In the Interest of A.H., Minor Child, T.M., Mother

• Court: Court of Appeals of Iowa
• Decided: December 24, 2014
• Docket: 14-1049
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1049 Filed December 24, 2014

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

T.M., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Fayette County, Alan D. Allbee,

Associate Juvenile Judge.

A mother appeals the termination of her parental rights to her child.

REVERSED AND REMANDED.

T. David Katsumes of Katsumes Law Office, Elgin, for appellant mother.

Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney

General, W. Wayne Saur, County Attorney, and Nathan Lein, Assistant County

Attorney, for appellee State.

John Sullivan, Oelwein, attorney and guardian ad litem for minor child.

Considered by Danilson, C.J., and Doyle and Tabor, JJ. 2

DOYLE, J.

A mother appeals the termination of her parental rights to her seventh

biological child. In this exceptional case, we find on our de novo review of the

record the State failed to prove the grounds for termination by clear and

convincing evidence. Accordingly, we reverse and remand to the juvenile court

for further proceedings including, if necessary, the implementation of reasonable

services.

I. Background Facts and Proceedings.

T.M. is the mother of A.H., the mother’s seventh biological child. The

mother has a history of severe substance abuse and involvement with the Iowa

Department of Human Services (DHS), including during her own childhood when

she was abandoned by her parents. None of her children are in her custody.

The mother’s history paints quite a grim picture, but it also demonstrates the

drastic changes she has made in taking control of her life and her addiction.

The mother began using methamphetamine when she was twelve years

old. In 2007, the mother’s parental rights to two of her children were terminated

due to her continued use of illegal substances and her addiction. At the time of

the 2007 termination-of-parental-rights hearing, the mother was twenty-four years

old, had been through recovery or treatment programs three different times, and

was participating in a fourth program. 3

The mother continued abusing methamphetamine over the years. In

March 2013, the mother’s parental rights to two of her other children were

terminated.1 The juvenile court’s ruling detailed the mother’s then state of affairs:

[The mother] terminated her involvement with the [DHS], her participation in services, and her visitation with the children in late September 2012. For more than four months, she had no contact with the children. She ended her participation in [family safety, risk and permanency services (FSRP)], substance abuse treatment, and mental health treatment. She revoked her releases of information that previously allowed the [DHS] to gauge her progress and services. She refused drug testing. She had been diagnosed with adult ADHD . . . but refused any psychotropic medication. Approximately one year ago, she confided to her family therapist that she would continue to use methamphetamine if she could get away with it. She did a complete substance abuse evaluation in September 2012, [and it was found she was] dependent on methamphetamine, marijuana, and alcohol, and [it] recommended [two to four] individual substance-abuse-treatment sessions per month. She did not comply with those recommendations and continued to use illegal drugs. . . . She had no employment or other source of income. She had lost her housing . . . . She remains on probation for possession of precursors for the manufacture of methamphetamine. .... The children’s mother admits that the potential of losing her children has never been a sufficient motivation for her to stop using drugs, including the very addictive methamphetamine. While recognizing that her current remission is motivated by self- preservation, it is hoped she may be finally successful. Unfortunately, the children in interest cannot wait any longer for their mother to prove her long-term sobriety. She has frequently been able to abstain for several months, only to return to drug use. The children’s mother has presented clean urine tests given for her probation officer in January, February, and March 2013. She admits she failed to appear for scheduled drug testing for the DHS . . . in March 2013 on two occasions.

1 Concerning the mother’s two eldest biological children, the record indicates the mother’s parental rights to one child were terminated and the other child was adopted. The details of the adoption, such as whether the mother voluntarily relinquished her parental rights, is not in the record. The dates for the termination and adoption are also not in the record but appear to be before 2007. 4

At the time of the 2013 termination-of-parental-rights hearing, the mother

was pregnant with A.H., and she gave birth to the child in October 2013. It was

reported to the DHS that the mother delivered the child at her home without

receiving any medical assistance or having had any prior prenatal care. Based

upon its prior involvement with the mother and her children, a safety check was

initiated by the DHS. Thereafter, the DHS filed an application requesting the

child be removed from the mother’s care, explaining that the mother was

“unwilling to participate in a [child-in-need-of-assistance (CINA)] assessment at

this time.” The DHS argued her lack of cooperation prevented the DHS from

assessing “whether this child is safe with [the mother], or whether [the mother]

has made any changes since [the termination of her parental rights in 2013].”

Additionally, the mother would only tell the DHS workers that she “had a doctor

appointment scheduled for tomorrow.” The child was removed from her care that

October and placed with a foster family, where the child has since remained.

At the time of the removal, the child was taken to the hospital for a medical

workup. The child’s hair-stat test tested positive for methamphetamine,

evidencing that although the mother had remained sober for at least the

beginning of 2013, she once again lapsed and used methamphetamine. The

child presently appears healthy in all respects.

At the end of October 2013, the mother reported to her therapist and the

service provider that she drank alcohol to the point of blacking out, and she

reported she was unsure if she had used illegal substances or engaged in

unprotected sex. Her subsequent drug and pregnancy tests were all negative.

Although she was advised she should stay away from alcohol due to her own 5

addictive behavior and her relatives’ known addictions to alcohol, she again

drank to the point of intoxication at the end of November 2013, leading to a public

intoxication charge. She reported this to her therapist and the service provider.

In November 2013, the juvenile court adjudicated the child a CINA. The

court ordered temporary services be offered to the mother, including substance

abuse treatment, drug testing, and visitation with the child. The court’s ruling

noted it would be considering at the dispositional hearing whether aggravated

circumstances existed to allow the DHS to waive making reasonable efforts

pursuant to Iowa Code section 232.102(12). Thereafter, a case plan was

developed by the DHS, referred to as the “refrigerator list.” Among other things,

this list required the mother to

- attend all scheduled treatment sessions/appointments with her substance abuse and mental health treatment counselors - comply with all treatment recommendations - participate in drug testing and provide negative tests - not associate with known or suspected drug users - attend all scheduled parent/child interactions and be on time - participate in all scheduled parent/child interactions - be responsible for all aspects of the child’s care during interactions - consider the needs of her child when making decisions - follow any doctor recommendations made for the child - follow up with area early access services if needed - manage her money appropriately and keep her bills current and maintain her home

Other than the incidents with alcohol, the mother has followed and abided

by the refrigerator list. Nevertheless, the DHS’s case worker and the service

providers continued to have concerns about the mother’s ability to care for the

child safely. In the December 2013 social history report, the case worker

explained: 6

[The mother] has a long history of substance abuse. She has mental health issues. [The mother] has had previous terminations of parental rights. [The mother] has not always been consistent in following through with her mental health and substance abuse treatment. [The mother] did not receive [prenatal] care for [the child] during her pregnancy and gave birth to [the child] at home. [The child] tested positive for methamphetamine. . . . [The mother] has had at least two incidents of consuming alcohol since the initiation of this case. . . . [The mother] reported she became intoxicated and subsequently had [her therapist] drug test her because [the mother] wasn’t sure whether she had used other substances while intoxicated. [The mother’s therapist] reports that drug test was negative for illegal substances. . . .[2] [The mother] gives the impression that if she drinks and then reports it to the appropriate people, she has adequately addressed it.

