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IN THE COURT OF APPEALS OF IOWA No. 0-993 / 10-1577 Filed February 23, 2011

IN THE INTEREST OF K.H., Minor Child, K.L.H., Father, Appellant, K.L.H., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Butler County, Peter B. Newell, District Associate Judge.

A father and mother appeal separately from the order terminating their parental rights. AFFIRMED.

Michael H. Bandy of Bandy Law Office, Waterloo, for appellant father. Kevin D. Engels of Correll, Sheerer Benson, Engles, Galles & Demro, P.L.C., Cedar Falls, for appellant mother. Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Greg Lievens, County Attorney, and Martin M. Petersen, Assistant County Attorney, for appellee State. Heather Prendergast, Waterloo, for minor child.

Considered by Mansfield, P.J., and Danilson and Tabor, JJ.

2 MANSFIELD, P.J. Kourtney and Kenny separately appeal from a juvenile court order terminating their parental rights to their son, K.H. (born April 2009), under Iowa Code sections 232.116(1)(h) and (i) (2009). In August 2009, when K.H. was four months old, he suffered a spiral fracture to his femur. The medical evidence indicates this fracture was inflicted intentionally on K.H. by another person. The evidence points circumstantially toward Kenny, who has consistently declined to testify regarding the incident or even discuss it in therapy. Kourtney has not offered any explanation for the incident and, to put it simply, stands by Kenny. Both parents challenge the sufficiency of the evidence for termination and whether termination was in the best interests of the child. Upon our de novo review, we affirm. I. Background Facts and Proceedings. On August 24, 2009, K.H., who was only four months old, was taken to the emergency room and found to have a mid-shaft, spiral-type femur fracture of his left leg. Based on the type of injury, the treating orthopedic surgeon, Dr. Michael Crane, determined the injury was likely caused in a non-accidental manner. The Iowa Department of Human Services (DHS) became involved and subsequently entered into a safety plan with Kourtney and Kenny, whereby K.H. was voluntarily placed into the care of Kourtney`s mother and step-father. Following removal, DHS expressed concern that neither parent had provided an explanation as to how K.H. was injured. On November 5, 2009, the parents stipulated to K.H. being adjudicated a child in need of assistance (CINA) under Iowa Code section 232.2(6)(c)(2). The parents also agreed that evidence

3 regarding the nature and circumstances surrounding the injury to K.H would be presented at the next disposition hearing scheduled for December 3, 2009. At the disposition hearing, Dr. Crane testified that a spiral fracture to the femur is a very uncommon fracture. Dr. Crane opined that since K.H. was not walking, it would have been very, very, very difficult for [K.H.] to cause this type of injur[y] on [his] own, and the most likely cause of the injury would have been someone hanging onto [the child`s] lower extremity and twisti ng the leg either out or in. Dr. Crane further testified that whoever was providing care for the child at the time of the injury would have known the child had been injured because the leg would have crack[ed] like a stick, and the child would start crying and be difficult to console. Dr. Crane also testified that he observed Kourtney being overly lovee-dovee with K.H., and in his experience this was typically indicative of an over-reaction to [a parent`s] feeling poorly about what happened. Kourtney testified that on the day K.H. was injured, the family had just returned from swimming at a pond with some friends. Upon returning home, K.H. was brought into the house while still in his car-seat. Kourtney then went into the basement to get ready to take a shower, leaving Kenny to care for K.H. Kourtney testified that while she was downstairs, she heard K.H. let out a loud scream that wasn`t normal. When she came upstairs, Kenny handed K.H. to her and said, I don`t know what`s wrong. Kourtney proceeded to attempt to comfort K.H., but K.H. continued to cry whenever he was moved. Kourtney then gave K.H. back to Kenny and took a quick shower. While Kourtney showered, Kenny noticed a color difference in K.H.`s legs. Accordingly, when Kourtney finished showering,

4 they took K.H. to the hospital. After describing these circumstances, Kourtney denied knowing how K.H. was injured: Q. How do you believe that your son was injured? A. I honestly don`t know. I wish I did. .... Q. Has anyone else offered you any explanation as to how they think it happened? A. We`ve tried to think of any way that it could have happened, but we don`t--We don`t know. Nobody-- Nobody can figure--can figure it out; how it happened. We`ve all done--We`ve all thought about it, but nobody knows. We don`t know. Upon advice from his attorney, Kenny declined to testify regarding how K.H. received his injury. Following the disposition hearing, the juvenile court entered a written order continuing placement with the maternal grandparents. The court further ordered: [The parents] shall provide any information they have to the Department of Human Services to explain how the injury to [K.H.] occurred so that services can be provided and/or arranged to address the issues which led to this significant, non-accidental injury. Over the next several months, both parents participated in some services and made improvements in their lives. Kenny maintained employment while

Kourtney obtained her high school diploma. They also acquired their own home that was noted as being appropriate, and participated in daily visits with K.H., which were also noted as being appropriate. Despite their participation in

services, Kourtney and Kenny continued not to provide DHS with any explanation as to how K.H. was injured. Given that circumstance, DHS maintained that

unsupervised visits and reunification could not occur. Supervised visitation did continue to occur on a daily basis.

