In the Interest of D.D., Minor Child

• Court: Supreme Court of Iowa
• Decided: February 19, 2021
• Docket: 20-0330
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 20–0330

Submitted October 14, 2020—Filed February 19, 2021

IN THE INTEREST OF D.D., Minor Child.

E.D., Father,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Des Moines County, Emily

Dean, District Associate Judge.

A father seeks further review of a court of appeals decision affirming

the dismissal of a petition to adjudicate a child in need of assistance.

DECISION OF COURT OF APPEALS VACATED; JUVENILE COURT

JUDGMENT REVERSED AND REMANDED.

McDermott, J., delivered the opinion of the court, in which Christensen, C.J., and Appel, Waterman, and Oxley, JJ., joined. Christensen, C.J., filed a special concurrence. Mansfield, J., filed a

dissenting opinion in which McDonald, J., joined.

Trent A. Henkelvig (argued) of Henkelvig Law, Danville, for appellant.

Thomas J. Miller, Attorney General, Mary A. Triick (argued),

Assistant Attorney General, and Erin Stensvaag, Assistant County

Attorney, for appellee. 2

Diana L. Miller (argued) of Whitfield & Eddy, P.L.C., Mt. Pleasant,

attorney for minor child.

Patrick Brau of Brau Law Office, Mt. Pleasant, guardian ad litem for

minor child. 3

McDERMOTT, Justice.

A seven-year-old girl was sexually abused by her stepfather. The

State initiated a child-in-need-of-assistance proceeding, and the juvenile

court removed the girl from the home. The court later permitted the girl

to return to the home only after the stepfather had been forbidden from

living there. But the girl’s mother—the wife of the perpetrator—refused to

accept the sexual abuse finding against the stepfather. Not long after the

victim returned home, the juvenile court permitted the stepfather to return

to the home too and dismissed the child-in-need-of-assistance proceeding.

In this appeal, we review the juvenile court’s decision to end a child-in-

need-of-assistance proceeding in which the child victim of sexual abuse

has been returned to the home with the perpetrator and in which the

child’s mother refuses to believe any sexual abuse ever occurred.

I. Factual Background.

A. The Founded Report of Sexual Abuse. D.D.’s mother has five

children, each with a different biological father, but each living with the

mother. D.D.’s stepbrother Z.H. (age ten) set in motion the events of this

case in late February 2018 when he told his teacher that his stepfather

was “cheating” on his mom with his sisters. When he clarified that he was talking about something sexual in nature, school officials immediately

spoke separately to all three of his stepsisters. When the Iowa Department

of Human Services (DHS) contacted the children’s mother about the

allegations, the mother denied any knowledge and said she didn’t believe

her husband would harm the children. But she agreed to have all five of

her children stay temporarily at her aunt’s house and agreed that her

husband wouldn’t have contact any with the children as DHS investigated

the allegations. 4

The following week each of the mother’s children (except the

youngest one, who was only four years old at the time) participated in a

forensic interview with a child protection caseworker. The oldest child, a

girl named H.T. (age thirteen), was apprehensive in her interview and,

according to her interviewer, appeared to have been coached. H.T. told the

interviewer that she thought her sisters were “messing with” Z.H. when

they told her and Z.H. about the stepfather’s sexual abuse. But she also

suggested concern for her sisters’ safety, and she made a cryptic statement

that “maybe someone should be worried about her today.”

Z.H. made comments suggesting his mother had instructed him to

limit what he disclosed to his interviewer. In answer to a question about

concerns at home, he responded that “mom told me not to say.” Later in

the interview, he confirmed that his sisters told him their stepfather had

touched “their inappropriate body parts.” Z.H. said his mother told him

not to tell anyone what the girls had told him, but he told the interviewer

that when questioned by school officials, “I got scared so I just answered.”

He admitted to feeling worried to go home from school the day he disclosed

the abuse. Z.H. told the interviewer that his sisters said they were kidding

once they got home from school. Z.H. also told the interviewer that his stepfather had told the kids he loved them and that he “won’t do it

anymore.” When asked how he knew that his stepfather wouldn’t do it

anymore, he responded, “I just know.”

H.H. (age nine) refused to talk about the details of the allegations in

her interview. The interviewer described her demeanor as “fidgety and

nervous.” H.H. told her interviewer that she “trusts no one.” She admitted

she told Z.H. about their stepfather’s abuse but claimed in her interview

that she was joking. When asked why her sister D.D. might claim sexual

abuse occurred, H.H. suggested maybe only D.D. was abused. But H.H. 5

nonetheless expressed her wish to stay at her aunt’s home, telling the

interviewer that her mother and stepfather were mean and that she didn’t

feel safe with them. When asked whether she has watched movies in her

stepfather’s bed, she aggressively said “never” and then refused to answer

any more questions.

D.D. (age seven), when asked why her stepfather had been banned

from the home, said it was because he touched kids in inappropriate

places and that people who do that should go to prison. She noted that

her stepfather only inappropriately touched girls (meaning her and her

sister H.H.), but that he stopped doing it to H.H. and now only did it to

her.

During the course of her interview, D.D. gave specific, often graphic,

details of the sexual acts her stepfather performed on her. She informed

the interviewer that at bedtime her stepfather would tell her to go to his

room. He would put on a scary movie and take off D.D.’s pants and

underwear. She described what happened as her stepfather “humping her

with his wiener,” meaning her stepfather “pulls his wiener forward and

touches my private.” By “private,” D.D. said she was referring to “the part

of the body where babies come out.” He would make her keep her hands on the bed, and keep her knees pulled up to her chest, “so he can do his

thing.” When asked what that meant, she said, “He sticks his wiener into

me.” She added that his “wiener” was “humongous.”

D.D. said her stepfather then “starts doing sex to me. . . . When he

starts, he pulls it out, he holds it . . . . The thing where you get your baby

out of . . . sometimes it gets shoved . . . sometimes his wiener is touching

it on the inside. . . . [He] goes up and down with his body.” When asked

what it feels like, she described it as “pretty wet and disgusting,” and said

that it made her body “feel like it is getting stabbed in the heart.” She 6

expressed feeling terrible when it would happen, that she felt like “puking,”

and that she could not think about it. D.D. recounted one incident in

particular when her stepfather did the same thing to her sister H.H. on the

pillow next to her. D.D. explained these acts always happened when her

mother wasn’t home (she worked the night shift) and that her stepfather

would stop if he thought he heard someone.

