In the Interest of J.M., Minor Child, J.L., Mother

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-1197 Filed October 11, 2017

IN THE INTEREST OF J.M., Minor Child,

J.L., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Daniel L.

Block, Associate Juvenile Judge.

Mother appeals from the order terminating her parental rights pursuant to

Iowa Code chapter 232 (2017). REVERSED AND REMANDED.

Linda A. Hall of Linda Hall Law Firm & Mediation Services, P.L.L.C.,

Cedar Falls, for appellant mother.

Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer,

Assistant Attorney General, for appellee State.

Joslyn N. Sailer of Sailer Law, PLLC., Waterloo, guardian ad litem for

minor child.

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

MCDONALD, Judge.

Jazie, the mother, appeals from an order terminating her parental rights in

her child, J.M., pursuant to Iowa Code section 232.116(1)(e), (h), and (l) (2017).

On appeal, the mother challenges the sufficiency of the evidence supporting

each of the grounds authorizing termination of her parental rights. She also

contends the State failed to make reasonable efforts to facilitate reunification of

the family and termination is not in the best interest of J.M.

I.

This family came to the attention of the Iowa Department of Human

Services (IDHS) and the juvenile court in February 2016 when police responded

to a complaint regarding the conduct of an occupant in a local hotel. In

responding to the complaint, the police found Jazie and her paramour in the hotel

room with J.M. The teenaged Jazie was staying in the hotel for a week while she

was transitioning into a new residence. At the time the police found her in the

hotel, Jazie had been self-medicating with marijuana. Two of her close friends

had recently committed suicide. She had suffered and was suffering from

medical issues that restricted her physically and caused her to lose her

employment due to non-attendance. The police found marijuana and a handgun.

Jazie testified the handgun belonged to her paramour. Jazie and her paramour

were arrested and charged with child endangerment and possession of a

controlled substance. IDHS removed J.M. from Jazie’s care at that time.

The child was adjudicated in need of assistance in March of 2016. At that

time, IDHS put in place a plan for services to reunify Jazie and J.M. The services

included mental-health treatment, substance-abuse treatment, parenting classes, 3

and visitation, among other things. At the time of the adjudication hearing, Jazie

was nineteen years old and J.M. was one year old.

Jazie made significant progress toward reunification with the child. She

terminated her relationship with the paramour. She began mental-health and

substance-abuse treatment. She obtained steady employment, including one

full-time management position and a second part-time position. She obtained

her own residence. The Family Safety, Risk, and Permanency (FSRP) care

coordinator testified the residence was safe and appropriate for the child. Jazie

attended parenting classes, applied the lessons learned, and bettered her

parenting skills. The FSRP care coordinator testified the visits between Jazie

and J.M. improved greatly. Her visits moved from supervised to semi-

supervised.

Jazie suffered a setback in the fall and winter of 2016. In September, she

tested positive for use of marijuana. Her visits were moved from semi-

supervised back to supervised. Nonetheless, in November 2016, the juvenile

court deferred permanency pursuant to Iowa Code section 232.104(2)(b)

because of Jazie’s “increased participation in services and follow through.” Jazie

continued with her services after the permanency hearing. She also continued

with visitation three times a week for three hours each visit. However, she tested

positive for marijuana three times between December 2016 and February 2017.

Based on the failed drug tests, the State filed its petition to terminate Jazie’s

parental rights, which the district court granted. 4

II.

We review de novo proceedings terminating parental rights. See In re

A.M., 843 N.W.2d 100, 110 (Iowa 2014). The legal framework for termination

appeals is well established. See id.; In re M.W., 876 N.W.2d 212, 219–20 (Iowa

2016) (stating review is de novo and setting forth the applicable “three-step

inquiry”). Importantly, we will uphold an order terminating parental rights only if

there is clear and convincing evidence of grounds for termination. See In re

C.B., 611 N.W.2d 489, 492 (Iowa 2000). “It is the highest evidentiary burden in

civil cases. It means there must be no serious or substantial doubt about the

correctness of a particular conclusion drawn from the evidence.” In re M.S., 889

N.W.2d 675, 679 (Iowa Ct. App. 2016). This significant burden is imposed on the

State to minimize the risk of an erroneous deprivation of a parent’s fundamental

liberty interest in raising her child. Id.

A.

Jazie challenges the sufficiency of the evidence authorizing the

termination of her parental rights pursuant to Iowa Code section 232.116(1)(e).

Iowa Code section 232.116(1)(e) authorizes the termination of parental rights

when:

(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (2) The child has been removed from the physical custody of the child’s parents for a period of at least six consecutive months. (3) There is clear and convincing evidence that the parents have not maintained significant and meaningful contact with the child during the previous six consecutive months and have made no reasonable efforts to resume care of the child despite being given the opportunity to do so. For the purposes of this subparagraph, “significant and meaningful contact” includes but is 5

not limited to the affirmative assumption by the parents of the duties encompassed by the role of being a parent. This affirmative duty, in addition to financial obligations, requires continued interest in the child, a genuine effort to complete the responsibilities prescribed in the case permanency plan, a genuine effort to maintain communication with the child, and requires that the parents establish and maintain a place of importance in the child’s life.

