In the Interest of K.M., Minor Child

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-1680 Filed April 9, 2025

IN THE INTEREST OF K.M., Minor Child,

M.M., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, Judge.

A mother appeals the termination of her parental rights. REVERSED AND

REMANDED.

Jonathon P. Tarpey of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant mother.

Amy K. Davis of Miller, Zimmerman & Evans, P.L.C., Des Moines, for

appellee father.

Brenna Bird, Attorney General, and Natalie Hedberg, Assistant Attorney

General, for appellee State.

Andrea Beth McGinn of Skogerson Mcginn, L.L.C., Van Meter, attorney and

guardian ad litem for minor child.

Considered without oral argument by Ahlers, P.J., and Badding and

Buller, JJ. 2

BADDING, Judge.

Nine-year-old K.M. “loves her mom and she wants to be with her mom,”

according to the child’s therapist. But after more than three years of services, the

juvenile court terminated the mother’s parental rights under Iowa Code

section 232.116(1)(f) (2024), finding the mother had coached the child into making

false allegations of abuse against the father. The mother appeals, challenging

each of the three steps in our termination framework. Upon our de novo review of

the record, we find the State failed to prove the statutory ground for termination by

clear and convincing evidence. So we reverse the court’s ruling and remand for

further proceedings.

I. Background Facts and Proceedings

In January 2021, police were called to the family’s home because of a

domestic dispute. The father claimed the mother pushed him from behind while

he was carrying their daughter—K.M., born in 2015—while the mother claimed the

father pushed and stepped on her. The mother obtained a civil protective order

the next day. The Iowa Department of Health and Human Services assessed the

family and determined K.M. was safe, though the child protective worker noted the

child’s statement that “daddy stepped on mommy” seemed rehearsed.

The mother filed for divorce the next month. The parents initially agreed

that K.M. would be in the mother’s physical care, with alternating weekend

visitation for the father, plus one night each week. The mother soon moved to

modify that temporary agreement because she wanted to move to Florida with the

child. 3

Before a hearing on the mother’s motion, both parties underwent

psychological evaluations, conducted by the same psychologist. The mother’s

evaluation resulted in a diagnosis of borderline personality disorder. She obtained

an evaluation by a different psychologist, which disputed that diagnosis and

concluded the mother was instead suffering from posttraumatic stress disorder. A

child and family reporter gathered information about the family and, after

interviewing K.M., reported to the district court that the mother “is either coaching

[K.M.] on what to say—or at the very least sharing things with her that are

completely inappropriate.” The report concluded that K.M. should be placed in the

parents’ joint legal custody and the father’s physical care, with visitation for the

mother, who had abandoned her plans to move to Florida. The district court

adopted that recommendation in an August temporary order but, on the mother’s

motion, later modified the caretaking schedule so that the mother had K.M. in her

care five nights out of every fourteen.

Soon after the August temporary order placing K.M. in the father’s physical

care, the mother made a report to the department that the father was sexually

abusing K.M. The child underwent a sexual assault examination at the beginning

of September, which found a small “Y shaped scrape that was actively bleeding at

the base of her perineum.” The nurse examiner could not determine how the injury

occurred but thought “it was possible to have occurred through normal play.” The

department received a second report of sexual abuse in October. The child was

examined again, and a new injury was found on the posterior fourchette. The

nurse examiner noted that injury “was a bit deeper than the prior one” and not

something the child could have done herself. 4

During her forensic interviews, K.M. said that her father would hurt her and

“dig into her privates.” The father denied the allegations. He told the child

protective worker investigating the reports that the mother “was willing to do

anything” to get K.M. in her care and if the injuries weren’t accidental, then the

mother “did it to accuse him of doing it.” Later testing found a single sperm cell on

an external swab of the child’s anus from the second exam. The cell could not be

tested for DNA and, because the swab was external, the potential for transfer could

not be excluded. The reports were not confirmed for sexual abuse but founded for

physical abuse by an unknown perpetrator.

In November, the State petitioned to have the child adjudicated as in need

of the court’s assistance. While a hearing on the petition was pending, the mother

reported that the father punched the child twice in the stomach. The report was

not confirmed because the child made inconsistent statements about what

happened. The protective worker also noted that the father was not alone with the

child when the abuse allegedly occurred because his family was supervising his

contact with K.M. under a safety plan with the department.

