In the Interest of S.D., Minor Child, J.D., Father, S.D., Mother

IN THE COURT OF APPEALS OF IOWA

No. 15-1524
Filed March 9, 2016

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

J.D., Father,
Appellant,

S.D., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Christine Dalton,

District Associate Judge.

A father and mother appeal separately from the order terminating their

parental rights. AFFIRMED ON BOTH APPEALS.

Martha L. Cox, Bettendorf, for appellant father.

Randall McNaughton, Davenport, for appellant mother.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant

Attorney General, for appellee State.

Jean Capdevila, Davenport, for minor child.

Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
2

DANILSON, Chief Judge.

A father and mother appeal separately from the order terminating their

parental rights. The mother subjected the child to unsavory individuals and failed

to provide for the child’s safety. The father, a Florida resident, abstained from

developing a relationship with the child for years, and chose a lifestyle not

conducive to responsible parenting. We find no reason to disturb the juvenile

court’s rulings and therefore affirm.

I. Background Facts and Proceedings.

The child, S.D. (born in August 2004), came to the attention of the Iowa

Department of Human Services (DHS) in March 2014 upon a report that the

mother had allowed S.D. to be alone and spend the night with two adult males

whom the mother knew to be registered sex offenders. S.D. was removed from

the mother’s care on March 6. The mother was arrested and criminally charged

with several counts of felony child endangerment in April 2014.1

A child in need of assistance (CINA) hearing was held on May 21, 2014.

The father appeared at the hearing. On May 27, the juvenile court entered an

order finding the child was a CINA. The court indicated the child’s mother and

sister’s friends had repeatedly sexually abused the child. The court wrote:

[The child’s] mother allowed convicted sex offenders to have
unlimited contact with [S.D.] both in her home and in their homes.
Even after being advised by the [DHS] of the men’s history of child
sex offenses, she continued to allow the contact. She facilitated
these men in having contact with [S.D.] and other children;
including her grandchildren. Several children, including [S.D.],
have been videotaped and photographed for child pornography
purposes. The mother faces very serious criminal charges as a
result of her acts.

1
S.D. was one of the named victims.
3

In the adjudication order, the court observed the child “has no current

relationship with her father.” The court continued:

Part of that is because he lives in Florida, but also because of her
mother’s resistance and interference with the relationship. He is
participating in an [Interstate Compact on the Placement of
Children] ICPC home study. He very much wants to have contact
with his daughter. He is willing to assume custody of her. The
[DHS] should discuss his visitation with the child’s therapist
immediately. If the therapist is in agreement, visitation should start
as soon as possible. It will be supervised. The father is directed to
write weekly to his daughter through the [DHS] as a way to
introduce himself to her.

The court noted R.K., an adult half-sibling of S.D., filed a motion to

intervene. R.K. lives in Indiana and expressed interest in being a possible

placement for S.D. The court denied the motion to intervene until the results of

the sibling’s ICPC home study could be completed. The child was to remain in

foster care but with another suitable person.2 Any visits with S.D.’s mother,

father, or siblings were to be supervised.

A June 27, 2014 social investigation report authored by Erin Davis

indicated S.D. was not having contact with her father, and expressed she did not

want to see or speak to him. The father had sent letters and an Easter basket,

which DHS retained until a time the therapist determined the child “may be

emotionally ready to receive them.” The child was working with a therapist in

regard to her feelings about her father.

With respect to the father, the June 27 report notes he dropped out of high

school, but believed education was important. The father admitted having

2
The first foster family was no longer able to provide care. S.D. was placed with a
family with whom she was familiar.
4

smoked marijuana when “young.” He reported having no psychological or

emotional issues or diagnosis, and having no family history of substance or

alcohol abuse and not having been involved in substance abuse treatment. He

did report having been arrested in Florida for possession of an illegal substance,

and having a “grand theft charge.” He also stated he had been in several Florida

correctional facilities. However, Davis was not able to run a criminal background

check in Florida and was awaiting an ICPC home study. Davis opined:

