INTEREST OF N.G.,
Minor Child,
N.G., Child,
Appellant,
P.G., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
Following the termination of parental rights of the adoptive parents with
respect to N.G., the adoptive mother and N.G. appeal. AFFIRMED ON BOTH
APPEALS.
Andrea B. McGinn of The Law Shop by Skogerson McGinn LLC, Van Meter,
for appellant child.
Robb D. Goedicke of Cooper, Goedicke, Reimer & Reese, PC, West Des
Moines, guardian ad litem for minor child.
Sarah E. Dewein of Cunningham & Kelso, P.L.L.C., Urbandale, for appellant
mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
2
SCHUMACHER, Judge.
This appeal involves the second termination-of-parental-rights proceeding
concerning thirteen-year-old N.G. His biological parents’ parental rights were
terminated in 2014. N.G. and his younger sister, S.G., were adopted in 2015 by
their great-grandmother and her husband. The court terminated the adoptive
parents’ parental rights as to S.G. on February 26, 2019.1 N.G.’s adoptive parents’
rights were terminated in September 2019. N.G’s adoptive mother and N.G.
appeal from this termination.2
The issues raised by the adoptive mother and N.G. on appeal mirror each
other. Both the adoptive mother and N.G. argue (1) the district court erred in
terminating the mother’s parental rights pursuant to Iowa Code section
232.116(1)(f) and (g) (2019), (2) termination is not in N.G.’s best interests, and (3)
the district court erred in declining to apply a permissive exception to termination.
Based on our independent review of the record, we affirm the termination.3
l. Standard of Review
We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34
(Iowa 1993). Although we are not bound by them, we give weight to the trial court’s
findings of fact, especially when considering credibility of witnesses. Iowa R. App.
P. 6.904(3)(g); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993). The primary interest in
termination proceedings is the best interests of the child. Iowa R. App. P.
1 This termination was affirmed by our court. In re S.G., No. 19-0402, 2019 WL
2372915, at *4 (Iowa Ct. App. June 5, 2019).
2 The adoptive father does not appeal the termination.
3 The clarity of the appellate record benefits by having exhibit stickers on the
electronically submitted exhibits. The exhibits contained in this record do not have
exhibit stickers or other markings indicating the number of the individual exhibits.
3
6.904(3)(o); In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). 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. See Iowa
Code § 232.116. “Clear and convincing evidence” means there are no serious or
substantial doubts as to the correctness of conclusions of law drawn from the
evidence. See Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct. App. 1983); In re
C.B., 611 N.W.2d 489, 492 (Iowa 2000).
II. Facts and Prior Proceedings
N.G. and S.G. came to the attention of the Iowa Department of Human
Services (DHS) in late 2017 when DHS received a report that the adoptive father
and M.R., a teenage cousin living in the home, had sexually abused S.G. S.G.
and N.G. had been previously adjudicated as children in need of assistance on
March 15, 2013. Both children were again adjudicated to be children in need of
assistance in October 2017 pursuant to Iowa Code section 232.2(6)(b), (c)(2), and
(d).
The children’s child-in-need-of-assistance status was confirmed at a
dispositional hearing held on November 14, 2017. In order to allow N.G. and S.G.
to remain in their adoptive mother’s home, the adoptive father and M.R. were
safety-planned out of the family home. However, due to concerns that the adoptive
mother was coaching S.G. concerning the sexual abuse allegations, both N.G. and
S.G. were removed by court order on December 7, 2017. The children were
separated, with N.G. being placed at a shelter care facility and S.G. being placed
in a foster care home. Since removal, N.G. has been in five different placements.
While M.R. was initially placed outside the home, at the time of the termination
4
hearing in June 2019, M.R. had been returned to the care of the adoptive mother
for approximately one year.4 A termination hearing as to N.G. was held on June
18, 2019, with the district court terminating the adoptive parents’ parental rights in
September 2019.
III. Analysis
Iowa courts analyze termination petitions in three steps. In re P.L., 778
N.W.2d 33, 40 (2000). First, the district court must decide whether the State
proved one of the grounds listed for termination in Iowa Code section 232.116(1).
