                     IN THE COURT OF APPEALS OF IOWA

                                    No. 14-2034
                              Filed February 11, 2015

IN THE INTEREST OF L.C.,
      Minor Child,

C.C., Father,
       Appellant.
________________________________________________________________

         Appeal from the Iowa District Court for Marion County, Steven W. Guiter,

District Associate Judge.



         A father appeals the termination of his parental rights to his eighteen-

month-old daughter. REVERSED AND REMANDED.



         Blake D. Lubinus of Lubinus Law Firm, Des Moines, for appellant.

         Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, and Edward Bull, County Attorney, for appellee

         Dawn Bowman of Bowman Law Office, Pleasantville, for mother.

         Bryan Webber, Des Moines, attorney and guardian ad litem for minor

child.



         Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, J.

           A father appeals an order terminating his parental rights to his eighteen-

month-old daughter, L.C. He challenges the ground for termination, contends

termination would be detrimental to the child because of their close relationship,

and asks for an additional six months to work toward reunification.

           Because the record shows the father has developed a strong bond with

his daughter during their visits, we conclude the juvenile court should have

exercised its discretionary power under Iowa Code section 232.116(3) (2013) to

forbear termination at this time. Because the father has started to address his

substance abuse issues and has resolved his pending criminal case, we

concluded it would be appropriate to grant him an additional six months to

engage in the services necessary to offer L.C. a stable home.

I.         Background Facts and Proceedings

           L.C. was born in July 2013. Her father, Clifford, testified his daughter lived

with him for about three weeks after her birth. L.C.’s mother, Tiffany, had a

substance abuse problem and was unable to care for the baby. When she was

just one month old, L.C. was removed from her mother’s care. Clifford was not

deemed appropriate for placement at the time of removal.1 The Department of

Human Services (DHS) placed L.C. in foster care instead.

           On October 2, 2013, the juvenile court adjudicated L.C. as a child-in-need-

of-assistance (CINA) under Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(n)

due to the mother’s substance abuse and mental health issues and concerns


1
     At the time of removal, Clifford’s paternity was not established.
                                           3



about the father’s limited contact with the child and his criminal history and

behavior.

       As part of the case permanency plan developed by the DHS, both parents

were directed to address their substance abuse issues. On October 30, 2013,

the court returned L.C. to Tiffany’s care on the condition they live at the House of

Mercy, which offers transitional housing and addiction services. Although the

child was not in his care, the court ordered Clifford to undergo a hair stat test to

determine if he was using drugs.

       In January 2014, Tiffany left the House of Mercy with L.C. and turned up

at the Family Violence Center in an “altered mental state.” The juvenile court

again removed L.C. from Tiffany’s care and the child has been in foster care

since that time.

       Meanwhile, Clifford participated in some DHS services, but questions

about his drug use and criminality persisted. He has engaged in visits with his

daughter since October 2013 and they have gone well. As a DHS report from

April 2, 2014, states: “Cliff and [L.C.] have great visits. Cliff is able to care for

[L.C.] and provides for her during the visits.       It is clear that there is a bond

between Cliff and [L.C.]. Cliff is consistent with his visits.”

       In February 2014, Clifford underwent a substance abuse assessment;

although he reported recent marijuana use, the evaluator did not recommend any

treatment.   In March 2014, Clifford finally complied with the November 2013

order to have his hair tested for the presence of drugs; the test came back

positive for marijuana and opiates.
                                              4



       Then, in June 2014, the residence where Clifford was staying with his

mother and brother was the target of a search warrant. Law enforcement found

marijuana; candy laced with THC, the active ingredient in marijuana; and a

sawed-off shotgun. As a result of the search, on August 13, 2014, Clifford was

arrested at his mother’s house and charged with possession with intent to deliver

marijuana and failure to affix a drug tax stamp.2

       While facing those criminal charges, on August 21, 2014, Clifford

underwent a second substance abuse evaluation. He told the evaluator he last

used marijuana on August 12, 2014, the day before his arrest, and had been

using on an almost daily basis before that time.              He also reported using a

combination of medications, including Vicodin, and illegally obtained opiates to

treat a back injury. The father admitted first trying marijuana when he was just

seven or eight years old and using regularly by the time he was seventeen or

eighteen years old. This time, the evaluator recommended intensive outpatient

therapy. Clifford agreed to that recommendation and was scheduled to start his

treatment sessions in October 2014.                The father also completed anger

management with Eyerly Ball Community Mental Health Services.




2
  At the termination of parental rights hearing, the juvenile court took judicial notice of
Clifford’s criminal case and based its decision, in part, on the uncertainty of the father’s
future because he faced two felony charges. Under Iowa Rule of Evidence 5.201(f), we
find it appropriate to take judicial notice of the resolution of that case. The father entered
a guilty plea to the controlled substance violation on November 20, 2014, and received a
deferred judgment and two years’ probation on January 13, 2015. The district court
dismissed the tax stamp charge.
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          The State filed its petition to terminate parental rights on July 21, 2014,

between the date when police executed the search warrant at the residence of

Clifford’s mother and the filing of the criminal charges against him.

