IN THE COURT OF APPEALS OF IOWA
No. 16-1811 Filed February 8, 2017
IN THE INTEREST OF H.S.-T., Minor child,
B.T., Father, Appellant. _______________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan C. Cox, District
Associate Judge.
A father appeals the juvenile court’s termination of his parental rights.
AFFIRMED.
Joseph P. Vogel of Vogel Law, P.L.L.C., Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd (until
withdrawal) and Mary A. Triick, Assistant Attorneys General, for appellee State.
Magdalena B. Reese of Cooper, Goedicke, Reimer & Reese Law, West
Des Moines, guardian ad litem for minor child.
Considered by Mullins, P.J., and Bower and McDonald, JJ. 2
MCDONALD, Judge.
Brian, the father, appeals from an order terminating his parental rights in
his child, H.S.-T. The juvenile court terminated the father’s rights pursuant to
Iowa Code section 232.116(1)(d), (f), and (g) (2016). Brian contends on appeal
the State failed to prove the grounds for termination by clear and convincing
evidence and that termination of his parental rights was not in the child’s best
interests.
The standard of review and controlling framework are well-established and
need not be repeated herein. See, e.g., In re M.W., 876 N.W.2d 212, 219–20
(Iowa 2016) (stating review is de novo and setting forth the applicable “three-step
analysis”); In re D.W., 791 N.W.2d 703, 706–07 (Iowa 2010) (same). The State
must prove its case by clear and convincing evidence. See Iowa Code
§ 232.116(1)-(2); In re A.B., 815 N.W.2d 764, 774 (Iowa 2012); In re K.F., 437
N.W.2d 559, 560 (Iowa 1989). “When the juvenile court terminates parental
rights on more than one statutory ground, we may affirm the juvenile court’s
order on any ground we find supported by the record.” In re A.B., 815 N.W.2d at
774.
H.S.-T. was born in 2007. In 2011, H.S.-T. and her older sibling S.G. were
removed from Brian and H.S.-T.’s mother’s care after the Iowa Department of
Human Services (IDHS) founded reports of physical abuse and neglect by Brian
and H.S.-T.’s mother against S.G. Brian’s parental rights in S.G. were
terminated in 2012. Shortly after Brian’s rights in S.G. were terminated, IDHS
determined Brian had sexually abused S.G. Brian did not appeal this
determination. H.S.-T. was returned to her mother’s care, but IDHS told the 3
mother Brian could only have supervised visitation of H.S.-T. and the mother
could not be the supervisor of these visits. Brian and the mother have since
divorced. In 2014, IDHS investigated allegations the mother physically abused
H.S.-T and learned that Brian was living with the mother in violation of the court
order prohibiting Brian from having unsupervised contact with the child. H.S.-T.
was subsequently adjudicated a child in need of assistance and removed from
the mother’s care. The State eventually sought to terminate both parents’ rights.
The mother consented to the termination of her parental rights. Brian contested
the State’s action.
The juvenile court terminated Brian’s rights based on Iowa Code section
232.116(1)(d), (f), and (g). Iowa Code section 232.116 provides the court may
terminate parental rights on any of the grounds listed therein. Section 232.116
(1)(d) states parental rights may be terminated if:
The court finds that both of the following have occurred: (1) The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as a result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding. (2) Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.
Parental rights may be terminated under section 232.116(1)(f) when:
The court finds that all of the following have occurred: (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 4
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.
Finally, under section 232.116(1)(g), parental rights may be terminated by the
court if:
The court finds all of the following have occurred: (1) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (2) The court has terminated parental rights pursuant to section 232.117 with respect to another child who is a member of the same family or a court of competent jurisdiction in another state has entered an order involuntarily terminating parental rights with respect to another child who is a member of the same family. (3) There is clear and convincing evidence that the parent continues to lack the ability or willingness to respond to services which would correct the situation. (4) There is clear and convincing evidence that an additional period of rehabilitation would not correct the situation.
