In the Interest of O.K., N.K., and A.K., Minor Children

• Court: Court of Appeals of Iowa
• Decided: April 24, 2024
• Docket: 24-0327
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0327 Filed April 24, 2024

IN THE INTEREST OF O.K., N.K., and A.K., Minor Children,

M.A., Mother, Appellant,

G.K., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Susan Cox, Judge.

A father and a mother each appeal the termination of their parental rights.

AFFIRMED ON BOTH APPEALS.

Shireen L. Carter, Des Moines, for appellant mother.

Gina E.V. Burress of Carr Law Firm, P.L.C., Des Moines, for appellant

father.

Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney

General, for appellee State.

Tonya A. Oetken of Oetken Law Firm, Inc., Ankeny, attorney for minor child

A.K.

Barbara Davis, West Des Moines, attorney for minor children N.K. and O.K.

and guardian ad litem for minor children A.K., N.K., and O.K.

Considered by Tabor, P.J., and Greer and Schumacher, JJ. 2

TABOR, Presiding Judge.

This case involves three children: sixteen-year-old A.K, twelve-year-old

N.K., and four-year-old O.K. George is the father of all three. Melissa is the mother

of the older two. George and Melissa each appeal a juvenile court order

terminating their parental rights.1 George challenges the statutory grounds and

argues that termination is not in the children’s best interests. Melissa also raises

a best-interests claim, invokes the exception for a child over ten who objects to

termination, and lobbies for a guardianship. Finding no merit to the parents’

claims, we affirm the order in both appeals. 2

I. Facts and Prior Proceedings

George and Melissa were married in 2003 and had three children together,

including A.K. and N.K. (Their older son, Z.K., is now over eighteen and not a party

to this appeal.) They separated in 2019, according to a case history drafted by the

Iowa Department of Health and Human Services.3 After separating from Melissa,

George and the children lived with Stephanie. George and Stephanie had one

child together, O.K., born in 2020.

The department became involved with the family in April 2022. A.K. told

social workers that Stephanie was drinking alcohol to the point of passing out while

caring for O.K., leaving the older children to mind the toddler. A.K. also said

1 The juvenile court also terminated the parental rights of O.K.’s mother, Stephanie,

who does not appeal. 2 We review termination-of-parental-rights proceedings de novo. In re J.C., 857

N.W.2d 495, 500 (Iowa 2014). In doing so, we assess both the facts and the law, and we adjudicate rights anew. Id. As always, our core concern is the children’s best interests. Id. 3 In his psychosexual evaluation, George reported that he married Melissa in 2001

and they divorced in 2017 or 2018. 3

Stephanie had anger issues. Likewise, N.K. expressed concern that Stephanie

was physically violent toward his sister A.K. The children said their father knew

what was going on and did nothing about it. They also reported that their uncle

and grandfather were staying with them and using illicit drugs in the house. The

juvenile court adjudicated Z.K., A.K., N.K., and O.K. as children in need of

assistance in July 2022.

After that adjudication, the older children lived with their mother, Melissa.

O.K. stayed with her father, George. But those placements did not work out. In

August, Melissa allowed an “unsafe man” into her home who provided Z.K. with

alcohol and marijuana. Beyond that, she did not fill the children’s prescriptions.

And on top of everything, she was evicted and homeless before securing

emergency housing. Because of Melissa’s instability, A.K. and N.K. moved in with

other relatives.

In December, the juvenile court removed O.K. from her father’s care

because he was not following the department’s safety plan. A few months later,

concerns arose about George’s interactions with O.K. In February 2023, O.K. told

Emily, her family placement, that “daddy George spanks me” and “gives me

owies.” O.K. was afraid to go to church if her father would be there. About a month

later, Emily was changing her diaper when O.K. “stuck her finger inside her private

area and started saying ‘daddy George cuts me in there.’” After a visit, O.K.

rejected George’s request for a goodbye kiss and started crying hysterically when

he kissed her anyway. Concerned about these incidents, Emily took O.K. to

therapy in April 2023. After ten “discovery work” sessions, therapist Keifer Nevius 4

noted that O.K. withdrew from sensitive topics but some of her statements and

behavior showed a “perceived fear of abuse.”

At a permanency hearing in May 2023, George confronted the department’s

concerns that he had sexually abused O.K. He denied doing so, suggesting that

the child may have been recalling times when he applied cream to her diaper rash.