The father . . . has not been an active parent in his
daughter’s life. It is unclear at this time whether he failed to actively
pursue a relationship with his child. He reports he has only seen
his daughter on one occasion in the last 5 to 6 years. His daughter,
[S.D.] has expressed she does not want to have contact with her
father at this time. She reports he has “never been there for her”
and that he could have found her if he really tried. The father
currently seems motivated to obtain custody of [S.D.]; however it is
unclear at this time whether he is a suitable alternative caretaker for
[S.D.] He does have a lengthy criminal history, he has not been an
active participant in [S.D.’s] life, he appears to have limited financial
resources, and he currently resides in another state. DHS
contends that more information needs to be gathered in regard to
the father in order to make an educated and safe judgment as to
whether it would be in [the child’s] best interest to be placed in his
care.

A dispositional hearing was held on June 30. The child was present, as

was the mother. The father participated by telephone. In the July 15

dispositional order, the juvenile court stated the mother was currently

incarcerated and her “visits need to be strictly monitored due to her inappropriate

conversations and comments.” The court also stated the current case plan goal

was reunification with the mother; however, a concurrent plan was being

implemented due to the mother’s impending criminal prosecution. The court
5

noted the father was waiting for a home study to be done, and it ordered that

court funds be used to pay the expense of a psychological evaluation for him.

On July 24, the guardian ad litem (GAL) sought an ex parte order

terminating visitation and ordering no-contact between S.D. and her mother or

adult sibling, which the court ordered.

R.K. filed another motion to intervene, informing the court the ICPC home

study had been completed and approved. A hearing on the motion was held on

September 2. On December 2, the juvenile court granted the motion to

intervene, stating:

[R.K.] is the child’s biological half-sister. She is an adult. She and
her husband have passed a home study in their state of residence.
[S.D.’s] mother is facing a very serious criminal charge that may
carry a prison. She has been incarcerated for much of this case.
The child does not have a relationship with her father. He is
requesting placement with him in his home state of Florida. He is
trying to reestablish a relationship with his daughter. His home
study has yet not been received by the Court. It is unknown what
the outcome of the father’s home study will be. The Court needs a
viable concurrent plan. To be a viable option [R.K.] needs to be a
party to this action.

The court, however, observed S.D. “is very happy where she is . . . . placed with

a suitable other family, the parents of one of her best friends.” That placement

allowed the child to remain at her school and connected to her friends. The child

was also “open[ing] up to her therapist, revealing a great deal about the level of

abuse she suffered in her mother’s custody.” Understanding the trauma the child

faced was “critical.” The court found the intervenor “is not well equipped at this

time to understand the dynamics of child sexual abuse, the severity of the

dysfunction within her own family system, and she is quite ignorant of how best

to help her young sister.” The court encouraged R.K. to learn more about
6

surviving sexual abuse, but denied any visitation at the time because S.D. was

having a “poor response to the contact,” which needed to be explored in therapy.

The court concluded:

The Court strongly cautions [R.K.] that her actions will be
considered by the Court in its designation of a concurrent plan for
[S.D.’s] placement. If the child cannot be returned to her mother,
the Court will have a strong preference for father and other family
as a concurrent plan. But that is only a preference. Wherever [the
child] is permanently placed, she must have safety and support to
undo the damage that has occurred.

Meanwhile, in August 2014, a criminal no-contact order was entered

against the mother regarding S.D. The mother pled guilty to several charges in

November 2014 and, in December 2014, she was sentenced to nine years in

prison. The no-contact order was re-issued for a period of five years, prohibiting

the mother from contacting S.D.

A December 15 GAL report was submitted. The GAL reported S.D. had

chosen to speak at her mother’s sentencing hearing: “She wanted her mother to

know how much she hurt [S.D.] and the other children and ruined their lives.

[S.D.] told the Judge that she told her mother what was happening and her

mother did not help her.” The GAL also reported S.D. had no desire to have

contact with anyone in her family, including R.K. The GAL report also states the

father “was not approved in his home study. He spent much of the last few

months in jail for domestic abuse and other related charges.” The GAL

recommended the child remain in family foster care.