In the conclusions and recommendations section, the report stated:

[The mother] reports she is changing her life. [The mother] is employed and has established a residence . . . . She did obtain a psychiatric evaluation . . . . [The mother] is participating in substance abuse treatment individually. . . . [The service provider] is reporting that visits with [the mother] and [the child] go well overall. [The mother] holds the baby and interacts during visits. [The mother] appears to enjoy the time she spends with the baby and gets excited about developmental changes, for example, when [the child] rolled over. [The service provider] has suggested that [the mother] sing to the baby . . . in order to build the bond between them. [The mother] reports she does not know baby songs and that isn’t her style of parenting. [3]

2 The report, referring to the mother’s November alcohol use and public intoxication arrest, continued on, stating that the mother “had a subsequent incident of drinking that she did not report. It came to the [service provider’s] attention that [the mother] had been arrested . . . . When asked about it, [the mother] reported she did address these drinking incidents with her substance abuse provider.” (Emphasis added.) While there is no question the mother’s past self-reporting has been unreliable, the service provider’s notes state the mother actually sent the provider a text message on November 24, 2013, the day after the arrest, that “she had drank over the weekend” because “she was scared about moving and instead of talking about it she drank.” The provider’s notes further state that when she picked up the mother the next day, the mother “started to tell [the provider] that she had been arrested,” and the provider told her she “already [k]new this.” Thus, the mother did report the incident. 3 It is questionable whether a parent’s choice of whether or not to sing to her child is something that should be detailed in a social history report, as the report is to contain the information collected during the social investigation—“an investigation conducted for the purpose of collecting information relevant to the court’s fashioning of an appropriate 7

[The service provider] reported a strange incident in which [the mother] made a comment stating something to the effect that the baby was acting differently towards her. [The service provider] reported this comment was disturbing and she explained to [the mother] that baby’s [sic] do certain things; i.e. eat, sleep etc. [The service provider] reports there have been at least two incidents in which the baby’s diapers were not changed prior to returning her to foster care. One of those incidents resulted in [the child] having a soiled diaper upon her return. [The mother] takes [the child] to her substance abuse treatment appointments. This is occurring due to the logistics and transportation issues surrounding [the mother] going to treatment. Although there are not safety concerns for this occurring, the [DHS] would prefer that the baby not be present, to better ensure that [the mother’s] total focus is on treatment. The recent incidents of alcohol use are concerning for the [DHS], as is [the mother’s] apparent lack of understanding about those concerns. [The mother] appears to be angry at the [DHS’s] involvement. [The mother] needs to recognize that her choices have brought about DHS involvement. When individuals appear to blame others for their situation and do not hold themselves accountable for their current situation, change is unlikely. [The mother] reports she has made changes in her life. It is accurate she is working and has established her own residency. She is participating in parent/child interactions. [The mother] choosing not to receive prenatal care during her pregnancy and give birth unattended is concerning to the [DHS]. Most troubling is that [the child] tested positive for methamphetamine.

In January 2014, based upon the termination of the mother’s parental

rights to her other children, the juvenile court found aggravating circumstances

under Iowa Code section 232.102(12) (2014) and waived the requirement of

making reasonable efforts to reunite the mother with the child. The mother

requested the court reconsider its decision, noting she had been doing

disposition of a [CINA] case over which the court has jurisdiction.” See Iowa Code § 232.2(53), (54). Regardless, the account is also inaccurate, as the service provider’s November notes indicate at least two instances where the provider noted the mother sang to the child. One note states: “[The mother] interacted with [the child] by talking and singing to her. [The child] responded by cooing and smiling back at [the mother].” Another note states: “[The mother] did interact [well] with [the child]. She fed her and changed her and sang pat-a-cake to her. The service provider modeled peek-boo and other little songs for babies.” 8

everything the DHS had asked of her. However, the court denied her request,

finding that,

given the mother’s prior history and recent efforts to conceal her pregnancy from the [DHS], failure to have any prenatal care, and initial resistance to efforts by the [DHS] to protect the child, any recent progress will be short-lived. [The mother] has shown continued signs of addiction to mood altering substances although her drug of choice more recently is alcohol rather than methamphetamine. Sadly, history will repeat itself, if it already has not done so.

The services offered to the mother were then scaled back, including

visitation with the child. Nevertheless, she sought voluntary family-centered

services and supervised visitation with the child. She voluntarily continued her

substance abuse treatment, and when the DHS was unable to pay for her drug

testing due to the aggravating circumstances finding, she paid for her own drug

testing, and all tested negative for illegal substances. She also voluntarily

continued her mental health treatment. The mother requested increased visits

with the child, and the court increased her visits to at least twice a week.

A permanency hearing was held in February 2014, and there, the State

and the child’s guardian ad litem requested the court direct the State to file a

petition for termination of the mother’s parental rights. The juvenile court

subsequently entered its permanency order, so directing. Nevertheless, the

court noted in its order that the mother

has maintained employment and has a residence. She has continued to participate in substance abuse counseling and drug testing is now done at that agency. Recent tests have been clean for illegal drugs. [The mother] signed an application for voluntary services so that she can continue to receive [FSRP]. Visitation has been reduced to once per week and remains fully supervised. . . . Given the lengthy history of drug abuse, the court is unwilling to consider returning the child home at this time. 9

The State then filed its petition for termination of the mother’s parental rights.

However, by March, the mother’s visits were increased to three visits per week

for a total of ten hours.

A hearing on the State’s termination petition was held in May 2014.

There, the DHS case worker, the service providers, and the child’s guardian ad

litem opined the mother’s parental rights should be terminated. The case worker

testified first, stating:

The number one concern that I have is that [the mother], in spite of the progress that she’s made, I believe continues to display a thinking process that doesn’t serve her well and ultimately would not serve a child in her care well. My concern is although she has made progress, that I’m not convinced that that progress would continue, and I believe that if the child is returned home, we will find herself back in the situation at some point in the future.

The case worker explained:

I’ll give one example that’s troubled me throughout this case. [The mother] has reported that the [methamphetamine] use with this baby in utero that caused [the baby] to test positive was because she used drugs with the father of another one of her children, and she has maintained that she had to use drugs with that individual in order to be able to see that other child.

The case worker further testified that although the mother was making

“some technical compliance with some of the objectives,” she still had not

“internally changed the behavior.” The case worker was critical of the mother’s

initial resistance to having the child vaccinated, testifying the mother had

believed it was possible that the vaccinations were risky and could be damaging

to infants, but “[w]hat [the mother] seemed to fail to recognize is that she used

drugs in utero, and that can also cause damage.” However, the case worker 10

admitted the mother had acquiesced after she received more information about

the safety of vaccinations.

The case worker testified she had been concerned with the mother’s use

of alcohol “since back in November when [the mother] was arrested for public

intox,” noting she had seen

a number of individuals who are addicts, meth or other drugs, that use alcohol, and it reduces their inhibitions at times and can sometimes cause them to do other things and use other substances. And in my understanding, your brain does not distinguish one drug from another. So whether it’s alcohol, meth, whatever you’re using, somebody that’s an addict, in my opinion, should not be using substances.