In his testimony, he took some responsibility for subjecting the older children to

Stephanie’s abuse, but also minimized its impact. The juvenile court summarized

George’s explanations for two other accusations:

He denied throwing [N.K.] out of a moving car, but acknowledged threatening to throw him out of the car if he did not put on his seat belt. He denied threatening to cut off [A.K.’s] fingers with garden shears but acknowledged telling her a story [about] how people in Middle East were punished for stealing—he had a pair of shears with him.

The court did not find George’s testimony credible—describing his narrative as

“self-absorbed and self-centered.” In its permanency order, the court directed

George to obtain a psychosexual evaluation. He did. That evaluation

recommended that George not have any contact with O.K. until the accusations of

sexual abuse were “resolved.” As for the older children, they refused to visit their

father after the permanency hearing.

In August 2023, the State petitioned for termination of parental rights. At

the October termination trial, the court heard testimony from both parents. Melissa

testified that she was living in a group home and “trying to get back on her feet.”

She was receiving help with medication management for her depression, anxiety,

and PTSD. She acknowledged it could be as long as a year before she could 5

provide a safe home for A.K. and N.K. She asked the court to consider creating a

guardianship for the children rather than terminating her parental rights.

By contrast, George testified that he was ready to resume custody of the

children. He said he ended his relationship with Stephanie, recognizing it was

unhealthy. He discussed his therapy sessions, noting that he was trying to “deal

with his own traumas” so he could “get a better feel for what the kids have gone

through.” He chronicled the abuse he had suffered as a child. George also

discussed O.K.’s allegations of abuse, this time suggesting that her trauma related

to having a doctor put in a catheter during a hospital stay.

Counselor Nevius testified that O.K. had never mentioned that hospital stay.

But during their sessions, she did discuss having nightmares, “cutting,” and

“hurting down there.” Because Nevius could not pinpoint the source of O.K.’s

trauma, he did not make a mandatory report to the department or law enforcement.

But Nevius did express “extreme concern that [O.K.’s] living status remain as

stable as possible.”

The court also heard from Anna Hendrickson, the mental-health counselor

for A.K. and N.K. Hendrickson reported seeing “a lot of growth from both of them”

as they settled into a more “stable and supportive lifestyle.” N.K. worried about his

mother when she was homeless but felt relief when she moved into a group home.

Both children showed a decreased interest in visiting either parent. At the time of

the permanency hearing, both children expressed a preference to live with their

mother. But recently they told Hendrikson that “they would prefer to stay with their

current placement.” The counselor did not believe that a guardianship would be a

good option for the children: “[T]he kids will always have that cloud of ‘what if’ 6

floating over their head. It will prevent them from continuing to grow and enjoy life

as is going forward.”

The father’s therapist, Julie Butler, testified that he was making progress by

focusing more on accountability. But the juvenile court placed little stock in her

testimony, finding that George had “repeatedly lied” to the therapist about critical

information. For instance, George did not share the results of his psychosexual

evaluation with his therapist.

The juvenile court granted the State’s petition, relying on Iowa Code

section 232.116(1) (2023), paragraph (h) to terminate George’s parental rights to

O.K. The court relied on paragraph (f) to terminate the rights of George and

Melissa to N.K. and A.K. The court also concluded that terminating parental rights

was less detrimental to these children than continuing the parent-child

relationships. Both parents challenge the termination order.

II. Analysis

We will address the issues raised by each parent in turn.

A. George’s Appeal

The father first contends that the State failed to prove by clear and

convincing evidence that the children could not be safely returned to his custody.

See Iowa Code § 232.116(1)(f)(4), (h)(4).4 He highlights his negative drug tests

and his participation in therapy to address his own adverse childhood experiences.

He next argues that termination is not in the children’s best interests because it

4 George concedes that the State satisfied the other three elements of these provisions: the children were adjudicated CINA; they were the requisite age; and they had been removed for the time designated in the statute. 7

severs the parent-child bond.5 He points to the “extended period” in which he

cared for O.K. and emphasizes that she “recognizes the father.”

The State counters that the father has not rebuilt a relationship with his

children since removal. In fact, their relationships have become more strained

since allegations surfaced that he sexually abused O.K.

The juvenile court aptly described why the father could not resume custody:

[H]e allowed violence to occur in their home. He has failed to truthfully participate in services, including the psycho sexual evaluation. He remains unsafe to parent. Since contact with the father has stopped, the children have improved. None of the children are asking to see the father.