After finding that proof by clear and convincing evidence, the court must consider
whether termination is in the best interest of the child or children by applying the
factors in section 232.116(2). If the best-interest test is met, the court must
determine if any of the permissive factors listed in section 232.116(3) stand in the
way of terminating the parental rights. Id.When the juvenile court terminates rights on more than one ground, we
need only find the action proper under one paragraph to affirm. In re J.B.L., 844
N.W. 703, 704 (Iowa Ct. App. 2014). One of the grounds relied upon by the district
court for termination was Iowa Code section 232.116(1)(f). To terminate under
paragraph (f), clear and convincing evidence must exist to support the following
elements: (1) the child must be at least four years old; (2) they must have been
adjudicated as a child in need of assistance; (3) they must have been removed
from the home for at least twelve of the last eighteen months, or for the last twelve
4 The adoptive mother has not adopted M.R. but has legal guardianship over this
child. M.R. was allowed to live in the family home provided the adoptive father
remained out of the home and M.R. had no contact with N.G. and S.G.
5
consecutive months with any period at home being less than thirty days; and (4)
the child cannot be returned home as provided in section 232.102 at the present
time. See In re A.M., 843 N.W.2d 100, 111 (Iowa 2014) (interpreting the statutory
language “at the present time” to reference the time of the termination hearing).
A. Statutory Grounds
We proceed by analyzing this appeal under Iowa Code section
232.116(1)(f). Neither the adoptive mother nor N.G. contest the first three
elements. At the time of the termination hearing, N.G. was over the age of four,
had been adjudicated a child in need of assistance, and had been out of the home
for a period of over twelve months. Since removal, N.G. had never been placed
for a trial period at home. Therefore, we are left to determine if the district court
correctly found clear and convincing evidence existed to support a determination
that N.G. could not be returned to the custody of the adoptive mother at the time
of the termination hearing.
We agree with the district court that N.G. could not be returned to the
custody of his adoptive mother at the time of the termination hearing, as the
adoptive mother “cannot or will not adequately protect the children from sex
offenders.” Following court involvement, DHS founded a child abuse assessment
against the adoptive father for sexual abuse. DHS also founded two separate child
abuse assessments for sexual abuse against M.R., the teenage cousin of N.G and
S.G. who was living in the family home at the time of the termination hearing.5
5The victim of the second founded abuse assessment for sexual abuse by M.R.
was neither N.G. nor S.G.
6
At the time of the termination hearing, the adoptive mother remained
steadfast that her husband and M.R. had not sexually abused S.G. There had
been no authorized contact between M.R. and N.G. since case initiation. However,
the adoptive mother planned to have M.R. and N.G. share a bedroom if N.G. was
returned to her custody. After the termination of her parental rights as to S.G., the
adoptive mother regularly missed therapy and cancelled interactions with N.G.
Both S.G. and N.G. were aware of the adoptive mother’s ongoing contact
with the adoptive father since the report of sexual abuse. His truck would be
located in the driveway at scheduled visits. The adoptive mother spoke to the
children of remodeling work the adoptive father was completing on the family
home. While pictures of N.G. and S.G. were removed from the walls of the family
home, a new photograph of the adoptive father and three young girls was
displayed in the home during visits. Gifts that were presented to the children by
the adoptive mother in excessive amounts were noted to be “from mom and dad.”
While not physically visible during the visits, the adoptive father’s presence loomed
in the home.
The adoptive mother also argues that N.G. could be returned to her home
since there is no evidence that he was sexually abused. Such argument has been
repeatedly rejected by our appellate courts. Our case law recognizes that when
one child is at risk of sexual abuse by a parent, the child’s siblings are also at risk,
regardless of sex. In In re D.D., 653 N.W.2d 359, 362 (Iowa 2002) our supreme
court stated:
[F]acts in prior cases suggest that perpetrators of sexual abuse often
abuse multiple children in the family without regard to the sex of the
child. See, e.g., State v. Farnum 397 N.W.2d 744, 745 (Iowa 1986)
7
(defendant convicted of sexually abusing boy and girl living in home
along with neighbor girl). Prior decisions likewise reflect the common
sense notion that, ordinarily, all siblings are at risk when one child
has been sexually abused. See, e.g., In re E.B.L., 501 N.W.2d 547,
548 (Iowa 1993) (father allegedly sexually abused older daughter
and all six children adjudicated CINA); In re A.B., 492 N.W.2d 446,
447 (Iowa Ct. App. 1992) (court ordered CINA petition filed on all
children after allegations of sexual and physical abuse of one child).
We reject any contention that N.G. is at less risk because of his sex and
age given the lack of progress made in the adoptive mother’s acknowledgement
of the abuse, the adoptive mother’s continued connection to the adoptive father,
and M.R.’s residence in the family home. See In re M.W., No. 04-1075, 2004 WL
1900003, at *3–4 (Iowa Ct. App. Aug. 26, 2004).