The case worker testified she had gotten a report from a local bartender that the

mother had been seen drinking in several bars, including three different times in

May, but she conceded the last time she knew for sure that the mother had

consumed alcohol was in November 2013.

Another concern the case worker had was that the mother’s drug patches

for drug testing had fallen off, because the mother told her “early on in the case

how she was passing the patch test previously.” However, the case worker

admitted the mother was referring to her use of the patch prior to this case.

Additionally, the worker agreed that the mother was now working a job that

required her to sweat excessively, and all of the mother’s other tests, including a

hair-stat test done in January 2014 when a patch fell off, were clean. The case

worker admitted the clean hair-stat test showed the mother had not used in the

ninety-day period prior to the test.

As to the mother’s mental health, the case worker testified she was not

certain if the mother’s issues had been resolved, testifying: 11

I’m not a doctor. But one of her diagnosis was antisocial personality, and I sometimes wonder if some of what we see and some of the thinking patterns is related to that diagnosis, and that is a diagnosis that’s harder to treat. It’s not as amenable as, you know, bipolar disorder or something, so, yes, it’s very concerning to me.

The case worker admitted the mother took the drug prescribed for her mental

health for a while, but the mother called her and told her “she didn’t really want to

take that medication [because] she was concerned what it might do [to] her.”

The case worker praised the mother and told her: “What I know about you, you’re

a strong individual; if you don’t think you want it or you need or want to take it,

you will contact your mental health person and take care of that.” The case

worker did not recall that the mother told her the prescribed medication was

messing up her sleep patterns and she was afraid she would not be able to get

up for work on time, but she testified the mother “may very well have said that.”

The case worker also testified the mother had been back to her mental health

counselor and was now taking a new prescription medication.

Concerning the mother’s ability to parent the child safely during visits, the

case worker reported there were some items that were “somewhat troubling, but

not huge things,” such as the mother giving the baby ibuprofen at five o’clock

when she was advised to give the baby acetaminophen at six o’clock. However,

the case worker admitted the mother had been close to advancing to monitored

visits in December 2013, but those visits did not increase for four months due to

“the concerns that [the DHS] had about the [drug] patches.” The case worker

concluded that she did not believe the mother was able to put the child’s needs

before her own. 12

A service provider who supervised some of the mother’s early visits with

the child testified that, “[f]or the most part,” the mother’s visits went “fairly well.”

She testified the mother “lacked in making sure . . . a couple of times that she

had appropriate things that [the child] was going to need, a bottle, a diaper, or not

taking an extra outfit, those types of things. [The mother] wasn’t well prepared

when we went out into the community.” She testified she did not believe the

mother had demonstrated the mother was able to put the child’s needs ahead of

her own, but she admitted she had not had any involvement in the case since

January 2014.

Another service provider who supervised most of the mother’s visits with

the child also testified, stating the mother had “made excellent progress” and was

“doing a good job” concerning food and nutrition, keeping her apartment clean

and safe, attending doctor appointments, paying all of her bills, and managing

her money well. She testified the mother had maintained the same job since

June 2013 and had “actually moved up in that job.” She testified the mother was

providing adequate necessities for the child, including diapers, bottles, and food

during the visit. She testified the mother was able to adequately identify and

model nurturing behaviors. She even praised the mother’s parenting during the

period of time the baby had colic, stating that the mother did “an excellent job.

She didn’t get nervous or frustrated. Sometimes when you have a couple hours

of a fussing child, that’s stressful, but she has done a good job with that.”

Despite these things, this service provider testified she did not believe the

child could be returned to the mother’s care at that time because she believed

“there are considerable risks” and did not “believe that [the mother] has learned 13

from her mistakes.” Concerning the mother’s visits with the child, the provider

testified the mother had asked to move from monitored visits to unsupervised

visits, but the provider “was not comfortable in moving to unsupervised at that

point” because, although she thought the mother had “improved in her care of the

child, . . . there were a couple of incidents that were bothersome to [her].” One

incident she described was that “at one point [the mother] left [the child] sitting on

the couch and had stepped into the kitchen, and [though] it’s not far, . . . it’s too

far to get there quickly” because the child “was at the age where she could roll

off.” Another incident, the child

just rolled off [the mother’s] leg onto the floor, and [the provider] hollered [the mother’s name], and she was upset with [the provider for hollering]. And the baby was not hurt. The baby fell onto carpet, but it scared her, you know. And an injury could have occurred in a different situation.

The service provider testified another concern she had was that during

[p]robably [seventy-five] percent of the visits[, she and the mother] were either going to the bank to get money to pay her rent, to pay an electric bill, to get groceries. She liked to go out to eat. [The provider] took [the mother] to and from her sessions with [her substance abuse counselor] during the time visits were supervised.

The provider testified that the mother only had ten hours of visitation a week, and

she believed the mother could have taken care of her grocery shopping another

time, but she admitted the mother’s transportation options were limited. She

testified she told the mother she needed to spend her visits at home, but the

mother “put a little guilt trip on [her],” saying “she also had to have a roof over her

head and needed groceries and needed to be able to feed her [child].” She

believed the mother’s use of visitation time to run errands demonstrated the 14

mother was putting her needs before the child’s needs. The provider conceded

that the mother getting her license back and a vehicle would be a big help.

Additionally, the provider testified the mother told her a trigger for her drug

use had been just staying home and that the mother wanted to be busy and out

and about. However, the provider was concerned that if the mother had the child

“in her care, that child shouldn’t be run all over town. [The mother] has to figure

out different coping skills so she can stay home and have a schedule and a

routine for this child and meet this child’s routines and not have it out in the

community.” Nevertheless, when asked if the mother’s being home alone with

the child was “a big safety concern” for her, the provider testified she “[didn’t]

know if [she] could answer that. It would be a concern. I mean, I know she—I

feel like she is not using at this time. I guess I can’t answer that.” The provider

did note that one of the things the mother had done well was that she had

developed a support system of clean and sober friends as one of her coping

skills.

Another safety concern the provider had was that the mother did not keep

her door locked at all times, but she testified there were instances where the

mother’s door was locked when she arrived. The provider was also concerned

that the mother had found a day care provider for the child but had not yet

checked out “the details of this place, how this woman was going to care for her

child, watch her interact with other children.” The provider testified in working

with the mother, she “felt that there was some decision-making skills that were

very concerning. [She] worked with [the mother] on parenting, nurturing. [They]

talked a lot about schedule. We talked a lot about budgeting. [She] supported 15

her mental health and substance abuse with transportation as well.” The

provider testified she used the “true thought curriculum” with the mother, which

was “quite a large workbook.” The provider gave the mother “a couple chapters

at a time,” testifying “[i]t was a lot of work for her to do as far as filling out the

paperwork.” She testified she and the mother had only got about halfway

through, and that while she thought the curriculum was important to complete,

she was concerned because she did not know if the mother “believed she could

change her way of thinking.” She testified the mother told her, in working with

her on the “true thought” process, that

if the State continues to take away [her] children, [she] will have baby after baby until [she] break[s] the State of Iowa taking them away from [her]. She has also stated she will not do prenatal care. She has also stated she will not deliver in a hospital but at home.

