IN THE COURT OF APPEALS OF IOWA
No. 20-0354 Filed August 5, 2020
IN THE INTEREST OF K.S., Minor Child,
A.S., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Winneshiek County, Linnea M.N.
Nichol, District Associate Judge.
A mother appeals the termination of her parental rights. REVERSED AND
REMANDED.
Nicholas E. Hay of Hay Law, P.L.C., Decorah, for appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Whitney L. Gessner of Gessner Law Office, Monona, attorney and guardian
ad litem for minor child.
Considered by Tabor, P.J., May, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020). 2
MAY, Judge.
A mother appeals the termination of her parental rights to her child, K.S.
We conclude the State did not carry its burden of proving statutory grounds for
termination by clear and convincing evidence. So we reverse and remand.
K.S. was born in 2007. For the first nine and a half years of her life, K.S.
lived in Wisconsin with her mother and two sisters—I.M (born 2004) and S.K. (born
2005).
In late December 2016, Wisconsin authorities responded to allegations that
K.S. and S.K. were physically fighting and the mother failed to intervene or address
the situation. Because of this incident, the mother was arrested and criminally
charged with neglect. Those charges were dismissed. But a no-contact order was
entered between K.S. and S.K. And K.S. was placed in her father’s custody. He
lived in Iowa.
In May 2017, the Iowa Department of Human Services (DHS) removed K.S.
from the father’s home based on concerns the father committed domestic abuse
on his paramour and used illegal drugs. In August, the juvenile court adjudicated
K.S. as a child in need of assistance (CINA) as defined in Iowa Code section
232.2(6)(c)(2) and (n) (2017). K.S. was placed with a foster family in Iowa.
In February 2019, the State filed a petition for termination of parental rights.
In July, the juvenile court issued an order terminating both parents’ rights. The
court concluded grounds for termination existed under Iowa Code section
232.116(1)(d) and (f) (2019).
The mother filed a motion to reconsider, amend, or enlarge. In February
2020, the court issued a responsive order. The February order included several 3
amendments to the July order. But the court declined to change its conclusions of
law or its order to terminate the rights of both parents. The mother now appeals.1
It is well-established that Iowa courts may not terminate a parent’s rights
unless the State has proven statutory grounds for termination by clear and
convincing evidence. See In re M.S., 889 N.W.2d 675, 679 (Iowa Ct. App. 2016).
In this case, the juvenile court determined the State had met its burden of proof
under paragraphs (d) and (f) of Iowa Code section 232.116(1). We review those
determinations de novo. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). As with all
statutes, we must apply section 232.116(1) as it is written. See In re C.S., No. 19-
1444, 2020 WL 1550675, at *1 (Iowa Ct. App. Apr. 1, 2020).
We begin our review with subparagraph (d), which states in pertinent part:
[T]he court may order the termination of both the parental rights with respect to a child and the relationship between the parent and the child on any of the following grounds: .... d. The court finds that both of the following have occurred: (1) The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as the result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding. (2) Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.
Iowa Code § 232.116(1)(d) (emphasis added).
“Within chapter 232, ‘physical abuse or neglect’ and ‘abuse or neglect’” are
defined to mean “any nonaccidental physical injury suffered by a child as the result
1 The father does not appeal. 4
of the acts or omissions of the child’s parent, guardian, or custodian or other person
legally responsible for the child.” In re J.S., 846 N.W.2d 36, 41 (Iowa 2014)
(quoting Iowa Code § 232.2(42)).
So, to decide whether the State has met its burden under paragraph (d), we
begin by looking to the adjudication order to determine whether K.S. was
adjudicated CINA based on a finding that K.S. suffered “any nonaccidental
physical injury.” See In re A.R., No. 14-1204, 2015 WL 800075, at *2–3 (Iowa Ct.
App. Feb. 25, 2015). The record shows K.S. was adjudicated CINA in August
2017. The adjudication order cites section 232.2(6)(c)(2) and (n). Neither of those
paragraphs requires a finding of nonaccidental physical injury.2 Nor did the order
contain any factual findings of nonaccidental physical injury. Instead, the court
cited the father’s incarceration and recent use of methamphetamine while caring
for children. Those are certainly causes for concern. But they do not—in
themselves—amount to a nonaccidental physical injury.
