In the Interest of L.F., Minor Child

• Court: Court of Appeals of Iowa
• Decided: April 14, 2021
• Docket: 21-0002
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-0002 Filed April 14, 2021

IN THE INTEREST OF L.F., Minor Child,

C.F., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Story County, Stephen A. Owen,

District Associate Judge.

The mother of L.F. appeals from the juvenile court order dismissing the

child-in-need-of-assistance action. REVERSED AND REMANDED.

Christine E. Branstad of Branstad & Olson Law Office, Des Moines, for

appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Jesse A. Macro Jr. of Macro & Kozlowski, L.L.P., West Des Moines, for

father.

Shannon M. Leighty, Nevada, attorney and guardian ad litem for minor

child.

Considered by Vaitheswaran, P.J., Tabor, J., and Vogel, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021). 2

VOGEL, Senior Judge.

The mother of L.F. appeals from the juvenile court order dismissing a child-

in-need-of-assistance (CINA) action. We agree with the mother that the purposes

of the CINA adjudication have not been accomplished and the child remains in

need of juvenile court supervision. Therefore, we reverse and remand for further

proceedings.

I. Background Facts and Proceedings

L.F. was born in 2005. She has intellectual disabilities and functions at

about a second-grade level. She needs at least occasional assistance dressing,

bathing, and toileting. She cannot speak, but she can communicate limited

concepts using an assistive electronic device or nonverbal signals.

The mother and father were previously married. They had four children

together—two boys and two girls, L.F. and her older sister S.F.1 The mother filed

a petition for dissolution of marriage in February 2016. In October 2016, the

mother contacted the Iowa Department of Human Services (DHS) to report she

suspected the father sexually abused S.F. and L.F. As part of the investigation,

the mother also reported she suspected the father sexually abused her female

cousin K.S. DHS noted L.F., as a child with special needs, was “very vulnerable”

and the father showed “very concerning sexualized behaviors,” but DHS ultimately

determined the allegation of abuse against S.F. and L.F. was not founded. In

December 2017, the district court entered a decree that dissolved the parents’

1S.F. was a minor at the start of the CINA action, but she reached age eighteen before dismissal of the action. 3

marriage, granted joint legal custody, placed physical care with the mother, and

ordered visitation with the father that included supervised overnight visits with L.F.2

The family again came to the attention of DHS in July 2018 when the mother

reported a witness saw L.F.’s hand on the father’s crotch over his clothes and the

father did nothing to move or redirect L.F. The juvenile court soon ordered L.F.

temporarily removed from her father’s care. In September, DHS determined the

allegation of abuse against L.F. was unfounded in light of an ongoing criminal

investigation into the matter that limited the DHS investigation. 3 In October, the

court entered a stipulated order finding L.F. was a child in need of assistance

(CINA).

On November 26, 2018, the juvenile court held a dispositional hearing in

which the mother submitted evidence of the father’s prior alleged sexual

misconduct. First, the mother testified that when S.F. was three years old, the

father “accidentally” put his finger inside her vagina while bathing her. Second, the

mother provided records from the father’s conviction of a sex offense in Minnesota

for a 2012 incident in which he fondled a female physician’s breast during a

medical appointment for one of the children. Third, K.S. provided a letter accusing

the father of multiple incidents of sexual misconduct in or around 2007 when K.S.

was fifteen years old and staying with the family. According K.S.’s letter, the father:

encouraged K.S. to sit on his lap in a hot tub; stayed in and around K.S.’s room for

an extended time right before she planned to undress to take a shower and go to

2 The mother has since filed a petition to modify visitation. On December 13, 2019, the juvenile court authorized concurrent jurisdiction with the district court. Trial on the mother’s petition to modify visitation is scheduled for April 2021. 3 The criminal investigation did not result in charges. 4

sleep; and rode with K.S. on a four-wheeler and fondled her breasts when they

were alone. Fourth, S.F., who was seventeen years old at the time of the hearing,

provided a letter and testified to allegations the father engaged in sexual

misconduct toward her. S.F. alleged the father: cuddled and spooned S.F. in bed

and on the couch; frequently walked into the bathroom while S.F. was showering;

looked down S.F.’s shirt and stared at her buttocks while she was bent over; and

repeatedly pressed his body against hers as he walked past. Additionally, S.F.

said the father continued bathing L.F. and told S.F. to lie and say she was bathing

L.F.