The juvenile court entered a dispositional review order on December 22 in

which the court states the child was present at the hearing and spoke privately to

the judge in the presence of the GAL. The father participated in the hearing by
7

telephone. The court found the mother was not a placement option as she was

in prison; the father “is a stranger” to the child and had been in jail recently and

unable to secure a psychological evaluation; and the child had a “strong

preference not to be placed with family,” including R.K. The court ruled:

[S.D.] knows she can trust her current caretakers but is not sure
any of her family can be trusted. The Court is concerned whether
[R.K.] is equipped to deal with [S.D.’s] issues appropriately.
Based on the foregoing, an evaluation of the needs of the
child, the resources and capabilities of the parents, the efforts
made by the parents to rectify the situation, and the risk of
continued adjudicatory harm, the Court determines that placement
of the child in the home would be contrary to the welfare of the
child. The Court further determines based on the foregoing that
reasonable efforts were made to prevent placement of the child out
of the child’s home.
The child should remain placed in the custody of the
Department of Human Services with placement with suitable other
persons, namely [her current placement.] . . . The services outlined
in the case plan also constitute reasonable efforts to attain the
permanency goals established in the case plan. The parties are
not requesting additional services.

The next review hearing was held on February 16, 2015. On February 12,

before the review hearing, the GAL submitted a report. The GAL reported the

father’s whereabouts were unknown; he had been in jail in Florida, was released

on probation, and “then dropped out of sight.” The GAL stated R.K. was

requesting custody of the child, and the child was aware of this and “is adamant

she does not want to be with [R.K.]” The GAL reported the child wanted to

continue to live with the foster family.3 The GAL recommended termination of

both parents’ parental rights and that no extension be granted to any party

3
The foster family had informed the court they could provide a long-term placement for
her.
8

because permanency for the child was needed and reunification was not in the

child’s best interests.

Davis, the social worker, also submitted a report, noting the father’s

whereabouts were unknown. Davis concluded,

The biological father . . . lives out of state, his whereabouts are not
known, he has an outstanding warrant for a probation violation, and
has a lengthy criminal history. DHS contends the father cannot
demonstrate he can be an appropriate caretaker for [S.D.] within
the permanency time frames established by law.

Davis recommended termination of parental rights and that the permanency goal

be changed to adoption.

On March 9, 2015, the juvenile court entered a permanency order, finding,

in part,

The Department has offered this family visitation and FSRP
services directed at education regarding child safety. Mental health
referrals were made for the mother and individual therapy to [S.D.]
The father was referred to substance abuse evaluation and an
ICPC home study. Despite the offer of the above services neither
has completed the case plan goals. Additional time and services
are unlikely to change the prognosis in the next few months for
either parent. The Court knows of no additional services that
should have been offered to the father or mother. The parents
made no request for services that were not provided except for the
mother’s request for visitation to continue with her daughter.

The court rejected R.K.’s request that the child be placed with her, noting the

child’s age, level of maturity, and adamant objection to living with her. The case

plan goal was changed to adoption.

A petition to terminate parental rights was filed on May 13, 2015, alleging

termination was appropriate under Iowa Code section 232.116(1)(a), (b), (d), (e),
9

(f), (i), (j), and (m) (2015).4 The mother remained in prison, and the father’s

whereabouts were unknown because he had had no contact with DHS since

December 2014.

4
In relevant part, Iowa Code section 232.116(1) provides a court may terminate parental
rights if:
a. The parents voluntarily and intelligently consent to the
termination of parental rights and the parent-child relationship and for
good cause desire the termination.
b. The court finds that there is clear and convincing evidence that
the child has been abandoned or deserted.
....
d. 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 the 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.
e. The court finds that 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 child has been removed from the physical custody of the
child's parents for a period of at least six consecutive months.
(3) There is clear and convincing evidence that the parents have
not maintained significant and meaningful contact with the child during the
previous six consecutive months and have made no reasonable efforts to
resume care of the child despite being given the opportunity to do so. . . .
f. 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 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.
....
i. The court finds that all of the following have occurred:
(1) The child meets the definition of child in need of assistance
based on a finding of physical or sexual abuse or neglect as a result of
the acts or omissions of one or both parents.
10

