Opinion
No. 1-876 / 01-0953
Filed April 10, 2002
Appeal from the Iowa District Court for Clinton County, Arlen J. Van Zee, District Associate Judge.
Sandra and Douglas appeal a juvenile court order terminating their parental rights. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
David M. Pillers of Pillers Law Offices, P.C., Clinton, for appellant father of C.H.
Jeffrey L. Farwell of Farwell Bruhn, Clinton, for appellant mother of D.B. and A.B.
Thomas J. Miller, Attorney General, and Gordon E. Allen, Deputy Attorney General, for appellee-State.
Lawrence Schultz, DeWitt, for appellant minor child A.B.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Sandra appeals a juvenile court order terminating her parental rights to her two children, Diana and Ashley. Sandra's husband Douglas appeals the same order terminating his parental rights to his daughter Cecilia. We affirm the termination of Sandra's parental rights, reverse the termination of Douglas's parental rights, and remand for further proceedings consistent with this opinion.
I. Background Facts and Proceedings
Sandra has two children, Diana, born in 1985, and Ashley, born in 1990. Douglas has one child, Cecilia, born in 1988. Sandra and Douglas are married and were living together with their respective children at the time of the incidents giving rise to this proceeding.
In 1999, the Department of Human Services determined Douglas sexually abused his step-daughter Diana. The department further determined Sandra failed to protect Diana from the abuse. All three children were removed from the home, adjudicated in need of assistance, and placed in foster care.
The department initiated services designed to assist the parents in reuniting with the children. The parents were required to participate in these services, which included parent-skill development training, counseling, and, for Douglas, therapy "addressing sexual abuse perpetrator issues."
Douglas began attending sex abuse therapy sessions but vehemently denied committing the abuse. In light of the denial, the service provider terminated treatment. After some funding-related delays, Douglas attended sessions with a second service provider. Again, he denied committing the abuse. The second service provider also terminated treatment, but not before concluding Douglas's profile was not one "typically seen with sexually abusing parents." The department disallowed any visitation between Douglas and Cecilia based on his denial of the abuse. Meanwhile, Douglas continued to attend parent-skill development training and obtained a substance abuse evaluation recommended by the department in light of prior alcohol abuse.
After providing services for more than a year, the department recommended termination of both parents' rights to their respective children. The juvenile court granted the State's petition and this appeal followed. Our review is de novo. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997).
The court also terminated the parental rights of Diana's father. Additionally, Cecilia's mother consented to termination of her rights. The State withdrew its termination petition against Ashley's father. None of these parents are involved in this appeal.
II. Sandra's Parental Rights
The juvenile court terminated Sandra's rights to parent her children pursuant to Iowa Code sections 232.116 (1)(c) (physical or sexual abuse or neglect) and (e) (1999) (child four or older cannot be returned to parent's custody). Sandra maintains the State did not carry its burden of proving these statutory grounds for termination. We disagree.
First, the record reveals the children could not be returned to Sandra's care. Diana told her mother she had been repeatedly abused at the hands of Douglas, but Sandra minimized these allegations and took no steps to protect her from further abuse in the event Diana's allegations proved true. Sandra was to meet regularly with a therapist to address her lack of empathy for Diana but only attended four sessions. Although she had stopped living with Douglas at the time of the termination hearing, she maintained regular contact with him and continued to rely on him for financial and other support despite her daughter's allegations. The family therapist stated the department had worked with Sandra for approximately two years "with little notable change." In light of this and other evidence in the record, we agree with the juvenile court that Sandra had "not moved to a position of restoration" in her relationship with Diana, who was sexually abused, and with Ashley, who was aware of the abuse. We conclude there was sufficient evidence to establish that the circumstances leading to the children's adjudication continued to exist as required by section 232.116(1)(c), and the children could not be returned to the parent's custody as required by section 232.116(1)(e).
Even though we later conclude the State violated Douglas's privilege against self-incrimination, we need not discount the record evidence of abuse. See In re J.W., 415 N.W.2d 817, 833 (Minn. 1987) (noting parent's assertion of privilege against self-incrimination did not keep out the evidence that the parents were responsible for their nephew's death).
Second, we are persuaded that the department made reasonable efforts to reunite Sandra with her children. The department offered her therapy, parent-skill training, as well as visitation. Although Sandra's participation in these services improved with time, the record supports the department's belief that Sandra failed to internalize and apply what she learned. As the juvenile court stated "[t]herapeutic intervention to be successful must be regular and accompanied by progress in dealing with issues. The therapy sessions have not been regular nor has there been any significant progress in dealing with issues referenced above."
Third, we reject Sandra's arguments that her termination was based on economic reasons. As Sandra failed to ask the department for transportation or other economic assistance, she waived error on this issue. See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Finally, Sandra cites no authority for the proposition that the court impermissibly considered the children's progress in foster care. Therefore, we deem this issue waived. Iowa R. App. P. 6.14.
Formerly Iowa R. App. P. 14(a)(3).
We affirm the juvenile court's termination of Sandra's parental rights to Diana and Ashley.