D.D. told the interviewer that before she told Z.H. and H.T. about

what her stepfather had done, she had first told her mother. D.D. said

that her mother asked questions about what her stepfather had done, and

then her mother started crying. D.D. ultimately told the interviewer she

didn’t want to discuss it anymore.

After the children’s forensic interviews, the mother sat for an

interview of her own. She denied any prior knowledge of inappropriate

touching and claimed her daughters reported the sexual abuse based on

a video of monkeys “humping” that they’d seen on YouTube. When asked

if the stepfather was still living in her home, she claimed not to know, and

specifically that she didn’t know if he continued to sleep there, as she

worked the night shift.

A few weeks later, H.H. and H.T. were interviewed again. H.H. as before refused to discuss the sexual abuse allegations, saying that D.D.

now said “it was only a dream.” But she expressed other unspecified

apprehensions about her stepfather. She said she wouldn’t feel safe alone

with her stepfather but refused to elaborate. She also said she didn’t think

D.D. would be safe alone with her stepfather. When asked why, she told

the interviewer she didn’t know. When the interviewer asked H.H. whether

she really didn’t know or whether she said that because it was hard to talk

about, she said, “The second one,” but again refused to elaborate. H.H. 7

said she wanted to stay with her mom and her siblings but didn’t want her

stepfather to live with them.

DHS determined the reports of sexual abuse “founded” as to both

D.D. and H.H.

B. The Child-in-Need-of-Assistance Proceeding. In April 2018,

the juvenile court entered an order removing the children from the

mother’s custody and forbidding the stepfather from having any contact

with the children or access to the children’s residence.

In May, the juvenile court adjudicated all five children in need of

assistance under Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(d) (2018).

The juvenile court made its own review of D.D.’s forensic interviews and

found credible her allegations of the sexual abuse, noting D.D.’s recitation

of “details that would be impossible to come up with without direct

experience.” The juvenile court found that D.D.’s mother failed to believe

the abuse allegations, that she told the children not to disclose any

information about them, and that she made no effort to remove the

children from the home she shared with her children’s perpetrator until

DHS became involved. The juvenile court’s order notes the stepfather had

been charged with second-degree sex abuse, a class “B” felony, with D.D. as the named victim.

In adjudicating the children in need of assistance, the juvenile court

cited

extensive sexual abuse of the child [D.D.] in the mother’s home, the severe trauma being suffered by the child [D.D.] in the mother’s and any relative’s home, the mother’s lack of any protective capabilities toward her children to prevent abuse in the home and to protect her children, and imminent risk of further harm, abuse, and death of the children if remaining in the mother’s custody. 8

The adjudication order also describes other concerns beyond the

sexual abuse. The juvenile court cited testimony from school officials

concerning D.D.’s behavioral problems and that D.D., while in her

mother’s and aunt’s care, would spend many hours of her school day

sleeping instead of doing schoolwork. The school officials testified this

problem, along with severe hygiene problems that D.D. exhibited while in

her mother’s and aunt’s care, completely ceased when D.D. lived for a

period with foster parents through a DHS placement.

In June, the juvenile court entered a disposition order declaring the

children in need of assistance under chapter 232. The juvenile court again

found “that the significant issues in this matter involve the sexual abuse

of the children [D.D.] and [H.H.], the mother not believing the abuse

occurred, and the mother failing to protect her children from sexual abuse

or any harm.” It noted that the stepfather had bonded out of jail on the

sexual abuse criminal charges and was again residing with the mother.

The record indicates the criminal charges against the stepfather were

ultimately dismissed, but only after D.D. refused to testify at a deposition

in the criminal case with her stepfather present.

With the five children each placed in separate homes following the disclosure of the sexual abuse, D.D.—the victim—was now being blamed

for the family’s dispersal. The juvenile court noted this, stating it was “very

concerned at this time regarding the mother’s protective capabilities of all

children and continual victimization of [D.D.] for reporting the abuse

occurring in the home.” The juvenile court’s bottom-line reasoning was

clear: “The Court cannot return any child to the mother’s custody unless

it is convinced that the mother, through her participation in services, can

and will protect her children from abuse and harm in the future, improve

her parenting, and provide for their basic needs.” 9

Thirteen months later, in July 2019, after considerable and ongoing

individual and family therapy, the juvenile court modified the dispositional

order to permit the children to return to the mother’s custody. The juvenile

court conditioned the children’s return on the stepfather’s removal from

the family home.

In November 2019, the juvenile court permitted the stepfather to

move back into the home with the mother and children. The juvenile court

noted the progress from the extensive therapy services provided to family

members in both individual and family settings. Therapists reporting to

the juvenile court found the family had progressed to the point that the

children could return to their mother’s care with the stepfather back in

the home and reasonable safety measures in place. Safety measures

appear to have included forbidding the stepfather from being alone with

the children and installing alarms on the children’s bedroom doors in the

home. Although the stepfather at all times denied committing the sexual

abuse that both DHS and the juvenile court determined had occurred, his

therapist reported that he met the goals DHS set for his participation in

individual therapy.

It appears the stepfather never addressed the accusations of sexual abuse with his therapist. His most recent therapist explained she had

been working with the stepfather on the difficulties of DHS’s involvement

with the family, “his concerns about the children, his feelings, and what

he can do to assure the children are safe, feel safe in disclosing any issue,

and changes he wants to make when reunited.” Yet the therapist told the

DHS worker that the stepfather “never alludes to sexual abuse.” He had

to switch to this therapist in April 2019 after his prior therapist discovered

the stepfather was seeing him to address sexual offenses, which that prior

therapist did not treat. Leading up to this switch, the juvenile court’s 10

March 8, 2019 order finding DHS failed to make reasonable efforts

reported,

The [stepfather’s] counseling appears to center around depression. It is clear that he has not addressed with his therapist his feeling of being accused by his step-children as being a sexual perpetrator. It is also clear that his current therapist knows very little as to what brought [the stepfather] to therapy—due to lack of communication from the department and a continued complete lack of insight and accountability by [the stepfather].