On July 20, 2015, a different DHS social worker than had been working

with the family, Kerri Griffiths, sent a letter to the father at a Florida correctional

facility which states,

I understand you are due to be released from jail on or around
7/30/15. Please contact me at your earliest convenience to speak
about your situation and your daughter’s Juvenile Court Case. The
next hearing is on 8/25/2015 at 1:30 pm . . . . This is a Termination
of Parental Rights Hearing.
I need to know immediately upon your release about how
you plan to proceed with your living arrangements and how you
plan to make yourself available for your daughter as a safe parent.

On July 30, the father telephoned DHS and reported he would be in Iowa

in August and wished to have visits with S.D. On August 24, 2015—the day

before the termination trial—the father arrived at the Iowa DHS office with his

attorney and asked to visit S.D. DHS did not recommend that a visit occur.

(2) There is clear and convincing evidence that the abuse or
neglect posed a significant risk to the life of the child or constituted
imminent danger to the child.
(3) There is clear and convincing evidence that the offer or receipt
of services would not correct the conditions which led to the abuse or
neglect of the child within a reasonable period of time.
j. The court finds that both of the following have occurred:
(1) The child has been adjudicated a child in need of assistance
pursuant to section 232.96 and custody has been transferred from the
child's parents for placement pursuant to section 232.102.
(2) The parent has been imprisoned for a crime against the child,
the child's sibling, or another child in the household, or the parent has
been imprisoned and it is unlikely that the parent will be released from
prison for a period of five or more years.
....
m. The court finds that both of the following have occurred:
(1) The child has been adjudicated a child in need of assistance
pursuant to section 232.96 after finding that the child has been physically
or sexually abused or neglected as a result of the acts or omissions of a
parent.
(2) The parent found to have physically or sexually abused or
neglected the child has been convicted of a felony and imprisoned for
physically or sexually abusing or neglecting the child, the child's sibling, or
any other child in the household.
11

The termination trial was held on August 25, 2015. The father testified he

went to jail on July 27, 2014, and was released on December 24. He was again

incarcerated in January 2015 and released on July 30, 2015. He stated he

nonetheless wished to be a parent and blamed his lack of involvement with the

child on the mother. He submitted copies of numerous letters he had written to

S.D.—all of which were written while he was incarcerated.

The mother has a tentative release date in May 2018. The mother

continues to express no understanding of how her acts of allowing sex offenders

access to the children in her care creates a risk of harm to the child.

Following the trial, the juvenile court found the mother “is a dangerous

woman whose ignorance resulted in several children suffering repeated

horrendous abuse.” The court terminated her parental rights pursuant to section

232.116(1)(b), (d), (e), (f), and (i). With respect to the father, the juvenile

terminated his rights pursuant to section 232.116(1)(b), (e), and (f).

Both parents appeal.

II. Scope and Standard of Review.

We conduct a de novo review of termination of parental rights

proceedings. In re H.S., 805 N.W.2d 737, 745 (Iowa 2011). Although we are not

bound by the juvenile court’s findings of fact, we do give them weight, especially

in assessing the credibility of witnesses. In re D.W., 791 N.W.2d 703, 706 (Iowa

2010). An order terminating parental rights will be upheld if there is clear and

convincing evidence of grounds for termination under section 232.116. Id.

Evidence is considered “clear and convincing” when there are no “serious or
12

substantial doubts as to the correctness or conclusions of law drawn from the

evidence.” Id.

III. Discussion.

A. Mother’s appeal. The mother contends she did not abandon S.D. and

objects to termination of her parental rights pursuant to section 232.116(1)(b).