The juvenile court granted the State’s petition in January 2022, adjudicating

the child under Iowa Code section 232.2(6)(b) (physical abuse) and (c)(2) (failure

to exercise a reasonable degree of care in supervising) (2021).1 The court found:

The child has been physically abused although the source of the injury and perpetrator is unknown. The child has been placed at risk of injury as a result of the domestic dispute that occurred while the father was holding the child. [K.M.] has been subjected to multiple sexual assault exams. There is evidence that [the] child has

1 These same provisions are now found in Iowa Code section 232.96A(2) and (3)(b) (2024). 5

been coached or influence[d] by the mother. The child . . . is clearly caught between her two parents.

The court ordered the child to remain in her parents’ legal custody. Both parents’

contact with K.M. was to be supervised by family members or friends.

After the child was adjudicated, the family started therapy. In a March

report, the therapist noted that K.M. had experienced “domestic chaos” and “knows

her parents don’t like each other.” She determined that K.M. “has trouble doing

narratives, even non-trauma narratives” and was “developmentally younger than 6

in this area.” Because of this, the therapist could not “say she was coached and

can’t say there was abuse incidents.” The parents were directed to continue “their

own individual therapy to work on how the other parent triggers them and how to

co-parent.” And they were referred to child-parent psychotherapy.

In its April dispositional report, the department recommended ending

supervision of the parents’ contact with K.M. The caseworker noted there was no

evidence that the child was “in direct danger from either parent,” although she was

“at significant risk of untrained observers and questioners,” particularly parents,

“perhaps inadvertently helping form a narrative for the child.” The child’s guardian

ad litem also recommended ending the supervision requirement, writing in a report

to the court that K.M.

appears comfortable with both her mother and her father, as well as her grandparents. The concern from [the mother’s] perspective is that [K.M.] is being sexually abused in the care of her father. The concern from [the father] is that [the mother] is actively coaching [the child] to say the things she says about the alleged abused. The undersigned does not believe that [K.M.] is being sexually abused. The undersigned also does not believe that [the mother] is actively coaching [the child] to say she’s being abused in an attempt to alienate her from her father. . . . [K.M.] wants to please her parents. She is at a very impressionable, suggestable age as well. The 6

undersigned is concerned that this suggestibility coupled with [the mother’s] questioning of [K.M.] and [K.M.] being caught in the middle of the parents has resulted in where we’re at today with [K.M.] emotionally suffering.

The father contested these recommendations, advocating instead for continued

supervision of the mother’s contact with K.M. The juvenile court denied the father’s

request in its dispositional order, adopted the recommendations to lift the

supervision requirements for both parents, and continued the child in the father’s

custody.

The family started the recommended child-parent psychotherapy after this

dispositional order. At the therapist’s intake session with the child and mother in

May, while the mother was out of the room, K.M. repeated the sexual abuse

allegations that she had made earlier in the case. But at a later session in August,

the child told the therapist “that her father does not hurt her and that her mother

told her to say that.” K.M. shared that she was “afraid to tell the truth and did not

want this therapist to speak with her mother because her mother would be angry

at her for telling the truth.” But the child also “stated that she loves both of her

parents and wants to continue to see both parents.” Based on this information, the

department sought to modify the dispositional order to formally remove the child

from the mother’s custody and return to supervised contact only. The juvenile

court granted the department’s motion, as well as the father’s request for

concurrent jurisdiction.

At the end of December, the mother moved for expanded visitation with the

child. Her motion noted that since the last hearing, she had completed parenting

classes and group therapy, along with consistently attending individual therapy and 7

restarting child-parent psychotherapy. The department’s January 2023 report to

the court recommended increasing the mother’s visits, highlighting statements

from the visitation supervisor that “she has only seen [K.M.] come out of her shell

at visits with mom.” The caseworker also noted the father was trying to control the

mother’s visits by, for example, instituting a rule that K.M. could only have one

snack per week. And he was questioning the child at the end of her visits with the

mother. The report concluded by warning the parents that “there needs to be

significant improvements in the way [they] engage with one another and co parent.”

Over the father’s objection, the court granted the mother’s request for expanded

visitation, leaving the supervision level at the department’s discretion.

By the end of February, the mother had progressed to semi-supervised

visitation with K.M. But that didn’t last long. In April, the father moved to modify

the dispositional order to return the mother to fully supervised visitations, alleging

the child “has exhibited behavior consistent with emotional dysregulation after

spending time alone with her mother.” The child’s therapists and guardian ad litem

did not observe the same emotional disturbances, although they did note that K.M.

was reporting that “her dad was lying” again. The guardian ad litem also reported

that the child wanted her mother’s visits to be supervised “because her mom is

lying” about things “like that her dad hurt her.” The juvenile court granted the

father’s request to return the mother’s visits with the child to fully supervised,

finding that without supervision, the mother “is unable to have emotionally safe and

appropriate conversations with her child.”