D.D.’s therapist, too, signed off on the stepfather’s return, indicating

her belief that D.D. would be able to speak up if she felt unsafe around her stepfather, according to the November 2019 order. The order imposed

on the mother the duty to “protect all her children from any form of abuse

and harm.” All parties stipulated to the stepfather’s return to the home,

except one: D.D.’s father, who had been incarcerated throughout the

matter.

In February 2020, not quite three months after the stepfather’s

return to the home, the juvenile court dismissed the child-in-need-of-

assistance proceeding. The juvenile court noted that the children “report

they are happy in the home and feel safe” and found “there are no further

safety concerns for any of the children [while] in the mother’s custody.” All parties stipulated to the dismissal of the proceedings, again with the

exception of D.D.’s father.

D.D.’s father appealed the dismissal of the proceedings, and we

transferred the appeal to the Iowa Court of Appeals. The court of appeals

affirmed the juvenile court’s dismissal. We granted D.D.’s father’s

application for further review.

II. Record Completeness Challenge.

Before addressing the merits, we must address the State’s argument

that D.D.’s father waived the issues raised in this appeal because he failed 11

to produce the transcript from the February 11 hearing that preceded the

juvenile court’s dismissal order. The State contends our appeal record is

insufficient because the appeal record contains no written transcript from

that hearing. The court of appeals didn’t address this issue in its ruling;

the State raises it for the first time in its supplemental brief following our

grant of further review.

Under Iowa Rule of Appellate Procedure 6.204, the appellant in

appeals from child-in-need-of-assistance proceedings “shall request the

clerk of the district court to transmit the record to the clerk of the supreme

court” within thirty days of the notice of appeal. The appeal record “shall

include the . . . court file, including all exhibits,” and “[a]ny transcript of a

hearing or hearings resulting in the order from which an appeal has been

taken.” Iowa R. App. P. 6.204(1)(a)–(b).

D.D.’s father filed his request with the clerk of the district court to

transmit the record as he was required to do and included a direction to

the court reporter to prepare transcripts of all hearings. The court reporter

complied with the request to prepare transcripts of all the hearings in the

case except the February 11 hearing. The court reporter indicated that

she didn’t attend it and, instead, that the juvenile court made an audio recording of the hearing. The juvenile court’s February 11 order also states

the hearing was recorded.

The audio recording of the hearing was made part of the court file

transferred to the supreme court for this appeal. The recording discloses

that the hearing lasted about ten minutes and consisted only of arguments

by counsel. No party presented any witnesses or testimony and,

consistent with this, the juvenile court’s February 11 order doesn’t refer

to any testimony relied on from the hearing. The order refers instead to

three exhibits offered into evidence without objection by counsel, each of 12

which was included in the court file for this appeal. While the State

correctly recites that an appellate court may not speculate as to what took

place in the district court or predicate error on such speculation, In re

F.W.S., 698 N.W.2d 134, 135 (Iowa 2005), the complete record before us

fully extinguishes any need for speculation. Having before us all that the

district court had before it when it entered the dismissal order, we proceed

to the merits.

III. Challenge to the Juvenile Court’s Dismissal.

We review child-in-need-of-assistance proceedings de novo. In re

D.D., 653 N.W.2d 359, 361 (Iowa 2002). We review the facts and the law

and “adjudicate rights anew.” In re K.N., 625 N.W.2d 731, 733 (Iowa 2001)

(en banc) (quoting In re H.G., 601 N.W.2d 84, 85 (Iowa 1999)). We give

weight to the juvenile court’s factual findings, but aren’t bound by them.

Id. The paramount consideration in child-in-need-of-assistance

proceedings is protecting the best interests of the children. In re H.G., 601

N.W.2d at 85.

The court may terminate a child-in-need-of-assistance dispositional

order if it determines either of the following circumstances exist:

a. The purposes of the order have been accomplished and the child is no longer in need of supervision, care, or treatment.

....

d. The purposes of the order have been sufficiently accomplished and the continuation of supervision, care, or treatment is unjustified or unwarranted.

Iowa Code § 232.103(4)(a), (b); see also In re K.N., 625 N.W.2d at 733–34. The purposes of the child-in-need-of-assistance order in this case

centered on protecting the children from further sexual abuse and severe

trauma being suffered by D.D. in the mother’s home resulting from “the 13

mother’s lack of any protective capabilities toward her children to prevent

abuse in the home and to protect her children, and imminent risk of

further harm, abuse, and death of the children if remaining in the mother’s

custody.” The purpose of the order was to protect the children from further

continued sexual assault by the stepfather in the home.

The State acknowledges that D.D. has, once again, been forced to

live with “a man who sexually abused her in the past.” The State reminds

us that we don’t live in an “ideal world,” and that it isn’t the DHS’s or the

juvenile court’s job to create a “utopia” for families. And indeed that’s true.

Yet we find, on the record in this case, that very little at the core of the

problem identified in the original order was fixed or changed in the

intervening period. And in so finding, we conclude that the statute’s

purposes have not been met justifying a dismissal of the proceedings.

DHS’s final report recommending dismissal of the proceedings

states, “This family has had a year of services including family and

individual counseling. . . . The family has put the work in to reunify.” But

terminating a child-in-need-of-assistance proceeding isn’t an exercise in

box-checking. Progress in therapy and similar efforts to “put the work in”

are unquestionably important. But the statute doesn’t ask whether all the boxes have been checked or the work put in; it asks whether the child

remains in need of supervision, care, or treatment. And that answer

remains, unequivocally, yes.

The evidence shows D.D. felt pressure—and took unfair blame—

from her siblings about the fact the family had separated when the sexual

abuse came to light. Her mother posted “free [stepfather]” on her Facebook

status when the stepfather was facing criminal charges for sexually

abusing D.D., and at least one of D.D.’s siblings could see this status. Her

mother also told the children that she did not believe them. D.D. told the 14

school social worker that her siblings blamed her for their removal and

that “they tell me it’s my fault that we can’t be with our mom.” Her older

brother would not respond to her at school, and her oldest sister lashed

out on her. D.D. was also being called a liar at school. Even in the final

DHS report before the dismissal in February, the DHS worker reported

D.D. was still describing feelings that her siblings were mean to her.

