In the Interest of B.H., Minor Child

• Court: Court of Appeals of Iowa
• Decided: August 7, 2024
• Docket: 24-0869
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0869 Filed August 7, 2024

IN THE INTEREST OF B.H., Minor Child,

B.H., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic,

Judge.

A father appeals the adjudicatory and dispositional orders in a child-in-need-

of-assistance proceeding. AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

Danielle M. Ellingson of Noah, Smith, Sloter & Ellingson PLC., Charles City,

for appellant father.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

Carrie J. Rodriguez, Garner, attorney and guardian ad litem for minor child.

Considered by Tabor, P.J., and Chicchelly and Buller, JJ. 2

CHICCHELLY, Judge.

A father appeals the adjudicatory and dispositional orders in a child-in-need-

of-assistance (CINA) proceeding. He challenges the sufficiency of the evidence

supporting each ground for the CINA adjudication, the removal of the child from

his custody, and the suspension of visitation. We affirm the CINA adjudication

under Iowa Code section 232.96A(1), (2), (3)(b), and (4) (2024) and the child’s

removal. We reverse the portion of the dispositional order prohibiting contact

between the father and child, and we remand to the juvenile court to order

supervised visitation at the discretion of the Iowa Department of Health and Human

Services (HHS).

I. Background Facts and Proceedings.

The CINA proceedings involve a child born in 2016. The child lived with the

mother for the first few years of life, with a 2018 decree establishing child custody.

After the father petitioned to modify custody in 2019, the mother agreed to place

the child in the father’s physical care. The juvenile court terminated the mother’s

parental rights to four other children in 2022.

The father has a history of schizophrenia and a diagnosis of schizoaffective

disorder, bipolar type, with acute exacerbation insomnia. He has complied with

taking medication since June 2021. But there was a change to his prescribed

medications in February 2024 that brough on a manic episode. During this

episode, the father did not sleep for eight or nine days and experienced paranoid

thoughts. The father asked the paternal grandfather to care for the child and

entered inpatient treatment. 3

While in a manic state, the father told the mother that he had sexual contact

with the child two or three months earlier.1 He disclosed that there was vaginal

penetration. The father sent the mother text messages in which he apologized for

his actions and asked her not to tell anyone about it.

The mother reported the father’s statements to HHS. She recalled that

around the time the alleged abuse occurred, the child experienced vaginal

bleeding. The child’s medical records show that the child had a medical

examination in November 2023 after experiencing unexplained bleeding during

urination. The report from that medical visit notes there was irritation in the child’s

vaginal area without a rash.

Based on the report of sexual abuse and the father’s inpatient

hospitalization, as well as concerns about the mother’s ability to care for the child,

the juvenile court removed the child from the parents’ custody. It granted HHS

legal custody and placed the child in the temporary care of the paternal

grandparents. The State petitioned for a CINA adjudication.

While awaiting the CINA hearing, HHS investigated the allegations of sexual

abuse. When the child protection worker contacted the father, he denied

wrongdoing before the worker even informed him of the allegation. A forensic

interviewer at the child protective center interviewed the child, but the child was

unwilling to discuss the allegations. The child protection worker found a significant

amount of circumstantial evidence to support that sexual abuse occurred. But

because the father made the claim while actively psychotic, she determined that

1 According to the mother’s testimony, the father stated that the child sat in his lap

“and she forced him to rape her.” 4

“[i]t cannot be proven whether this disclosure was true or the result of a delusion,”

and the child abuse assessment summary found the allegation was “not

confirmed.” Still, the worker recommended a CINA adjudication and the child’s

removal from the parents’ custody as necessary to protect the child. She

recommended continuing the child’s placement with the paternal grandparents

while resuming interactions between the father and the child.

The juvenile court held the adjudicatory hearing in April and found the State

proved the grounds for a CINA adjudication under Iowa Code section 232.96A(1),

(2), (3)(b), and (4). It continued the child’s placement with the grandparents but

found HHS’s request to resume contact between the father and the child was

premature based on the father’s admission and credible circumstantial evidence

of sexual abuse.

The juvenile court held a dispositional hearing in May. HHS continued its

recommendation for the child’s removal and placement with the paternal

grandparents, but it asked for discretion to grant visits between the father and the

child. The guardian ad litem (GAL) recommended contact between the father and

the child only after contact is determined to be safe. Noting the child’s first visit

with a therapist was the day before the hearing and the father had not scheduled

the psychosexual evaluation ordered by the court, the GAL did not believe there

had been sufficient progress to begin visits between the child and the father.