Meanwhile, the parties’ divorce was finalized. The district court denied the

father’s request for sole legal custody and placed the child in the parties’ joint legal 8

custody, concluding that while “apparent tension exists between the parties, it is

not intractable.” But the court granted the father’s request for physical care of K.M.,

finding the mother had tried to coach and alienate the child from the father. The

dissolution decree set out visitation phases for the mother with supervision levels

dependent, in part, on the mother refraining “from influencing the child to believe

her father abused her in any way which can be shown by no NEW allegations of

abuse, no new reports by [the child] that mom is coaching or influencing her to

make allegations.”

Yet in June, after a supervised visit with K.M. at a swimming pool, the

mother made a report to the department that the child said her father “has touched

where her ‘swimsuit covers.’” The mother told the child protective worker

investigating the report that while they were swimming, the child “grab[bed] her in

inappropriate areas.” She asked the child if anyone was touching her, and K.M.

responded, “Daddy.” The child protective worker interviewed K.M. and asked

whether she accidentally touched her mother at the pool. K.M. said no at first. But

then the child said that she did touch her mother’s private parts under the water

because she was trying to tickle her and get her to laugh. This report was also not

confirmed. After this incident, the department moved the mother’s visits with the

child to a therapeutic setting.

As the permanency hearing approached in September, the department

recommended closing the case by transferring “full custody” to the father with

supervised visitation between the mother and K.M. The caseworker stated, “The

professionals do not feel it would be best to terminate parental rights,” noting that

K.M. “loves her mother and wants to continue to see her.” The guardian ad litem 9

agreed with that plan and recommended ending the therapeutic-only visitation for

the mother. The father, however, urged the juvenile court to direct the State to file

a petition to terminate the mother’s parental rights. The court denied that request

in its October order but warned the mother that if she “continue[d] to disregard

court expectations or seek ways to negatively influence her child, the court may be

forced to reconsider that determination.” The court placed the child in the father’s

sole legal custody, with continued supervised visitation for the mother. The father

was later granted concurrent jurisdiction to modify the dissolution decree.

The mother seemed to take the juvenile court’s warning to heart. She

continued working on her mental health with her individual therapist—as she had

throughout the case—and completed more parenting classes. Her therapist, as

well as the family therapist, reported progress was being made. During a family

therapy session, while her mother was out of the room, K.M. told the therapist that

“she lied to her mom about her dad hurting her because she wanted to make her

mom happy.” The therapist later reported that the child stated she no longer felt

pressure from the mother to lie, and the mother “is now asking more open ended

questions which gives [K.M.] the chance to respond freely.” So, in March 2024,

the juvenile court granted the mother’s request to move to semi-supervised

visitation. But the court cautioned, “If reports of coaching, influencing, or

questioning by [the mother] reoccur, visits should return to fully supervised.”

After the mother’s first supervised visit, the father moved to return her

visitation to fully supervised because the child told the worker who drove her home

that her mother “kept saying that I’m still telling my dad’s lies,” among other things.

The mother denied making these statements. The department had planned to 10

keep the mother’s next visit at the semi-supervised level, but the juvenile court

immediately granted the father’s motion pending a hearing. Following that hearing,

the court determined that K.M.’s statements, as reported by others, were credible

and found the mother “continues to demonstrate by her behaviors that supervised

visits are the least restrictive option that allows for [the child] to have a continuing

relationship with her mother as she so desires.”

Shortly after the court issued its order, the mother went to Florida to care

for her ailing grandmother, who had been placed on hospice. While she was away,

the mother mailed the guardian ad litem letters and gifts to pass on to the child.

Many of the letters, which were not given to K.M., said they would be together

“forever” and that the mother would see her “soon.” The mother returned to Iowa

at the end of July and continued supervised visits with the child.

When the juvenile court learned about the mother’s letters and a failed

supervised phone call where the mother asked the child if she should just “stay

away,” the court changed its permanency goal to termination of the mother’s

parental rights. The State filed the petition in August. After a hearing in

September, the juvenile court granted the State’s petition, terminating the mother’s

parental rights under Iowa Code section 232.116(1)(f). The mother appeals.