It’s unsurprising that child victims of abuse seek to return to living

with their siblings and parents, and all the familiarity of the home life they

previously knew, after a court orders their removal from the home. But

the expressed desire of D.D. and her other siblings to return home with

their mother and stepfather under these circumstances has little bearing

on the determination of whether the purposes of the child-in-need-of-

assistance order have been accomplished.

That need still exists, and in great measure. Two months before the

juvenile court dismissed the child-in-need-of-assistance proceeding—and

three weeks after her sexual abuser had moved back into her home—D.D.

expressed suicidal ideations at school. When the social worker pressed

the mother and stepfather about the issue, the couple appeared

unconcerned with D.D.’s potentially life-threatening situation. (Her mother claimed D.D. was just upset because she could not attend the

school bookfair.) D.D.’s apparent backslide continued into 2020. In

January, D.D.’s teacher contacted DHS about her recent poor behavior.

Again, when the social worker asked the mother and stepfather about the

situation, they once again were dismissive. The stepfather in particular

was so dismissive of the school’s concerns about D.D.’s mental and

physical health that he suggested removing D.D. from the school.

We find little comfort in the claim that therapy has achieved

sufficient measures of protection and prevention when the primary agents 15

of that protection and prevention—the mother and the stepfather—refuse

to believe that any abuse ever occurred. See In re C.H., 652 N.W.2d 144,

150 (Iowa 2002) (noting that sexual offender treatment where the offender

refuses to take responsibility for the abuse may constitute ineffective

therapy); In re H.R.K., 433 N.W.2d 46, 50 (Iowa Ct. App. 1988) (noting “the

requirement that the parents acknowledge and recognize the abuse before

any meaningful change can occur is essential in meeting the child’s

needs”). It bears repeating that D.D.’s account of the sexual abuse is so

detailed that it is hard to imagine she could describe these events as a

seven year old with such detail unless she actually experienced them, and

it is even more difficult to imagine her story stems from a YouTube video

of monkeys as D.D.’s mother claimed.

It’s folly to think the mother will stand sentinel to protect against a

foe she doesn’t acknowledge exists. This situation is especially troubling

because this isn’t the mother’s first time dismissing the dangers of having

her children around sexual offenders. She has a founded child abuse

assessment from 2014 for allowing D.D.’s sister to be left alone in the care

of the mother’s brother, a registered sex offender. When the psychologist

asked the mother about this during her psychological assessment, she minimized the situation by claiming she didn’t think she violated any rules

leaving her daughter with her brother. The mother expressed certainty

her brother would never do anything inappropriate with her children, even

though she was unsure of the details as to why her brother was on the sex

offender registry. She told the psychologist that her brother’s sexual

offense had something to do with a time he was babysitting, but she did

not know what he did.

We have no basis to assume that the mother would react any

differently to a new report of sexual abuse by D.D. than she did with D.D.’s 16

prior reports. And a little girl certainly should not be called to serve as her

own guardian against an adult sexual abuser lurking under her own roof.

The family counselor’s final report submitted to the juvenile court before

it dismissed the proceeding said precisely this, observing that based on

D.D.’s age and size she wouldn’t be able to protect herself from abuse by

her stepfather.

On the subject of D.D.’s capacity for self-protection, we dare to

ponder the lessons D.D. must have learned from all of this so far. In light

of how these events unfolded from her perspective, why would we expect

her to report any new abuse? Her prior reports brought disbelief from her

own mother and anger and resentment from her siblings, only for her to

wind up back in the same home with her sexual abuser. She’s seen both

the significant effect her reports have had on her family and the miniscule

effect they’ve had in distancing her from her sexual abuser. One could

hardly blame D.D. for coming to the same conclusion that her nine-year-

old sister H.H. came to first: No one can be trusted.

As to the safety measure prohibiting the stepfather from being alone

with the girls, without the child-in-need-of-assistance proceeding to

monitor compliance, there’s no ready way of holding the parents accountable on this requirement. We have to assume the mother’s

impetus to enforce such a rule would be nonexistent. After all, if he didn’t

sexually abuse her daughters—as she insists he didn’t—what’s to be

concerned about? Now add to her indifference the mother’s proven

willingness to lie—as the juvenile court found—about these matters, both

by claiming to DHS she didn’t know about the sexual abuse allegation after

it happened when she really did, and by coaching the children to lie or not

to talk about what happened in their interviews. 17

And the suggestion that alarms on the children’s bedroom doors will

protect them—or provide any meaningful benefit—is particularly wanting.

D.D.’s recitation of the abuse indicates the sexual abuse happened after

the stepfather summoned her and H.H. to his own bedroom to watch

movies and proceeded from there. And it must be asked: What’s the effect

on a little girl when she must arm an alarm on her bedroom door to protect

her from the real possibility that her stepfather will creep down the hall

and invade her room to rape her as she sleeps? Reports of D.D.’s

continued sleeping problems at home and at school after the stepfather’s

reintroduction into the home come as no surprise.

While we agree that creating a family utopia certainly can’t be DHS’s

pursuit, nor can permitting child sexual abusers to live with their victims

when the sexual abuser has never admitted to the act and thus cannot

have been “treated” to fix it, and when the victim’s only hope of protection

is a mother who has steadfastly denied the fact of her husband’s sexual

abuse of her children and thus can be counted on for no measure of

protection. The purposes of the order have not been accomplished but,

more accurately, abandoned.

The State correctly notes that child-in-need-of-assistance proceedings are intended to provide children necessary, but temporary,

protection. See, e.g., Iowa Code §§ 232.101(2) (supervision without

removal limited to three years), .104 (requiring permanency after one year

when children have been removed). The juvenile court’s permanency goal

was reunification with the mother. That goal could have been—and was—

accomplished without reintroducing the stepfather back into the home.

But in light of the order permitting the stepfather to move back into the

home, the purposes of the child-in-need-of-assistance order have not been

accomplished, and continuation of D.D.’s “supervision, care, or treatment” 18

through continued proceedings is justified and warranted. Id.

§ 232.103(4)(a), (d).

IV. Conclusion.

Under the statutory standard applicable to this case, dismissal was

improper. See In re R.G., 450 N.W.2d 823, 825 (Iowa 1990). We thus

reverse the juvenile court’s dismissal of the proceeding and remand for

further proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; JUVENILE

COURT JUDGMENT REVERSED AND REMANDED.