2 Those provisions state as follows: 6. “Child in need of assistance” means an unmarried child: .... c. Who has suffered or is imminently likely to suffer harmful effects as a result of any of the following: .... (2) The failure of the child’s parent, guardian, custodian, or other member of the household in which the child resides to exercise a reasonable degree of care in supervising the child. .... n. Whose parent’s or guardian’s mental capacity or condition, imprisonment, or drug or alcohol abuse results in the child not receiving adequate care. Iowa Code § 232.2(6)(c)(2), (n). 5
Because K.S. was not adjudicated CINA based on a finding of
nonaccidental physical injury, the State could not meet its burden of proof under
paragraph (d). See A.R., 2015 WL 800075, at *3 (“In the absence of a CINA
determination that satisfies (d)(1), we have no identification of statutorily
authorized circumstances which require correction under (d)(2).”).
We turn next to paragraph (f), which states in pertinent part:
[T]he court may order the termination of both the parental rights with respect to a child and the relationship between the parent and the child on any of the following grounds: .... f. The court finds that all of the following have occurred: (1) The child is four years of age or older. (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 twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child’s parents as provided in section 232.102.
Although the mother concedes elements (1) through (3), she contests
element (4). To carry its burden under element (4), the State must prove by clear
and convincing evidence that the child could not be safely returned to the mother
at the time of the termination hearing. In re T.W., No. 20-0145, 2020 WL 1881115,
at *1 (Iowa Ct. App. Apr. 15, 2020) (collecting cases). Clear and convincing
evidence “means there must be no serious or substantial doubt about the
correctness of a particular conclusion drawn from the evidence.” M.S., 889 N.W.2d
at 679.
Following our de novo review, we conclude the State did not meet this
“heavy evidentiary burden.” Cf. In re B.C., No. 18-1442, 2019 WL 1300456, at *3 6
(Iowa Ct. App. Mar. 20, 2019) (discussing clear-and-convincing-evidence standard
in a chapter 600A termination appeal). In fact, considerable evidence shows the
mother could be a safe custodian. Two DHS employees—a social worker and a
family safety, risk, and permanency worker—testified there were no safety
concerns between K.S. and the mother. And the no-contact order between K.S.
and S.K. is no longer in effect. Moreover, two months before the termination
hearing, the Health and Human Services Department for Brown County, Wisconsin
(the Department) completed a “thorough home study” of the mother’s home in
Green Bay. The study documented numerous positive features of the mother’s
home, including: (1) her apartment has four bedrooms, which would allow each of
her children to have their own beds in their own rooms; (2) the apartment is close
to schools, shopping, and medical facilities; (3) the mother established supports
within the Green Bay community for the family, including in-home mental-health
counseling; and (4) the mother “works well with [her children’s] schools and
supports her children in order to be successful and helps address any concerns
that arise.” Ultimately, the study “support[ed] that the mother has addressed and
eliminated all prior concerns.” And the Department recommended “placement of”
K.S. with the mother.
In our view, the State has provided no reason to disregard the Department’s
assessment and recommendation. In fact, neither the State nor the guardian ad
litem has pointed to evidence that the mother’s home was not safe for K.S. in May
2019, when the termination hearing was held. For example, unlike with the father,
there was no evidence the mother or any occupant of her home was using
methamphetamine. See, e.g., In re J.P., No. 19-1633, 2020 WL 110425, at *2 7
(Iowa Ct. App. Jan. 9, 2020) (“A parent’s methamphetamine use, in itself, creates
a dangerous environment for children.”); In re K.L., No. 17-0346, 2017 WL
2465817, at *1 (Iowa Ct. App. June 7, 2017) (“Methamphetamine is a scourge.”).
We recognize that, although the mother regularly visited with K.S. on the
phone, she has attended few in-person visitations. But the circumstances of this
case are unusual. While K.S. was in foster care in Iowa, the mother lived in
Wisconsin. And, according to DHS, legal and logistical barriers prevented
visitations in Wisconsin. So each in-person visitation required the mother to travel
several hours out of state and stay overnight in a hotel. Every time the mother was
to attend visitation, she was tasked with securing gas money, funding for hotel
stays, and coordination of all of her children’s needs.3 The mother is indigent and
has two other children. And we recognize that balancing the logistics of interstate
travel with her parenting responsibilities for two other children would be difficult,
particularly as a single, indigent parent. So while we do not minimize either the
importance of visitation generally or DHS’s concerns here, we think this case calls
for us to use a different lens than we might in other cases. And, in any event, we
do not find the mother’s visitation record provides clear and convincing evidence
that K.S. could not be safely returned to the mother’s care.
