In the Interest of S.O., Minor Child ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0574
Filed August 18, 2021
IN THE INTEREST OF S.O.,
Minor Child,
S.O., Minor Child,
Appellant,
F.O., Father,
Appellant,
J.O., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Crawford County, Mary L. Timko,
Associate Juvenile Judge.
A mother, father, and child all appeal an order terminating parental
rights. AFFIRMED ON ALL APPEALS.
T. Cody Farrens of Vriezelaar, Tigges, Edgington, Bottaro, Boden &
Lessmann, L.L.P., Sioux City, for appellant minor child.
Peter A. Goldsmith of Boerner & Goldsmith Law Firm, P.C., Ida Grove, for
appellant father.
Lori J. Kolpin of Kolpin Law Firm, P.C., Aurelia, for appellant mother.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti and Charles
K. Phillips, Assistant Attorneys General, for appellee State.
George C. Blazek of Franck, Sextro & Blazek, PLC, Denison, guardian ad
litem for minor child.
Considered by Tabor, P.J., and Greer and Ahlers, JJ.
2
TABOR, Presiding Judge.
A mother, a father, and their child, S.O., all appeal the juvenile court order
terminating the parent-child relationships. The court approved the State’s request
to terminate the rights of both parents, Fred and Jennifer, under Iowa Code
section 232.116(1)(f) (2020). The court decided it was not safe for S.O. to return
home based on founded allegations of sexual abuse lodged against Fred by his
stepdaughter R.A. Both parents denied R.A.’s allegations of sexual abuse. Fred
also had a history of domestic violence and instability. Meanwhile, Jennifer lacked
the capacity to protect S.O. Neither parent pursued services as requested by the
Iowa Department of Human Services (DHS). Given the credibility findings by the
juvenile court and the parents’ state of denial, we affirm the termination of their
legal relationship with S.O.1
I. Facts and Prior Proceedings
Fred and Jennifer married in 2007. It was a second marriage for both of
them. Fred has three adult children. Jennifer has a daughter, R.A., born in
2002. R.A. lived with her mother and Fred after their marriage. Together, Fred
and Jennifer have one daughter, S.O., born in 2008. The family raised horses and,
as the girls grew up, they showed the horses at county fairs.
1 We review orders terminating parental rights de novo. In re W.M., 957 N.W.2d
305, 312 (Iowa 2021). While the juvenile court’s factual findings do not bind us,
we give them respectful consideration, particularly when they involve
credibility determinations. Id. The State must prove the statutory ground for
termination by clear and convincing evidence. Id. Meeting that standard means
we harbor no serious or substantial doubts about the accuracy of the legal
conclusions drawn from the evidence. Id.3
But their family life was strained at times. For example, in 2015 Jennifer
obtained a domestic abuse protective order, alleging Fred was verbally and
physically abusive to her and the children. That same year, the DHS confirmed a
report from R.A., then thirteen years old, that when she refused to eat a family
meal of eggplant parmesan, Fred took a fork and forced the food down her throat
until she coughed up blood.2 Three years later, Jennifer again requested a
protective order, alleging Fred was physically abusive to R.A. and “emotionally and
verbally abusive” to the whole family. Jennifer also disclosed on the form for relief
that Fred had sexually abused her.3
Another sexual-abuse allegation is central to this termination case. In the
fall of 2018, R.A. revealed that Fred had been “touch[ing] [her] inappropriately”
since she was in the sixth grade. At S.O.’s termination hearing, R.A. testified his
conduct seemed innocent at first but degenerated. “Basically he would come up
to my room in the middle of the night and he would do back rubs where he would
scratch your back and then it would turn into more than that.” R.A. explained as
she “got older he would get more touchy,” including holding her down and groping
her “private parts.”
She estimated the abuse happened “on and off for four years.” Where was
her mother when Fred came into R.A.’s room? R.A. recalled, “She was in her
2 The juvenile court found it “disconcerting” that the parents made light of this event
at the termination hearing, calling it the “eggplant incident.”
3 In her self-represented petition, Jennifer also alleged that Fred needed treatment
for mental disabilities related to his service in the Navy. She added, “He was in a
mental ward as a young boy. . . . I have been his caretaker for twelve years.” In
his psychosexual evaluation, Fred revealed that he was involuntarily committed at
age seventeen because his adopted sister accused him of raping her at
gunpoint. He denied the accusation.