Brian argues the State failed to prove the statutory grounds for termination
and that termination is not in the best interests of H.S.-T. See Iowa Code
§ 232.116(2); M.W., 876 N.W.2d at 224 (“Once we have established that at least
one ground for termination under section 232.116(1) exists, the next step of our
analysis is to evaluate whether the termination of parental rights would be in the
best interest of the child under section 232.116(2).”). Brian contends he “was set
up to fail” by IDHS. Brian argues he has steady employment, housing, has had
appropriate and continued visitation with H.S.-T, and has been participating in
therapy as requested by IDHS. Brian contends he has “engag[ed] fully with all
the services offered and provided by [I]DHS and [has been] doing so for a period
in excess of two years,” but despite this engagement, IDHS was never going to
reunite him with his child. Brian contends because he has meaningfully engaged 5
in the services offered by IDHS and changed his life, the circumstances that led
to the adjudication no longer exist and there is no risk of adjudicatory harm to
H.S.-T. if the child were returned to his care. Cf. Iowa Code § 232.116(1)(d)(2),
(f)(4). Brian believes he can continue to nurture his relationship with H.S.-T. if
provided additional services by IDHS, including visitation and other treatment
services. Cf. Iowa Code § 232.116(1)(g)(3).
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IN THE COURT OF APPEALS OF IOWA
No. 16-1811 Filed February 8, 2017
IN THE INTEREST OF H.S.-T., Minor child,
B.T., Father, Appellant. _______________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan C. Cox, District
Associate Judge.
A father appeals the juvenile court’s termination of his parental rights.
AFFIRMED.
Joseph P. Vogel of Vogel Law, P.L.L.C., Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd (until
withdrawal) and Mary A. Triick, Assistant Attorneys General, for appellee State.
Magdalena B. Reese of Cooper, Goedicke, Reimer & Reese Law, West
Des Moines, guardian ad litem for minor child.
Considered by Mullins, P.J., and Bower and McDonald, JJ. 2
MCDONALD, Judge.
Brian, the father, appeals from an order terminating his parental rights in
his child, H.S.-T. The juvenile court terminated the father’s rights pursuant to
Iowa Code section 232.116(1)(d), (f), and (g) (2016). Brian contends on appeal
the State failed to prove the grounds for termination by clear and convincing
evidence and that termination of his parental rights was not in the child’s best
interests.
The standard of review and controlling framework are well-established and
need not be repeated herein. See, e.g., In re M.W., 876 N.W.2d 212, 219–20
(Iowa 2016) (stating review is de novo and setting forth the applicable “three-step
analysis”); In re D.W., 791 N.W.2d 703, 706–07 (Iowa 2010) (same). The State
must prove its case by clear and convincing evidence. See Iowa Code
§ 232.116(1)-(2); In re A.B., 815 N.W.2d 764, 774 (Iowa 2012); In re K.F., 437
N.W.2d 559, 560 (Iowa 1989). “When the juvenile court terminates parental
rights on more than one statutory ground, we may affirm the juvenile court’s
order on any ground we find supported by the record.” In re A.B., 815 N.W.2d at
774.
H.S.-T. was born in 2007. In 2011, H.S.-T. and her older sibling S.G. were
removed from Brian and H.S.-T.’s mother’s care after the Iowa Department of
Human Services (IDHS) founded reports of physical abuse and neglect by Brian
and H.S.-T.’s mother against S.G. Brian’s parental rights in S.G. were
terminated in 2012. Shortly after Brian’s rights in S.G. were terminated, IDHS
determined Brian had sexually abused S.G. Brian did not appeal this
determination. H.S.-T. was returned to her mother’s care, but IDHS told the 3
mother Brian could only have supervised visitation of H.S.-T. and the mother
could not be the supervisor of these visits. Brian and the mother have since
divorced. In 2014, IDHS investigated allegations the mother physically abused
H.S.-T and learned that Brian was living with the mother in violation of the court
order prohibiting Brian from having unsupervised contact with the child. H.S.-T.
was subsequently adjudicated a child in need of assistance and removed from
the mother’s care. The State eventually sought to terminate both parents’ rights.
The mother consented to the termination of her parental rights. Brian contested
the State’s action.
The juvenile court terminated Brian’s rights based on Iowa Code section
232.116(1)(d), (f), and (g). Iowa Code section 232.116 provides the court may
terminate parental rights on any of the grounds listed therein. Section 232.116
(1)(d) states parental rights may be terminated if:
The court finds that both of the following have occurred: (1) The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as a result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding. (2) Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.
Parental rights may be terminated under section 232.116(1)(f) when:
The court finds that all of the following have occurred: (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 4
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.