The juvenile court entered a dispositional order finding the child remains a

CINA and continuing the child’s removal. The court expressed concern about the

parties’ compliance with its orders and denied contact between the father and the

child: 5

Given the admissions of sexual abuse by Father against [the child] and the very early stages of therapy for her and Father not even being evaluated yet, even if [the child] had a dozen attorneys advocating for visits to begin, that request would be denied. SAFETY of the child is the most important purpose of this proceeding and it is expected that [HHS] and everyone around this child will comply with that expectation. This child will not see her abuser until we know the extent of what we are dealing with. The problems for which the Court became involved have not resolved.

The father appeals.

II. Discussion.

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 fact findings, although they are

not binding. See id. Our primary concern is the child’s best interests. See id.

A. CINA Adjudication.

The father first challenges the sufficiency of the evidence showing the

grounds for the CINA adjudication. The juvenile court may adjudicate a CINA if

clear and convincing evidence shows that the grounds for the adjudication exist

and the child requires the court’s aid. Iowa Code § 232.96(9). The State bears

the burden of proving the grounds for adjudication by clear and convincing

evidence, meaning “there must be no serious or substantial doubt about the

correctness of a particular conclusion drawn from the evidence.” In re N.C., 952

N.W.2d 151, 153 (Iowa 2020). Because “[t]he underlying grounds of adjudication

in [CINA] cases have important legal implications beyond the adjudication,” we

review the sufficiency of the evidence supporting all four grounds found by the

juvenile court. In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). 6

The father contends that the State failed to provide clear and convincing

evidence to show that each ground for the CINA adjudication applies to him. But

at least three grounds for the CINA adjudication concern the mother. The juvenile

court found that the mother had no contact with the child for seven or eight months

before HHS involvement, which satisfies the CINA adjudication for desertion under

section 232.96A(1).2 See Iowa Code § 232.2(15) (defining desertion to mean “the

relinquishment or surrender for a period in excess of six months of the parental

rights, duties, or privileges inherent in the parent-child relationship,” which “is

evidenced by the lack of attempted contact with the child or by only incidental

contact with the child”). It found “[the mother’s] residence with a person convicted

of child endangerment makes the physical abuse of [the child] imminent,” satisfying

the requirement for adjudication under section 232.96A(2). The court also noted

the mother’s home “is not clean enough for visits to occur there” and her “history

of unsafe parenting” led to termination of her parental rights to four children. The

mother also admits that her husband physically abused the child during the first

three years of her life. On this basis, there is clear and convincing evidence

showing the child is imminently likely to suffer harmful effects because of the

mother’s failure to exercise a reasonable degree of care supervising the child,

which meets the requirement for the CINA adjudication under

section 232.96A(3)(b).

2 We note that the record indicates the mother saw the child at Christmas, which

contradicts the finding that the mother had no contact with the child for more than six months. Regardless, the mother had minimal involvement in the child’s life before HHS involvement, supporting a CINA adjudication under section 232.96A(1). 7

The juvenile court also found the child meets the definition for a CINA

adjudication under section 232.96A(4), which requires clear and convincing

evidence that “[t]he child has been, or is imminently likely to be, sexually abused

by the child’s parent.” The father claims there is no evidence supporting a claim

of sexual abuse, noting that the child did not report abuse during the interview at

the child protective center and the HHS investigation did not confirm the allegations

of sexual abuse. But the juvenile court cited two crucial factors in finding clear and

convincing evidence that the father sexually abused the child. First, the father told

the mother that he sexually abused the child. Second, despite the father’s claim

his report was the result of a delusion during his manic episode, there is

corroboration from medical records that note the child had abnormal vaginal

bleeding and irritation in her vaginal area during the period in which the father

alleged the abuse occurred.

In determining that sexual abuse occurred, the juvenile court also

considered that the child neither confirmed nor denied the abuse during her

interview at the child protective center child. The child abuse assessment

summary recounts what occurred during that interview:

[The child] first had a medical exam where she did disclose that she had an owie on her privates recently, but states that she does not know how or where she got it. [The child] states that she was taken to the doctor for this concern. [The child] identified that this was like a cut on her privates, but she is unsure how she received it. .... [The child] answered rapport building questions quickly and fluidly. She discussed enjoying spending time with all of her parents. [The child] then hesitated for extended periods and looked to the camera in the room when asked questions about her privates. [The child] was reluctant to answer questions regarding time spent in close physical proximity to her father. 8

[The child] was asked if anything has happened to her that she is not yet ready to talk about. She stated that she is not ready to talk about things with girl private parts.