4
bedroom probably sleeping.” But R.A. testified she did tell her mother about the
abuse. In response, Jennifer called a family meeting at which she admonished
Fred to stop going into the bedrooms of R.A. and S.O. at night. 4 That
admonishment did not stop the abuse, according to R.A.
Instead, it was R.A.’s disclosure of the abuse to her therapist, a mandatory
reporter, that launched the DHS involvement with the family.5 The DHS
investigator arranged for both R.A. and S.O. to interview with the child protection
center in Sioux City. In November 2018, R.A. told the interviewer that Fred “would
touch her inappropriately over the top of clothing and skin to skin.”
S.O. did not report any abuse by her father but did corroborate aspects of
R.A.’s allegations. For instance, S.O. recalled that her father would come up to
their bedrooms at night. S.O. also said R.A. told her about getting “back rubs.”
After the family meeting, the mother said Fred would “no longer be giving
back rubs” or checking on the girls at night. Fred denied the sexual abuse
occurred. Yet the DHS child protection worker returned a confirmed child abuse
finding for Fred’s lascivious acts against R.A.6 The worker also learned in January
2019 that Jennifer and Fred planned to leave Iowa for California with S.O.7 Based
4 R.A., S.O., and Fred all recalled that meeting. At first, Jennifer said it did not
happen, but she later acknowledged calling a meeting on a different topic.
5 After disclosing the abuse to her therapist, R.A. moved out of the home and went
to live with her biological father.
6 As a result of R.A.’s allegations, the State charged Fred with lascivious acts with
a child and assault with intent to commit sexual abuse, and the State charged
Jennifer with extortion and accessory after the fact. The charges were still pending
at the time of the termination hearings.
7 Jennifer and Fred represented at the removal hearing that they were just going
on vacation. But text messages told another story.
5
on that information, the State successfully petitioned to remove both girls from the
home.
Following the removal, the court adjudicated S.O. as a child in need of
assistance (CINA) in March 2019. S.O. started out in the care of a relative. But
disruptive actions by Fred led to her placement in foster care. The foster mother
arranged for S.O. to see a therapist to address trouble she was having with peers
at school. But when asked to complete paperwork approving that therapy, Jennifer
and Fred procrastinated. The DHS eventually bypassed the parents to approve
counseling. Despite going to therapy, S.O. continued acting out. She had
tantrums where she would “ruin her belongings by tearing them up and throwing
things.” She often refused to shower and had issues with bed wetting. Her
challenging behaviors led to two foster families giving notice to the DHS. All told,
S.O. had six placements during the CINA case. At the time of the termination
hearing, she was living in shelter care and awaiting transfer to a psychiatric
medical institution for children (PMIC).
Through the rest of 2019, S.O. had supervised visits with her parents. The
service provider noted that S.O. enjoyed seeing Jennifer and Fred, though they
often discussed their unrealistic expectations that she would soon return
home. The juvenile court believed the parents had trouble with boundaries. For
example, on the Fourth of July when S.O. snuck away from her foster family’s
campsite and joined her parents at a fireworks display, Jennifer and Fred failed to
notify anyone about the unsupervised contact. They later told the DHS that it was
“no big deal.” The DHS also arranged for S.O. to have a separate visit with
R.A. Originally, S.O. was cold to the idea. But she later welcomed the
6
interaction. When asked about the change of heart, S.O. explained she always
wanted to see her sister but had to “play along so that her parents didn’t know what
she wanted.” The juvenile court would later observe the parents’ relationship with
S.O. had “an overriding air of manipulation” that was unhealthy.
After a September 2019 review hearing, the court noted the CINA case
continued to be “very contentious” and the possibility of reunification was slipping
away. Months into the case, the DHS could not determine whether Fred and
Jennifer were engaged in the therapy necessary to address the sexual-abuse
allegations that prompted the girls’ removal. Both parents were “cagey” about
providing information from the Veterans Administration (VA), where they sought
counseling. It turned out the VA could not offer the type of therapy the DHS
considered necessary for the parents to reunify with S.O. After the VA notified the
parents that therapy to deal with sexual-abuse issues would have to be
outsourced, they failed to follow up. Also troubling, at visitations with S.O., the
parents would blame R.A. for their struggles. Social workers would have to redirect
the conversation.