III. Douglas's Parental Rights
The juvenile court terminated Douglas's rights to parent Cecilia pursuant to Iowa Code sections 232.116 (1)(c) (physical or sexual abuse or neglect) and (e) (child four or older cannot be returned to parent's custody). Douglas maintains: (1) the court violated his constitutional privilege against self-incrimination by basing the termination decision on his failure to admit to sexual abuse; (2) there was insufficient evidence to support termination under these provisions; and (3) termination was not in Cecilia's best interests. As we find the first issue dispositive, we need not address the remaining two issues.
The Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that no person "shall be compelled in any criminal case to be a witness against himself. . . ." U.S. Const. amend. V, XIV. This privilege applies in civil as well as criminal proceedings. Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 1141, 79 L.Ed.2d 409, 418 (1984). "[W]hen a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment." Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1, 7 (1977).
Our highest court recently addressed the applicability of the privilege in a therapeutic setting. In re E.H. III, 578 N.W.2d 243, 249-50 (Iowa 1998). In E.H. III, the juvenile court ordered a father accused of sexually abusing his daughter to have no contact with his children until a sex offender treatment therapist recommended such contact. The father raised the identical argument Douglas raises here. After canvassing multi-state precedent on this issue, our highest court rejected the father's claim based on a failure of proof. The court reasoned:
The juvenile court did not require a particular type of program, nor did it specify where [the father] should obtain treatment. Although there was some indication in the record that Tanager Place may require an admission as a condition of its treatment program, one witness testified that the program had a "back-door" approach toward counseling without an admission of sex crimes. Finally, there is no evidence in the record, other than the assertions of [the father], that all treatment programs would require an admission of sexual abuse before recommending that [the father] be allowed contact with his children.
Id. at 250.
This case does not suffer from the same proof problems. Although the juvenile court stated termination of Douglas's parental rights was "not a sanction for exercising his constitutional right against self-incrimination" but "a failure to recognize and rectify parental deficiencies," the record suggests otherwise. While Douglas had parenting deficits beyond the sexual abuse, the court adjudicated Cecilia a child in need of assistance based solely on sexual abuse. See Iowa Code § 232.2(6)(d). Additionally, the department's recommendation to terminate Douglas's parental rights was not based on his general lack of insight concerning his parental capabilities, but on his specific failure to admit to sexually abusing Cecilia. For example, the department's case plans made repeated reference to Douglas's refusal to admit to sexual abuse and the resultant termination in therapy. Moreover, a family therapist charged with overseeing implementation of the department's case plan confirmed she was recommending termination of Douglas's parental rights based solely on his refusal to acknowledge the sexual abuse. Her report to the court stated:
It is true a second treatment provider recommended treatment for depression and personality disorder and suggested that treatment was terminated because of "[h]is level of denial in this situation and lack of insight concerning psychological matters", a determination that would support the juvenile court's ruling that termination was not based exclusively on Douglas's refusal to admit to abuse. However, the second provider's prior report indicated Douglas readily admitted to experiencing depression and anger and continued to attend sessions after making these admissions. The only thing he did not do was admit to sexual abuse. Therefore, it is clear that the treatment was terminated for no other reason than Douglas's failure to admit to abusing Diana.
An absolute refusal to acknowledge any wrong doing by Doug makes it impossible for him to make progress in treatment and future services would not appear to be beneficial. Therefore, due to the fact Cecilia has been in foster care for approximately two years with little notable progress on the part of her father, this worker believes it is appropriate to terminate parental rights.
Finally, the same family therapist testified that the department had and would continue to recommend against visitation or reunification until Douglas admitted to abusing Cecilia. Her pertinent trial exchange with Douglas's counsel is as follows:
Q: But you continued to recommend and require that Doug admit sexual abuse and participate in offender treatment?
A. Yes.
Q. And you still maintained then and today that unless he does so, no visitation, no reunification?
A. That's correct.
Q. And throughout the time Doug has also stated to you his displeasure with services, right?
A. Yes.
Q. And with his concern about pressure to admit to something he didn't do?
A. Yes.
The department's position, therefore, was clear: Douglas would have to waive his constitutional privilege against self-incrimination in order to have any contact with his daughter. This is precisely the type of "potent sanction" prohibited by Fifth Amendment jurisprudence. See Lefkowitz, 431 U.S. at 805, 97 S.Ct. at 2135; 79 L.Ed.2d at 7.
The State nevertheless argues that the onus was on Douglas to find a treatment option that did not require admission of abuse. We are not persuaded by this contention. Our statute places the burden on the State, not the parent, to make reasonable efforts toward reunification. See Iowa Code §§ 232.102(7), (10)(a); In re C.B., 611 N.W.2d at 492-93 (State required to establish reasonable efforts as a part of its ultimate proof). The State did not satisfy this burden because the department did not afford Douglas the option of continuing individual therapy without acknowledging his guilt. Cf. In re J.W., 415 N.W.2d 817, 833 (Minn. 1987) (emphasizing State could require the parents to otherwise undergo treatment which did not include incriminating disclosures and could consider effectiveness of treatment in deciding whether to terminate the parents' rights). Accord In re J.G.W., 433 N.W.2d 885, 886 (Minn. 1989); In re Clifford M., 577 N.W.2d 547, 554 (Neb.Ct.App. 1998) (termination permissible for parent's failure to comply with order to obtain meaningful therapy or rehabilitation based in part on failure to acknowledge past wrongdoing).