We have considered the juvenile court’s conclusion that “[w]ithout the
opportunity to observe the children together on an in-person visitation, it is
impossible to assess the safety concerns” that led to removal of K.S. from the
mother’s home. We are concerned that this implies the burden of proof shifted to
3 DHS did provide some financial assistance, but it did not cover the entire cost associated with visitations and was provided after the fact. 8
the mother to establish that her home was safe. Under Iowa law, the burden of
proof to establish statutory grounds for termination always remains with the State.
It must prove by clear and convincing evidence that the home was not safe.
We also bear in mind that strife with sibling S.K. was the key circumstance
leading to K.S.’s removal from the mother’s home. But the Department has
reported S.K. is doing better expressing herself appropriately, the mother is
disciplining her children appropriately, and both of K.S.’s siblings want her to return
to the home. In light of this information, and our review of the record as a whole,
we conclude the State has not proven by clear and convincing evidence that
concerns about K.S.’s safety in the home persist.
Because the State failed to prove statutory grounds for termination by clear
and convincing evidence, we must reverse.
REVERSED AND REMANDED.
Tabor, P.J., concurs; Vogel, S.J., dissents. 9
VOGEL, Senior Judge (dissenting).
Because of the mother’s lack of compliance with offered services, I
respectfully dissent from the majority and would affirm the termination of the
mother’s parental rights.
When a child is removed from the home, the parent is tasked with certain
obligations to bring about reunification. See In re C.B., 611 N.W.2d 489, 494 (Iowa
2000) (“[T]hus, in considering the sufficiency of evidence to support termination,
our focus is on the services provided by the state and the response by [the parent]
. . . .” (emphasis added)).
In this case, the mother failed in her efforts, and after two years of
monitoring the situation—plus another five months before the motion-to-enlarge
hearing—the juvenile court essentially said, “enough is enough” and terminated
the mother’s parental rights.
To begin, the juvenile court was informed that from 2007 to 2016, the
Wisconsin child welfare agency compiled an “extensive history” of involvement
with the mother’s household.4 The history included multiple unsubstantiated
allegations of physical abuse or neglect by the mother and others upon K.S. as
well as the other children in the household. In December 2016, Wisconsin
responded to allegations the children in the home were physically fighting and the
mother failed to intervene or address the situation. As a result of this incident, the
mother was arrested and criminally charged under Wisconsin Code section
948.21(1)(b) (2016) with neglecting a child (consequence is bodily harm); a no-
4Although the mother acknowledged having several physical- and mental-health concerns, the court did not rely on those concerns to support termination. 10
contact order was entered in Wisconsin between the child and her half-sister; and
Wisconsin placed sole custody of K.S. with the father in Iowa.5
After K.S.’s removal from her father’s home on May 28, 2017, and her
adjudication as a child in need of assistance on August 9, the October 11
dispositional order adopted and incorporated the permanency plan by the Iowa
Department of Human Services (DHS), which among other things required the
mother to participate in individual counseling. She was also to participate in family
team meetings to “work out issues of visitation among [the] siblings.”
To that end, DHS attempted to coordinate supervised visitation between the
child in Iowa and the mother in Wisconsin, but only fourteen such visitations
occurred prior to the May 22, 2019 termination hearing.6 The mother made
visitation much more problematic in March 2018, when she decided to move
another two hours north in Wisconsin, extending her drive to Iowa for visits from
approximately three hours to five hours. DHS continued to offer the mother
assistance with visitation, including partial reimbursement for gas and lodging and
“brainstorming” other ways to make the trip more affordable. A DHS worker
testified she reached out to the mother on a monthly basis to offer visits.
Nevertheless, weeks, and sometimes months, went by without the mother
5 The father was granted sole custody of K.S. in February 2017; the criminal charges against the mother were dismissed in July 2017; and the no-contact order was dismissed in December 2018. 6 In-person supervised visitation between the mother and child occurred on June
5, 2017; June 14, 2017; August 9, 2017; August 27, 2017; September 28, 2017; November 11, 2017; November 26, 2017; December 3, 2017; January 13, 2018, June 6, 2018; March 20, 2019; April 6, 2019; May 4, 2019; and May 18, 2019. The DHS worker testified to the legal and logistical issues that required all in-person visits to occur in Iowa near the foster home. Some of these visits extended over two days due to the distance the mother travelled. 11
attempting to visit K.S. Notably, she only visited K.S. on two occasions in 2018.
The mother faulted the no-contact order between the two half-siblings as a
roadblock but admitted she did not contact her attorney, the child’s guardian ad
litem, or the supervising agency to request visitation. While DHS did not raise
concerns with the mother’s behavior during the in-person visitations that did occur,
the mother’s modest attempts to participate with in-person visitations hindered her
from demonstrating adequate improvement in her parenting ability. Even as DHS
and the mother set a visitation schedule for the weeks leading up to the termination
hearing, the mother failed to show for three of the seven pre-arranged visits.