She also contends the court erred in finding that services had been offered to her

to correct the situation that led to the CINA adjudication so termination under

paragraph “d” was not appropriate. She further objects to a finding under

paragraph “e” because she disagrees she had an opportunity to resume care of

her child. 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. D.W., 791 N.W.2d at 707. Because the mother does

not dispute the existence of the grounds under sections 232.116(1)(f), we may

rely on this ground and we need not address the other grounds. See In re P.L.,

778 N.W.2d 33, 40 (Iowa 2010).

The mother also contends termination of her parental rights is not in the

child’s best interests, and the closeness of the parent-child bond weighs against

termination. We disagree. The child testified at the mother’s sentencing hearing

to explain how she felt her mother’s actions or inactions had harmed her life. We

conclude this act by the child speaks powerfully about a mother-daughter

relationship that no longer requires preservation. This child is in need of

permanency now, and the mother’s claim of a bond between mother and child is

not reflected in the record.
13

B. Father’s appeal. The father challenges the finding that he abandoned

his child (section 232.116(1)(b)) or failed to maintain significant and meaningful

contact (paragraph “e”). He claims there is no basis for termination under

paragraph “f” as it pertains to him. He also challenges the finding that

termination of his parental rights was in the child’s best interests, and DHS failed

to make reasonable efforts to establish a relationship between him and S.D.

The record belies the father’s claims. As found by the trial court, the

father had face-to-face contact with the child twice during her life and perhaps

ten phone contacts. The court wrote, “He claimed lack of knowledge of her

whereabouts, which may be true, but he took no steps to locate [the child] over

the many years of her life.” Moreover, he was informed of the child’s address in

2012 (by way of receipt of a child abuse investigation report involving S.D.) and

made no attempt to contact the child until 2014 after the CINA proceedings had

begun. During the CINA proceedings he was in jail and unavailable for several

months. For purposes of section 232.116(1)(e),

“significant and meaningful contact” includes but is not limited to the
affirmative assumption by the parents of the duties encompassed
by the role of being a parent. This affirmative duty, in addition to
financial obligations, requires continued interest in the child, a
genuine effort to complete the responsibilities prescribed in the
case permanency plan, a genuine effort to maintain communication
with the child, and requires that the parents establish and maintain
a place of importance in the child’s life.

We again quote the juvenile court: “It is apparent from [the father’s]

exhibits . . . that domestic violence and illegal drug usage is a current problem”

for him. The father has had several legal problems resulting in jail time during

the course of the CINA proceedings, including charges of domestic abuse
14

assault (with injury), substance abuse, and driving while barred. He also reports

having a lengthy criminal record. These are not the actions of a parent who is

acting in a child’s best interests. The father has not provided support for the

child. We find clear and convincing evidence in this record to support termination

of the father’s parental rights under section 232.116(1)(e) because he has not

made this child a priority in his life and has not made genuine efforts to maintain

communication or a place of importance in her life, although we acknowledge

that he sent some written correspondence while juvenile proceedings were

pending.

The father argues that termination of the child’s parental rights would best

be served by changing the goal to a guardianship and allowing the child to

develop a familial identity with her father. This child has waited eleven years for

her parents to provide appropriate care and is need of permanency. “[O]ur

legislature has carefully constructed a time frame to provide a balance between

the parent’s efforts and the child’s long-term best interests.” D.W., 791 N.W.2d

at 707. At S.D.’s age, that time frame is one year. See Iowa Code

§ 232.116(1)(f). These juvenile proceedings have gone beyond the statutory

time frame. “Ultimately, the issue is not parental culpability but whether the

statutory requirements have been met.” In re A.M., 843 N.W.2d 100, 111 n.9

(Iowa 2014).

In therapy sessions, the child has expressed she does not wish to meet or

have a relationship with the father. She is comfortable and making progress in

the care of the foster family. Giving “primary consideration to the child’s safety,

to the best placement for furthering the long-term nurturing and growth of the
15

child, and to the physical, mental, and emotional condition and needs of the

child,” we conclude termination of the father’s parental rights is in the child’s best

interests. See Iowa Code § 232.116(2).

We also reject the father’s claim that reasonable efforts were not made to

reunify him with his child. The father resided in Florida and was given financial

assistance to obtain a psychological evaluation. An interstate compact home

study was attempted. However, these services and others were thwarted by the

father’s actions and lifestyle, which rendered him unavailable at the expense of a

relationship with his child.

AFFIRMED ON BOTH APPEALS.