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In re W.D.

Court of Appeals of Iowa

February 20, 2019

IN THE INTEREST OF W.D., A.D., F.D., Z.D., and S.D., Minor Children, W.D., Sr., Father, Appellant.

          Appeal from the Iowa District Court for Winneshiek County, Linnea M. N. Nicol, District Associate Judge.

         A father appeals the termination of his parental rights to his five children.

          Karl G. Knudson, Decorah, for appellant father.

          Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney General, for appellee State.

          Whitney L. Gessner of Gessner Law Office, Monona, guardian ad litem for minor children.

          Considered by Doyle, P.J., and Mullins and McDonald, JJ.

          DOYLE, Presiding Judge

         A father appeals the termination of his parental rights to his five children.[1]Upon our de novo review, we affirm.

         I. Standard of Review and Statutory Framework.

         Under Iowa Code chapter 232 (2018), parental rights may be terminated if the following three conditions are true: (1) a "ground for termination under section 232.116(1) has been established" by clear and convincing evidence, (2) "the best-interest framework as laid out in section 232.116(2) supports the termination of parental rights," and (3) none of the "exceptions in section 232.116(3) apply to preclude termination of parental rights." In re A.S., 906 N.W.2d 467, 472-73 (Iowa 2018). Our review is de novo, which means we give the juvenile court's findings of fact weight, especially the court's credibility assessments, but we are not bound by those findings. See id. at 472. "For evidence to be 'clear and convincing,' it is merely necessary that there be no serious or substantial doubt about the correctness of the conclusion drawn from it." Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct. App. 1983); see also In re M.W., 876 N.W.2d 212, 219 (Iowa 2016).

         II. Background Facts and Proceedings.

         W.D. is the father and K.D. is the mother of five children, all of whom were born before 2013. The parents were married in or about 2005, and their oldest child was born in March 2006. In October 2006, the Iowa Department of Human Services (DHS) received a report of child abuse allegedly perpetrated by the father against the infant. The DHS determined the report that the father denied the infant critical care in failing to provide proper supervision was founded.

         In January 2013, the family again came to the attention of the DHS after it received reports of child abuse. Following a DHS assessment, the reports against both parents for denying their children critical care in failing to provide proper supervision were determined to be founded. Services were offered to the family, and the case was closed in the late summer or early fall of 2013.

         In August 2013, the DHS received a report that the family was living in an RV-type home, a fifth-wheel trailer that was not suitable for children.

The parents and [five] children were residing in [a] camper at a relative's home. Law enforcement [officials] observed piles of garbage on [the] floor of the camper, animal feces accessible to the children, food items on the floor, dirty dishes and piles on the floor leaving it difficult for the children to maneuver through the items. Through the assessment . . . it was discovered that there were many concerns with the parents' parenting ability.

         At the conclusion of the assessment, the DHS found the new reports against the parents for denying their children critical care in failing to provide adequate housing were founded. Services were again offered to the family. The DHS has continued to be involved with the family since that time.

         After the August 2013 report, the family moved in with the father's mother and her husband. In October 2013, it was alleged the father kicked one of the children in the shin causing a bruise, but the report was not confirmed. There were other concerns about the father's anger and aggression, including that he was making threatening statements towards the children's school. The mother and the children then moved into a new place, and the father continued to live with his mother. The parents have remained separated.

         In November 2013, it was relayed to the DHS that the mother reported "inappropriate sexual contact between the children." The mother told the DHS worker that the parents' four-year-old "daughter had come out of the bathroom prior to a visit with [the father] and asked if [the father] was going to touch her anymore and grabbed her private area." The mother set up counseling appointments for the children, and the children were interviewed at the child protection center. Following protective interviews, the professionals did not find the information obtained from the children was congruous; the children were not able to give any details and appeared to be reporting things that they had heard. The report of sexual abuse was not confirmed.

         In January 2014, the DHS received another allegation the father had sexually abused a relative. In that instance, the father's minor nephew reported the father had touched the nephew "on the private part of his body" on top of his pants. This report of sexual abuse was determined to be founded, and the case was referred for criminal prosecution. Thereafter, the DHS suggested the father participate in a "psycho-sexual evaluation to determine risk of re-offense, risk to the children, and if any treatment is recommended." The DHS stated the visitation with his children would remain supervised minimally until the father was evaluated, and, if the father did not participate, "the visitation [would] stay supervised long-term." The juvenile court in its October 2014 dispositional order adopted the DHS's case plan, including the recommendation that the father participate in the psycho-sexual evaluation. The father refused to participate "until he [was] either officially charged or the charges [were] dropped." The father did continue to have supervised visits with the children every other weekend, and those visits were without any incident.

         The father was charged with indecent contact with a child relating to the allegations by his nephew in March 2014. The case was ultimately "resolved with a plea to the lesser included charge of assault for which the children's father was sentenced to ten days in jail on June 23, 2015." The father then "agreed to participate in a psycho-sexual evaluation." At the time of the September 2015 discretionary-review hearing, the father had an evaluation scheduled for ...


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