Full Opinion (html_with_citations)

                     IN THE COURT OF APPEALS OF IOWA

                                         No. 23-1596
                                  Filed December 20, 2023


IN THE INTEREST OF A.R.,
Minor Child,

J.W., Mother,
      Appellant.
________________________________________________________________

       Appeal    from       the    Iowa   District   Court   for   Dickinson   County,

Shawna L. Ditsworth, District Associate Judge.



       A mother appeals from a child-in-need-of-assistance permanency order

establishing a guardianship. AFFIRMED.



       Tyler J. Alger of Sandy Law Firm, Spirit Lake, for appellant mother.

       Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

       Pamela Wingert of Wingert Law Office, Spirit Lake, attorney and guardian

ad litem for minor child.



       Considered by Greer, P.J., and Ahlers and Buller, JJ.
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BULLER, Judge.

       The mother appeals a permanency order placing her child A.R., a child in

need of assistance (CINA), in a guardianship with the maternal grandparents

pursuant to Iowa Code chapter 232 (2023). The mother does not challenge the

underlying CINA adjudication but instead alleges the guardianship is not in the

child’s best interests and the guardians are not suitable. We affirm because the

mother is unwilling to acknowledge or address problems with domestic abuse, her

husband’s substance abuse, animal abuse in the home, and her husband sexually

abusing one of her children.        We also agree with the juvenile court that

guardianship with the grandparents is in the child’s best interests.

       I.     Background Facts and Proceedings

       As pertinent to this appeal, A.R. (born 2011) and A.R.’s sibling (born 2008)

came to the attention of the Iowa Department of Health and Human Services

(HHS) as part of an investigation and assessment into abuse and neglect by the

mother and the mother’s husband, T.W. T.W. is not the children’s biological father,

and the biological father is not a party to this appeal.

       A.R.’s sibling disclosed that T.W. had sexually abused her on multiple

occasions. The mother did not believe A.R.’s sibling, instead claiming the child

was confused and remembered abuse perpetrated by the child’s biological father.

On at least one occasion, the mother laughed when A.R.’s sibling reported that

T.W. “squeezed” her breast.       A.R.’s sibling also disclosed domestic violence

between the mother and T.W., described how the mother and T.W. both used

marijuana and once offered it to her, and reported that T.W. and the mother hit her.

A.R.’s sibling also described how T.W. threw a cell phone, food, and drinks at her
                                        3


head. And she recounted how he said things that made her uncomfortable, such

as “hey sexy baby, looks like you turned 18 today.”

      A.R. corroborated marijuana use and domestic violence inside the home.

A.R. also described how T.W. grabbed her buttocks, hit her in the head and back

with his hand, and threw things at her. According to A.R., the mother did not care

when T.W. grabbed her buttocks. Both A.R. and A.R.’s sibling also reported T.W.

abused multiple pets in the house—including cats Axel, Smokey, Socks, and

Ziggy—by throwing them against walls or down stairs, beating them, or throwing

them out of moving vehicles.

      These reports resulted in founded abuse assessments against both the

mother and T.W. for denial of critical care based on failure to provide adequate

and proper supervision and failure to meet emotional needs, citing domestic

violence and substance abuse related to both children. The reports also resulted

in a founded assessment against T.W. for sexual abuse perpetrated against A.R.’s

sibling. The mother generally denied the acts alleged in the assessment but

admitted observing T.W. throw the cats and “smack” the children’s buttocks

“jokingly.” T.W. admitted some physical violence and some animal abuse but no

sexual abuse. He also admitted using marijuana in the home and hugging A.R.’s

sibling while he had an erection—but he said it was an accident and he couldn’t

stop the child from hugging him.

      As part of the safety plan developed during the assessment, the mother

agreed both children would stay with their maternal grandparents. The children

were later adjudicated CINA and formally placed with grandparents. T.W. was
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ordered to have no contact with either child, and HHS arranged services for the

family.

          T.W. participated in a court-ordered psychosexual evaluation.        The

evaluators found he was “guarded on testing,” and “presently in denial of his own

interest in sex most likely because he wants to project himself as asexual.” During

the evaluation, T.W. admitted smoking marijuana daily and, in the evaluator’s

opinion, “greatly minimized the amount and extent” of alcohol abuse. He was

“defensive” and denied any wrongdoing with respect to either child. With specific

regard to sexual abuse, T.W. consistently denied sexually abusing A.R.’s sibling

and reported “he feels victimized by the charges made against him.”           The

evaluators recommended T.W. complete an intensive sex offender treatment

program (SOTP) and that he not be allowed unsupervised contact with any minors

until he completed SOTP and passed a sexual-history polygraph. The evaluators

also recommended anger-management therapy and drug- and alcohol-abuse

treatment. They specifically noted the mother could not be trusted to supervise

contact between T.W. and minors because the mother was “in denial” and “the

children would not be safe with her.”