In January 2020, the DHS recommended termination of parental rights. The
case coordinator asserted that, in thirteen months of involvement with the family,
“very little progress” had been made. Her report stated, “Fred and Jennifer
continue to act as though they are the victim[s] in this and [R.A.] is the root of all
their problems.” Before the February permanency hearing, S.O.’s guardian ad
litem (GAL) moved to bifurcate the roles of GAL and legal counsel for the child
under Iowa Code section 232.89(4). The GAL urged that he could not “adequately
7
fulfill both duties” given the DHS recommendation of termination and the child’s
wish for reunification. The court granted that motion.
In March, the State petitioned for termination of parental rights under Iowa
Code section 232.116(1)(f). After several continuances, the termination hearing
occurred over six days scattered from August 2020 to March 2021. At the end of
the contested hearing, S.O.’s attorney asked the court to return the child to her
parents’ custody. He relayed her wishes: “My client unequivocally wants to go
back home.” In contrast, her GAL argued it was in S.O.’s “long-term best interests”
to not return to the household with Fred and Jennifer.
The court issued its termination order in April 2021, finding clear and
convincing evidence to support the ground for termination in the State’s petition. In
its ruling, the court discussed an exhibit filed by S.O.’s attorney, purporting to be a
letter written by S.O. communicating her desire to go home. The court recognized
that S.O. did want to go home and that she missed her horses and other pets. But
the court was skeptical “as to whether or not [S.O.] actually wrote the letter.” The
court explained: “The tone is quite manipulative, i.e., making veiled threats of
suicide, and a bit over the top if written by a ten year old.” Ultimately, the court
found termination of her parents’ legal rights was in S.O.’s best interests, despite
her wish to return to home.
S.O. appeals that ruling, as do both Jennifer and Fred.
II. Analysis
A. Child’s Standing to Challenge Termination
In its response to the child’s petition on appeal, the State argued that S.O.
did not have standing to challenge the statutory grounds for termination of her
8
parents’ rights under Iowa Code section 232.116(1). For that proposition, the State
relied on In re B.A.L., No. 12-1059, 2012 WL 3860816, at *4 (Iowa Ct. App.
Sept. 6, 2012). Indeed, we have repeated that restrictive view of standing in two
other unpublished cases. See In re D.S., No. 17-1390, 2017 WL 6034636, at *5
(Iowa Ct. App. Dec. 6, 2017); In re G.S., No. 13-0884, 2013 WL 4774040, at *4
(Iowa Ct. App. Sept. 5, 2013). But because we did not thoroughly analyze the
concept of standing in those unpublished cases, we asked the parties for
supplemental briefing on this point.8
Those briefs in hand, we start our analysis with the definition of
standing. Standing addresses the “who,” not the “what,” of litigation. Alons v. Iowa
Dist. Ct., 698 N.W.2d 858, 864 (Iowa 2005) (“In short, the focus is on the party, not
on the claim.”). It is a rule of “self-restraint” that allows state courts to refuse to
consider what may be a meritorious issue unless the complaining party shows “a
specific personal or legal interest” and that the party is “injuriously affected.”
Godfrey v. State, 752 N.W.2d 413, 417–19 (Iowa 2008).
As the child’s attorney argues on appeal, the question “becomes whether
children in a termination proceeding have a sufficient right or interest at stake to
meet this general rule for standing.” When resolving that standing question, our
unpublished cases have split the baby, so to speak. On the one hand, we have
held that children lack standing to contest the statutory grounds for
termination. See, e.g., D.S., 2017 WL 6034636, at *5; G.S., 2013 WL 4774040,
at *4; B.A.L., 2012 WL 3860816, at *4. But see In re A.D., No. 20-1182, 2020 WL
8 We thank all five counsel for their quick turnaround and well-thought-out positions
in their supplemental briefs.
9
7022391, at *1 n.2 (Iowa Ct. App. Nov. 30, 2020) (noting no party objected to
participation of the children in the appeal on their own behalf). On the other hand,
we have entertained briefing by children’s attorneys on other issues. See, e.g., In
re T.P., 757 N.W.2d 267, 272 (Iowa Ct. App. 2008) (best interests under section
232.116(2)); D.S., 2017 WL 6034636, at *5 (same); G.S., 2013 WL 4774040, at *4
(objections to termination under section 232.116(3)); B.A.L., 2012 WL 3860816, at
*4 (both sections 232.116(2) and 232.116(3)).
