In re CH

• Citation: 652 N.W.2d 144
• Decision Date: 09 October 2002
• Docket Number: No. 01-0953.,01-0953.
• Parties: In the Interest of C.H., Minor Child, D.H., Father, Appellant.
• Court: United States State Supreme Court of Iowa

652 N.W.2d 144

In the Interest of C.H., Minor Child, D.H., Father, Appellant.

No. 01-0953.

Supreme Court of Iowa.

October 9, 2002.

David M. Pillers of Pillers Law Offices, P.C., Clinton, for appellant.

Thomas J. Miller, Attorney General, and Gordon E. Allen, Deputy Attorney General, for appellee State.

Bert Watson, Clinton, guardian ad litem for minor child.

STREIT, Justice.

The father of a fourteen-year-old girl appeals from a juvenile court decree terminating his parental rights. We transferred the case to the Iowa Court of Appeals, which reversed the juvenile court's decree as to the father's termination, but affirmed the mother's termination of parental rights. On further review, we now vacate in part and affirm in part the court of appeals' decision and affirm the decree of the juvenile court.

I. Background and Facts

This case comes to us as an appeal of a juvenile court order terminating the parental rights to three children. Douglas is married to Sandra. Sandra has two daughters from a previous marriage, Diana and Ashley. Douglas has one daughter, Cecilia, from a previous relationship. All three children lived with Douglas and Sandra.

This family first had contact with governmental services in October 1994. When Douglas and Sandra left to work in a carnival, they left the children in the care of a babysitter. Approximately ten days after Douglas and Sandra left, the caregiver turned the children over to police and charges of abandonment were filed with Social Rehabilitation Services in Topeka, Kansas. Diana and Ashley were placed in foster care in Kansas. The children were returned to the custody of Sandra and Douglas in 1996. In May 1997, DHS investigated a complaint of physical abuse against Douglas. Douglas had split Cecelia's lip open during a disagreement. After temporary foster placement, the children were returned to the care of Douglas and Sandra.

In 1999, the children again were removed from Douglas' and Sandra's care after Diana made allegations of sexual abuse against Douglas. The juvenile court adjudicated all three children in need of assistance in accordance with Iowa Code sections 232.2(6)(b) and (d) (1999). The children were placed in foster care.

In adjudicating the children in need of assistance, the court made extensive and detailed findings of fact. The court found Douglas sexually abused Diana when she was eleven years old. Douglas touched her genitals, anus, and breasts. On one occasion, Diana reported Douglas touched her chest "and where she goes pee and poop." On another occasion, Douglas took Diana out of the shower and touched her genitals with his penis. Diana's sisters knocked on the door, but Douglas told them to go away. Douglas only stopped his conduct with Diana when he heard Sandra return home. Diana told her mother about this particular incident, but Sandra denies that it happened.

The court further found while in foster care, Diana behaved sexually toward her foster father and a twelve-year-old friend. Diana and Cecilia initially were placed in the same foster home, but they were later separated because Diana became physically aggressive toward Cecilia. Cecilia, too, exhibited signs consistent with sexual abuse occurring in the home. She would inappropriately touch, kiss, and rub strangers. Cecilia also played with the family dog's penis.

On one occasion, Cecilia became excessively agitated and began screaming. She was afraid to go to sleep. Cecilia told her foster mother she was afraid her dad would come and get her. Cecilia also said her father would kill her and anyone she told. Cecilia at times refused to take a bath and she would eat until she vomited. The court found Cecilia had delayed social and living skills based upon findings made by a therapist with Families of Northeast Iowa. The court stated Cecilia is self-injurious; she hits herself and pulls her hair out. She does not understand sexual boundaries. When she first met her therapist, Cecilia stated her name and immediately volunteered that her dog licks her private parts when she is naked. Cecilia also reported Diana touched her private parts.

On February 8, 2000, the court adopted the case permanency plan and ordered it implemented by DHS. Both Douglas and Sandra stipulated to the permanency plan. Douglas and Sandra were required to participate in services designed to facilitate reunification of the family.