The provider believed her statements raised safety concerns for both the mother

and the child.

Contrary to the beliefs of the case worker and service providers, the

mother’s alcohol and substance abuse counselor testified she believed the child

could be returned to the mother’s care at that time. She testified she had known

the mother for at least eight years, and “she’s not the girl [she] met many years

ago.” She testified the mother was not the same person she wrote “scathing

reports about back in [2012]. Those were scathing reports. Honest, they were

honest and true, to where [the mother] was at at the time. That is not the girl I

have been working with since October.” She testified the mother’s drug tests had

all been negative for illegal substances, and she further shared she actually

watched the mother “pee in the cup” so she knew she had not “been pulling 16

anything out of her pocket.” The counselor testified she had no reservations that

the child could be returned to the mother at that time “[b]ecause of the changes

[she has] seen in her since she has come back this time, since she’s been

serious. Since she finally got it, got the picture, so to speak.” The counselor

described the following lifestyle changes she saw in the mother:

She’s had a full-time job for [eleven] months of steady employment. That’s her longest employment ever. She’s maintained her own apartment for [eleven] months. She completed probation in October 2013. She’s no longer on probation. She quit smoking cigarettes in January of 2013. That’s [sixteen] months of no nicotine. If she can quit nicotine, she can also quit the others. She’s eating healthier. She does treadmill exercising, walking, she’s joined a softball league. She takes the steps out here when we come to court instead of the elevator. She’s not associating with her former using crowd. She’s not pregnant. Big one. She’s not in a relationship. She is self-sufficient for the first time in her life. She’s remained involved in treatment for the past seven months, probably also the longest treatment episode that she’s had. She’s had 21 of 27 appointments. That’s really good attendance. She’s had the 22 clean UAs, 25 including the two from her probation officer and the hospital prior to when I saw her for the assessment. .... . . . She’s had three alcohol uses . . . . That was six months ago, okay? That’s six months. .... [And nothing we know of for the last six months for alcohol use or] drug use . . . . And there is a difference between lapse and relapse. Lapses are an expected part of recovery. In recovery, those lapses are learning experiences, reinforcing the realization and internalization that the person cannot safely use any mood altering substances, which I believe [the mother] has learned, especially since her last two drinking episodes. And, again, today’s and current, [the mother] is not the [girl] I described in . . . April and August of 2012. There has been a substantial shift in her recognition of how her addiction has negatively impacted her life and the life of her children in the past and is truly desiring of maintaining the changes she has made in this last year.

The counselor was also critical of the DHS, stating: 17

I’d also like to make a comment on—about how [the mother] shared with DHS how she used to beat the patches. . . . I believe [the mother] did that not as a boasting thing but as a way to make the DHS workers and the UA people aware of some of the tricks of how addicts try to beat the system, but yet that is turned around back on [the mother], that, well, you must still be doing that, too. That was not her intention.

Her counselor summarized:

Another response to one of the comment, statements of, well, the best predictor of future behavior is past behavior. I’ve heard that thrown around in court a lot. And there is an element of truth to that. But the rest of that belief in that evidence is being ignored. The . . . whole saying is, the best predictor of future behavior is past behavior unless there is significant lifestyle change. In my opinion, [the mother] has made [a] significant lifestyle change and has maintained that change for the last year. Have there been lapses? Yup, sure has. There has been two meth uses, . . . November 2012 and July 2013, eight months apart. That’s pretty good for a meth user; very good, I would say.

The mother testified on her own behalf. She testified that before giving

birth, she was in contact with an online support group for at-home birthing, and

she also contacted a medical supply company and purchased “umbilical cord

clamps, the umbilical cord cutter, sanitary, like plastic to put down—just all the

equipment and supplies.” She testified she researched it for a couple of months

and was prepared, though she admitted she was scared. She testified she told a

good friend of hers who lived nearby when her contractions started, and she

planned to call 911 if there were any problems, but she had none.

The mother admitted she consumed alcohol in October and November

2013, but she denied any other alcohol use. She admitted she had been to bars

for a coworker’s going away party and for a birthday party. She testified she had

one virgin Bloody Mary, socialized with the people she worked with for a while, 18

and then left. She testified she paid for her own drug testing after the DHS

stopped offering it.

She addressed in her testimony the numerous concerns raised by the

case worker and service providers regarding her parenting. She testified based

upon her work and counseling sessions, her opportunity to run errands fell within

the same time as her opportunity to have her daughter, but she admitted her

“time management could be better used as far as separating those.” However,

she testified that she had paid off all of the money she owed to the State, and

she was now eligible to get her driver’s license back. She further testified she

planned to get a vehicle in the next week.

She admitted she had been opposed to vaccinations in the beginning, but

after talking to the service provider about it, she agreed. Concerning the

potential-baby-falling-off-the-couch incident, she testified there was a footstool

sitting next to the couch, and due to the size of her apartment, the kitchen was

maybe “five long footsteps” away. Concerning the other baby-rolling-down-her-

leg incident, she testified the baby slipped off her knee, and she caught her as

she was about to hit the floor. Regarding her choice of daycare provider, the

mother testified she contacted this daycare because it was the only one available

to take the child before 6 a.m. when she had to be at work. She further testified

several of her coworkers had recommended the daycare, and it was also

convenient because it was across the street from her apartment. Nevertheless,

she testified she would check it out further before she took her child there. 19

The mother admitted she had made inappropriate comments to the

service provider regarding having more children, but she testified it was out of

frustration, explaining she had tried to stay positive, saying

I’m doing well. [The child] is coming home. I haven’t done anything wrong. I’m doing what I need to do. I’m a good mom. I try to stay that way all the time for everyone. When you build up a reputation, like I have, for ten years, it’s hard to do, and it’s even harder if you have someone constantly in your face saying what if, what if, what if. I lived off what if for ten years, and it got me sick as hell. Sorry. So, yes, I have gotten frustrated. I have said things I do not mean.

She testified she was done having children. She testified she wanted the child

“to come home. I want her to be with her mom. I want to be able to be a mother

to her,” and she asked the court, “if extending this or keeping DHS or returning

her home or whatever option there is, to give her the chance to have her mom, to

give me the chance to be a mom.” She stated her actions spoke louder than

words, and her “lifestyle and her life should say it all.”

