In the Interest of E.O., Minor Child ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0754
Filed August 9, 2023
IN THE INTEREST OF E.O.,
Minor Child,
L.O., Mother,
Appellant,
E.O., Minor Child,
Appellant.
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Appeal from the Iowa District Court for O’Brien County,
Shawna L. Ditsworth, District Associate Judge.
A mother and child each appeal the juvenile court’s permanency order
directing the establishment of a guardianship for the child. AFFIRMED ON BOTH
APPEALS.
Kevin J. Huyser, Orange City, for appellant mother.
Debra S. De Jong, Orange City, for appellant minor child.
Brenna Bird, Attorney General, and Mary A. Triick (until withdrawal) and
Mackenzie Moran, Assistant Attorneys General, for appellee State.
Tisha M. Halverson, of Klay, Veldhuizen, Bindner, De Jong & Halverson,
P.L.C., Paullina, guardian ad litem for minor child.
Considered by Bower, C.J., and Ahlers and Chicchelly, JJ.
2
AHLERS, Judge.
Before us is the second appeal in this child-in-need-of-assistance (CINA)
proceeding. See generally In re E.O., No. 22-1193, 2022 WL 4361728 (Iowa Ct.
App. Sept. 21, 2022). This time, the mother and child appeal a permanency order
that provides the “permanency goal for [the child] shall be to transfer guardianship
and custody of the child to another suitable person.”1 Both the child and mother
challenge the juvenile court’s determination that the child could not be safely
returned to the mother’s custody. Alternatively, the mother seeks additional time
to work toward reunification.
We review CINA proceedings de novo. In re K.B., 753 N.W.2d 14, 15 (Iowa
2008). Though not bound by them, we give weight to the factual findings of the
juvenile court. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). At a permanency
hearing, the State’s burden to show that a guardianship should be established
rather than returning a child to a parent’s custody is by convincing evidence, not
clear and convincing evidence. See Iowa Code § 232.104(4); In re A.D., 489
N.W.2d 50, 52 (Iowa Ct. App. 1992) (“The State on a permanency hearing needs
only show the children cannot be returned by convincing evidence, not by both
clear and convincing evidence.”). Reunification is an important part of CINA
proceedings, but our primary concern is the best interests of the child. In re C.B.,
611 N.W.2d 489, 493 (Iowa 2000).
1 The permanency order directed the county attorney to institute a termination-of-
parental-rights proceeding with respect to this child’s sibling. No party challenges
that portion of the permanency order.
3
We first address the mother and child’s claims that the child could have
been safely returned to the mother’s custody. The child and his siblings 2 were
removed from the mother’s custody due to the mother’s “neglect and physical and
emotional abuse of the children.” E.O., 2022 WL 4361728, at *1. Specifically,
[t]he children reported [the mother] beating them with a paddle and
locking them in the basement without food or water. Once while
isolated in the basement, [one of the adopted children] recalled
having an accident because she was too afraid to ask permission to
use the bathroom; as punishment, [the mother] forced the child to
‘lick up her own urine’ in front of her siblings.
Id. When another child ingested pills in an attempted suicide, the mother did not
take her to the doctor, and the child eventually contacted emergency services
herself. The children also explained that they had not been truthful during past
investigations of the family because the mother threatened to hurt them if they did
not say what she wanted said.
The mother continues not to accept responsibility for her past conduct and
denies any abuse ever occurred. The child now denies the abuse and attempts to
disavow his prior statements by claiming one of his siblings coached the others,
including him, on what to say. But the juvenile court noted it is apparent that the
child’s recollection of the abuse has been impacted by the passage of time
following removal. After reviewing the whole record, we do not view the child’s
about-face as credible. We understand the child strongly desires reunification with
the mother. We believe that desire either serves as his primary motivation for
2 The child has one biological sibling and three adoptive siblings; however, the
child is the only child at issue in this appeal.
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changing his story or has unknowingly impacted his perception of past events.3
Because we credit the claims of abuse, we think it is critical that the mother
take accountability for her past conduct to ensure it will not occur in the future. In
re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999) (“The requirement that a parent
acknowledge and recognize abuse is essential for any meaningful change to
occur.”). We previously recognized the mother’s “lack of progress in accepting
responsibility for her abuse of the children and their resulting trauma” was a
justifiable basis for requiring visitation between the mother and child to remain fully
supervised. E.O., 2022 WL 4361728, at *2. The mother has not progressed since
that time. As such, the risk of harm to the child remains should he be returned to
the mother’s care. We agree with the juvenile court’s determination that the child
could not be safely returned to the mother’s custody.
Finally, we address the mother’s contention that the juvenile court should
have given her more time to work toward reunification. Following a permanency
hearing, Iowa Code section 232.104(2)(b) permits the court to enter an order to
“continue placement of the child for an additional six months at which time the court
shall hold a hearing to consider modification of its permanency order.” That order
must “enumerate the specific factors, conditions, or expected behavioral changes
which comprise the basis for the determination that the need for removal of the
child from the child’s home will no longer exist at the end of the additional six-
month period.” Iowa Code § 232.104(2)(b). Again, the mother’s refusal to
acknowledge her abuse of the children and its lasting impact remains a significant
3 Another child reported that the child at issue “was rarely punished” and the
mother’s abuse focused on primarily two of the adopted children.
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barrier to safe reunification. And the mother is steadfast in her refusal to make
such acknowledgement. We have no reason to anticipate a change in her position
within the next six months. As such, the need for removal would not be abated if
the mother was given additional time to work toward reunification. We do not grant
her additional time to work toward reunification.
AFFIRMED ON BOTH APPEALS.