The juvenile court stated that because the paternal grandparents brought the child

to the interview, “the obvious concern is that [the child] did not want to speak poorly

about Father if they were listening.” It concluded that the child’s “refusal to discuss

contact with Father at an appointment her grandparents brought her to supports

the allegation” of sexual abuse.

Finally, the juvenile court noted concern about the father’s admission that

“something” happened when he was twelve that led to a delinquency adjudication

for sexual abuse. It found the father’s refusal to elaborate on the details “is even

more suspicious.” It also expressed concern about the father refusing the court’s

aid, which it deemed “very concerning and likely an attempt to escape

responsibility for his sexual abuse of [the child.]”

We begin by noting that the evidence of sexual abuse in this case differs

from others in which we have found clear and convincing evidence to support a

CINA adjudication. Often, those cases involve a child victim disclosing sexual

abuse, which the perpetrator denies. See, e.g., N.C., 952 N.W.2d at 155 (finding

“a child’s credible report of sexual abuse to amount to clear and convincing

evidence sufficient to support adjudication” based on sexual abuse); In re L.K.S.,

451 N.W.2d 819, 820, 823 (Iowa 1990) (finding clear and convincing evidence

supported CINA adjudication based on sexual abuse where child credibly alleged

the abuse occurred despite the perpetrator’s denials). This case presents that

situation in reverse, with the father admitting sexual abuse and the child unwilling

to confirm or refute the allegations. If that was all the evidence before us, we might 9

find it easier to dismiss the father’s confession as the mere product of his manic

episode. But a report in the child’s medical records, made during the period in

which the abuse allegedly occurred, corroborates the father’s confession. We also

consider that the father previously committed a delinquent act that would constitute

sexual abuse. See In re J.S., 846 N.W.2d 36, 43 (Iowa 2014) (observing that a

child is a risk of future sexual abuse when there are “specific prior instances of

sexual or physical abuse committed by a caregiver”); In re M.H., 367 N.W.2d 275,

278 (Iowa Ct. App. 1985) (“[N]ot only may the court look at the past behavior of the

parent, but . . . it is an important factor.”). Adding to our concern is the father’s

attempt to lay blame on the child when describing what occurred, stating that the

child “forced him to rape her.” Altogether, the evidence crosses the threshold of

clear and convincing. Because sufficient evidence supports each ground, we

affirm the CINA adjudication under section 232.96A(1), (2), (3)(b), and (4).

B. Removal.

The father next challenges the child’s continued removal from his custody.

He claims that removal is not the least restrictive disposition under the

circumstances because his mental health has returned to his baseline. The

problem with the father’s argument is that it presupposes he did not sexually abuse

the child. Having determined that clear and convincing evidence supports the

CINA adjudication under section 232.96A(4) based on the finding that the father

sexually abused the child, it is necessary to continue the child’s removal from the

father’s custody to ensure the child’s safety. See Iowa Code § 232.102(8) (“The

placement shall be terminated and the child returned to the child’s home if the court 10

finds by a preponderance of the evidence that the child will not suffer harm in the

manner specified in section 232.96A.”).

C. Visitation.

Finally, the father challenges the decision to suspend visitation between the

father and the child. Again, he argues that the court did not make the least

restrictive disposition available when it suspended parental visitation. The father

notes that HHS believes that visitation would not harm the child and requested

visitation at its discretion.

“Visitation between a parent and child is an important ingredient to the goal

of reunification.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996). But the

court may limit the nature and extent of parental visitation if doing so is in the child’s

best interests. Id.

The juvenile court found that because the child had just begun therapy and

the father has not submitted to the court ordered psychosexual evaluation, any

form of visitation would be unsafe for the child. We disagree. The permanency

goal is to return the child to the father’s custody. The father denies sexually

abusing the child, and the child has asked when she can see the father. We have

found supervised visitation appropriate in similar circumstances. See, e.g., In re

S.W., 469 N.W.2d 278, 281 (Iowa Ct. App. 1991); In re S.V., 395 N.W.2d 666, 668

(Iowa Ct. App. 1986). Restricting the father to supervised visitation, which

eliminates the risk of adjudicatory harm to the child, maintains the parent-child

bond, and serves the child’s best interests. We therefore reverse the portion of 11

the dispositional order prohibiting contact between the father and child, and we

remand to the juvenile court to order supervised visitation at HHS’s discretion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.