After our de novo review, we reach the same conclusion as the juvenile

court. George did not show a protective capacity when the children were being

abused and neglected by Stephanie. He also allowed family members to use illicit

drugs in their home. And he contributed to the unhealthy environment by

threatening the children with physical harm. Finally, the juvenile court was

naturally concerned with O.K.’s disturbing allegations of sexual abuse and did not

find George’s shifting explanations credible. On this record, we find clear and

convincing evidence that the children cannot safely return to his custody. In re

H.R.K., 433 N.W.2d 46, 50 (Iowa Ct. App. 1988) (“Sexual abuse allegations aside,

the record contains ample evidence in support of the court’s termination order

5 The father’s petition on appeal conflates the framework for deciding what is in a

child’s best interests in section 232.116(2) with the exception to termination in section 232.116(3)(c). While this briefing mistake is common, it muddles the burdens of proof. It is the State’s burden to prove termination is in the children’s best interests. See In re R.P., No. 23-0419, 2023 WL 3612412, at *2 (Iowa Ct. App. May 24, 2023). By contrast, our supreme court has held that the burden shifts to the parent resisting termination to prove that one of the exceptions in subsection (3) applies. In re W.T., 967 N.W.2d 315, 322 (Iowa 2021). 8

there is clear and convincing evidence that the children were physically abused

and neglected.”). What’s more, the record belies the father’s claim that the juvenile

court should have preserved his parental rights because of their bond.

B. Melissa’s Appeal

The mother does not contest the statutory grounds for termination,

recognizing that she is unable to resume custody of A.K. and N.K. But she does

argue that termination is not in their best interests. See Iowa Code § 232.116(2).

She also seeks an exception to termination based on A.K.’s objection. See id.

§ 232.116(3)(b). Finally, she contends that creating a guardianship with the

current placement would be better than terminating her parental rights.

We first address the children’s best interests. In doing so, we consider their

safety; the best placement for furthering their long-term nurturing and growth; and

their physical, mental, and emotional condition and needs. Id. § 232.116(2).

Applying that framework, we conclude termination of Melissa’s parental rights

promotes the best interests of A.K. and N.K. They no doubt love their mother and

wish the best for her. But their counselor believed that minimizing contact with

Melissa would reduce their persistent fretting about her. Melissa argues counselor

Hendrickson’s opinion is too speculative. We disagree. The children have already

shown that greater stability frees them to enjoy normal adolescent pursuits. For

instance, A.K. went to her first homecoming dance. And N.K. is less stressed

about his mother and more involved with his placement family. Waiting for their

mother to “get back on her feet” is not in their best interests. In re L.L., 459 N.W.2d

489, 495 (Iowa 1990) (“Parenting . . . must be constant, responsible, and reliable.”). 9

Melissa next contends “there was testimony during the termination of

parental rights proceedings that A.K., who was 16 years old, did not want her

mother’s parental rights terminated.” From our reading, the evidence on A.K.’s

objection was not that clear-cut. Social worker Monica Kordick testified that A.K.

told her that she understands the situation and “her first wish would be Mom, but

if that can’t happen, if it goes to termination, she would want to be adopted by the

placement she’s at now.” Meanwhile, counselor Hendrickson testified that since

the permanency hearing, A.K. expressed a preference to stay with her current

placement. But even if the record reveals A.K.’s opposition, we agree with the

juvenile court’s conclusion that the child-objection factor in section 232.116(3)(b)

should not preclude termination here. What a child wants is not always in her best

interests. See In re A.R., 932 N.W.2d 588, 592 (Iowa Ct. App. 2019). Given

Melissa’s instability, it was not advisable for the juvenile court to honor A.K.’s

desire to preserve her mother’s parental rights. See id.

In that same vein, we reject Melissa’s request for a guardianship. Our

supreme court has consistently advised that guardianships are not “legally

preferable” alternatives to terminating parental rights. In re W.M., 957 N.W.2d 305,

315 (Iowa 2021) (citation omitted). And that is true here. We are persuaded by

the views of the children’s therapist that the “what-ifs” of living under a

guardianship would extend the uncertainty they have endured during the CINA

case. Although a loss for the children, termination of Melissa’s parental rights will

provide them with more permanency and stability.