B. Best Interest of N.G.
N.G. has a tragic history. He and his brother were involved in a house fire
in which his brother lost his life. N.G. has unresolved issues concerning the death
of his brother. N.G. was abused at the hands of his biological parents. His
biological parents’ rights were terminated. At the time of the instant termination
hearing, he had been removed from his home for approximately eighteen months
due to sexual abuse of his younger sister by two individuals residing in that home,
including his adoptive father. His adoptive mother continued to discredit the victim,
N.G.’s sister, and refused to acknowledge the abuse that occurred in her home.
N.G. is now placed with his younger sister in a foster home that is willing to adopt
both children. N.G. and S.G. share a close relationship. N.G. is in the seventh
grade and reported to be a good student. At the time of the termination hearing,
he was doing well at the foster home with his sister and had “come out of his shell.”
We agree that terminating the parental rights so N.G. can be permanently placed
8
gives primary consideration to N.G's safety, to the best placement for furthering
the long-term nurturing and growth of N.G., and to the physical, mental, and
emotional needs of N.G. under section 232.116(2). P.L., 778 N.W.2d at 41.
C. Permissive Exception
“Once we have established that the termination of parental rights is in the
child[ ]’s best interests, the last step of our analysis is to determine whether any
exceptions in section 232.116(3) apply to preclude the termination.” M.W., 876
N.W.2d at 225. Section 232.116(3) provides,
The court need not terminate the relationship between the parent and
child if the court finds any of the following:
a. A relative has legal custody of the child.
b. The child is over ten years of age and objects to the
termination.
c. There is clear and convincing evidence that the termination
would be detrimental to the child at the time due to the closeness of
the parent-child relationship.
d. It is necessary to place the child in a hospital, facility, or
institution for care and treatment and the continuation of the parent-
child relationship is not preventing a permanent family placement for
the child.
e. The absence of a parent is due to the parent’s admission
or commitment to any institution, hospital, or health facility or due to
active service in the state or federal armed forces.
A finding of any of these factors allows the court to avoid terminating
parental rights, but the factors “are permissive, not mandatory.” A.M., 843 N.W.2d
at 113 (quoting In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011)). “We
may use our discretion, ‘based on the unique circumstances of each case and the
best interests of the child, whether to apply the factors in this section to save the
parent-child relationship.’” M.W., 876 N.W.2d at 225 (quoting A.M., 843 N.W.2d
at 113). “An appropriate determination to terminate a parent-child relationship is
not to be countermanded by the ability and willingness of a family relative to take
9
the child. The child’s best interests always remain the first consideration.” In re
C.K., 558 N.W.2d at 174; In re A.S., 906 N.W.2d 467, 475 (Iowa 2018).
N.G. was not present at the termination hearing and, as such, did not testify.
His attorney objected to the termination on N.G.’s behalf.6 During the course of
the underlying proceedings, N.G. made statements that he missed and loved his
adoptive mother. The district court considered N.G.’s objection and those
statements but found that N.G. remained at risk given that his adoptive mother had
been unable or unwilling to acknowledge the sexual abuse that occurred in her
home. One of the abusers remained in her home. While the adoptive mother
reported that she had ended the relationship with her husband, she continued to
rely on him for financial support and for improvements to her home.
We are cognizant that due to N.G.’s age he meets the statutory definition
under Iowa Code section 232.116(3)(b). However, the record reflects that during
most of the supervised visits with the adoptive mother, N.G. retreated to his room,
with very little interaction with his adoptive mother. He declined the invitation to
make calls to her outside of scheduled visits. He was recently placed in the same
foster home as his sister. Throughout the life of the underlying child-in-need-of-
assistance case, he requested such a placement with his sister.
N.G. argues that he may be fourteen at the time of any future adoption
hearing and could object to the adoption hearing. We agree that is a possibility. If
he were to object, the district court will be required to weigh that objection against
6 An attorney separate from his guardian ad litem represented N.G. during the
termination proceedings. His guardian ad litem supported the termination of the
adoptive parents’ parental rights.
10
a best interest standard pursuant to Iowa Code section 600.7(4). We, however,
do not interpret a potential objection to a future adoption to require placement back
in an unsafe home. We further do not find that N.G.’s objection to the termination
outweighs the current safety concerns and the opportunity to remain placed with
his sibling. As such, we agree with the district court’s decision in declining to apply
this permissive factor given the specifics facts of this case.
IV. Conclusion
We affirm the termination of the parental rights pursuant to Iowa Code
section 232.116(1)(f). We further agree with the district court that termination is in
the child’s best interest and no permissive exception should be applied to preclude
termination.
AFFIRMED ON BOTH APPEALS.