In their supplemental briefs, no party outright opposes finding that S.O. has
standing to contest the grounds for termination of her parents’ rights or to raise the
other issues in her petition on appeal filed by her attorney. Naturally, S.O., through
counsel, makes the most forceful argument. She contends: “It seems obvious that
children involved in these proceedings have a personal interest at stake. A
termination of parental rights acts to sever the parent/child relationship, forever
altering a child’s life.” Jennifer echoes that sentiment. She expands on the
personal and legal interests of the child in a termination case:
From the legal aspect the existence or absence of the relationship
also affects the child from a financial[] perspective through
inheritance and also through relationships which stem from [a]
parent-child relationship. A child’s world, relatives, resources and
identity are all shaped by their parental relationships. It is logical
then to also reason that any loss or changes to the parent-child
relationships may result in injury to the child.
Fred likewise adopts the position taken by S.O.’s attorney.9
9The father’s supplemental brief also asserts that, because he has standing and
has incorporated by reference S.O.’s petition on appeal, the issue is moot.
10
Even the GAL, who advocates for affirming the termination order, “thinks
standing should be granted to the child to challenge the statutory grounds of
termination” as well as the other issues on appeal. The GAL reasons:
Besides being a logical application of the doctrine of standing,
granting standing to children to make arguments on appeal will
promote justice by giving children in Iowa a greater voice in
termination of parental rights proceedings. This is particularly
important in cases, like this one, where the child is old enough to
express a meaningful opinion on whether termination should
happen.
Finally, we turn to the State’s briefing on standing. The State offers a helpful
survey of the limited guidance from other jurisdictions on this question. The State
first points to a Florida case in which the court held that a child could not bring a
termination-of-parental-rights case in his own right. See Kingsley v. Kingsley, 623
So. 2d 780, 784 (Fla. Dist. Ct. App. 1993) (holding fact that minor was represented
by counsel was not sufficient because child must sue by “next friend”).
According to the State, jurisdictions that have found children have standing
to challenge the termination of their parents’ rights have relied on their specific
state statutes. See, e.g., In re Z.H., Nos. C-150305, C-150301, 2015 WL 4755282,
at *1 (Ohio Ct. App. Aug. 12, 2015) (finding children have standing to appeal
termination through appointed counsel because children have statutory right to be
raised by their natural families under Ohio Revised Code section 2151.01(A)); see
also Neb. Rev. Stat. § 43-2,106.01 (2020) (granting right to appeal to juvenile, in
addition to GAL; parent, custodian, or guardian; and county attorney); 23 Pa. Stat.
and Cons. Stat. Ann. § 2512(1) (2020) (listing parties who may petition to terminate
parental rights, which includes either parent, the agency, a person having custody
of the child, or the child’s attorney or GAL). By contrast, the State notes that Iowa’s
11
statutory list of parties who may petition for termination includes the child’s
guardian, GAL, or custodian; the DHS; a juvenile court officer; or the county
attorney—but not the child’s attorney. Iowa Code § 232.111(1)10; see In re A.L.,
492 N.W.2d 198, 201 (Iowa Ct. App. 1992) (citing section 232.111 in finding GAL
had standing to bring appeal).
Despite that statutory difference, the State “takes no position on whether a
child has standing to contest the grounds of termination through their attorney, and
instead seeks the court’s guidance on the question of standing.” The State
contends the child’s challenge to reasonable efforts and request for additional time
to reunify are tied to the statutory-grounds contest. As for the other issues on
appeal, the State argues: “There is no need to depart from the court’s prior rulings
that children have standing to raise a challenge to termination under Iowa Code
sections 232.116(2) and 232.116(3).”
Accepting the State’s invitation, we now provide that guidance. As
discussed above, we have summarily held in unpublished cases that children lack
standing to raise a challenge under section 232.116(1). See D.S., 2017 WL
6034636, at *5; G.S., 2013 WL 4774040, at *4; B.A.L., 2012 WL 3860816, at *4.
While we strive for consistency in our panel decisions, our unpublished opinions
are not “controlling legal authority.” Iowa R. App. P. 6.904(2)(c); accord State v.