          The juvenile court held a combined permanency and termination of

parental rights hearing on October 8, 2014.             At the hearing, the court heard

testimony from a DHS case worker, who recommended termination.                       Clifford

testified he wanted a chance to be the primary caregiver for his daughter and

believed he could do so if given six more months to address his substance abuse

issues. Clifford also offered testimony from his current FSRP (family safety risk

and permanency) worker, who confirmed the father always came prepared,

showed positive parenting skills during the visits with L.C., and L.C. had

developed a strong attachment to him.

          On December 4, 2014, the juvenile court issued an order terminating the

parental rights of L.C.’s mother, Tiffany,3 and her father, Clifford. Clifford now

appeals.

II.       Standard of Review and Legal Principles

          We review termination proceedings de novo. In re A.M., 843 N.W.2d 100,

110 (Iowa 2014). When so doing, “[w]e review both the facts and the law, and

we adjudicate rights anew.”          In re K.N., 625 N.W.2d 731, 733 (Iowa 2001)

(internal quotation marks omitted). We give weight to the juvenile court’s factual

findings, but are not bound by them. In re D.S., 806 N.W.2d 458, 465 (Iowa Ct.

App. 2011).


3
    The mother voluntarily consented to termination and is not a party to this appeal.
                                        6



       The State bears the burden to prove the grounds for termination by clear

and convincing evidence.        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 the conclusions of law drawn from it. In re C.B.,

611 N.W.2d 489, 492 (Iowa 2000).

       In determining whether a parent’s rights should be terminated under

chapter 232, a juvenile court “follows a three-step analysis.” D.W., 791 N.W.2d

at 706. First, the court must “determine if a ground for termination under section

232.116(1) has been established” by clear and convincing evidence. Id. If the

court finds a ground for termination, the second step is deciding if termination is

in the child’s best interests under the framework in section 232.116(2). Id. at

706–07. Finally, if the court finds “the statutory best-interest framework supports

termination of parental rights,” the court must consider “if any statutory

exceptions set out in section 232.116(3) should serve to preclude termination of

parental rights.” Id. at 707.

       “[T]ermination is an outcome of last resort.” In re B.F., 526 N.W.2d 352,

356 (Iowa Ct. App. 1994).

III.   Analysis of Father’s Challenges to Termination

       Clifford first argues the State did not prove the ground for termination by

clear and convincing evidence. He also claims the juvenile court erred in not

finding an exception precluding termination under section 232.116(3). Finally, he

asks for an additional six months to work toward reunification. We address each

argument in turn.
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       A.     Ground for termination

       The juvenile court based its termination of the Clifford’s parental rights to

L.C. on Iowa Code section 232.116(1)(h). This section provides:

       The court finds that all of the following have occurred:
               (1) The child is three years of age or younger;
               (2) The child has been adjudicated a child in need of
       assistance pursuant to section 232.96;
               (3) The child has been removed from the physical custody of
       the child’s parents for at least six months of the last twelve months,
       or for the last six consecutive months and any trial period at home
       has been less than thirty days;
               (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) (2013).

       After a de novo review of the record, we believe the State proved all the

elements of subsection (h). At issue is the fourth element, the ability to safely

return the child to the custody of the father at the time of the termination hearing.

See A.M., 843 N.W.2d at 111. At the time of the hearing, Clifford had not yet

started his intensive outpatient substance abuse treatment. He was living with

his mother, L.C.’s grandmother, but that residence was not a long-term housing

option. Clifford testified if L.C. was returned to his custody, he would move to a

house he shares with a friend in Des Moines, but the DHS did not have current

information on the suitability of that arrangement.      And although Clifford had

requested additional visitation with L.C., the DHS had not transitioned him to

unsupervised visits or visits lasting longer than a few hours. Finally, although he

has since received a deferred judgment in the pending criminal case, at the time

of the hearing, Clifford was facing potential incarceration for his criminal conduct.
                                           8



          Given this record, we agree with the juvenile court’s decision that L.C.

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

termination hearing.      His unstable housing and unresolved substance abuse

issues were enough to prove subparagraph (h)(4) by clear and convincing

evidence.

          B.    Mitigating Factor

          Clifford claims the juvenile court erred by not declining to terminate based

on section 232.116(3)(c). He asserts severing the parent-child relationship would

be harmful to L.C. because of their close bond. We find merit in the father’s

argument.

          In its findings of fact, the juvenile court recognized: “The bond between

[L.C.] and her father is described as strong.” But the court immediately pivoted to

its concerns about Clifford’s ongoing substance abuse. In its conclusions of law,

the court included a boilerplate paragraph quoting the entirety of section

232.116(3), but did not specifically analyze subsection (c) concerning any

detrimental effect L.C. might suffer from losing the close relationship with her

father.