In sum, we conclude Douglas's parental rights were terminated solely because he refused to admit to sexually abusing Diana. This ground for termination violated Douglas's Fifth Amendment privilege against self-incrimination. See William Wesley Patton, The World Where Parallel Lines Converge: The Privilege Against Incrimination in Concurrent Civil and Criminal Child Abuse Proceedings, 24 Ga. L. Rev. 473, 519 (1990) (arguing against imposition of constitutional penalty for assertion of the privilege against self-incrimination).
In so holding, we are mindful of a prior opinion of our court reaching a contrary conclusion. See In re H.R.K., 433 N.W.2d 46, 50 (Iowa Ct.App. 1988). Relying on a Minnesota Court of Appeals decision, our court held that the best interests of the child trumped the parents' constitutional privilege against self-incrimination. Id. (citing In re S.A.V., 392 N.W.2d 260, 264 (Minn.Ct.App. 1986)). However, the Minnesota Supreme Court has effectively disavowed the dicta on which our court relied. See In re J.W., 415 N.W.2d at 882-84 (holding threat of termination was "genuine, direct, and immediate"). Additionally, our court in H.R.K. had ample grounds to affirm the termination order even absent the sexual abuse allegations. H.R.K., 433 N.W.2d at 50; see also In re Clifford M., 577 N.W.2d 547, 556 (Neb.Ct.App. 1998) (distinguishing H.R.K.). That is not the case here. As Douglas's failure to admit to abusing his step-daughter is the only ground on which the juvenile court relied to terminate his parental rights, we find H.R.K. distinguishable.
Other jurisdictions also have reached a contrary result. See In re D.J.M., 737 A.2d 1179, 1183 (N.J. 1999); Cf. Jessica Wilen Berg, Give Me Liberty or Give Me Silence: Taking a Stand on Fifth Amendment Implications for Court-Ordered Therapy Programs, 79 Cornell L. Rev. 700, 720 (1994) (noting some courts balance privilege against State interests in protecting child); Scott Michael Solkoff, Judicial Use Immunity and the Privilege Against Self-Incrimination in Court Mandated Therapy Programs, 17 Nova L. Rev. 1441, 1473-81 (1993) (canvassing state cases that have found no violation of Fifth Amendment rights).
Our holding today is consistent with the opinions of two of our sister states faced with the identical issue. See In re J.W., 415 N.W.2d 879, 882-84 (Minn. 1984); In re Clifford M., 577 N.W.2d 547, 559 (Neb.Ct.App. 1998). In J.W., the Minnesota Supreme Court found a violation of the parents' Fifth Amendment rights where a trial court order required the parents to incriminate themselves and a state attorney stated the parents' invocation of the privilege against self-incrimination would result in a termination action. Id. at 882-83. As a result, the court determined the State could not use the parents' refusal to incriminate themselves as a ground to support termination of their parental rights. Id. at 884.
The court, however, emphasized that the State could require the parents to otherwise undergo treatment which did not include incriminating disclosures and, if that treatment was ineffective, could consider that fact in deciding whether to terminate the parents' rights. Id. at 883; accord In re J.G.W., 433 N.W.2d 885, 886 (Minn. 1989). The issue of whether sex offender treatment without an admission would support the court's termination decision is not before us, as the State did not, as part of its reasonable efforts mandate, afford Douglas that treatment option.
Similarly, in Clifford M., the Nebraska Court of Appeals reversed a parental termination order because it relied exclusively on the parent's refusal to waive her privilege against self-incrimination. Clifford M., 577 N.W.2d at 558-59. Accord Mullin v. Phelps, 647 A.2d 714, 716 (Vt. 1994). The court reasoned that the trial court's ruling forced the parent to choose between "her right against self-incrimination and her children." Clifford M., 577 N.W.2d at 557.
We are convinced that is what happened here. Accordingly, we reverse the termination order as to Douglas. In doing so, we emphasize, as the Nebraska Court of Appeals did in Clifford M., that the effect of our ruling is not to return a child to a possible sex abuser. As that court noted:
[t]he children will remain in the custody of the State until further order of the juvenile court, a rehabilitation plan will remain in effect, and the juvenile court judge will continue to enter appropriate orders guaranteeing the safety, health, and welfare of these children. The State is not prejudiced from filing another motion to terminate [the mother's] parental rights on lawful grounds and presenting evidence to support such motion, if and when such action becomes appropriate.
Id. at 559. This language applies with equal force here. While reversing the termination order, we cannot and do not terminate the juvenile court's jurisdiction over Cecilia. We remand for further proceedings consistent with this opinion.
IV. Disposition
We affirm the juvenile court's termination of Sandra's rights to parent Diana and Ashley. We reverse the juvenile court's termination of Douglas's rights to parent Cecilia and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.