In re S.O.

• Decision Date: 18 August 2021
• Docket Number: No. 21-0574,21-0574
• Citation: 967 N.W.2d 198
• Parties: In the INTEREST OF S.O., Minor Child, S.O., Minor Child, Appellant, F.O., Father, Appellant, J.O., Mother, Appellant.
• Court: Iowa Court of Appeals

967 N.W.2d 198

In the INTEREST OF S.O., Minor Child, S.O., Minor Child, Appellant, F.O., Father, Appellant, J.O., Mother, Appellant.

No. 21-0574

Court of Appeals of Iowa.

Filed August 18, 2021

Amended August 26, 2021

T. Cody Farrens of Vriezelaar, Tigges, Edgington, Bottaro, Boden & Lessmann, L.L.P., Sioux City, for appellant minor child.

Peter A. Goldsmith of Boerner & Goldsmith Law Firm, P.C., Ida Grove, for appellant father.

Lori J. Kolpin of Kolpin Law Firm, P.C., Aurelia, for appellant mother.

Thomas J. Miller, Attorney General, and Meredith L. Lamberti and Charles K. Phillips, Assistant Attorneys General, for appellee State.

George C. Blazek of Franck, Sextro & Blazek, PLC, Denison, guardian ad litem for minor child.

Considered by Tabor, P.J., and Greer and Ahlers, JJ.

TABOR, Presiding Judge.

A mother, a father, and their child, S.O., all appeal the juvenile court order terminating the parent-child relationships. The court approved the State's request to terminate the rights of both parents, Fred and Jennifer, under Iowa Code section 232.116(1)(f) (2020). The court decided it was not safe for S.O. to return home based on founded allegations of sexual abuse lodged against Fred by his stepdaughter R.A. Both parents denied R.A.’s allegations of sexual abuse. Fred also had a history of domestic violence and instability. Meanwhile, Jennifer lacked the capacity to protect S.O. Neither parent pursued services as requested by the Iowa Department of Human Services (DHS). Given the credibility findings by the juvenile court and the parents’ state of denial, we affirm the termination of their legal relationship with S.O.¹

I. Facts and Prior Proceedings

Fred and Jennifer married in 2007. It was a second marriage for both of them. Fred has three adult children. Jennifer has a daughter, R.A., born in 2002. R.A. lived with her mother and Fred after their marriage. Together, Fred and Jennifer have one daughter, S.O., born in 2008. The family raised horses and, as the girls grew up, they showed the horses at county fairs.

But their family life was strained at times. For example, in 2015 Jennifer obtained a domestic abuse protective order, alleging Fred was verbally and physically abusive to her and the children. That same year, the DHS confirmed a report from R.A., then thirteen years old, that when she refused to eat a family meal of eggplant parmesan, Fred took a fork and forced the food down her throat until she coughed up blood.² Three years later, Jennifer again requested a protective order, alleging Fred was physically abusive to R.A. and "emotionally and verbally abusive" to the whole family. Jennifer also disclosed on the form for relief that Fred had sexually abused her.³

Another sexual-abuse allegation is central to this termination case. In the fall of 2018, R.A. revealed that Fred had been "touch[ing] [her] inappropriately" since she was in the sixth grade. At S.O.’s termination hearing, R.A. testified his conduct seemed innocent at first but degenerated. "Basically he would come up to my room in the middle of the night and he would do back rubs where he would scratch your back and then it would turn into more than that." R.A. explained as she "got older he would get more touchy," including holding her down and groping her "private parts."

She estimated the abuse happened "on and off for four years." Where was her mother when Fred came into R.A.’s room? R.A. recalled, "She was in her bedroom probably sleeping." But R.A. testified she did tell her mother about the abuse. In response, Jennifer called a family meeting at which she admonished Fred to stop going into the bedrooms of R.A. and S.O. at night.⁴ That admonishment did not stop the abuse, according to R.A.

Instead, it was R.A.’s disclosure of the abuse to her therapist, a mandatory reporter, that launched the DHS involvement with the family.⁵ The DHS investigator arranged for both R.A. and S.O. to interview with the child protection center in Sioux City. In November 2018, R.A. told the interviewer that Fred "would touch her inappropriately over the top of clothing and skin to skin."

S.O. did not report any abuse by her father but did corroborate aspects of R.A.’s allegations. For instance, S.O. recalled that her father would come up to their bedrooms at night. S.O. also said R.A. told her about getting "back rubs."