Shackford, 952 N.W.2d 141, 145 (Iowa 2020) (explaining unpublished decisions
10 Beyond the list of potential petitioners in section 232.111(1), section 232.111(3)
allows the DHS, juvenile court officer, county attorney, or judge to “authorize any
competent person having knowledge of the circumstances to file a termination
petition.” See In re S.R., No. 00-0884, 2001 WL 539670, at *1 (Iowa Ct. App.
May 23, 2001).
12
“are not precedential”); State v. Lindsey, 881 N.W.2d 411, 415 n.1 (Iowa 2016)
(noting “unpublished decisions of the court of appeals do not constitute binding
authority”). Today, we choose not to follow D.S., G.S., and B.A.L.
We make this about-face, in part, because the foundation for those opinions
rested on claims asserted by parents, not children. All three unpublished cases
cited two published cases, In re K.R., 737 N.W.2d 321 (Iowa Ct. App. 2007) and
In re D.G., 704 N.W.2d 454 (Iowa Ct. App. 2005). In D.G., our court held that one
parent cannot assert facts or legal positions pertaining to the other parent because
the juvenile court makes a separate adjudication as to each parent. 704 N.W.2d
at 460. In K.R., we cited D.G. in finding a father lacked standing to assert an
argument on the mother’s behalf to “gain a benefit for himself, that is, reversal of
the termination of his parental rights.” 737 N.W.2d at 323.
As the parties contend in their supplemental briefs, D.G. and K.R. are not
good analogs to decide the question of the child’s standing. Jennifer effectively
describes the difference: “Each parent has a relationship with their child; one that
is separate and distinct from the relationship the other parent has with the same
child.” So one parent cannot argue for preservation of their rights based on the
situation of the other parent. See D.G., 704 N.W.2d at 459 (deciding it was
impossible for mother to join father’s best-interests arguments on appeal).
That principle does not apply to the child. Unlike the parallel tracks of the
parents’ appeals, the child’s rights intersect with the fortunes of the parents. For
instance, it is possible for S.O. to argue in her petition on appeal that the State
failed to prove by clear and convincing evidence that she could not be safely
returned to the custody of her parents under Iowa Code
13
section 232.116(1)(f)(4). That possibility exists because the child shares the
parents’ fundamental interests in familial association. See F.K. v. Iowa Dist. Ct.,
630 N.W.2d 801, 808 (Iowa 2001) (citing Lehr v. Robertson, 463 U.S. 248, 256
(1983) (noting reciprocal nature of interest in parent-child relationship)).
What’s more, we do not see exclusion of a child’s attorney from the list of
petitioning parties in section 232.111(1) as an impediment to the child’s standing
to contest the grounds for termination. Unlike the Florida court in Kingsley, we are
not faced with a child petitioning for termination of parental rights. Rather, the
question is whether S.O.—through her attorney—can object to the statutory basis
for termination on appeal. We have held that a child’s GAL has standing to do
so. See In re J.C., No. 03-0949, 2003 WL 22345729, at *1 n.2 (Iowa Ct. App.
Oct. 15, 2003). When the juvenile court has bifurcated the role of GAL and child’s
attorney under section 232.89(4), we see no reason why the child’s attorney would
lack standing to do the same. The language in sections 232.89(2) and 232.89(4)
places a child’s attorney and the GAL on equal footing, showing the legislature
intended a separate attorney for the child to pursue the child’s legal interest with
the same force and effect as the GAL’s representation. See In re J.C., 857 N.W.2d
495, 500 (Iowa 2014) (noting unambiguous statutory language is strongest
evidence of legislative intent).
Finally, we recognize that “the parents and the child share an interest in
avoiding erroneous termination.” See Santosky v. Kramer, 455 U.S. 745, 765
(1982) (holding due process requires the State to support its allegations by clear
and convincing evidence). And as the Supreme Court reasoned: “the Due Process
Clause would be offended ‘[i]f a State were to attempt to force the breakup of a
14
natural family, over the objections of the parents and their children, without some
showing of unfitness and for the sole reason that to do so was thought to be in the
children’s best interest.’” Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (alteration
in original) (quoting Smith v. Org. of Foster Fams., 431 U.S. 816, 862–63 (1977)).
In sum, we find S.O. has a specific, personal, and legal interest in the action
to terminate her parents’ rights and may be injuriously affected by the
outcome. See Hawkeye Bancorporation v. Iowa Coll. Aid Comm’n, 360 N.W.2d
798, 801 (Iowa 1985). We are persuaded by the parties’ arguments that the child
has a personal, emotional stake in the court’s decision to terminate parental rights,
as well as a financial stake in maintaining the legal relationship with her biological
parents. Thus, she has standing to challenge the statutory ground for termination
along with the other issues raised in her petition on appeal.