During the two years the children remained in foster care, Douglas continued to deny sexually abusing his stepdaughter. He began therapy but quickly discontinued services because he refused to admit he sexually abused his stepdaughter. Douglas failed to attend substance abuse treatment even though it was recommended by New Directions' substance abuse evaluation. Though Douglas said he was sober, he was convicted of his third offense for operating while intoxicated shortly before the trial on the State's petition to terminate parental rights. Douglas has failed to maintain contact with his daughter.¹

Nine months after the court adopted the case permanency plan, the juvenile court terminated Douglas' parental rights as to Cecilia. See Iowa Code §§ 232.116(1)(c), (e) (1999).² The juvenile court found clear and convincing evidence the incidents of sexual abuse reported by Diana occurred. The court also made findings similar to those cited in the order adjudicating the children in need of assistance. Specifically, the court found Cecilia had poor social and hygiene skills. She acted sexually toward others and invades others' space. Cecilia's "poor social, daily living skills, and significant developmental gaps appear to have been the result of little interaction, lack of stimulation, teaching, and exposure by her biological family." The court stated termination was not a sanction for Douglas' exercise of his constitutional right against self-incrimination but was a result of his "failure to recognize and rectify parental deficiencies."

Douglas appealed the termination of his parental rights to Cecilia and the Iowa Court of Appeals reversed the juvenile court.³ The court of appeals found the State did not satisfy its burden to make reasonable efforts toward reunification because it did not afford Douglas "the option of continuing individual therapy without acknowledging his guilt." The court concluded Douglas'"parental rights were terminated solely because he refused to admit to sexually abusing Diana," and it held "[t]his ground for termination violated Douglas' Fifth Amendment privilege against self-incrimination." The court remanded the case for further proceedings.

The guardian ad litem and the State now seek further review. They contend the court of appeals erred in: (1) allowing the father to wait until the termination hearing to raise a Fifth Amendment challenge to the adequacy of the services provided to him, and (2) finding the father's parental rights were terminated solely on the basis of his failure to acknowledge that he sexually abused his stepdaughter.

The father resists claiming he did not wait until the termination hearing to challenge the adequacy of services. Douglas asserts he repeatedly expressed his dissatisfaction with the services to his social worker. He also contends the court of appeals was correct in finding his parental rights were terminated solely on the basis of his refusal to acknowledge the sexual abuse.

II. Scope of Review

We review termination of parental rights de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993) (citation omitted).

III. The Merits

On appeal we consider two issues. First, we must determine whether the father could wait until the termination hearing to raise a Fifth Amendment challenge to the adequacy of the services provided to him. We also consider whether the juvenile court erred in terminating the father's parental rights.

A. Challenge to the Adequacy of Services

Douglas has not completed sex offender treatment or substance abuse treatment as recommended. He claims the State did not offer him adequate services to allow him to comply with the case permanency plan and ultimately reunify his family. Specifically, Douglas argues he complained several times to his social worker regarding the adequacy of services provided to him. He, however, made no effort to inform the juvenile court of his complaints.

The State must make reasonable efforts to provide services to a parent before termination proceedings may be instituted. Iowa Code § 232.102(7), (10)(a); In re C.B., 611 N.W.2d 489, 492-93 (Iowa 2000). Reasonable efforts are aimed at both preventing and eliminating the need for removal. Iowa Code § 232.102(10)(a); In re C.B., 611 N.W.2d at 493. "This is both a required element of each state's Title IV-E state plan and a condition of federal funding for individual foster care placements." In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App.1997). However, what constitutes reasonable services varies based upon the requirements of each individual case. Id. Generally, in making reasonable efforts to provide services, the State's focus is on services to improve parenting. In re C.B., 611 N.W.2d at 493 (citing In re T.A.L., 505 N.W.2d 480, 485 (Iowa 1993)). The concept of reasonable efforts broadly includes "a visitation agreement designed to facilitate reunification while protecting the child from the harm responsible for the removal." In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.App.1996).

It is appropriate in some cases for the parent to request additional services from DHS. It is also appropriate for DHS to respond to such requests if they are within its duty to use reasonable efforts to satisfy the case permanency plan and the goal of reunification. However, in making reasonable efforts to provide services, the State need not search for unavailable services. This is especially so when a parent, as in the present case, presents the awesome challenge of getting treatment for a deficit the parent claims he does not have. A dialogue...