IN THE INTEREST OF K.O., Minor Child, R.A.O., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-803 / 07-1608
Filed November 15, 2007
IN THE INTEREST OF K.O.,
Minor Child,
R.A.O., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Mary Jane
Sokolovske, Judge.
A father appeals from a juvenile court permanency order. AFFIRMED.
Molly Vakulskas Joly of Vakulskas Law Firm, P.C., Sioux City, for
appellant father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Patrick Jennings, County Attorney, and Marlene Loftus, Assistant
County Attorney, for appellee State.
Joseph Kertels of the Juvenile Law Center, Sioux City, for minor child.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
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HUITINK, P.J.
R.O. appeals the juvenile court permanency order placing his daughter in
another planned permanent living arrangement.
He seeks a reversal of the
permanency order and requests the immediate return of the child to his care.
I. Background Facts and Prior Proceedings
R.O.’s daughter, K.O., was born in November 1993.
She is mildly
mentally retarded and has a learning disability. R.O. obtained custody of K.O. in
1995 when K.O.’s mother was arrested on drug charges. K.O.’s mother has not
been an active party in these proceedings and is not a party to this appeal.
The Iowa Department of Humans Services (DHS) became involved on
April 28, 2006, when K.O.’s school reported allegations of physical abuse. K.O.
and her thirteen-year-old friend were interviewed separately.
K.O. told
investigators that her father struck her and that she was afraid to go home. K.O.
also said her father had touched her chest and buttocks over her clothing. K.O.
went on to state that her father threatened to hit her if she told anyone about the
abuse. Her friend, M.C., stated that R.O. had given her a back rub that made her
feel uncomfortable. During this back rub, R.O. rubbed M.C.’s bare back and
unhooked her brassiere.
K.O. was immediately placed in a shelter and ultimately placed in family
foster care. At the conclusion of the investigation, DHS determined the sexual
abuse claim was founded, but the claim of physical abuse was unfounded.
On August 16, 2006, the court adjudicated K.O. a child in need of
assistance pursuant to Iowa Code sections 232.2(6)(b) and (d) (2005). K.O. was
ordered to remain in family foster care.
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K.O. was transferred to a second foster home due to ongoing behavioral
problems. In May 2007 K.O. allegedly assaulted her second foster mother and
was placed in the Cherokee Mental Health Institute. She was eventually placed
in a third foster home.
On
July
31,
2007,
the
juvenile
court
held
a
“shelter
care
review/dispositional review/permanency hearing” and a hearing on the father’s
motion to modify the existing placement. During the hearing, the court held an
in-camera discussion with K.O. whereby she recanted her prior allegations of
sexual abuse and asked to be returned to her father. The district court issued an
order continuing placement with DHS in another planned permanent living
arrangement, such as family foster care or group care.
The court also
emphasized that K.O.’s therapy should continue on a consistent basis.
R.O. appeals, claiming (1) the court “erred in finding DHS made
reasonable efforts to prevent or eliminate the need for the continued out-of-home
placement” and (2) K.O’s best interests would not be served by this placement.
II. Standard of Review
Our review is de novo. In re K.C., 660 N.W.2d 29, 32 (Iowa 2003). We
give weight to the juvenile court’s findings of fact, especially when considering
the credibility of witnesses, but we are not bound by them. Iowa R. App. P.
6.14(6)(g). The best interests of the child are paramount to our decision. K.C.,
660 N.W.2d at 32.
There is a rebuttable presumption that parental custody
serves the child’s best interests. Id.
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III. Merits
R.O. contends DHS has not made reasonable efforts to prevent or
eliminate the need for continued out-of-home placement. He points to the fact
that K.O. has only had three sessions with her therapist from the middle of May
2007 to the end of July 2007.
We will assume, arguendo, that the father
preserved error on this issue.
R.O. and K.O. have received numerous services during the pendency of
these proceedings including an intellectual assessment, supervised visitations,
individual therapy sessions for both R.O. and K.O., a joint therapy session, and a
psychosocial evaluation. Prior to May 2007, K.O.’s therapist met with her once a
week. However, K.O.’s recent behavioral issues, her temporary placement at the
Cherokee Mental Health Institute, and her subsequent assignment to a new
foster home interrupted this therapy schedule.
While the recent lack of
participation in therapy is troubling, her consistent participation prior to the onset
of these behavioral problems convinces this court that the State has made
reasonable efforts to prevent or eliminate the need for continued out-of-home
placement.
We also find that continued out-of-home placement is in K.O.’s best
interests.
During the fifteen months prior to the July 31, 2007 permanency
hearing, K.O. maintained her sexual abuse allegations. She did not recant her
allegations to her therapist and only retracted her allegations during the days
leading up to the permanency hearing. We find no reason to overturn the court’s
permanency finding based upon this recent recantation. Cf. State v. Tharp, 372
N.W.2d 280, 282 (Iowa Ct. App. 1985) (holding that when a victim of sexual
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abuse recants her testimony, we look upon that recantation with “the utmost
suspicion”). We also find no reason to return K.O. to her father’s care based
upon her recent behavioral problems.
At the permanency hearing, K.O.’s therapist recommended that she
remain in foster family care at this time. Also, even though R.O.’s therapist has
met with him on a weekly basis since December 2006, he only describes R.O.’s
progress as “minimal.” The juvenile court concluded that “[t]here are still many
issues which need to be dealt with before this court is comfortable returning
[K.O.] to the care of her father.” Upon our de novo review, we agree with the
juvenile court’s conclusion and find it is not in K.O.’s best interests to be returned
to her father at this time. Accordingly, we affirm the juvenile court’s permanency
order.
AFFIRMED.
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