          The record supports the existence of a special connection between

Clifford and L.C. Clifford testified L.C. is always excited to see him. His claim

concerning the closeness of their relationship is corroborated by the DHS worker

who recognized an attachment between the father and L.C. It is also bolstered

by glowing reports filed by the FSRP worker. The worker testified there was a

strong bond with the father. The worker testified the father does not miss visits;
                                         9



he is on time, comes prepared with a diaper bag, and is very engaged with L.C.

The reports also indicate Clifford is able to attend to L.C.’s needs at the visits,

including feeding and changing. The worker testified L.C. “rarely wants to go to

anybody else or spend time with anybody else [but him].” L.C. only cries at the

end of visits when the father places L.C. in the car.

       The father also called the FSRP worker to testify at the termination

hearing. She testified L.C. was always very excited to see her father and only

wanted him to hold her during their visits. Although her grandmother and the

FSRP worker were present, Clifford was the person L.C. looked to for comfort

during the supervised visits.    The worker also reported that L.C., who was

normally a very cheerful child, would cry and become distressed when she had to

leave her father at the end of the sessions. This record is sufficient for us to

appreciate the closeness of the relationship between father and daughter.

       The record might have been even stronger, but as Clifford’s attorney was

asking the FSRP worker to discuss how L.C. would react to being separated from

her father, the county attorney objected to the question as calling for “speculation

and beyond the scope of the witness’s expertise.” The county attorney voir dired

the witness about her credentials, pointing out she did not have a postgraduate

degree as a therapist nor had any interaction with the L.C. outside the visitation.

       The juvenile court ultimately sustained the objection.            While the

evidentiary question is not raised in this appeal, we nevertheless are troubled by

the State’s adversarial treatment of the FSRP worker and the juvenile court’s

unwarranted limitation on the father’s ability to prove the detrimental impact of
                                        10



termination under section 232.116(3)(c).        The FSRP worker consistently

supervised the interaction between the father and L.C. during visits and,

accordingly, had one of the best vantage points to form an opinion on how

separation would impact L.C. In numerous cases, the State relies on FSRP

workers to give their opinions on the propriety of terminating parental rights. And

our supreme court has found it “significant” when “the third-party service

providers” have expressed their belief that a child could not be safely returned to

her parents at the time of trial. See A.M., 843 N.W.2d at 112. In this case, we

are persuaded by the FSRP worker’s opinion concerning the significant bond

between the child and her father.

       We recognize the closeness between father and daughter does not

automatically trump the statutory ground for termination. See In re Z.H., 740

N.W.2d 648, 652 (Iowa Ct. App. 2007) (describing strong bond between parent

and child as mitigating factor, but not overriding consideration). At the same

time, the legislature would not have included subsection (3)(c) if a close

relationship could never be the incentive for a court to forbear terminating

parental rights.

       We also recognize Clifford’s efforts to address his substance abuse issues

come at the eleventh hour. See C.B., 611 N.W.2d at 495 (noting mother showed

“almost complete lack of cooperation with DHS” for eighteen months and waning

interest in her children before entering drug treatment a month before hearing).

But his imperfect progress can be explained, if not excused. His first substance

abuse evaluation did not recommend treatment and his lack of insurance posed
                                         11



an obstacle to seeking therapy on his own. But the bottom line is that Clifford

has been vigilant in visiting his daughter and has created a strong bond with her

despite not living in the same household since she was three weeks old. When

we review the record with fresh eyes, we find it would be detrimental to this

eighteen-month-old child to end that special attachment at this point in time. We

find termination is precluded by section 232.116(3)(c).

       C.     Additional time

       The father argues he should have an additional six months to work toward

reunification with L.C. He asserts after that postponement, termination will not be

necessary. See Iowa Code § 232.104(2)(b). “[T]o continue placement for six

months, the statute requires the court to make a determination the need for

removal will no longer exist at the end of the extension.”        In re A.A.G., 708

N.W.2d 85, 92 (Iowa Ct. App. 2005). We agree additional time is appropriate.

       The juvenile court accepted the testimony of the DHS worker that

Clifford’s pending criminal charges provided a compelling reason to terminate.

But as explained above, the father achieved a favorable disposition in his

criminal case. If he can successfully complete probation, he will not have a

conviction entered on his record. Under these new circumstances, Clifford has a

greater likelihood of eliminating the need for removal if given a brief extension.

       During this reprieve, the father must achieve two primary goals: obtain

suitable housing and address his substance abuse issues.            We understand

tackling his addiction may be an uphill battle given his long history of marijuana

use. But commitment to his intensive outpatient therapy will be essential if he
                                        12



hopes to become a stable, full-time parent to L.C. We view Clifford’s dedication

to meaningful visits with his daughter as a good indicator that additional time will

allow for reunification.

       REVERSED AND REMANDED.