“The duties contemplated by the statute “require[] continued interest in the child,

a genuine effort to complete the responsibilities prescribed in the case

permanency plan, a genuine effort to maintain communication with the child, and

require[] that the parents establish and maintain a place of importance in the

child’s life.” In re S.W., No. 15–0549, 2015 WL 3635722, at *4 (Iowa Ct. App.

June 10, 2015) (alterations in original).

The State failed to prove by clear and convincing evidence this ground to

support termination of Jazie’s rights. Jazie has demonstrated a continued

interest in the child. Jazie attended 99% of her three weekly visits with J.M. The

case worker testified the visits went well. Jazie made genuine efforts to comply

with the case plan. At the time of the termination hearing, she provided negative

drug tests. She was to be successfully discharged from substance-abuse

treatment. She was still attending mental-health counseling. She was

participating in parenting classes. She had attained financial stability, working

two jobs. She had also obtained safe and appropriate housing. The evidence

also showed she maintained an important place in J.M.’s life. The testimony

showed Jazie and J.M. were bonded. There is not clear and convincing

evidence Jazie failed to maintain significant and meaningful contact with J.M.

Termination pursuant to Iowa Code section 232.116(1)(e) was not proved. 6

B.

Jazie challenges the sufficiency of the evidence in support of paragraph

(l). Iowa Code section 232.116(1)(l) states the a court may terminate parental

rights when:

(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.

A “substance-related disorder” is defined as “a diagnosable substance

abuse disorder of sufficient duration to meet diagnostic criteria specified within

the most current diagnostic and statistical manual of mental disorders published

by the American psychiatric association that results in a functional impairment.”

Iowa Code § 125.2(14). When assessing the sufficiency of the evidence in

support of this ground, “[i]t is no longer sufficient for the court to assess in lay

terms whether the parent suffers from ‘a severe, chronic substance problem,’ as

the definition of substance-related disorder requires consideration of diagnostic

criteria from the DSM–V.” In re M.F., No. 16-0434, 2016 WL 2743488, at *3

(Iowa Ct. App. May 11, 2016); see also In re G.B., No. 14-1516, 2014 WL

6682456, at *4 (Iowa Ct. App. Nov. 26, 2014) (“The definition of substance-

related disorder requires consideration of diagnostic criteria from the DSM–5.”).

There was not clear and convincing evidence in support of this ground.

The State did not prove the mother presents a danger to herself or others. See 7

In re M.S., 889 N.W.2d at 682 (providing drug use alone, specifically marijuana

use, alone does not establish adjudicatory harm). The State argues Jazie poses

a risk of harm to the child as evidenced by the fact J.M. tested positive for

marijuana at the time of removal. This could serve as a prior act showing an

appreciable risk of danger to the child. However, that test result was more than

one year prior to the termination hearing. The social worker working directly with

the family testified she had no safety concerns about Jazie’s home or parenting.

The State also did not prove by clear and convincing evidence that Jazie’s

prognosis related to this condition precluded return of the child to her care. Jazie

was actively engaged in treatment at the time of the termination hearing. She

was a leader in her treatment group and showed no signs of relapse. At the time

of the termination hearing, Jazie had provided negative drug tests for two

months. Jazie’s prognosis was good and showed she would be able to provide

care for the child if returned to her care.

We conclude the State failed to prove by clear and convincing evidence

that Jazie is a danger to herself or others and that her 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.

C.

Jazie also challenges the sufficiency of the evidence supporting the

termination of her rights pursuant to Iowa Code section 232.116(1)(h). The

parties only dispute section 232.116(1)(h)(4), which requires “clear and

convincing evidence that the child cannot be returned to the custody of the child’s 8

parents as provided in section 232.102 at the present time.” Under this element,

a child cannot be returned to a parent if the child would remain a child in need of

assistance or would be exposed to harm amounting to a new child-in-need-of-

assistance adjudication. See In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). “We

have interpreted this to require clear and convincing evidence the child[] would

be exposed to an appreciable risk of adjudicatory harm if returned to the parent’s

custody at the time of the termination hearing.” In re E.H., No. 17-0615, 2017

WL 2684420, at *1 (Iowa Ct. App. June 21, 2017).

It is not disputed that Jazie relapsed during the course of these

proceedings, testing positive for marijuana in the fall and winter of 2016. This

was the primary fact supporting IDHS’s recommendation to terminate parental

rights. The IDHS case manager testified J.M. should not be returned to Jazie

because of “[h]er ongoing continued use of illegal substances . . . and the overall

safety of the child. I think that mom is young and still has some parenting skills

she needs to learn and she has not followed through with those court-ordered

requirements.”

We conclude the State failed to prove by clear and convincing evidence

the nexus between marijuana use and harm to the child. “[T]he mere fact of

[drug] use does not establish adjudicatory harm.” In re M.S., 889 N.W.2d at 682.

