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In re K.R.

Court of Appeal of Iowa

June 26, 2013

IN THE INTEREST OF K.R., T.R., S.R., AND M.R., Minor Children, STATE OF IOWA, Appellant.

Appeal from the Iowa District Court for Sac County, James A. McGlynn, Judge.

The State appeals the district court order dismissing a petition to terminate parental rights and in entering a permanency order.

Thomas J. Miller, Attorney General, Katherine S. Miller-Todd, Assistant Attorney General, and Benjamin J. Smith, County Attorney, for appellant State.

Charles A. Schulte of Schulte & Gravel Law Firm, P.C., Sac City, for appellee mother.

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

Marcy Lundberg, Fort Dodge, attorney and guardian ad litem for minor children.

Martha A. Sibbel of Law Office of Martha Sibbel, P.L.C., Carroll, for minor child, B.R.

Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.

VOGEL, P.J.

The State appeals the district court order dismissing the termination of parental rights petition filed as to Carmin and James regarding four of their children: daughters K.R. (born 1998), T.R. (born 2000), S.R. (born 2002), and M.R. (born 2005).[1] The State argues it proved by clear and convincing evidence the statutory elements of Iowa Code section 232.116(1)(e) (2011) (child adjudicated in need of assistance (CINA), child removed for six months, parent has not maintained significant and meaningful contact with the child); (f) (child four or older, adjudicated CINA, removed from home for twelve of last eighteen months, and child cannot be returned home); and (i) (child adjudicated CINA, child was in imminent danger, services would not correct conditions). The State also argues termination was in the children's best interests.

We agree with the State the elements of section 232.116(1)(f) and (i) have been proved as to both parents, but in light of the pending criminal charges against the father, we disagree that termination—at this point in time—was shown to be in the children's best interests. In that same regard, we modify the implementation of expanded visitation until the resolution of the criminal charges.

This family first became involved with the Iowa Department of Human Services (DHS) in December 2009 because of deplorable housing conditions, the worst the testifying DHS case manager had witnessed in her twenty-six years of service. There were up to thirty animals living in the small home, which was overwhelmed with filth and odor, and so much clutter that there was barely a path to walk from room to room. Another major concern was that James was sending pornographic text messages and photos to both B.R. and K.R. In addition, B.R. reported James showed her pornographic pictures and videos on the computer depicting various sex acts. James also had a severe alcohol problem, and Carmin's mental health was so unstable that she failed to provide for the girls' basic necessities and did not protect the girls from James's inappropriate actions. A child protective assessment was completed on January 20, 2010, with multiple findings as to both James and Carmin including: (1) denial of critical care, failure to provide adequate shelter; (2) gross failure to meet the children's emotional needs; and (3) assault with intent to commit sexual abuse as to James. These findings were not appealed by either parent.

In February 2010, James and Carmin stipulated to the adjudication of the children as CINA, as defined in Iowa Code section 232.2(6)(g) (parents fail to exercise a minimal degree of care in supplying the child with adequate food, clothing, or shelter and refuses other means made available to provide such essentials). The family was provided with Family Safety, Risk, and Permanency Services (FSRP), therapy for all members, couples counseling, and psychological and psychosexual evaluations and therapy for James. Initially the children were allowed overnight visitation with James and Carmin; however, based on interviews with the children at the Child Advocacy Center, additional and graphic information surfaced resulting in an October 14, 2010 founded report with James as the perpetrator of (1) assault with intent to commit sexual abuse and (2) indecent exposure. No appeal was taken of these findings. The report summary included the comment that "[n]either [James nor Carmin] can acknowledge that James has sexually deviant behaviors and has abused his children by exposing them to these behaviors. Carmin and James tend to minimize how they have been neglectful of or abusive to their children." Visitation was changed to supervised and has remained so through the termination hearing.

A petition to terminate James's and Carmin's parental rights was filed on January 5, 2011, and amended on March 5, 2012. The termination hearing was stretched out for over one year with testimony heard and other evidence received on March 21, ...


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