The State called a bartender as a rebuttal witness, and the bartender

testified that in maybe December or January, the mother was in the bar where

the bartender worked, and the mother was intoxicated to the point of passing out

in the booth. However, the bartender testified this incident could have been the

November 2013 drinking incident wherein the mother got arrested for public

intoxication. The bartender also testified she had seen the mother in another bar

where her friend works four or five times since the start of 2014. She testified

she “witnessed the mother drinking Bud Light out of a bottle” two weeks prior to

the hearing while sitting at a table with other people. She also testified she saw

the mother drinking Bloody Marys but could not say if her drinks contained

alcohol. 20

At the close of the hearing, the child’s guardian ad litem made a statement

to the court recommending the mother’s parental rights be terminated. He

explained:

I’m glad [the mother] is trying to change her life, so she says. This isn’t about second chances. This is about really whether or not . . . a seven-month-old infant is going to be safe in [the mother’s] care. We’ve got—there is a reason that the legislature has one of its terms or one of the . . . statutory grounds for termination are evidence of prior terminations of parental rights. Here we have had prior terminations for I think [five children]. We have had five prior terminations of parental rights. And unfortunately, this is just—I believe it’s the fourth verse of the same song. And it always starts out with a similar feel, where we have an incident that happens, and she kind of has some technical compliance, but from what we hear from the service providers, is that there hasn’t been an internal—the thinking process and the internal heart has not changed. We’re going through the motions of wanting to seek our children, but we’re not— I just don’t see that [the mother] has been placing the needs of her children first. There is patterns in all of these cases for the court, you know, the court’s recollection, the court remembers, initially when [one of the mother’s children] had been removed, [the mother] shaved not only his head but his eyebrows so they couldn’t perform tests, and for anyone that has had little children, just, you know, you think about the resistance they put up when you try and just wash their face off, you know, after eating a cookie, and you have to think about the—the action, what you have to do to kind of—as I was thinking about that, to do that. You know, you see the pattern in that. I’m sorry. Having the baby at home, I think the evidence in the record would support that [the mother] was trying to evade detection by the [DHS]. Again, she is not only placing the baby at risk, she is placing herself at risk. The baby could have died. Something could have happened to her. This is—she didn’t have any prenatal care. This is not 1840s Iowa, we’re on the frontier, and there is a problem. There is a hospital four blocks up the street. And we didn’t take advantage of that because evidently she knew that there was going to be some type of—lots of drug tests. And here we—you know, [the case worker] testified that she is what—you know, her concerns are that the thought process of [the mother] of not—have not completely come back, and I think all 21

the evidence points to that. She still has trouble placing the needs of her child above her own. We’ve heard some testimony that perhaps she has been drinking as early as two weeks ago. You know, someone that’s maybe in remission or trying to recover from an addiction, you know, she shouldn’t be stepping in a place, a saloon or bar at all, they should be away from that. While it’s not illegal to drink, there are certain triggers in effect. There might be certain people there that can tempt you. And, you know, we see in the record talking about her, and she talked about her concerns about blacking out. She still is drinking, and you think about that, you have a single mom at home with a seven-month-old infant, she decides or comes to some other type of lapse or relapse, she blacks out, and the child is at home, you know. She is the only one there. What’s going to happen? So I think normally, you know, the law is—we look at conduct that someone did, you know, maybe especially in a criminal context, we don’t charge somebody with something they didn’t do, but the termination provisions in the Code provide—they are there because past performance is indicative of future results in the cases, and it’s sad but true. And I think that at this point, Your Honor, I think that I would have to recommend that—well, that parental rights be terminated.

Following the hearing, the juvenile court entered its ruling terminating the

mother’s parental rights pursuant to Iowa Code section 232.116(2)(g), (h), and

(l). The court’s ruling noted she “complied with many of her requirements under

the case plan.” Specifically, the mother

attended all but one interaction or visitation with the child. Prior to January 2014, visitation occurred four times per week for two hours each. After the aggravating circumstances finding, the [DHS] reduced visitation to one two-hour visit each week. Upon application to the court, the visits were increased to three visits per week, totaling ten hours. Visitation moved from supervised to monitored as of April 24, 2014. . . . [The mother] was credited with soothing the child and not becoming frustrated during the period when the child was colicky. . . . [The mother] participated in a substance abuse evaluation . . . and was diagnosed with methamphetamine, alcohol, and marijuana dependence, all in remission. She participated in weekly individual sessions thereafter and attended twenty-one of twenty-seven scheduled appointments. During those scheduled appointments, the agency has provided monitored urine testing and reports all tests were clean, although 22

notably not random, but frequent. Prior to the aggravating circumstances finding, the [DHS] was also providing drug testing. Sweat patches became problematic, . . . as the mother’s employment required her to sweat a great deal, causing the adhesive on the patch to come loose. The mother admits that she knew how to beat the patch in any event by removing it, freezing it, and replying it prior to its testing. A hair-stat test was completed on January 24, 2014, . . . and it was clean indicating no methamphetamine or marijuana use for the past ninety days. While the child’s mother appears to have been clean for methamphetamine since prior to the child’s birth the 2013, she has continued to use alcohol. She was arrested on November 24, 2013, for public intoxication. . . . She was seen in a bar . . . and in the proximity of alcoholic beverages on May 2 and May 16, 2014. She admits alcohol has caused her problems in the past, but continues to use them to the point of intoxication and “blackout.” A vulnerable infant requires a full-time parent and not one who “parties” without regard even for her own well-being. . . . It was recommended she began [taking a prescription drug] for her ADHD, however she declined. It is reported, however, that she recently is taking a [different prescription drug]. She was to follow-up with the agency concerning possible depression in November; however, [it] does not appear she followed that recommendation. To her credit, the mother has maintained her employment . . . for the past eleven months. She has maintained an appropriate apartment just a few blocks from work. . . . She has managed her money and paid off her fines so that she can get her license back.

Nevertheless, the court found the mother appeared to be “unable or unwilling to

change her pattern of behavior.” The court found the mother had “parented

appropriately with one notable exception of the leaving of the child attended on a

couch from which the child could have rolled.” The court also noted statements

the mother had made, including one prior to the child’s birth that she had

provided the father of one her children drugs and sex in return for visitation with

that child. Additionally, the court quoted the mother’s statement that “she would

merely continue to have more children and eventually ‘break’ the state

financially,” finding it did “not show proper response or understanding of why her 23

children are being permanently removed from her custody.” The court found the

mother continued

to put her needs above those of her child. While she is evidently substituted alcohol for methamphetamine, she knows that alcohol has only led to problems in her life. Her current lifestyle of drinking to the point of intoxication and not knowing if she is having unprotected sex or using illegal drugs is not conducive to raising a baby. Without the ability to take the steps necessary for complete sobriety, the child’s mother cannot be trusted with [the child’s] care.

The court concluded the child could not be returned to the mother’s home at that

time without the imminent risk of harm to the child “due to the lack of proper

supervision and lack of proper care as a result of the mother’s substance abuse.”

The mother now appeals. She contends the juvenile court erred in finding

aggravating circumstances to waive the providing of reasonable services.

Additionally, she asserts the State failed to prove the grounds for termination by

clear and convincing evidence, as found by the juvenile court.

II. Standards of Review.

Our standard of review for appeals from the termination of a parent’s

parental rights is de novo. In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). “To

support the termination of parental rights, the State must establish the grounds

for termination under Iowa Code section 232.116 by clear and convincing

evidence,” which “means there are no serious or substantial doubts as to the

correctness or conclusions of law drawn from the evidence.” In re C.B., 611

N.W.2d 489, 492 (Iowa 2000). Consequently, we will affirm the juvenile court’s

termination-of-parental-rights ruling if clear and convincing evidence supports the

termination. See In re P.L., 778 N.W.2d 33, 41 (Iowa 2010); In re D.S., 806

N.W.2d 458, 465 (Iowa Ct. App. 2011). In exercising de novo review, we are not 24

bound by the juvenile court’s factual findings, but we do give them weight,

especially when it comes to witness credibility. See A.M., 843 N.W.2d at 110.