Christensen, C.J., and Appel, Waterman, and Oxley, JJ., join this

opinion. Christensen, C.J., files a special concurrence. Mansfield, J., files

a dissenting opinion in which McDonald, J., joins. 19

#20–0330, In re D.D.

CHRISTENSEN, Chief Justice (concurring specially).

I agree with the majority and write separately to highlight the

problems with the actions of DHS and the juvenile court in this case. I see

no need to recite the facts given the majority’s thorough overview of them.

This is the bottom line: Mom is free to choose to live with the man who

sexually abused her child, but the child should not be forced to live with

her sexual abuser. In its dismissal order, the juvenile court found “no

further safety concerns for any of the children in the mother’s custody and

that dismissal of this matter is appropriate and in the children’s best

interest.” The juvenile court issued this ruling despite the absence of any

evidence in the record showing Mom ever acknowledged D.D.’s sexual

abuse and Mom’s decision to choose D.D.’s abuser over D.D. It allowed

Stepdad—who was named as the perpetrator of sexual abuse against

D.D.—to return to the home in November even though it appears he never

addressed the accusations of sexual abuse with his therapist.

While the State may not specifically require an admission of guilt as

part of treatment because it impinges a person’s right against self-

incrimination, “a person’s exercise of a constitutional right may indeed have consequences” in the parental rights realm. In re C.H., 652 N.W.2d

144, 150 (Iowa 2002). “A parent’s failure to address his or her role in the

abuse may hurt the parents’ chances of regaining custody and care of their

children.” Id. Here, there is no evidence that Mom or Stepdad adequately

(or even minimally) acknowledged, yet alone addressed, their role in D.D.’s

abuse. Nobody is asking Mom to incriminate herself because she has

never faced criminal accusations in this case, but she continues to deny

any abuse occurred in the face of credible evidence to the contrary out of

an apparent desire to protect Stepdad at D.D.’s expense. Our caselaw has 20

long acknowledged “the requirement that the parents acknowledge and

recognize the abuse before any meaningful change can occur is essential

in meeting the child’s needs.” In re H.R.K., 433 N.W.2d 46, 50 (Iowa Ct.

App. 1988).

A letter dated September 12, 2018 from D.D.’s therapist to the DHS

social worker reports the social worker told the therapist over the phone

that the criminal “charges were dropped after [D.D.] ‘refused to say

anything’ at a deposition conducted with her step-father present.” The

further review application similarly notes, “the District court case in this

matter relies heavily on the fact that the perpetrator was not found guilty

in a criminal matter however this was after the victim was afraid to testify

in depositions for the criminal matter.” Regardless of why the criminal

charges were dropped, the sexual abuse report against Stepdad remains

founded and the juvenile court made similar findings that the sexual

abuse occurred.

It is not surprising D.D. refused to say anything given the pressure

on her to recant from Mom and the blame she faced from her siblings for

their removal. Furthermore, sexual abuse allegations are not contingent

upon companion criminal charges. We do not apply the criminal standard of proof beyond a reasonable doubt in CINA cases. Rather, the CINA

adjudication of D.D. under Iowa Code section 232.2(6)(d) only required a

showing that D.D. “has been, or is imminently likely to be, sexually abused

by the child’s parent, guardian, custodian, or other member of the

household in which the child resides.” Iowa Code § 232.2(6)(d) (2018).

There is already a founded report of sexual abuse against Stepdad for

abusing D.D., regardless of the absence of a criminal conviction in this

case, and that report supports D.D.’s CINA adjudication under section

232.2(6)(d). 21

Nevertheless, the juvenile court somehow went from insisting Mom’s

“continuing to reside with her husband who has been previously found to

have sexually abused [D.D.]” was a barrier to D.D.’s return to Mom in May

2019, to allowing D.D. to return to Mom in July, and then to allowing D.D.

to live with Mom and Stepdad—D.D.’s sexual abuser—in November. The

juvenile court then dismissed the CINA dispositional order altogether in

February 2020, precluding any real oversight to ensure D.D.’s safety in

the home. DHS similarly made a 180-degree shift from its earlier position

of insisting Mom’s denial and continued relationship with Stepdad were

barriers to returning D.D. to Mom’s care.

Again, these decisions were in the face of D.D.’s suicidal comments

and ongoing behavioral issues, a January 2020 Family, Safety, Risk, and

Permanency (FSRP) report that declared D.D. “would be unable to self

protect” due to her age and size, Mom’s and Stepdad’s continued denial of

the abuse, Mom’s decision to continue living with Stepdad, pressure from

Mom on D.D. to recant the allegations, and sibling blame on D.D. for their

removal from Mom. I am hard-pressed to see how “[t]he purposes of the

order have been accomplished and the child is no longer in need of

supervision, care, or treatment,” or “[t]he purposes of the order have been sufficiently accomplished and the continuation of supervision, care, or

treatment is unjustified or unwarranted” such that the juvenile court

could terminate the CINA dispositional order under these circumstances.

Iowa Code § 232.103(4)(a), (d).

Reunification is a goal, not a mandate. The permanency goal in this

case was to reunify D.D. with Mom—a goal that could have been

accomplished without forcing D.D. to live with her sexual abuser. If Mom

refuses to keep D.D. safe by forcing D.D. to live in the same home as D.D.’s

abuser, then Mom—not the system—has drawn a harsh line in the sand 22

that precludes reunification. It is incumbent upon the juvenile court to

determine an alternative course of action to keep D.D. safe instead of

simply crossing its fingers and hoping Stepdad will not reoffend.

The State itself acknowledges on appeal “that in an ideal world D.D.

would not be living with her step-father, a man who sexually abused her

in the past.” Nonetheless, it maintains the juvenile court acted

appropriately in this case because the juvenile court “cannot impose moral

judgments upon parents.” It also claims, “[a] parent/child relationship

cannot and should not be severed by the State simply because a court

believes it would be in a child’s best interests to have different parents.”

D.D.’s attorney1 similarly stresses that Stepdad was never criminally

convicted, and it is not in D.D.’s best interest to terminate Mom’s parental

rights based on Mom’s denial of the abuse given that no criminal

conviction occurred.