II. Standard of Review

“Termination proceedings are reviewed de novo.” In re L.B., 970 N.W.2d

311, 313 (Iowa 2022). We give weight to the factual findings of the juvenile court

but are not bound by them. Id. Given the fundamental interest at stake—the

constitutionally protected relationship between parent and child—we “cannot

rubber stamp what has come before; it is our task to ensure the State has come 11

forth with the quantum and quality of evidence necessary to prove each of the

elements of its case.” In re M.S., 889 N.W.2d 675, 678–79 (Iowa Ct. App. 2016).

III. Analysis

In our de novo review of the juvenile court’s termination ruling, we use a

three-step analysis that asks whether the State proved by clear and convincing

evidence that (1) a statutory ground for termination is satisfied, (2) the child's best

interests are served by termination, and (3) a statutory exception applies and

should be exercised to preclude termination. L.B., 970 N.W.2d at 313; see also

Iowa Code § 232.116(1)–(3). The clear and convincing standard is the “highest

evidentiary burden in civil cases. It means there must be no serious or substantial

doubt about the correctness of a particular conclusion drawn from the evidence.”

M.S., 889 N.W.2d at 679. Under this demanding standard, we find the juvenile

court erred in determining that the State met its significant burden of proof.

IV. Analysis

The mother first challenges the sufficiency of the evidence supporting the

only statutory ground for terminating her parental rights—Iowa Code

section 232.116(1)(f). She contests the final element of that ground, which

required the State to prove “[t]here is clear and convincing evidence that at the

present time the child cannot be returned to the custody of the child’s parents as

provided in section 232.102.” Iowa Code § 232.116(1)(f)(4). “[A] child cannot be

returned to [the custody of] the [child’s] parent under section 232.102 if by doing

so the child would be exposed to any harm amounting to a new child in need of

assistance adjudication.” In re M.M., 483 N.W.2d 812, 814 (Iowa 1992); see also

Iowa Code § 232.102(4)(a)(2). 12

“Determining whether the State met its burden requires a look at the

reasons [the department] advanced for termination.” In re A.B., 957 N.W.2d 280,

294 (Iowa 2021). In its termination report, the department stated that efforts at co-

parenting have failed and continuing to have the child “in the middle impacts her

emotional and mental health.” Because the parents cannot work together, the

department recommended terminating the mother’s parental rights, which “will

allow [K.M.] to move forward.” The caseworker expanded on that idea at the

termination hearing, testifying that he believed “the risk of a possible future District

Court modification by [the mother] presents a risk of harm necessitating

termination today” because “there wouldn’t be a permanency involved” if the

“district court order is getting modified.”2

But none of the harms listed in section 232.96A for adjudicating a child in

need of the court’s assistance mention a child’s need for permanency. And that

consideration is more appropriate in the second step of our analysis—whether

termination is in the child’s best interests. See, e.g., In re M.W., 876 N.W.2d 212,

224 (Iowa 2016) (noting that “when we evaluate whether termination is in the

child’s best interest, it is well-settled law that we cannot deprive a child of

permanency after the State has proved a ground for termination under

section 232.116(1) by hoping someday a parent will learn to be a parent” (cleaned

up)).

2 We understand the caseworker’s concern—which was shared by the guardian

ad litem—that the mother could try to modify the dissolution decree if her parental rights were not terminated. To do so, however, she would need to meet a “heavy burden.” In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983) (describing that burden for custody and physical-care modifications). 13

Setting that concern aside, we agree with the mother that the “crux of the

State’s argument is that [the mother], and her alleged coaching, represent an

ongoing threat of emotional harm to the minor child that would prevent

reunification.” In concluding the State proved the statutory requirements for

termination under section 232.116(1)(f) were met, the juvenile court found the child

was subjected to harm as a result of the conflict between the parents from the divorce, the numerous allegations of abuse resulting in [the child] being subjected to physical examinations, and concerns of [the mother] coaching [the child] to make false allegations of abuse. . . . [The mother] continues to either intentionally or unintentionally have inappropriate conversations with [the child] that create emotional harm to [the child].

We conclude the evidence does not support the court’s ruling, primarily because

of the lack of lay and expert testimony causally linking the child’s mental or

emotional distress to the mother’s conduct, along with statements from the child’s

therapists undermining that link.