B. Statutory Ground for Termination
S.O., Jennifer, and Fred all dispute the statutory ground for termination. At
issue is the fourth element of section 232.116(1)(f).11 To satisfy that element, the
State must show by clear and convincing evidence that S.O. could not be returned
11 The juvenile court may terminate parental rights under this statutory alternative
if the State establishes these elements:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
Iowa Code § 232.116(1)(f).
15
to the custody of her parents under section 232.102 at the time of the termination
hearing. See In re A.M., 843 N.W.2d 100, 111 (Iowa 2014).
S.O. argues the State focused on allegations that Fred sexually abused
R.A. but failed to present evidence that S.O. “suffered or is at risk of suffering
sexual abuse.” She points to an opinion offered by a forensic psychologist, Tracy
Thomas, that even assuming Fred molested his stepdaughter R.A., it was unlikely
Fred would direct similar abuse at his biological child, S.O. The child’s attorney
also argues that S.O. feels “safe” going home and that the State presented no
evidence she would encounter emotional abuse or controlling behavior by her
parents.
Jennifer argues the State presented “no credible evidence” that placing S.O.
in her care would be unsafe or cause the child any harm. She highlights the
parents’ thirteen-year marriage, their financial stability, and their “100%”
participation in the visits offered to them. She also asserts they were cooperating
with services and engaged in counseling. Fred likewise insists that S.O. would be
safe living with him and Jennifer. For support, he points to their own testimonies
as well as the opinions of his lay character witnesses12 and Dr. Thomas.
In its response, the State rebuts the parents’ claims that they have obtained
appropriate therapy.
They did engage in therapy at the VA, but were told repeatedly that
the VA could not provide the therapy requested by the
Department. The therapy notes from the VA state that many
therapists informed the parents they would not be able to address
the Department’s concerns. When one therapist broached the topic
12According to the juvenile court, “Many of the witnesses did not seem to realize
that there had been domestic violence and physical abuse in the home that was
documented in requests for no-contact orders and founded child abuse reports.”
16
with the parents, Fred dismissed the issue by telling the therapist that
the “DHS treatment requests are irrelevant, as he will not go down
the path of taking accountability” since he maintains he did not
commit sexual abuse against [R.A.].
The State also clarifies the expert opinion on Fred’s likelihood of
recidivism. Dr. Thomas believed that Fred posed a below average risk when
compared to other men who had been charged with or convicted of sexual
offenses. But she did not give an opinion about his risk to S.O. specifically. She
also did not offer a risk assessment for whether Fred would engage in sexually
deviant behavior in the future. Rather, she assessed whether he would engage in
behavior resulting in a criminal charge or conviction.
Responding to Jennifer’s arguments, the State insists the mother cannot
protect S.O. from the danger of inappropriate sexual advances by Fred if she
disbelieves her daughter R.A. and denies he has those tendencies. The State
discounts Jennifer’s promise that Fred would never be alone with S.O. and that
she would install cameras to ensure he did not go into her room at night. The State
paraphrases a recent opinion from our supreme court: “it’s folly to think [Jennifer]
would stand sentinel to protect against a foe she doesn’t acknowledge exists.” See
In re D.D., 955 N.W.2d 186, 193 (Iowa 2021).
Like the juvenile court, we find clear and convincing evidence in the record
to show S.O. cannot be returned to the custody of her parents without risking
exposure to harm that could amount to a new CINA adjudication. See Iowa Code
§§ 232.102, 232.116(1)(f). The court found R.A.’s allegations of sexual abuse by
Fred to be credible. Yet the parents deny those allegations. They blame R.A. for
the family’s problems and manipulate S.O. to share that warped perspective.
17
As for the expert’s opinion, it is cold comfort that Fred would be less likely
to sexually abuse his biological daughter. Without any therapy to address the
family’s dysfunction, the parents cannot offer a safe and healthy atmosphere for
S.O. We are drawn to this insightful observation by the juvenile court: “Before any
meaningful change can take place, a parent must acknowledge and recognize that
abuse occurred.” Neither Jennifer nor Fred is willing to admit Fred’s history of
sexually abusing R.A. or his controlling behavior toward other family
members. Thus, reunification is not safe for their daughter.