The DHS worker testified the mother’s “lack of visits is one of the key
reasons to request the” termination. She also testified that, based on past
behavior, she did not anticipate improved efforts by the mother should the court
grant more time for reunification. From the mother’s half-hearted attempts to
participate in visitation, and the resulting inability of DHS to observe the mother’s
conduct with K.S. and her siblings, the juvenile court made this finding: “Without
the opportunity to observe the children together on an in person visitation, it is
impossible to assess the safety concerns.” I agree with the majority that the way
this specific finding was worded appears to fall short of the clear-and-convincing
standard required in termination of parental rights proceedings. See In re D.W.,
791 N.W.2d 703, 706 (Iowa 2010) (“Evidence is ‘clear and convincing’ when there
are no ‘serious or substantial doubts as to the correctness [of] conclusions of law
drawn from the evidence.” (quoting C.B., 611 N.W.2d at 492)). But I do not agree
that the court’s ultimate finding lacked clear and convincing evidence nor that the
court shifted the burden of proof to the mother. Rather, the record was replete with 12
examples of the mother’s failure to comply with her obligations under the
disposition and review orders for reunification. Cf. C.B., 611 N.W.2d at 495 (“In
this case, the DHS performed its role of providing services. The problem, however,
was not with the services but was with [the mother’s] response to those
services.”).7 As the guardian ad litem noted, “[t]he mother had treated K.S. as an
afterthought for two years . . . . The mother’s lack of effort at making herself
available for visits was well-documented throughout the case . . . .”
Further, the Wisconsin home study, which the mother asserts offered
support for her position, gave no indication to DHS that the worker even met with
K.S. Therefore, the worker had not observed any interaction either between the
mother and K.S. or between the mother, K.S., and the other siblings. This
interaction was critical for DHS and the juvenile court’s determination as to whether
K.S. could be safely returned to her mother’s care. In fact, the study noted “there
are still incidents of aggression by [S.K.] towards others (sister and mom) and
continued engagement in family counseling is needed for [the mother].” The
children’s history of physical aggression—undeterred by the mother—was the root
cause of the need for K.S. to be removed from the mother’s home in early 2017
7 The mother’s situation is somewhat akin to a drug-dependent parent required to show adequate compliance with drug treatment to secure reunification. If the parent failed to submit to drug testing or participate in treatment, the court could conclude the reunification requirements were not met and therefore, with the statutory timeframe having been met, termination would be appropriate. See, e.g., In re T.P., 757 N.W.2d 267, 270–71 (Iowa Ct. App. 2008) (“[The mother] claims she has been clean from drugs since February 2007, but that is not bore out by the record as she stopped using DHS services, did not submit to drug tests, and has not completed a substance abuse treatment program. Further, because [the mother] has not complied with recommended mental health services, it is clear [the mother] cannot care for [the children] either now or in the foreseeable future.” (citation omitted)). 13
with sole custody given to the father. By the time of the termination hearing, this
remained the unaddressed concern of DHS and the court.
Thus, it was proper for the juvenile court to conclude the State carried its
burden of proof, that a return to the mother’s care would have subjected K.S. to
adjudicatory harm under Iowa Code section 232.2(6)(c)(2); the result of the failure
of the mother to show she could exercise a reasonable degree of care in
supervising K.S. with the other siblings.
And time marches on. It is important to note that K.S. has been out of the
mother’s home since December 2016 and out of both parents’ care since May
2017. Now, at age thirteen, this child should not continue waiting for permanency,
especially considering the mother’s limited engagement with DHS since removal.
See In re D.S., 806 N.W.2d 458, 474 (Iowa Ct. App. 2011) (“We will not gamble
with a child’s future by asking him [or her] to continuously wait for a stable biological
parent, particularly at such a tender age.”). Once the limitation period lapses,
termination proceedings must be viewed with a sense of urgency. In re L.L., 459
N.W.2d 489, 495 (Iowa 1990).
The days, weeks, months, and years dragged on, and the mother’s
lukewarm efforts gave DHS scant ability to recommend reunification. The mother’s
failure led the juvenile court to finding clear and convincing evidence the child could
not be returned to the mother’s custody without suffering adjudicatory harm. I
agree with the juvenile court and would affirm that the grounds for termination
under section 232.116(1)(f) were satisfied.