Frankly, ensuring the safety of the child when Mom refuses to

acknowledge the child’s sexual abuse and continues to reside with the

child’s abuser—even if that requires severing the parent–child

relationship—is not simply passing moral judgment or acting out of a

desire that the child has different parents. It is the job of the juvenile court to look out for the best interests of the child and to take the right action to

keep the child safe regardless of what Mom wants, DHS recommends, or

what the child’s attorney recommends based on what the child wants.

Chapter 232 is clear about that from the beginning in its rules of

construction. Iowa Code § 232.1 (“This chapter shall be liberally construed

to the end that each child under the jurisdiction of the court shall receive,

1As a point of clarification, the child’s attorney is not the child’s guardian ad litem and is in the position of having to advocate for D.D.’s desires. D.D. has been pressured by her family throughout this case, and it is not surprising that she has expressed her desire to be home with Mom and her siblings. 23

preferably in the child’s own home, the care, guidance and control that

will best serve the child’s welfare and the best interest of the state. When

a child is removed from the control of the child’s parents, the court shall

secure for the child care as nearly as possible equivalent to that which

should have been given by the parents.”). Ultimately, there is a difference

between reasoned deference to the opinions of professionals involved in

the case and blind acceptance on substantive matters. As the majority

has already explained, the record (or lack thereof concerning Mom’s

acknowledgment of the abuse) does not support the recommendations for

reunification.

On appeal, the State and D.D.’s attorney emphasize the timelines

governing CINA cases in support of dismissing the CINA dispositional

order in this case, arguing CINA cases cannot and should not be kept open

indefinitely. Iowa Code section 232.101(2) provides,

The duration of any period of supervision or other terms or conditions shall be for an initial period of no more than twelve months and the court, at the expiration of that period, upon a hearing and for good cause shown, may make not more than two successive extensions of such supervision or other terms or conditions of up to twelve months each.

The district court entered its dispositional order in July 2018 and had not exhausted the permitted statutory extensions when it dismissed

the CINA proceedings in February 2020. Notably, nearly the entire first

year of the family’s involvement with DHS in this case was a waste of

valuable time to make progress, as the juvenile found in March 2019 that

DHS failed to make reasonable efforts to return D.D. and her siblings to

the home. The juvenile court explained the family was not receiving

adequate therapy and counseling and declared, “We are at a stalemate and

have essentially lost months of potential progress.” There was really a little 24

less than a year of reasonable efforts and services provided to this family

before the juvenile court dismissed the CINA dispositional order.

In any event, these timelines are not meant to operate like an

hourglass such that once the sand runs out, the juvenile court dismisses

the case. It is not in the child’s best interest to dismiss a CINA

adjudication simply because time has expired when the purposes of the

dispositional order have not been successful and the child remains in

need. When the sand runs out and the child still is not safe, it is the

juvenile court’s responsibility to develop another plan for permanency. In

this case, the juvenile court failed to plan for the possibility that

reunification would not work.

Instead, the juvenile court continued to issue orders articulating

that Mom’s decision to reside with D.D.’s sexual abuser and her inability

or unwillingness to acknowledge the abuse were barriers to D.D.’s return

to the home. When Mom continued to behave this way despite these

orders, the juvenile court seemed to throw its hands up in the air because,

as D.D.’s attorney emphasized during oral argument, Mom and Stepdad

had “checked the boxes” by participating in services—even if their

participation simply involved going through the motions. Perhaps unsurprisingly to many, it is not uncommon to terminate

the parental rights of parents who continue to deny their child’s sexual

abuse and continue to reside with the child’s abuser. To be clear, I am

not saying the juvenile court should have terminated Mom’s parental

rights. Mom’s only apparent parenting issue is her failure to acknowledge

or address D.D.’s sexual abuse, but that is a big issue given that it has

provided sufficient grounds for termination in many other cases. Hence, I

cite some of the many cases where parental rights have been terminated

in similar circumstances to emphasize the seriousness of this situation: 25

See, e.g., In re K.L.C., 372 N.W.2d 223, 228 (Iowa 1985) (“Although [Mom]

continues to deny knowledge of sexual abuse and refuses to acknowledge

that it occurred, both her inconsistent explanations regarding how her

son’s penis was bruised and the children’s knowledge of the intimate

details of [Mom’s] sexual activities contravene her assertions.”); In re C.N.,

No. 19–1861, 2020 WL 567283, at *1 (Iowa Ct. App. Feb. 5, 2020) (“[T]he

children cannot return to the mother’s home because the paramour [who

sexually abused one of the children] continues to reside there”); In re N.R.,

No. 19–0901, 2019 WL 4297913, at *2 (Iowa Ct. App. Sept. 11, 2019) (“The

mother’s actions—. . . supporting the father when his sexual behaviors

presented an obstacle to reunification with the child—show her paramour

is more important to her than the child.”); In re T.P., No. 19–0162, 2019

WL 3317346, at *4 (Iowa Ct. App. July 24, 2019) (“It is undisputed the

sister suffered sexual abuse in the family home while in the mother’s care.

While the mother has denied knowledge of the abuse, we defer to the

juvenile court’s credibility finding that the mother’s denial was ‘completely

unbelievable.’ We conclude T.P. would be at risk of sexual abuse if he were

to return to his mother’s care.”); In re B.S., No. 19–0332, 2019 WL

2145852, at *2 (Iowa Ct. App. May 15, 2019) (Mom’s “failure to recognize the effect of sexual trauma on the children and her inability or

unwillingness to exercise her parental responsibilities to protect the

children from further harm” support the conclusion that the children

could not be returned to her care.); In re S.B., No. 18–2204, 2019 WL

1294107, at *2 (Iowa Ct. App. Mar. 20, 2019) (affirming termination of the

mother’s parental rights under Iowa Code section 232.116(1)(h) “[i]n light

of the father’s risk of [sexual] reoffen[se] and the mother’s ongoing contact

with him.”); In re C.A., No.13–1987, 2014 WL 1234470, at *2 (Iowa Ct. App.

Mar. 26, 2014) (canvassing Iowa cases that have held children could not 26

be returned to parents that continue to deny their child’s sexual abuse

and continue to reside with the child’s abuser).