III. Discussion.

The parent-child relationship is constitutionally protected. See Quilloin v.

Walcott, 434 U.S. 246, 255, (1978); Wisconsin v. Yoder, 406 U.S. 205, 233

(1972); State v. Iowa Dist. Ct., 828 N.W.2d 607, 615 (Iowa 2013); In re K.L.C.,

372 N.W.2d 223, 226 (Iowa 1985). Notwithstanding:

The protection of children is one of the most well-established duties and public policies of the State of Iowa. The State has a duty to assure that every child within its borders receives proper care and treatment, and must intercede when parents fail to provide it. Both [the] DHS and the juvenile court have the important function of protecting children who are in need of assistance.

In re A.M., ___ N.W.2d ___, ___, 2014 WL 6497172, at *8 (Iowa 2014)

(alterations, internal citations, and quotation marks omitted).

In light of these competing interests, the legislature has directed chapter

232 be “liberally construed to the end that each child under the jurisdiction of the

court . . . receive, preferably in the child’s own home, the care, guidance and

control that will best serve the child’s welfare and the best interest of the state.”

Iowa Code § 232.1 (emphasis added); see also A.M., ___ N.W.2d at ___, 2014

WL 6497172, at *5. Thus, “[w]e afford a rebuttable presumption that the best

interest of a child is served when custody is with the natural parents,” In re N.M.,

491 N.W.2d 153, 156 (Iowa 1992), and “[w]henever possible the court should

permit the child to remain at home.” Iowa Code § 232.102(5)(a). Consequently,

while “[i]t is the duty of the juvenile court when necessary to intervene and 25

remove a child from the care and custody of parents, either temporarily or

permanently,” the court must first determine

that “continuation of the child in the child’s home would be contrary to the welfare of the child, and [it] shall identify the reasonable efforts that have been made.” [Iowa Code] § 232.102(5)(b); see also [Iowa Code] § 232.102(10)(a) (defining “reasonable efforts”). These determinations, required by law, are essential to the juvenile court’s role as the arbiter of both temporary and permanent custody for children in need of assistance.

A.M., ___ N.W.2d at ___, 2014 WL 6497172, at *8-9 (emphasis added).

A. Waiving Reasonable Efforts.

The goal of a child-in-need-of-assistance proceeding is to improve

parenting skills and maintain the parent-child relationship, see In re H.L.B.R., 567

N.W.2d 675, 677 (Iowa Ct. App. 1997), and the State is required to make

reasonable efforts to have children returned home. See Iowa Code

§ 232.102(5), (10). However, the State’s reasonable-efforts obligation can be

waived in limited specified circumstances set forth in Iowa Code section

232.102(12), including:

If the court determines by clear and convincing evidence that aggravated circumstances exist, with written findings of fact based upon evidence in the record, the court may waive the requirement for making reasonable efforts. The existence of aggravated circumstances is indicated by any of the following: .... c. The parent’s parental rights have been terminated under section 232.116 with respect to another child who is a member of the same family, and there is clear and convincing evidence to show that the offer or receipt of services would not be likely within a reasonable period of time to correct the conditions which led to the child’s removal.

Id. § 232.102(12)(c) (emphasis added). 26

The juvenile court adjudicated the child a CINA under Iowa Code section

232.2(6) paragraph (o), which states a CINA includes a child whose body tested

positive for an illegal drug “as a direct and foreseeable consequence of the acts

or omissions of the child’s parent.” Additionally, the child was adjudicated CINA

under 232.2(6) paragraph (c) subparagraph (2), which states a CINA includes a

child that “has suffered or is imminently likely to suffer harmful effects as a result

of . . . [t]he failure of the child’s parent . . . to exercise a reasonable degree of

care in supervising the child.”

The Iowa Supreme Court recently discussed the definition of “harmful

effects” as referred to in paragraph (c). See In re J.S., 846 N.W.2d 36, 41-42

(Iowa 2014). There, the court explained:

Although chapter 232 does not contain a definition of “harmful effects,” we have noted it “pertains to the physical, mental or social welfare of a child.” Because of this broad definition, we have found such effects established when there was harm to a child’s physical, mental, or social well-being or such harm was imminently likely to occur. Hence, a juvenile court could reasonably determine that a parent’s active addiction to methamphetamine is “imminently likely” to result in harmful effects to the physical, mental, or social wellbeing of the children in the parent’s care. .... Having said all that, we do not believe general statements about methamphetamine addiction are enough by themselves to prove that a child is imminently likely to suffer physical harm under section 232.2(6)(b). In this case, from what we can tell on this record, a grandparent was willing and able to step in and relieve [the parent] of parenting duties when she was not up to the task. As a result, the children were well-groomed, well-dressed, well-fed, and generally well-cared for while at their grandmother’s. To some extent, what happened here is analogous to what occurs when a parent falls ill or becomes disabled and leaves her or his children with a relative. We would rather have parents who are grappling with untreated addiction rely on the services of a relative than do nothing, and so it seems unfair not to take that into consideration at all. 27

Id. (emphasis added) (internal citations omitted).

By the time of the disposition hearing in January 2014, the mother had

abstained from methamphetamine use since at least the time of the child’s birth

in October 2013, approximately four months. Four months abstinence is not

much. Although there were reports the mother had used alcohol, there was no

evidence the mother had drank to the point of intoxication beyond her own self-

reported incidents in October and November 2013. The child was not in her care

in either instance. There were no reports she had alcohol on her breath or was

intoxicated during any visits. All of the mother’s drug tests were negative for

illegal substances.

In the month of December 2013, the mother had seventeen visits with the

child. The service provider noted on multiple occasions the mother fed and

changed the child, meeting the child’s needs, though the provider also noted a

couple of times she had to remind the mother to check or change the baby’s

diaper. The service provider noted on one occasion she “didn’t observe any

concerns” but noted the child had slept “most of the interaction.” The mother

bought toys for the child and kept her home clean while maintaining a job. The

provider praised the mother for planning ahead when she “worked [eight days]

straight trying to prepare for low holiday pay checks.” There were no reports of

concerns of the child’s safety while visiting with the mother.

Despite the mother’s unfortunate history, we disagree with the juvenile

court that there was clear and convincing evidence at the time of disposition to

show that the offer or receipt of services would not be likely within a reasonable

period of time to correct the conditions which led to the child’s removal. Upon 28

our de novo review, the mother’s four-month sobriety at that time, coupled with

her job, her home, and lack of safety concerns during her visits with the child

clearly show the mother was on track for reunification with her child. This

mother’s past is damning, but looking at her progress in this particular instance,

aggravating circumstances did not exist to waive the State’s requirement to

provide reasonable efforts.