Iowa Code section 232.96A(3)(a) states that a child may be adjudicated as

a child in need of assistance if the child “has suffered or is imminently likely to

suffer harmful effects” because of “[m]ental injury caused by the acts of the child’s

parent, guardian, or custodian.” (Emphasis added.) A “mental injury,” in turn, is

defined as “a nonorganic injury to a child's intellectual or psychological capacity as

evidenced by an observable and substantial impairment in the child’s ability to

function within the child's normal range of performance and behavior.” Iowa Code

§ 232.2(39).

K.M. was diagnosed with generalized anxiety disorder, the symptoms of

which include “rapid speech, feeling restless, excessive worry that is difficult to

control, muscle tension, and somatic complaints.” Her therapists, however, could 14

not connect that diagnosis to the mother’s actions, with one noting that K.M. was

“an anxious child in general, not necessarily due to the things that have happened.”

Cf. id. § 232.96(3)(a) (requiring the mental injury to be “caused by” a parent’s acts).

Despite that anxiety, all the professionals involved with K.M. described her as a

happy and well-adjusted child. She did well in school and participated in

extracurricular activities like soccer. Thus, when the department investigated a

report from the father in May 2023 that the mother was coaching the child again,

the child protective worker—in consultation with K.M.’s therapists—concluded

there was not a preponderance of evidence that the mother knowingly engaged

K.M. “in conversations which were causing a substantial impairment in her ability

to function.”

Indeed, at the termination hearing, the child’s long-time individual therapist

testified the only symptom that K.M. still exhibited from her anxiety diagnosis was

“some sleep struggles.” While the child “gets stressed out pretty easily” and

“worries about what’s going to happen next,” the therapist did not see anxiety from

her during their appointments. Instead, K.M. “typically presents as excited and

happy and, like, full of energy.” Even when the child told the therapist about her

mother’s statements at their last semi-supervised visit in March 2024, the therapist

said she was “just her normal, typical self. She told me about it, and we talked

through it.” Because the child was doing well, the therapist was ready to reduce

her sessions from every two weeks to monthly.

These facts are different from adjudication cases where we have found

children had suffered, or were imminently likely to suffer, mental injury from being

placed in the middle of their parents’ disputes. See, e.g., In re J.S., No. 16-0125, 15

2016 WL 1359122, at *5 (Iowa Ct. App. Apr. 6, 2016) (affirming adjudication for

mental injury where the child’s pediatrician linked her severe behavior problems,

which required three mental health commitments, to the mother’s “manipulation

and pattern of interactions intended to alienate the girl from both medical providers

and her father”); In re J.S., No. 14-1014, 2014 WL 4938012, at *3 (Iowa Ct. App.

Oct. 1, 2014) (affirming adjudication for mental injury where all three children tried

to harm themselves because of the emotional stress from their parents’ vindictive

relationship); In re E.R., No. 14-0850, 2014 WL 4937999, at *5 (Iowa Ct. App.

Oct. 1, 2014) (affirming adjudication for mental injury where one child received

inpatient mental health treatment, the other suffered from stress-induced alopecia,

and both missed school because of the parents’ hostile relationship).

The facts of this case are also different from ones where we have affirmed

the termination of a parent’s rights after the parent made repeated and unfounded

claims of sexual abuse.3 See, e.g., In re F.M., No. 22-1756, 2023 WL 152486, at

*2–4 (Iowa Ct. App. Jan. 11, 2023) (affirming termination under

section 232.116(1)(f) where the mother made eight unfounded reports that the

child was sexually abused, the mother physically examined the child for signs of

sexual abuse after visits with her father, and the child was resistant to visits with

the mother); In re T.D., No. 07-0485, 2007 WL 2119018, at *4 (Iowa Ct. App.

July 25, 2007) (affirming termination under Iowa Code section 232.116(1)(f) where

3 Some documents in the record state that there were ten reports to the department

alleging physical and sexual abuse by the father, but there are only five child protective assessments in the record before us. One of those involved a report the father made against the mother. Another was referred by the police after the parties’ domestic dispute in January 2021. 16

the mother made repeated efforts to document sexual abuse of the child by her

father, including by videotaping the child’s genitalia and physically examining the

child in a bathroom during a supervised visit).

While we do not condone the mother’s actions, we conclude based on this

record that the State did not prove the statutory ground for termination by clear

and convincing evidence. As a result, we need not address the other two steps in

the termination analysis. See L.B., 970 N.W.2d at 313 (“Because we conclude

that the statutory grounds for termination have not been met, we do not address

the second and third questions.”). The juvenile court’s order terminating the

mother’s parental rights is accordingly reversed, and the case is remanded for

REVERSED AND REMANDED.