5 In April 2010, the mother gave birth to a second child. Kourtney and

Kenny have participated in voluntary services with DHS for this child, and DHS has not expressed any concerns for the child`s care or safety.1 By June 2010, K.H. had been out of Kourtney and Kenny`s care for approximately eight months, and the case seemed to be at a standstill. The juvenile court directed the State to file a petition to terminate parental rights. The petition came on for a hearing on September 16, 2010. At the hearing, Kourtney again testified she did not know how K.H. was injured. During cross-examination the following exchange occurred: Q. And I assume you recognize that this type of injury had to be done by another human being? A. That is what Dr. Crane said. Q. Did you not believe Dr. Crane? A. I would like to think that it could have been caused in any other way. I don`t see how-- Well, I don`t see how anybody could do that to an infant. .... Q. Okay. So, have you talked to Kenny about the fact this happened because a human being did this to your child? A. We have talked about this case on numerous occasions. We have talked about it a lot, yes. Q. And as you sit here today, it`s still your testimony that you didn`t do this to [K.H.]? A. No, I didn`t do this. Q. So, how do you believe it happened? A. I honestly don`t know. As before, Kenny refused to testify or provide any information as to how K.H. sustained the broken leg. A DHS supervisor, Cassie McAllister, testified that the agency had never received any information from the parents that would allow it to reach a conclusion as to what happened. As McAllister put it, the parents don`t seem to be really excited about not knowing what happened to their son . . . . We cannot
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Any issues relating to the other child are not before this court.

6 fix something that we don`t know how it became broken, so we`ve not been able to make any progress. McAllister explained that if DHS understood what had happened, it could then provide appropriate services to the case --e.g., anger management. A DHS caseworker, Melisa Lammers, also testified at the termination hearing. She expressed the view that the parents had not complied with the prior court order requiring them to explain how K.H.`s injury had occurred. She also referred to another incident in the records: Kenny`s stepmother reported that while Kenny`s sister was supervising a visit, Kenny had become upset with his three-year-old niece, grabbed her, left a mark, and made her cry. As Lammers stated, that was a red flag, if Kenny was getting angry enough wit h a threeyear-old niece during a supervised visit with his own child. Also, Kenny had only attended a few sessions with a counselor but had declined to keep attending because, as Kenny explained, he could not discuss the injury. Lammers also testified that Kourtney and Kenny were pleasant on a personal level but had stopped attending mental health services and seemed not to have any passion or commitment to getting their son back. blind devotion to Kenny. The report of the Court Appointed Special Advocate (CASA) was also received into evidence. The report described recent interactions with the family. Kourtney had again expressed that she does not know how [K.H.] broke his leg and thinks maybe their dog could have jumped on [K.H.] to cause his injury, but could not confirm that she saw this action had taken place. The CASA volunteer stated she was concerned that neither Kenny nor Kourtney are able to verbalize Lammers added that Kourtney had a

7 what truly happened to cause a spiral legal fracture to their four month old son; and their ability to ensure the future safety of their son. She recommended that K.H. continue in the custody of DHS for permanent placement with the maternal grandparents. The guardian ad litem recommended termination of parental rights. She stated that she did not believe K.H. could be returned home in light of a lack of an explanation. The record indicated the maternal grandparents were ready and willing to proceed with adoption. On September 23, 2010, the juvenile court filed an order terminating Kourtney`s and Kenny`s parental rights under Iowa Code sections 232.116(1)(h) and (i). The juvenile court found: The parents have continued to argue that they can`t provide an explanation as to what happened, but the child`s father has refused to answer questions about the circumstances surrounding what happened to this child. It is not that they cannot provide an explanation, but that they will not provide an explanation. .... The parents` attorneys argue that it is possible that the parents simply do not know what happened and are unwilling to provide false testimony to the Department of Human Services or play ball in order to obtain the return of their child. The Court believes that the more likely explanation is that the parents are fully aware of how this child was injured and are unwilling to provide an explanation. This explains their lack of interest in seeking out answers as to who might have caused their child to be injured. If the parents were not responsible for this severe injury to their child, one would expect them to be diligent in trying to determine how this injury occurred. The Department has not seen any effort on the parents` part to either discuss this matter or seek out answers as to how this injury could have occurred. The evidence strongly indicates that Kenny is the individual responsible for this injury. The parents are aware that this is what the Department of Human Services believes and yet the parents continue to maintain a silence about the events surrounding the

8 injury to this child. The parents are also aware and the Court has made clear to the parents that if there was some admission of responsibility for the injuries to this child, services could be provided and the parents would not be in any way precluded from being reunified with their child. .... [W]ithout an explanation as to how this non-accidental injury occurred to this Child, and without an effort on the parents` part to provide an explanation, the Child cannot be returned to the parents` care. Kourtney and Kenny appeal. II. Standard of Review. We review termination of parental rights de novo. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). We give weight to the factual determinations of the

juvenile court, but are not bound by them. Id. III. Analysis. A. Grounds for Termination. Kourtney and Kenny both contend insufficient evidence exists to support termination of their parental rights under sections 232.116(h) and (i). When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We find termination to be appropriate under section 232.116(1)(h), which requires all of the following to have occurred: (1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child`s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days.

9 (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child`s parents as provided in section 232.102 at the present time. Kourtney and Kenny challenge only the fourth element, arguing the State failed to prove by clear and convincing evidence that K.H. cannot be returned to their care. Upon our de novo review, we agree that K.H. cannot be returned to Kourtney`s or Kenny`s care without the threat of further abuse or neglect. Iowa Code

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