On November 28, 2018, the juvenile court issued the dispositional order at

issue here. The court found the father “has a very concerning history

of . . . sexualized contact primarily involving minor females.” The juvenile court

noted there is no supporting evidence for the allegations of sexual misconduct

presented at the hearing—other than the Minnesota incident that resulted in

conviction—but the court specifically found the father groped K.S. and digitally

penetrated S.F.’s vagina. The court also noted a 2016 psychosexual evaluation

of the father concluded he does not have a serious mental impairment and is

treatable. The court continued the CINA adjudication with a long-term goal of

establishing a safe relationship with both parents, and the court allowed L.F. to

visit the father with full supervision and restrictions preventing the father from

assisting L.F. with toileting, bathing, or dressing. 5

The juvenile court held a series of permanency review hearings and issued

corresponding orders over the next several months.4 Beginning with the May 13,

2019 permanency order, the court allowed L.F. to visit the father at DHS’s

discretion. DHS developed a safety plan that allowed for supervised visitation and

largely kept the court’s initial restrictions in place. By the time of the final hearing

on December 21, 2020, DHS primarily provided the safety plan and at least

monthly meetings with the family. DHS also allowed either the paternal

grandmother or the father’s live-in friend to supervise L.F.’s visitations with the

father. On December 21, the court issued its order dismissing the CINA action

and closing the case. The mother appeals.

II. Standard of Review

We review CINA proceedings de novo. In re K.N., 625 N.W.2d 731, 733

(Iowa 2001). “We review ‘both the facts and the law, and we adjudicate rights

anew.’” Id. (quoting In re H.G., 601 N.W.2d 84, 85 (Iowa 1999)). “Although we

give weight to the juvenile court’s factual findings, we are not bound by them.” Id.

“As in all juvenile proceedings, our fundamental concern is the best interests of the

child.” Id.

III. Analysis

The juvenile court may terminate a CINA dispositional order if it determines

“[t]he purposes of the order have been accomplished and the child is no longer in

need of supervision, care, or treatment.” Iowa Code § 232.103(4)(a) (2018); see

4Review hearings were held May 13, 2019; December 13, 2019; June 12, 2020; and December 21, 2020. Orders were entered shortly after each hearing, with an order for termination of the dispositional order entered December 21, 2020. 6

also K.N., 625 N.W.2d at 733. In the dispositional order here, the court found

“appropriate protective services” are needed to protect L.F. from “imminent danger

of sexual abuse while in her father’s care and custody.” The court set a goal of the

CINA action as “establishing long-term safety for [L.F.] so that she can enjoy a safe

and lasting relationship with her parents.”

In dismissing this CINA action, the juvenile court found the father showed

“growth and change” since the CINA adjudication. While we recognize the father

has made progress, after our de novo review of the record, we conclude the same

concerns about the father that prompted the CINA action continue to exist.

Throughout this CINA action, the father has sought to minimize and avoid

responsibility for his sexual misconduct. In 2016, prior to the CINA adjudication,

the father underwent a psychosexual evaluation. The evaluation generally

determined the father’s responses were within normal or acceptable ranges, but

the evaluation also noted the father “has explanations that keep him from being

able to accept that he is the one responsible for his sex deviance problem” and

these explanations prevent “him from accepting full responsibility for his actions.”

Similarly, the juvenile court in the dispositional order found the father “rationalizes

his behavior to minimize the seriousness of his sexual behavior and he holds the

victims responsible.” The father underwent another psychosexual evaluation in

February 2019, which again found the father’s responses within normal or

acceptable ranges. However, this evaluation still found the father “has

explanations which keep him from taking full responsibility for his sexual

behaviors.” 7

More recently, the father’s therapist submitted two letters for this CINA

action. In an October 2019 letter—which the juvenile court found is “entitled to

substantial evidentiary weight”—the therapist wrote the father has shown

“concerning behavior” and “has been reluctant to discuss certain things,” but the

father “has become more acutely aware of how he positions himself when

interacting with others, particularly females.”5 The therapist also noted the father

admitted to “boundary violations” with K.S. but has consistently denied he

“intentionally or unintentionally abused his children for sexual gratification or to

satisfy his curiosity.” In a November 2020 letter, the therapist wrote the father

continues working on “keeping safe boundaries” as the father believes “that due to

his positive outlook on things[,] he doesn’t always consider how his behavior might

be considered questionable to outsiders.”

During the final review hearing, the father testified therapy has helped him

recognize “boundaries” with other people. When questioned about specific

incidents of sexual misconduct, the father only vaguely replied that he “addressed

all aspects in therapy.” As the juvenile court found in the dispositional order, the

father has shown a “striking and dangerous” pattern of sexual misconduct by

“isolating” females—often minor females—“in a vulnerable position.” This

behavior goes far beyond merely violating “boundaries,” and the father’s refusal to

fully acknowledge his misconduct remains highly concerning for this “very

5 The therapist also noted the father believes the mother “is fueled by her hatred of him more than actual fear of him abusing the children.” Despite never interacting with the mother or children beyond one session with L.F., the therapist spends considerable space in her letter negatively opining on the actions and motivations of the mother. While the therapist seemingly endorses the father’s opinion of the mother, we place little weight on the therapist’s opinion of the mother. 8

vulnerable” child. Our supreme court recently emphasized the importance for a

parent to acknowledge the abuse that occurred before dismissing a CINA action.