          At a CINA review hearing, the mother consented to the continued removal

of the children.     The court also discussed T.W.’s ongoing substance-abuse

problems, which the mother minimized, and scheduled a permanency hearing.

          As of the permanency hearing, the children had been out of the mother’s

care for more than a year. The no-contact order between the children and T.W.

remained in place, but the mother continued to live with T.W. and he was at least

sporadically seen or heard on video calls when the mother contacted the children.
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HHS was concerned the mother still did not believe that T.W. had sexually abused

A.R.’s sibling. And HHS credited the psychosexual evaluator’s opinion that the

mother could not be trusted to supervise contact between T.W. and the children

because she would not protect them.

         In her testimony at the permanency hearing, the mother confirmed HHS’s

fears.    The mother steadfastly maintained she still did not believe T.W. had

sexually abused A.R.’s sibling, and she explained she was still living with T.W. and

had no plans to change that. She again insisted that A.R.’s sibling was confused

by past abuse perpetrated by her biological father. HHS relayed that T.W. still had

not participated in—let alone completed—SOTP because enrolling would require

him to admit to the sexual abuse. An HHS worker further opined that, without

completing SOTP, the department would not support T.W. having any contact with

the children. Despite this, the mother maintained it would not be traumatic for A.R.

and A.R.’s sibling to live with T.W.

         As to the domestic violence, the mother testified: “There was never any

domestic.” But she then detailed how she and T.W. “had our tempers” and had

“flare-ups” and maybe “a phone got threw [sic] once or twice.” Yet she maintained

“never once was it violent.” And as to the substance abuse, the mother’s story

kept changing when she was confronted with test results that proved T.W. had not

maintained consistent sobriety and may have lied to her about marijuana and

alcohol use. Exhibits also showed T.W. had not been honest with providers about

his drinking.

         Although not particularly pertinent to the issues raised on appeal, the record

reflects some positive steps taken by the mother, including generally positive visits
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with the children, attending therapy more-or-less regularly, and obtaining

employment and stable housing (albeit with T.W.). By all accounts, there is a bond

between the mother, A.R., and A.R.’s sibling, and they love each other.

      During the life of the CINA case, A.R. was hospitalized because of mental-

health and behavioral problems. Because of increasing mental-health needs, A.R.

had short-lived placements with the grandparents and a foster family before she

was placed at a psychiatric medical institution for children (PMIC). She was

ultimately diagnosed with a number of psychological conditions and behavior

disorders that require ongoing treatment. Although A.R. progressed somewhat

slowly through the PMIC program, she made significant progress and—to quote

the juvenile court—her “behaviors improved dramatically as she utilized

medication management, therapy, [and] behavioral interventions” and “she

learned strategies to cope with her emotions in a more effective way.” But her

progress was uneven. Shortly before the permanency hearing, A.R. relapsed into

negative behaviors, including self-harm.

      A.R. visited her grandparents’ home for visits during her PMIC placement,

and the juvenile court expected her to be placed with the grandparents after

discharge. Transition services were planned to help A.R. as she moved from PMIC

into the grandparents’ home.     And an HHS worker observed that A.R. was

“connected” with her grandparents.

      The grandparents became foster parents hoping to care for A.R. and A.R.’s

sibling, and HHS believes the grandparents can provide for their needs and

provide a safe and loving home. HHS found the grandparents “both worked well

with providers, and [have] been a part of staffings, and have ensured that the
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[children’s] mental health needs are met.” HHS also found the grandparents

supported the children’s relationship with the mother, so long as the relationship

did not endanger the children. The mother, on the other hand, testified she

believes the grandparents are unsuitable guardians, largely based on complaints

about her own childhood. The mother did not believe the grandparents would

support her relationship with the children, claiming the grandmother would make

“rude comments” about her.

       Both children expressed some desire to reunite with their mother, with

caveats or reservations. The children’s guardian ad litem (GAL) shared that A.R.

“wanted to be home with mom when it was safe, and that it was not safe when

[T.W.] was there.” A.R. consistently told HHS and her GAL that she was “okay”

with living with her grandparents and that living with family was the “next best thing”

if she couldn’t safely return to her mother’s care. The mother testified she doubted

these were A.R.’s sincere wishes, and blamed A.R.’s sibling for not voicing more

concerns directly to the mother.

       HHS, the State, and the GAL recommended the children be placed in a

guardianship with the grandparents.            The juvenile court adopted that

recommendation, emphasizing that the mother continued to minimize the family’s

problems with domestic violence and substance use and continued to deny

outright that T.W. had sexually abused A.R.’s sibling. The court also found the

mother had made little progress toward reunification and that her protective

capacity had not improved since the CINA case began because of her

unwillingness to address the sexual abuse. As the court put it, the mother “has

repeatedly chosen her relationship with [T.W.] over her children in these
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proceedings.” The court declined to direct the State to petition for termination of

parental rights, largely because the children did not desire it and the guardianship

preserved the possibility the children could have a healthy relationship with the

mother in the future.

