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In re K.P.

Court of Appeals of Iowa

December 20, 2017

IN THE INTEREST OF K.P., Minor Child, D.F., Father, Appellant, N.P., Mother, Appellant.

         Appeal from the Iowa District Court for Johnson County, Deborah F. Minot, District Associate Judge.

         Mother and father appeal from an order terminating their parental rights pursuant to Iowa Code chapter 232 (2017). AFFIRMED ON BOTH APPEALS.

          Sara E. Strain Linder of Bray & Klockau, Iowa City, for appellant-father.

          Joseph C. Pavelich of Spies, Pavelich & Foley, Iowa City, for appellant-mother.

          Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee.

          Anthony A. Haughton of Linn County Advocate Office, Cedar Rapids, guardian ad litem for minor child.

          Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.

          MCDONALD, Judge.

         A mother and father separately appeal the termination of their parental rights in their child, K.P. On appeal, the mother contends termination is inappropriate due to the strength of the parent-child bond. The father challenges the sufficiency of the evidence supporting the statutory ground for termination, requests an additional six months to work toward reunification, and argues termination is not in the child's best interest.

         I.

         The child at issue almost died while in the care of the mother. The record reflects Najah and Devonte are K.P.'s biological parents. K.P. was born five weeks early and spent the first twelve days of his life in the hospital due to low birth weight, respiratory problems, feeding problems, and other issues resulting from prenatal drug and alcohol exposure. After K.P. was discharged from the hospital, Najah, her paramour Frank, and K.P. briefly lived with Najah's friend Henrietta until they went to stay with a man named Anthony. On the second day of their stay with Anthony, first responders were dispatched to the apartment after receiving a 911 call the baby was coughing up blood. K.P. was transported to the hospital. X -rays revealed air in his abdomen. Tests revealed injuries to his tonsil and soft palate. Doctors determined K.P. had "air filled neck and chest spaces outside of the airway and significant bleeding . . . from an unknown mechanism of injury." One doctor described the infant as having a "stomach full of blood." Emergency surgery revealed K.M. suffered "three parallel sharp cuts found through the soft tissues of the throat, one in the soft palate, one dividing the tonsil partially from its bed and one diving into the posterior pharyngeal wall down deeply in the throat into the hypopharynx, the lower throat below the tonsils leading to the esophagus." The injuries were not caused "by any tool used in routine baby care." They were "consistent with injury from a sharp weapon, such as a knife. It could not have been a single, accidental penetration with three vertical swipes in the throat." Any one of the injuries "could easily have caused death" by blood loss. The surgeon concluded: "I cannot come up with a plausible instrument of injury; however it is, in my well trained and expert opinion, clearly nonaccidental trauma, and consistent with an intent to kill." K.P. remained in the pediatric intensive care unit (PICU) for approximately two weeks and was then discharged to foster care. At the time of the injury, K.P. was twenty-five days old.

         Who caused the injury to the child remains unresolved. A hospital social worker met with Najah and Frank to explain the child's injuries. During the discussion with the social worker, Najah said, "Nobody could have hurt him because only [Frank and I] care for [K.P.]. Nothing has ever gone in his mouth except for his bottle and the blue bulb suction when he needed it." The social worker noted Najah denied that any other individuals had cared for K.P. since his discharge from the NICU. The police executed a search warrant on the home. They found nothing of investigatory significance. First responders reported they did not observe any instrument at the home that could have caused K.P.'s injury. According to our record, no one has been charged with any crime related to the potentially lethal incisions to K.P.'s mouth and throat.

         Although criminal action was not taken, protective measures were taken. The Iowa Department of Human Services (IDHS) took prompt action in response to the injury. IDHS removed K.P. from Najah's care the day after K.P. was taken to the hospital. K.P. was placed in foster care. IDHS initiated services for Najah and Frank. Najah and Frank were involved with IDHS and Family Safety, Risk, and Permanency (FSRP) services through Four Oaks. Najah informed the service providers the child's father was Devonte, but she called him "unfit, " stating he had substance-abuse and mental-health issues and had "tried to kill" her. She informed providers she had a civil domestic abuse no-contact order in place against Devonte.

         The matter came on for a removal hearing in March 2016. All parties stipulated to continued removal. At the hearing, the juvenile court learned Frank had visited K.P. in the hospital by falsely claiming to be the child's father. In response, the juvenile court entered a no-contact order, prohibiting Frank from having contact with the child. Devonte was present at the removal hearing, but he did not acknowledge paternity. The court denied Devonte's visitation request until paternity was established. Thereafter, Devonte was arrested for violating the domestic abuse no-contact order when he went to the hospital to visit K.P. and had contact with Najah. Devonte became very agitated in court and was escorted out of the courtroom by several deputies. He was later found in contempt of court and sentenced to serve thirty days in jail.

         In April 2016, the parties stipulated to the adjudication of the child as a child in need of assistance pursuant to Iowa Code section 232.2(6)(b) and (c)(2) (2016). Najah was homeless and unemployed. She had not completed a substance-abuse evaluation. She remained involved with Frank although she continued to misrepresent the same. Both IDHS and FSRP workers had asked her if she had any other information about the precipitating incident with K.P. and she had denied having any additional information. The court authorized visitation with Devonte.

         The dispositional hearing was held in May 2016. All parties agreed K.P. should remain in foster care. The court noted it was "highly unlikely" the child would be returned to Najah's care "until it is known how this child was injured and who is responsible." The next day, Najah and her foster mother, Cleo, appeared at the police department. They spoke to the officer investigating K.P.'s injuries. They advanced various theories, which are summarized in the officer's report:

Najah said she, [Frank], [Henrietta], and Henrietta's three-year-old daughter [J.] arrived at the . . . apartment on [the day in question] at approximately 5:00 p.m. Najah said Henrietta left the apartment after 11:00 p.m. Najah said once Henrietta left, was the first time [K.P.] had ever been left in her and Frank's care since he came home from the hospital. Najah said up until that point [K.P.] was cared for by Henrietta. Najah said she and Henrietta recently got into a fight and no longer speak to each other. Najah said she thinks whatever happened to [K.P.] had to have happened at Henrietta's house, because it did not happen at the . . . apartment. Najah said she suspects Henrietta knows what happened to K.P. because she was telling people his throat was cut before she even knew it.
Cleo proceeds to tell me that her son, [Travis], told her he had a conversation with Henrietta at the hospital. Cleo said Travis told her that Henrietta said her daughter [J.] might have caused the injury to [K.P.]. Cleo said Travis told her that Henrietta told him [J.] was left alone in the bedroom with [K.P.] at the . . . apartment on [the day in question]. [K.P.] started crying at this time, and none of the adults leave the living room to go check on him. Henrietta just yells back at [J.] to put his pacifier back into his mouth. Najah states during this time [J.] had a sucker on a stick she was eating. Cleo said she believes [J.] shoved her sucker in [K.P.'s] mouth, causing his injuries. Cleo goes on to say [J.] has been known to stick candy into other kids' ...

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