If our appellate courts affirm the termination of parental rights to

parents for their failure to acknowledge their child’s sexual abuse and

continuing to reside with the child’s abuser, then it is difficult to fathom

why we would affirm the dismissal of a CINA petition that only seeks to

provide a family in similar circumstances with supervision, care, and

treatment. Doing so would call into question the validity of many appellate

opinions—some published and more unpublished—in which our courts

have stressed the need for a parent to at the very least acknowledge the

child’s abuse before the child can be safely returned to the parent’s care.

To reiterate: Mom is free to choose to live with the man who sexually

abused her child, but the child should not be forced to live with her sexual

abuser.

This case involved forcible penal intercourse. During her forensic

interview, D.D. described her sexual abuse by stating, “[I]t makes my body

feel like it’s getting stabbed in the heart.” I cannot imagine another

scenario in which a court would ever expect victims of such serious sexual

abuse to share living quarters with their sexual abuser, but that is what the service providers, the juvenile court, and the child’s own attorney

expected here. It is unacceptable. 27

MANSFIELD, Justice (dissenting).

I respectfully dissent. I would affirm the decision of the court of

appeals and the order of the juvenile court.

Bad facts make bad law. Or maybe bad facts make no law at all.

Reading the majority opinion, it is difficult to know what the legal takeaway

is. The driving principle behind the majority opinion appears to be that

this court needs to do something more for D.D.

It is not as if DHS and the juvenile court didn’t try. The majority’s

references to “box-checking” are unfair to both of them. A single DHS

social worker and a single juvenile judge consistently handled this case

over the course of nearly two years from beginning to end. From what I

can tell, they did a very conscientious job. The majority second-guesses

both of them, as well as the counselors and therapists who worked with

this family, and decides it can do better. But what the majority substitutes

is not a viable solution and goes beyond the proper role of an appellate

court.

I. Recap of the Facts: A Very Challenging Situation.

In the spring of 2018, DHS founded a report that D.D.’s stepfather had sexually abused her and one of her siblings. D.D. and her four

siblings were adjudicated children in need of assistance and immediately

removed from the family home. For the next year, the children generally

lived with relatives under the supervision of DHS.

D.D.’s mother and stepfather denied that the sexual abuse had

occurred. Criminal charges were filed against the stepfather but dropped

in June. The video interview of D.D. is very disturbing and credible in its

details. DHS believed and continues to believe that the abuse occurred,

but the allegations have never been adversarially tested in court. The 28

other sibling, whom D.D. identified as also being a victim of sexual abuse,

did not disclose any sexual abuse, although she reported that the mother

and stepfather would be mean to her and at times engage in physical

abuse.

Upon her removal from the home, D.D. underwent biweekly therapy

for approximately six months. In November 2018, the therapist prepared

a report. The report indicated D.D. “feels safe and has no negative

thoughts or feelings about seeing [the stepfather].” The therapist said that

she was unable to determine if sexual abuse had occurred based on her

sessions with D.D. To her, it was “inconclusive if [D.D.] is a victim of

sexual abuse.” She recommended that D.D. be referred to a specialist in

treating child trauma and abuse. Sessions with that therapist began in

February 2019.

After three months of biweekly sessions with D.D., that therapist

provided a May 2019 report. The report stated,

[D.D.] identified she is living with her grandfather due to what she calls the ‘secret situation’ which occurred between herself and [the stepfather]. [D.D.] verbalizes she doesn’t want to have any touching with [the stepfather] other than hugs and kisses, but she does want to see him again. She does consistently share she misses her mother, enjoys their visits and wants to be back in her home.

The report concluded,

If the children are recommended to return home, I believe it would be in their best interest to do so without [the stepfather] in the home at first. This will give time to ensure the children are stabilized with their mother and progress is established in counseling for all family members. Then it could be considered to transition [the stepfather] back into the family through supervised visits, to ensure the children are safe and comfortable. It seems appropriate to utilize the services of DHS and FSRP to monitor these interactions. There is a concern for [the mother’s] ability to protect the children as [D.D.] reports her mother knew of the ‘secret situation’ and she wishes her mother would have done something about it. Family counseling sessions between the 29 children and their mother should address this in hopes of increasing her protective capacity in the future.

Nonetheless, in a hearing later that month, the juvenile court continued

to order that the children remain in relative care and that further services

be provided.

The juvenile court held regular hearings throughout 2018 and 2019,

as well as additional hearings when the situation demanded. The mother

received a detailed psychological evaluation from a psychologist based on

a series of screening tests and in-person appointments. The stepfather

went through months of counseling, paying for the appointments out of his pocket because insurance did not cover them. He continued to deny

that the abuse had occurred but agreed to establish and honor boundaries

in the home and participate in family counseling.

All the children consistently indicated they wanted to be back home

with their mother. Finally, in July 2019, with DHS’s support, the juvenile

court modified the dispositional order and ordered that the children could

be returned to the home—subject to the stepfather removing himself from

the home. The court noted that D.D.’s therapist was in agreement with

this recommendation. Six weeks later, in late August, DHS updated the court with a

detailed report. The DHS social worker reported that D.D. was doing well

with her counselor, i.e., the same therapist D.D. had been seeing since

February who specialized in child trauma and abuse. Based on those

sessions, “[D.D.] didn’t seem worried or triggered to see [the stepfather]

and [was] confident they could move forward and be a family again. She

still says she wants [the stepfather] to live back at home with them.”

Family therapy had commenced and had been going well. At this point, 30

the juvenile court granted a DHS motion to allow the stepfather visitation

at DHS discretion.

In November, the family therapist reported she “has no safety

concerns for the family.” D.D.’s therapist said that she “had not gotten

anything but positive feedback” from D.D. On DHS’s recommendation,

the juvenile court ordered that the stepfather could return to the family

home.

Lastly, in February 2020, on DHS’s recommendation, the juvenile

court dismissed the CINA proceeding. The DHS social worker—again, the

same caseworker who had lived the case from the beginning—noted,

[The stepfather] has been back in the home since 11/21/19. All of the children report that they are happ[y] [in] the home and feel safe. [D.D.] will tell [“]stories” at times at school that when investigated are not credible. She shared that she had [“]slept with dad” and in reality she had laid a blanket on him while he was sleeping on the floor of the living room. When this worker talks to [D.D.] about these stories she usually will tell this worker the truth and state she does not know why she says the things she does.