       The mother appeals the guardianship as to A.R., but not A.R.’s sibling.

       II.    Standard of Review

       “We review [CINA] proceedings de novo. We review the facts and the law

and adjudicate rights anew. We give weight to the juvenile court’s factual findings

but aren’t bound by them. The paramount consideration in [CINA] proceedings is

protecting the best interests of the children.” In re D.D.,
955 N.W.2d 186
, 192

(Iowa 2021) (internal quotation marks and citations omitted)

       III.   Discussion

       The mother first asserts placing A.R. in a guardianship was not in the child’s

best interests. The mother emphasizes that she has made improvements in some

areas since the CINA case began. But, like we noted above, these changes—

such as obtaining steadier employment and stable housing—have little to do with

the core concern of the CINA case, which was the safety of the children. And,

more importantly, these positive steps are tremendously outweighed by the

mother’s failure to acknowledge significant problems in the home connected to

T.W.: domestic violence, substance abuse, animal abuse, and sexual abuse.

“[T]he requirement that the parents acknowledge and recognize the abuse before

any meaningful change can occur is essential in meeting the child’s needs.” In re

H.R.K.,
433 N.W.2d 46, 50
 (Iowa Ct. App. 1988). Until the mother acknowledges

the problems inside the home, she cannot rectify the deficiencies and she cannot
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provide a safe environment for A.R. See In re S.R.,
600 N.W.2d 63, 65
 (Iowa Ct.

App. 1999).

       We, like the juvenile court, credit the observations of the HHS worker and

the report of the psychosexual evaluator. And we are deeply troubled by the

mother’s failure to recognize even the possibility that T.W. sexually abused A.R.’s

sibling. The mother has not and will not choose her children’s safety over her

relationship with T.W., and she has no insight into the dynamics of abuse or how

to protect her children. See In re W.R., No. 21-1472,
2022 WL 470890
, at *2 (Iowa

Ct. App. Feb. 16, 2022) (“The fact that the mother still has no . . . understanding of

where she went wrong leaves us with little to no doubt that those unsafe

circumstances still exist.”).   “The requirement that a parent acknowledge and

recognize abuse is essential for any meaningful change to occur.” S.R.,
600 N.W.2d at 65
. The mother has not changed and remains as unable or unwilling to

protect A.R. from danger as she was at the time of CINA adjudication.

       We are also struck by the fair but pointed argument made by A.R.’s GAL at

trial, which was that the mother’s position there—essentially also her position on

appeal—“asked the court . . . to not believe the [children], to trust instead that

[T.W.] is safe to be around and all these allegations are false.” We, like the juvenile

court, reject the mother’s implicit request to disbelieve A.R. and A.R.’s sibling. As

our supreme court put it a few years ago in a case with similarities to this one, “It’s

folly to think the mother will stand sentinel to protect against a foe she doesn’t

acknowledge exists.” D.D., 955 N.W.2d at 193. A guardianship serves A.R.’s best

interests, and we hope the possibility of a preserved relationship with the children

motivates the mother to make sincere changes.
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       The gist of the mother’s second challenge is that she does not believe A.R.’s

grandparents (the mother’s biological parents) are suitable guardians. We are not

entirely sure where to ground this challenge within the statutory scheme or case

law, and apparently neither is the mother: she cites no legal authority directly

relevant to this question but argues it is “implicit” within the guardianship option

available to CINA courts that selected guardians must be “suitable” or “able to

handle the needs of the child.” The State, perhaps also unable to discern the legal

footing of the mother’s second claim, does not separately address it on appeal.

We generously construe the mother’s petition and understand it as a permutation

of her best-interests challenge focused on placement with these particular

guardians rather than the mother. And we note the State has not challenged

whether the mother has standing to contest the placement.

       On this second challenge, we again agree with the juvenile court that this

guardianship furthers A.R.’s best interests, for all the reasons we’ve already

discussed. Particular to these guardians, we recognize A.R.’s behavioral problems

originally thwarted her placement with them, but A.R. has made significant if

uneven progress with treatment at PMIC, and the grandparents have been good

partners with PMIC staff by hosting weekend visits with A.R. and participating in

discharge planning.     We observe that A.R.’s sibling is also placed with the

grandparents, which reflects our preference to place siblings together when

possible. See In re J.E.,
723 N.W.2d 793, 800
 (Iowa 2006). And we recognize the

grandparents have shown commitment to caring for A.R. in a stable home by

becoming licensed foster parents, supporting the HHS and law enforcement

investigations, and facilitating visits to ease A.R.’s transition to her new home.
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      We affirm the juvenile court’s order in its entirety, finding it serves A.R.’s

best interests in compliance with chapter 232.

      AFFIRMED.