C. Reasonable Efforts
S.O. and her parents next claim the DHS did not offer reasonable services
to address the concerns that led to removal. The child’s attorney argues the
services should have been more targeted toward the sexual-abuse allegations
against Fred. Fred also contends he was not offered appropriate counseling. The
mother and father both urge that the DHS should have provided expanded,
unsupervised visitation.
Granted, the DHS must “make every reasonable effort to return the child to
the child’s home as quickly as possible consistent with the best interests of the
child.” In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (quoting Iowa Code
§ 232.102(7)). And the burden is on the State to “show reasonable efforts as a
part of its ultimate proof the child cannot be safely returned to the care of a
parent.” Id.The State met its burden here. We focus on the parents’ responses to the
services provided. Id. at 494. The DHS offered services to Fred and Jennifer
consistent with S.O.’s best interests. It offered an appropriate level of visitation
18
while the parents were refusing to engage in the expected counseling. As for
counseling, the DHS provided a list of expectations and a list of counselors who
could address those expectations. The VA also tried to coordinate community
services for the parents that would be paid for by the VA. The father rejected those
proposals. On this record, we find the DHS met the reasonable-efforts
requirement.
D. Permissive Factors Under Section 232.116(3)
S.O. argues the juvenile court should have looked to the permissive factors
under Iowa Code section 232.116(3) to forego termination. In particular, her
attorney argues termination was improper because (1) S.O. was older than ten
years and objected to ending the parent-child relationship, and (2) she was
approved for placement in a PMIC. See Iowa Code § 232.116(3)(b), (d). Jennifer
also relies on paragraph (b) in contending the court should not have terminated
her rights over S.O.’s objection.
No question, S.O.’s wishes deserve respect. She was nearly thirteen years
old by the time of the termination hearing and, through counsel, expressed a clear
desire to return home. A psychologist testified that her evaluation of S.O. showed
the child to have “average” intelligence but only “fair” insight and judgment. The
psychologist also testified that “emotional issues” may affect an individual’s
judgment in ways that are “not always reflected in their IQ.” On top of that, the
juvenile court detected an undercurrent of manipulation by S.O.’s parents that
undermines the independence of her wishes.13
13S.O. contends the juvenile court erred in questioning whether she actually wrote
the letter expressing her desire to go home. Like the juvenile court, we find the
19
Against this backdrop, we conclude what S.O. wants is not in her best
interests. See In re A.R., 932 N.W.2d 588, 592 (Iowa Ct. App. 2019) (setting out
factors under section 232.116(3)(b)). In our review of the record, we note that
S.O.’s longing to go home appears to be as much about missing her horses and
other pets as it does with repairing the long-term relationship with her
parents. Thus, we do not believe this permissive factor required the juvenile court
to bypass termination. See In re J.S., No. 16-0112, 2016 WL 899857, at *3 (Iowa
Ct. App. Mar. 9, 2016) (“The children’s yearning for reunification does not tilt the
balance away from termination.”).
As for section 232.116(3)(d), we conclude the approval for S.O.’s placement
in a PMIC did not change the termination equation. The record does not show that
she could return to her parents’ care following discharge from that program. See
In re J.R. II, No. 12-1239, 2012 WL 4903048, at *3 (Iowa Ct. App. Oct. 17, 2012).
The permissive factors in section 232.116(3) are not cause for reversing the
termination order.
E. Six-Month Delay of Permanency
Both parents and S.O. request more time to work toward
reunification. See Iowa Code §§ 232.104(2)(b), .117(5). To grant an extension,
the juvenile court needs evidence to support a finding the parents could properly
care for the child within six months. Id. § 232.104(2)(b). We do not favor delaying
permanency here. As the State argues, the lack of progress stems from the
tone of the letter may reflect the parents’ coaching. But the authorship of the letter
is not critical to our decision to affirm.
20
parents’ “stubborn refusal to engage in appropriate therapy.” Nothing in the record
suggests the parents will budge from that refusal.
Moreover, the months of uncertainty have taken a toll on S.O. In October
2020, she was hospitalized for “significant mental trauma and suicidal
ideations.” Postponing permanency would only add to her stress and
insecurity. We decline to delay the termination decision.
AFFIRMED ON ALL APPEALS.