The DHS social worker went on to note that D.D. has been “struggling” in

school and was working with her therapist on “the difficulties she had at

school shutting down.” The therapist had made clear to the mother that D.D. would need to continue therapy even if DHS was no longer involved.

II. The Majority’s Second-Guessing Is Not the Right Approach.

No one can doubt that this is a difficult situation with no good

answers. A child maintains she was sexually abused, the allegations

appear credible, the county attorney apparently did not have enough to

prosecute, and the child’s mother and the stepfather-alleged-abuser deny

that anything occurred. In that event, I would defer to those with expertise

and first-hand knowledge, i.e., D.D.’s therapist, the DHS social worker,

and the juvenile court judge. All reached the same conclusion about what 31

would be the “least bad” alternative: namely, to let the family reunify after

nearly two years of separation and services.

Although we conduct a de novo review, “we give weight to the

juvenile court’s factual findings.” In re K.N., 625 N.W.2d 731, 733 (Iowa

2001) (en banc). Even on de novo review, we afford deference “for

institutional and pragmatic reasons.” Struve v. Struve, 930 N.W.2d 368,

371 (Iowa 2019) (quoting Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct.

App. 2017)).

The majority offers a very different approach, one that requires a

good degree of self-confidence. The majority believes it can psychoanalyze

D.D. better than her own therapist. I disagree. The majority believes that

DHS and the service providers haven’t been trying hard enough. I

disagree. The majority believes that the permanency goal should be

reunification of the family without the stepfather. Like DHS and the

juvenile court, I don’t believe that is feasible. Two years have passed, the

mother and the stepfather are still together, and they continue to deny

that the sexual abuse occurred. Those things aren’t going to change.

Even with today’s reversal, the CINA proceedings are legally over for

everyone except D.D. The gist of the majority ruling is that it was a gross error to let the stepfather back into the family home, and he should be

removed again. But that seems unachievable, because the courts only

have jurisdiction over D.D., not the other four siblings. Also, nobody

appealed the modified dispositional order in which the juvenile court

allowed the stepfather to return to the home.2

2As the juvenile court later explained at the time of entering its dismissal order, When the court entered its order back in November [2019] it was with the understanding that that was the time in which the court had to make the determination as to whether or not [the stepfather] could be returned back to the home in order to allow for this family essentially to be reunified. 32

Maybe the majority has a notion that DHS will keep monitoring the

home, but to what end?3 Monitoring can’t last forever, see Iowa Code

section 232.101(2), and occasional drop-ins by service providers aren’t

going to protect D.D. much more than the alarms the majority dismisses,

if the mother and stepfather are as dangerous as the majority thinks they

are. In reality, the logical endpoint of the majority’s approach would be

the removal of D.D. from the home, her separation from her siblings, and

her placement in a new adoptive home.

I understand the majority’s frustration with what has happened. Yet

the DHS social worker and the juvenile court are not naïve. They

undoubtedly went through the same thought process and endured the

same frustration with the mix of imperfect choices before them. But the

law—Iowa Code section 232.103(4)—poses a quintessentially practical

question: What further purpose will be served by continued supervision,

care, or treatment?4 On that score, I have difficulty saying that I know

better.

Making the majority’s decision even more troubling is the alignment

of the parties in this case. Here, we can reasonably expect three parties

to be advocating for D.D.’s interests: (1) the guardian ad litem (GAL), (2) D.D.’s attorney, and (3) DHS. To that I would probably add the

dedicated and experienced juvenile court judge who conducted

3That was the sum total of the father’s request when he alone voiced opposition

to closing the CINA proceeding, “I ask that this case stay open just so that we have continued oversight.” 4Section 232.103(4) authorizes the juvenile court to “modify a dispositional order, vacate and substitute a dispositional order, or terminate a dispositional order and release the child if” the child no longer needs supervision because “[t]he purposes of the order have been accomplished,” “[t]he purposes of the order cannot reasonably be accomplished,” the efforts have been unsuccessful in fulfilling the order’s purposes and other options are unavailable, or further supervision is unwarranted because “[t]he purposes of the order have been sufficiently accomplished.” Iowa Code § 232.103(4). 33

approximately a dozen hearings in this case. All of them support the

decision below as the best for D.D. under the circumstances.

Only one party objected below and is appealing now: D.D.’s

incarcerated father. The father has never met D.D. He is serving a lengthy

prison sentence for attempted murder. Because of a mandatory minimum,

he cannot be released until 2032 at the earliest. By that time, D.D. will be

twenty-one years old.

Our court has been diligent in recent years in protecting the rights

of incarcerated parents. See, e.g., In re M.D., 921 N.W.2d 229, 236 (Iowa

2018) (recognizing a parent’s right to participate in entire termination

hearing by telephone). The juvenile court respectfully considered the

arguments advanced by the father’s attorney at every step in the

proceedings. But it is important to recognize that the father cannot offer

any assistance in raising D.D. Critically, unlike the GAL, D.D.’s therapist,

and the DHS social worker, he doesn’t know D.D. Thus, we are essentially

using the father’s largely academic standing to express our own views of

what DHS and the juvenile court should have done at earlier stages of the

case. This deviates considerably from the appropriate, limited role of an

appellate court. For this reason as well, I dissent.5 The central dilemma in this case is that everyone with firsthand

knowledge and firsthand involvement favors family reunification as the

least bad alternative. As appellate judges, we can pull selected items from

the providers’ reports, but we have to acknowledge that the authors of

these reports and the individuals appointed to protect the children’s

5Another issue is that of timing. Approximately one year has passed since this

CINA case was closed and DHS was disengaged from this family. Because delays inherent in the appellate process can pose special problems for CINA and termination-of-parental- rights (TPR) cases, we require them to be routed immediately to the court of appeals on an expedited track. The benefits of that system are, of course, lost when such a case goes through an extra layer of appellate review. 34

interests unanimously support reunification. The legislature could have

said that Iowa law categorically prohibits family reunification when there

has been a founded sexual abuse report, regardless of what service

providers, DHS, and the GAL may think. It didn’t, and therefore, I believe

we should affirm.

McDonald, J., joins this dissent.