After the family meeting, the mother said Fred would "no longer be giving back rubs" or checking on the girls at night. Fred denied the sexual abuse occurred. Yet the DHS child protection worker returned a confirmed child abuse finding for Fred's lascivious acts against R.A.⁶ The worker also learned in January 2019 that Jennifer and Fred planned to leave Iowa for California with S.O.⁷ Based on that information, the State successfully petitioned to remove both girls from the home.

Following the removal, the court adjudicated S.O. as a child in need of assistance (CINA) in March 2019. S.O. started out in the care of a relative. But disruptive actions by Fred led to her placement in foster care. The foster mother arranged for S.O. to see a therapist to address trouble she was having with peers at school. But when asked to complete paperwork approving that therapy, Jennifer and Fred procrastinated. The DHS eventually bypassed the parents to approve counseling. Despite going to therapy, S.O. continued acting out. She had tantrums where she would "ruin her belongings by tearing them up and throwing things." She often refused to shower and had issues with bed wetting. Her challenging behaviors led to two foster families giving notice to the DHS. All told, S.O. had six placements during the CINA case. At the time of the termination hearing, she was living in shelter care and awaiting transfer to a psychiatric medical institution for children (PMIC).

Through the rest of 2019, S.O. had supervised visits with her parents. The service provider noted that S.O. enjoyed seeing Jennifer and Fred, though they often discussed their unrealistic expectations that she would soon return home. The juvenile court believed the parents had trouble with boundaries. For example, on the Fourth of July when S.O. snuck away from her foster family's campsite and joined her parents at a fireworks display, Jennifer and Fred failed to notify anyone about the unsupervised contact. They later told the DHS that it was "no big deal." The DHS also arranged for S.O. to have a separate visit with R.A. Originally, S.O. was cold to the idea. But she later welcomed the interaction. When asked about the change of heart, S.O. explained she always wanted to see her sister but had to "play along so that her parents didn't know what she wanted." The juvenile court would later observe the parents’ relationship with S.O. had "an overriding air of manipulation" that was unhealthy.

After a September 2019 review hearing, the court noted the CINA case continued to be "very contentious" and the possibility of reunification was slipping away. Months into the case, the DHS could not determine whether Fred and Jennifer were engaged in the therapy necessary to address the sexual-abuse allegations that prompted the girls’ removal. Both parents were "cagey" about providing information from the Veterans Administration (VA), where they sought counseling. It turned out the VA could not offer the type of therapy the DHS considered necessary for the parents to reunify with S.O. After the VA notified the parents that therapy to deal with sexual-abuse issues would have to be outsourced, they failed to follow up. Also troubling, at visitations with S.O., the parents would blame R.A. for their struggles. Social workers would have to redirect the conversation.

In January 2020, the DHS recommended termination of parental rights. The case coordinator asserted that, in thirteen months of involvement with the family, "very little progress" had been made. Her report stated, "Fred and Jennifer continue to act as though they are the victim[s] in this and [R.A.] is the root of all their problems." Before the February permanency hearing, S.O.’s guardian ad litem (GAL) moved to bifurcate the roles of GAL and legal counsel for the child under Iowa Code section 232.89(4). The GAL urged that he could not "adequately fulfill both duties" given the DHS recommendation of termination and the child's wish for reunification. The court granted that motion.

In March, the State petitioned for termination of parental rights under Iowa Code section 232.116(1)(f). After several continuances, the termination hearing occurred over six days scattered from August 2020 to March 2021. At the end of the contested hearing, S.O.’s attorney asked the court to return the child to her parents’ custody. He relayed her wishes: "My client unequivocally wants to go back home." In contrast, her GAL argued it was in S.O.’s "long-term best interests" to not return to the household with Fred and Jennifer.

The court issued its termination order in April 2021, finding clear and convincing evidence to support the ground for termination in the State's petition. In its ruling, the court discussed an exhibit filed by S.O.’s attorney, purporting to be a letter written by S.O. communicating her desire to go home. The court recognized that S.O. did want to go home and that she missed her horses and other pets. But the court was skeptical "as to whether or not [S.O.] actually wrote the letter." The court explained: "The tone is quite manipulative, i.e., making veiled threats of suicide, and a bit over the top if written by a ten year old." Ultimately, the court found termination of her parents’ legal rights was in S.O.’s best interests, despite her wish to return to home.

S.O. appeals that ruling, as do both Jennifer and Fred.

II. Analysis

A. Child's Standing to Challenge Termination

In its response to the child's petition on appeal, the State argued that S.O. did not have standing to challenge the statutory grounds for termination of her parents’ rights under Iowa Code section 232.116...