Finally, under section 232.116(1)(g), parental rights may be terminated by the
court if:
The court finds all of the following have occurred: (1) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (2) The court has terminated parental rights pursuant to section 232.117 with respect to another child who is a member of the same family or a court of competent jurisdiction in another state has entered an order involuntarily terminating parental rights with respect to another child who is a member of the same family. (3) There is clear and convincing evidence that the parent continues to lack the ability or willingness to respond to services which would correct the situation. (4) There is clear and convincing evidence that an additional period of rehabilitation would not correct the situation.
Brian argues the State failed to prove the statutory grounds for termination
and that termination is not in the best interests of H.S.-T. See Iowa Code
§ 232.116(2); M.W., 876 N.W.2d at 224 (“Once we have established that at least
one ground for termination under section 232.116(1) exists, the next step of our
analysis is to evaluate whether the termination of parental rights would be in the
best interest of the child under section 232.116(2).”). Brian contends he “was set
up to fail” by IDHS. Brian argues he has steady employment, housing, has had
appropriate and continued visitation with H.S.-T, and has been participating in
therapy as requested by IDHS. Brian contends he has “engag[ed] fully with all
the services offered and provided by [I]DHS and [has been] doing so for a period
in excess of two years,” but despite this engagement, IDHS was never going to
reunite him with his child. Brian contends because he has meaningfully engaged 5
in the services offered by IDHS and changed his life, the circumstances that led
to the adjudication no longer exist and there is no risk of adjudicatory harm to
H.S.-T. if the child were returned to his care. Cf. Iowa Code § 232.116(1)(d)(2),
(f)(4). Brian believes he can continue to nurture his relationship with H.S.-T. if
provided additional services by IDHS, including visitation and other treatment
services. Cf. Iowa Code § 232.116(1)(g)(3). Additionally, he argues that
because he has changed his life, it is in the best interests of H.S.-T. to return to
his care. See Iowa Code § 232.116(2); M.W., 876 N.W.2d at 224.
We disagree. On de novo review we find the State proved the grounds for
termination by clear and convincing evidence. Despite his contentions that he
has fully complied with the services offered by IDHS, Brian has failed to address
the sexual abuse of S.G. in therapy and made clear at the termination hearing
and in his petition to this court he does not believe he should. Although Brian
contends he should not have to make “some sort of mea culpa or confessional
atonement in therapy” to be reunited with H.S.-T., “the requirement that [Brian]
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) (finding no due process violation in requiring a parent to
acknowledge and recognize the abuse in sexual-abuse treatment even where
there is no criminal conviction); see In re D.D., No. 12-0936, 2012 WL 2819409,
at *2 (Iowa Ct. App. July 11, 2012) (stating it was “essential in meeting these
children’s needs” that the mother recognize and acknowledge the abuse because
“[m]eaningful change [could not] occur without this recognition” and “services
[were] not likely to be effective”); In re T.I., No. 10-0426, 2010 WL 2089503, at 6
*2–3 (Iowa Ct. App. May 26, 2010) (affirming finding of clear and convincing
evidence to support termination where parent failed to acknowledge or recognize
the abuse or how it had affected children); In re K.S., 512 N.W.2d 817, 820 (Iowa
Ct. App. 1993) (declining to return child to mother where mother still denied
culpability for abuse).
Brian has not fully participated in the services provided to him by IDHS
and as such H.S.-T. cannot be returned to his care because the risk of
adjudicatory harm posed to the child still exists. See Iowa Code
§ 232.116(1)(f)(4); see also Iowa Code § 232.2(6)(d) (listing sexual abuse among
adjudicatory harms). Although Brian contends IDHS “provided no pathway for
[Brian] to reunite with the child,” an IDHS social worker stated at the termination
hearing IDHS could have reunited father and child if Brian had addressed and
worked on the sexual-abuse issue in therapy.
H.S.-T. should not have to wait endlessly until her father takes
responsibility and addresses the issues that led to the State’s action. “Children
simply cannot wait for responsible parenting. Parenting cannot be turned off and
on like a spigot. It must be constant, responsible, and reliable.” In re L.L., 459
N.W.2d 489, 495 (Iowa 1990). It is not in the best interests of the child to return
to a parent who refuses to address IDHS’s primary concerns. See In re H.R.K.,
433 N.W.2d at 50. “[W]hen a parent is incapable of changing to allow the child to
return home, termination is necessary.” In re T.T., 541 N.W.2d 552, 557 (Iowa
Ct. App. 1995). 7
The juvenile court’s termination of Brian’s parental rights is therefore