See In re D.D., 955 N.W.2d 186, 193 (Iowa 2021) (“We find little comfort in the

claim that therapy has achieved sufficient measures of protection and prevention

when the primary agents of that protection and prevention—the mother and the

stepfather—refuse to believe that any abuse ever occurred.”); see also 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.”). Contrary to the juvenile court’s finding that the father testified “without

attempting to minimize or avoid the subject matter of the questions,” we see no

evidence in the record the father ever acknowledged any sexual misconduct

directed at K.S., S.F., or L.F.6 Instead, at the final hearing the father specifically

testified he has “never been sexually inappropriate with” S.F. or L.F. S.F. also

testified at the hearing that the father has repeatedly denied even crossing

boundaries with her. While the juvenile court found the father credible in testifying

that his motivation is L.F.’s best interests, we cannot overlook his consistent refusal

to acknowledge or accept responsibility for his sexual misconduct.

L.F.’s limited ability to communicate and therefore self-protect is an

additional concern. In the dismissal order, the juvenile court found L.F. “is able to

communicate her wants, needs, desires, feelings and emotions” and “can

6 We are cognizant the father cannot be required to incriminate himself as a condition of regaining care. See C.H., 652 N.W.2d at 150 (“The State may not penalize [the father] for noncompliance with a court order impinging on his right against self-incrimination.”). However, the father has not raised self-incrimination as a barrier to acknowledging the sexual misconduct. Additionally, some of the father’s alleged acts or behavior would not constitute a crime. 9

communicate to others when something is wrong.” This finding overstates L.F.’s

ability to communicate as described by the uncontroverted testimony of the people

who regularly work with her. One aide testified L.F. could express being

uncomfortable or hurt but she could not communicate being a victim of abuse or

identify who was previously in a room with her. Another aide testified L.F. could

not communicate she was a victim of fondling. L.F.’s special education teacher

testified L.F. could not communicate she was the victim of sexual abuse and she

could not identify “bad touches.” The June 2020 DHS report is consistent with this

testimony, stating L.F. “relies on her caregivers to be safe and keep her safe from

harm. [L.F.] requires supervision 100% of the time. She does not have the same

protective capacities of other children her age.” Thus, the record establishes L.F.

remains particularly vulnerable because she cannot differentiate between “good”

and “bad” touches, and she cannot effectively communicate a bad touch even if

she recognized the difference. These limitations leave her unable to self-protect if

faced with any additional sexual misconduct.

The juvenile court noted DHS involvement was minimal before it dismissed

the CINA action. However, we do not believe DHS involvement was without value.

DHS developed a safety plan that required full supervision and prevented the

father from assisting L.F. with her most vulnerable activities. That plan from the

June 2020 DHS report specifically provides:

1. [The father] will not toilet or assist [L.F.] with the toilet or changing her clothes or undergarments. 2. [The father] will not bathe or shower [L.F.]. 3. [The father] will not undress or be in the same room where [L.F.] is in any state of undress 10

4. Under no circumstance shall [the father] occupy the same bed or sleeping arrangement as [L.F.] nor shall he lay with[,] “spoon,” [or] “cuddle” with her. 5. [The father] will not be in any car, truck, vehicle, home, building or structure alone with [L.F.]. 6. [The father] will not be in a room where the doors are closed, alone with [L.F.]. 7. During overnights, [L.F.] will be at [the maternal grandmother’s] home; [the father] will NOT sleep in the same home. An approved supervisor will always be within earshot (50–60 feet) of [L.F] in order to identify if she has any concerns or needs.

DHS also provided monthly meetings with the family to assist with following the

safety plan. Without the CINA proceeding, the applicable visitation provisions

revert back to the decree of dissolution, which only requires supervision on L.F.’s

overnight visitations with the father. While the father testified he will not engage in

risky behavior with L.F. even without the DHS safety plan, ending DHS

involvement is not appropriate at this time due to the father’s refusal to

acknowledge his sexual misconduct. Of critical importance is L.F.’s limited ability

to recognize and communicate any sexual misconduct she experiences. Her “very

vulnerable” status has not changed, and therefore her ability to self-protect

remains the same as when this case began. While DHS’s involvement and the

juvenile court’s oversight may be very limited, keeping the safety plan in place

gives L.F. a level of protection she was not afforded in her parents’ dissolution of

marriage decree.

IV. Conclusion

We recognize the father has dutifully participated in therapy. However,

merely participating in therapy does not justify dismissing a CINA proceeding. See

D.D., 955 N.W.2d at 192–93 (“Progress in therapy and similar efforts to ‘put the

work in’ are unquestionably important. But the statute doesn’t ask whether all the 11

boxes have been checked or the work put in; it asks whether the child remains in

need of supervision, care, or treatment.”). We also recognize the father has not

been accused of new sexual misconduct during the two-plus years of this CINA

action, but as noted above, L.F.’s vulnerability remains the same.

Because the father continues to minimize and deny the sexual misconduct,

and because L.F. has limited ability to recognize and communicate any sexual

misconduct she may experience in order to self-protect, the purposes of the CINA

adjudication have not been accomplished and L.F. remains in need of juvenile

court supervision. Therefore, we reverse the juvenile court order dismissing the

CINA action and remand for further proceedings. In light of our disposition, we do

not address the mother’s other arguments on appeal.

REVERSED AND REMANDED.