Nevertheless, there is a serious error preservation concern here.4 The

aggravating circumstances finding was in the dispositional order, which is a

“‘final,’ appealable order.” In re Long, 313 N.W.2d 473, 476 (Iowa 1981). We

have held that a parent must appeal the dispositional order to challenge

deficiencies from any of the CINA proceedings to preserve the alleged errors for

our review. See In re J.D.B., 584 N.W.2d 577, 581 (Iowa Ct. App. 1998) (stating

where a mother did not appeal from any of the CINA proceedings, the time for

appeal had passed and she could not challenge deficiencies in the CINA

proceedings in the current appeal regarding the termination of her parental

rights); In re D.S., 563 N.W.2d 12, 15 (Iowa Ct. App. 1997) (finding the principles

of res judicata barred a father’s claim of error where order was not appealed).

Though the mother initially appealed from the order and the court’s ruling

denying her motion to consider, she dismissed her appeal. Consequently, it

appears error on this issue was not preserved for our review. However, we need

not rest our reversal on this ground, because we also conclude the grounds for

4 The State did “not take a position regarding whether or not this issue was properly preserved by [the mother] as it did not have access to the termination of parental rights transcript herein.” 29

termination of her parental rights were not proven by the State by clear and

convincing evidence.5 We therefore turn to that issue.

B. Grounds for Termination.

The Iowa Supreme Court has explained that our

statutory scheme recognizes the conflict between a parent’s interest in continuing to raise their child as part of their family and the State’s interest in providing a stable, loving homelife for the child as soon as possible. A parent’s right to raise his or her child is an important interest warranting deference and, absent a powerful countervailing interest, requires protection. Our court has recognized a parent’s right to raise his or her child in an early case applying chapter 232’s termination provisions.

P.L., 778 N.W.2d at 38 (emphasis added) (internal citations omitted). The court

in P.L. pointed out that this framework was adopted to promote the child’s best

interest, which occurred when the framework was “properly applied as written.”

Id. at 39. Consequently, the court reaffirmed that, in determining whether

parental rights should be terminated under chapter 232, the juvenile court must

follow a three-step analysis. See id.; see also In re D.W., 791 N.W.2d 703, 706

(Iowa 2010) (citing P.L.). The very first step requires the court to determine if a

5 After our opinion in J.D.B. was filed, the legislature amended chapter 232, which included “some transformation” of the reasonable efforts requirement. See C.B., 611 N.W.2d at 493; see also J.D.B., 584 N.W.2d at 581; 1998 Iowa Acts ch. 1190, §§ 10-17. Among the changes was the addition of Iowa Code subsection 232.102(12), at issue here, allowing the court to waive the reasonable-efforts requirement if it determines aggravating circumstances exist. See 1998 Iowa Acts ch. 1190, § 17 (renumbered from subsection (11) to (12) by the Code Editor). We note the legislature also added at that time subsection 232.99(2A), which requires the juvenile court to “inquire of the parties as to the sufficiency of the services being provided and whether additional services are needed to facilitate the safe return of the child to the child’s home” at the initial dispositional hearing, as well as at any dispositional review, permanency hearing, or any hearing held under section 232.103. 1998 Iowa Acts ch. 1190, § 10. We have not been asked, nor do we need to decide, if the addition of subsection 232.99(2A) alters the need to appeal the dispositional order to preserve error if a parent continues to challenge the sufficiency of services provided at each hearing following disposition, as our basis for reversal rests on other grounds. 30

ground for termination under Iowa Code section 232.116(1) has been established

by the State. See P.L., 778 N.W.2d at 39; see also D.W., 791 N.W.2d at 706. If

grounds are established, the court then moves to the second step: “apply[ing] the

best-interest framework set out in section 232.116(2) to decide if the grounds for

termination should result in a termination of parental rights.” D.W., 791 N.W.2d

at 706; see also P.L., 778 N.W.2d at 39. This secondary determination is

informed by giving “primary consideration to the child’s safety, to the best

placement for furthering the long-term nurturing and growth of the child, and to

the physical, mental, and emotional condition and needs of the child.” P.L., 778

N.W.2d at 39 (citing Iowa Code § 232.116(2)). So, while all of these

considerations are important, we only look at these considerations if the State

has first proven statutory grounds for termination. See generally id.

1. Iowa Code Section 232.116(1)(g).

Termination a parent’s parental rights under paragraph (g) requires the

court to find the State proved all of the following:

(1) The child has been adjudicated a [CINA] pursuant to section 232.96. (2) The court has terminated parental rights pursuant to section 232.117 with respect to another child who is a member of the same family . . . . (3) There is clear and convincing evidence that the parent continues to lack the ability or willingness to respond to services which would correct the situation. (4) There is clear and convincing evidence that an additional period of rehabilitation would not correct the situation.

Iowa Code § 232.116(1)(g).

There is no question the first two elements were established here. As to

the third and fourth elements, if we only look at the mother’s past, which 31

admittedly is rocky, it is easy to conclude she lacked “the ability or willingness to

respond to services which would correct the situation” or that she could not be

rehabilitated. However, the language of element three is present tense; it

required the State to prove, by clear and convincing evidence, that she

“continues to lack the ability or willingness.” See Id. The mother does not

dispute that she lacked the ability or willingness in her past; she asks the court

look at her present actions. And, the overwhelming evidence here shows that

the mother was not only willing to respond to services, she was able to respond

to services to correct the situation. She did so voluntarily after the court found

aggravating circumstances and services were limited. This mother even paid for

her own drug testing and demonstrated she continued to be drug-free. She had

held a full-time job for many months, had maintained a stable and safe

residence, had regular visitation with her child, and had maintained mental health

and substance abuse treatment. On our de novo review of this record, the State

failed to prove by clear and convincing evidence element three of the statutory

ground stated in paragraph (g). For the same reasons, we find the State failed to

establish by clear and convincing evidence that an additional period of

rehabilitation would not correct the situation, element four of paragraph (g).

Consequently, the State failed to establish the ground for termination under Iowa

Code section 232.116(1)(g).

2. Iowa Code Section 232.116(1)(h) and (l).

We combine our review of the grounds found under Iowa Code section

232.116(1)(h) and (l) because both contain a similar element. Under paragraph 32

(h), the State is required to prove by clear and convincing evidence, all of the

following:

(1) The child is three years of age or younger. (2) The child has been adjudicated a [CINA] 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. (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.

Iowa Code § 232.116(1)(h) (emphasis added). Paragraph (l) requires the State

to prove by clear and convincing evidence, all of the following:

(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96 and custody has been transferred from the child’s parents for placement pursuant to section 232.102. (2) The parent has a severe substance-related disorder and presents a danger to self or others as evidenced by prior acts. (3) There is clear and convincing evidence that the parent’s prognosis indicates that the child will not be able to be returned to the custody of the parent within a reasonable period of time considering the child’s age and need for a permanent home.