The State must show a “nexus” between the parent’s drug use and “appreciable

risk of adjudicatory harm to the child.” Id. The most relevant authority regarding

the nexus between marijuana use and adjudicatory harm is M.S. In that case,

the father regularly exercised visitation with the child and built a bond with the

child. However, the father tested positive for marijuana during the course of 9

proceedings. At the termination hearing, the father testified his days of use were

behind him. A social worker testified the father’s conduct was never a safety

concern with respect to the child. Id. This court found the State failed to prove

the child would be exposed to an appreciable risk of adjudicatory harm on the

facts. Id.

Similarly, in this case, Jazie exercised regular visitation with the child and

built a bond with the child. The evidence showed the child had difficulty

separating from Jazie at the end of visitation. Like the father in M.S., Jazie

demonstrated the capacity to overcome her substance abuse. There is no

evidence she was ever under the influence of drugs while caring for J.M. after the

incident that led to the child’s removal. She tested negative in the months

preceding the termination hearing. Her substance-abuse counselor testified

Jazie was actively engaged in treatment, was a leader in her treatment group,

and displayed no behavioral indicators of relapse. Jazie’s IDHS case manager

did testify to one visit to Jazie’s home where the home smelled of marijuana in

February 2017. Although concerning, we find termination should not be

supported by this testimony because the child was not in Jazie's care at the time

and Jazie's FSRP coordinator visited Jazie's home far more frequently without

issue. The FSRP coordinator attended visitations in Jazie’s home three times

per week but never raised any concerns regarding marijuana use in the home

and testified the home was safe and stable. The coordinator testified the visits

were appropriate and Jazie was attentive to J.M.’s needs.

We also find it insufficient to establish the child would be exposed to an

appreciable risk of adjudicatory harm merely because Jazie is young and has 10

parenting skills to learn. The fact Jazie is young militates in her favor. She has

the capacity to change. See In re L.P., No. 06-0458, 2006 WL 2265258, at *1

(Iowa Ct. App. Aug. 9, 2006) (holding “termination is not appropriate under the

circumstances of this case involving an immature, yet loving and otherwise

capable mother.”). The evidence showed she has. Jazie attended parenting

classes. Jazie’s social worker testified Jazie was very cooperative with these

services and made dramatic improvements in her parenting during visits with

J.M. We reject IDHS’s contention that Jazie needlessly delayed participating in

parenting classes. She enrolled in the programs IDHS identified for her, but

there was a waitlist for the programs.

There is additional reason to believe J.M. would not be exposed to an

appreciable risk of adjudicatory harm if returned to Jazie’s care. Since this case

was initiated, Jazie has maintained stable employment at two restaurants,

working more than full-time, for an extended period of time. She is even in a

managerial role at one of her jobs. She has obtained financial stability. Financial

stability is an important indicator of increased maturity and appropriate parental

supervision. See In re N.S., No. 13-0598, 2013 WL 3279985, at *5 (Iowa Ct.

App. June 26, 2013) (noting the importance of a history of stable housing and

employment in the ability to offer a safe environment); In re T.B., No. 03-1425,

2004 WL 57739, at *2 (Iowa Ct. App. Jan. 14, 2004) (repeatedly emphasizing a

lack of consistent employment as an indicator of irresponsible parenting); In re

D.T.J., No. 02-0943, 2002 WL 1758417, at *1 (Iowa Ct. App. July 31, 2002)

(explaining a lack of consistent employment and ability to support a child, along 11

with a lack of stable housing and transportation, were critical facts in terminating

parental rights under paragraph (h)).

Jazie has a strong support system to maintain sobriety and continue to

grow as a parent. She maintains a close, lifelong relationship with her

godmother Alicia, who has training in social work. Alicia testified to Jazie’s

dramatic growth in maturity and parenting skills. Alicia serves a strong mentoring

role in Jazie’s life. Barbara, another close friend of Jazie, testified on Jazie’s

behalf. The two have been friends for over six years. Barbara is incredibly

supportive of Jazie’s relationship with J.M. Jazie also testified to her supportive

peer groups at her places of employment. Strong communal relationships are

another factor we consider in determining the safety of the child and future

prospects for responsible parenting. See In re A.M.E., No. 11-0074, 2011 WL

944423, at *3 (Iowa Ct. App. Mar. 21, 2011) (mentioning community support as a

factor in the transition to responsible parenting); In re N.F., 579 N.W.2d 338, 340

(Iowa Ct. App. 1998) (noting the importance of a support system to maintain

sobriety).

“Children do not need to have perfect parents to succeed. In fact,

imperfect parents have valuable life lessons to impart.” In re K.S., No. 16-0605,

2016 WL 5933516, at *3 (Iowa Ct. App. Oct. 12, 2016). We recognize that Jazie

is not a perfect parent. She has made some mistakes in the past year and a half.

But she has also demonstrated the capacity for change and self-improvement.

The trial testimony reflects she will likely continue in that direction and be able to

provide appropriate and safe care of J.M. if given the opportunity. There is not 12

clear and convincing evidence that J.M. would be at an appreciable risk of

adjudicatory harm if returned to Jazie’s care.

III.

For the foregoing reasons, we reverse the termination of Jazie’s parental

rights in J.M.

REVERSED AND REMANDED.