Id. § 232.116(1)(l) (emphasis added). We focus on element four of paragraph (h)

and element three of paragraph (l), because we find, on our de novo review of

the record, the State failed to prove, by clear and convincing evidence, the child

could not have been returned to the mother’s custody at the time of the

termination hearing.6

6 It necessarily follows that if we find the child could be returned to the mother’s care at the time of the termination hearing, element four of paragraph (h), there was evidence the child could be to be returned to the custody of the parent within a reasonable period of time, element three of paragraph (l). We therefore combined our review of these grounds. We note, however, paragraph (l) has been amended, as reflected above in element two, to require court to find parent has “a severe substance- related disorder,” not merely “a severe, chronic substance abuse problem” as was 33

Iowa Code section 232.102, referenced in element four of paragraph (h),

states in subsection (5):

a. Whenever possible the court should permit the child to remain at home with the child’s parent. . . . Custody of the child should not be transferred unless the court finds there is clear and convincing evidence that: (1) The child cannot be protected from physical abuse without transfer of custody; or (2) The child cannot be protected from some harm which would justify the adjudication of the child as a [CINA] and an adequate placement is available. b. In order to transfer custody of the child under this subsection, the court must make a determination that continuation of the child in the child’s home would be contrary to the welfare of the child, and shall identify the reasonable efforts that have been made. The court’s determination regarding continuation of the child in the child’s home, and regarding reasonable efforts, including those made to prevent removal and those made to finalize any permanency plan in effect, as well as any determination by the court that reasonable efforts are not required, must be made on a case-by-case basis. The grounds for each determination must be explicitly documented and stated in the court order. However, preserving the safety of the child is the paramount consideration. If imminent danger to the child’s life or health exists at the time of the court’s consideration, the determinations otherwise required under this paragraph shall not be a prerequisite for an order for removal of the child. If the court transfers custody of the child, unless the court waives the requirement for making reasonable efforts or otherwise makes a determination that reasonable efforts are not required, reasonable efforts shall be made to make it possible for the child to safely return to the family’s home.

Id. § 232.102(5) (emphasis added).

previously required in paragraph (l). Compare Iowa Code § 232.116(1)(l)(2) (2011) with Iowa Code § 232.116(1)(l)(2) (2013). Consequently, we need not address whether a diagnosis of a disorder would require expert testimony, though we note that in other contexts, such as medical malpractice, our courts have required the introduction of expert testimony when the issue involves “highly technical questions of diagnoses” that “lie beyond the understanding of a layperson.” See Donovan v. State, 445 N.W.2d 763, 766 (Iowa 1989); see also In re G.B., No. 14-1516, 2014 WL 6682456, at *4 (Iowa Ct. App. Nov. 26, 2014) (reversing termination of parental rights based upon juvenile court’s use of old definition in section 232.116(1)(l)(2)); In re L.S., No. 14-1080, 2014 WL 5252948, at *6-7 (Iowa Ct. App. Oct. 15, 2014) (same). 34

There is no clear and convincing evidence the child was in danger from

physical abuse at the time of the termination-of-parental-rights hearing as

needed in section 232.102(5)(a)(1). Section 232.102(5)(a)(2) requires there be

“some harm which would justify the adjudication of the child as a [CINA].” We

must therefore determine if any of the definitional grounds of a CINA exist as

defined in section 232.2(6) subsections (a) through (q). See In re A.M.S., 419

N.W.2d 723, 725 (Iowa 1988). Proof by clear and convincing evidence of any

one of the types of harm set out in the subsections is sufficient to support

termination. See id. We find none of them apply here, and we briefly address

the definitional grounds that could arguably apply in this case.

First, there is no clear and convincing evidence the mother has

abandoned or deserted the child. Iowa Code § 232.2(6)(a). There is no clear

and convincing evidence the child, if returned to the mother’s care, is “imminently

likely” to be abused or neglected. See id. § 232.2(6)(b). There was no clear and

convincing evidence the mother failed “to exercise a minimal degree of care in

supplying the child with adequate food, clothing, or shelter” or that she refused

“other means made available to provide such essentials.” See id. § 232.2(6)(g).

There was no clear and convincing evidence the mother’s mental condition had

resulted “in the child not receiving adequate care.” See id. § 232.2(6)(n). Given

the mother’s demonstrated continued sobriety, there was no clear and convincing

evidence shown at the time of the termination hearing that the child would be

exposed to illegal drugs and test positive for drugs. See id. § 232.2(6)(o).

There is no clear and convincing evidence the child, if returned to the

mother’s care, is “imminently likely” to suffer any harmful effects as a result of a 35

mental injury by the mother or the mother’s failure to exercise a reasonable

degree of care in supervising the child. See id. § 232.2(6)(c)(1), (2). Leaving the

child unattended on the couch one time is not evidence she will fail to exercise a

reasonable decree of care in supervising the child. Additionally, as the supreme

court recently stated, general statements about methamphetamine addiction are

not “enough by themselves to prove that a child is imminently likely to suffer

physical harm under section 232.2(6)(b).” J.S., 846 N.W.2d at 41-42. This also

applies to the mother’s consumption of alcohol and her alleged addiction. See

generally id. The evidence at the time of trial was that the mother had not used

methamphetamine since at least October 2013, and she had a Bud Light in May

2014. This is simply not enough to establish the child was “imminently likely” to

suffer any harm.

There was no clear and convincing evidence the child was in need of

medical, mental health, or substance abuse treatment and the mother was

“unwilling or unable to provide such treatment.” See id. § 232.2(6)(e), (f), (m).

Giving the child acetaminophen an hour early, while not recommended, does not

rise to the level of statutory harm. Additionally, questioning the safety of giving

your child vaccinations does not rise to the level of statutory harm, though the

mother ultimately agreed to the vaccinations anyway.

There was simply no clear and convincing evidence, at the time of the

termination-of-parental-rights hearing that this child was in “some harm” under

any of the possible adjudicatory harms defined in section 232.2(6). See id.

§ 232.102(5)(a)(2). Consequently, the State failed to prove by clear and

convincing evidence that the child could not “be returned to the custody of the 36

child’s parents as provided in section 232.102 at the present time.” See id.

§ 232.116(1)(h)(4). For the same reason, the State failed to prove by clear and

convincing evidence that there was evidence the child could not be returned to

the mother’s custody within a reasonable period of time. See id.

§ 232.116(1)(l)(3). Because these elements were not established, the State

failed to establish grounds for the termination of the mother’s parental rights

under paragraphs (h) and (l).

IV. Conclusion.

This court reviews limitless appeals from parents challenging the

termination of their parental rights. It is very easy to read the opening line in this

case, stating this case concerns a parent’s appeal “from the termination of her

parental rights to her seventh biological child” and have little faith that this case is

any different from those that have come before. Nevertheless, this case shows a

mother who has taken the all of the necessary steps to change her life for the

better, for both herself and A.H. Given all that she has accomplished, it is

patently unfair to ignore her progress because of her unfortunate history,

particularly in light of the fact that there was no evidence that this child was in

any imminent danger from the mother. Past performance is of course indicative

of potential future behavior, but it is not all that courts must consider, especially

considering the constitutionally protected parent-child relationship. Children

simply are not entitled to perfect parents because there is no such thing.

Because the State failed to prove the statutory grounds for termination, we

reverse the juvenile court’s termination of the mother’s parental rights. 37

Accordingly, we remand to the juvenile court for further proceedings including, if

necessary, the implementation of reasonable services.