                      IN THE COURT OF APPEALS OF IOWA

                                      No. 15-1371
                                Filed October 28, 2015

IN THE INTEREST OF K.L.P.,
      Minor Child,

B.P., Father,
       Appellant.
________________________________________________________________

         Appeal from the Iowa District Court for Mahaska County, Rose Anne

Mefford, District Associate Judge.



         A father appeals from an order terminating his parental rights.

REVERSED AND REMANDED.



         Nicole Greenwood of Denefe, Gardner & Zingg, P.C., Ottumwa, for

appellant.

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

Attorney General, James Blomgren, County Attorney, and Bradley Kinkade,

Assistant County Attorney, for appellee.

         Misty White-Reinier, Grinnell, for mother.

         Amber Thompson, Sigourney, attorney and guardian ad litem for minor

child.



         Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.

      Bradley, the father, appeals the order terminating the parent-child

relationship between himself and K.L.P. On appeal, he contends the State failed

to prove by clear and convincing evidence the statutory grounds authorizing the

termination of his rights. He also argues the juvenile court should have deferred

permanency for six months to allow him to establish a bond with K.L.P. At issue

is what rights, if any, does an incarcerated parent have in establishing and

maintaining a relationship with a child where the parent is released from prison

shortly after the child’s birth but in the midst of an adjudication or termination

proceeding.

                                        I.

      K.L.P. was born August 2014 to Amanda. At the time of K.L.P.’s birth,

Amanda was separated from but married to William, who is the established legal

father of K.L.P.   During her separation from William, Amanda had a lengthy

relationship with Bradley prior to the time of K.L.P.’s birth. It was not contested

during this proceeding that Bradley was K.L.P.’s biological father. The juvenile

court lacked the authority to terminate William’s parental rights as only the legal

father of K.L.P., see In re J.C., 857 N.W.2d 495, 508 (Iowa 2014) (concluding a

child’s established father is not a “father” within the meaning of Iowa Code

chapter 232), but the juvenile court dismissed him from the case as an

unnecessary party. At the time of K.L.P.’s birth, Bradley was incarcerated at

Mount Pleasant Correctional Facility on a marijuana conviction.
                                         3



       At the end of September 2014, the child was removed from Amanda’s

care upon the Iowa Department of Human Services (“IDHS”) receiving

information   Amanda     posed    a   risk   to   the   child   due   to   Amanda’s

methamphetamine use and bizarre behavior. The child’s guardian ad litem filed

a report to the court on October 8, 2014. The guardian ad litem was aware

Bradley was incarcerated but did not know where.            The guardian ad litem

recommended the juvenile court obtain additional information regarding Bradley’s

incarceration and consider suspending visitation with Bradley or requiring IDHS

to consult with the guardian ad litem before allowing visitation with Bradley.

IDHS also submitted a recommendation on the same date. IDHS recommended

Bradley participate in visitation with K.L.P. Visitation was denied Bradley.

       On October 22, 2014, the child was adjudicated in need of assistance

pursuant to Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(n) (2013). Bradley

participated telephonically during the adjudication hearing. The juvenile court

ordered services for Amanda. The juvenile court ordered Bradley to participate

in visitation with the child at the discretion of IDHS in consultation with the

guardian ad litem. The court also ordered paternity testing for Bradley. The

guardian ad litem provided another recommendation to the juvenile court in

conjunction with the adjudication hearing. The guardian ad litem opined it was

not in the best interest of K.L.P. to have visitation with Bradley. Visitation was

denied Bradley.

       The matter came on for dispositional hearing in December 2014.          The

court ordered K.L.P remain a child in need of assistance in the custody of the
                                        4



Mahaska County Department of Human Services for purposes of placement in

relative care. The court again ordered paternity testing. The court again ordered

Bradley have visitation with K.L.P. at the discretion of IDHS in consultation with

the guardian ad litem.      IDHS provided a social history report and case

permanency plan in conjunction with the hearing.        The social history report

explained Bradley had been in a relationship with Amanda but the relationship

terminated after he was convicted and sentenced to prison. The report noted

Bradley’s biggest concern was “focusing on K.L.P.” The report noted Bradley

informed IDHS he would be eligible for parole in February or March 2015 upon

completion of substance abuse treatment.       IDHS recommended K.L.P. have

visitation with Bradley.   The case permanency goal was reunification with

Amanda with a target date of April 22, 2014, with a concurrent plan of termination

of parental rights/adoption. Although the permanency goal was reunification and

although IDHS was aware of Bradley’s impending release, visitation was denied

Bradley.

       A dispositional review hearing was held in February 2015. The juvenile

court ordered the permanency goal be changed from reunification to the

termination of parental rights. Bradley participated telephonically and objected to

the termination of his parental rights. The juvenile court ordered the child remain

in the custody of the county department of human services for the purpose of

continued placement in relative care. The court again ordered Bradley to take a

paternity test.   The juvenile court again ordered Bradley have visitation with

K.L.P. at the discretion of IDHS in consultation with the guardian ad litem. IDHS
                                         5



provided a report to the court in conjunction with this hearing. The report noted

paternity testing had not yet been completed. The report noted Bradley could be

released from incarceration at any time to a substance abuse treatment facility

upon a bed becoming available.          The report recommended Bradley have

visitation with the child. Visitation was denied Bradley.

       In April 2015, the matter came on for termination hearing. The child was

only seven months old at the time of the termination hearing.         The mother

consented to termination, and her rights are not at issue in this appeal. By the

time of the termination hearing, Bradley had been paroled to the Ottumwa

Residential Facility. Bradley opposed the termination of his parental rights and

requested an additional six months to pursue reunification. The juvenile court

ordered termination of the Bradley’s rights pursuant to Iowa Code section

232.116(1)(d), (e), and (h) (2013), although there does not appear to be any

discussion of paragraph (d) in the juvenile court’s findings or conclusions. The

juvenile court found Bradley was the biological father of K.L.P. although paternity

testing was never completed because the caseworker filled out the wrong forms.

The juvenile court found the father was still incarcerated at the time of the

termination hearing, although he was not. Bradley timely filed this appeal.

                                         II.

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

A.M., 843 N.W.2d 100, 110 (Iowa 2014). We examine both the facts and law,

and we adjudicate anew those issues properly preserved and presented. See In

re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). The State has the burden to
                                           6



prove the allegations of the petition by clear and convincing evidence. See Iowa

Code § 232.96. Clear and convincing evidence is more than a preponderance of

the evidence and less than evidence beyond a reasonable doubt. See L.G., 532

N.W.2d at 481. It means there must be no serious or substantial doubt about the

correctness of a particular conclusion drawn from the evidence.                See id.

Because our review is de novo, we should not be passive where there is a

deficient presentation of evidence and merely rubber stamp what has come

before. Instead, we must satisfy ourselves the State has come forth with the

quantum and quality of evidence sufficient to prove the statutory grounds

authorizing the termination of a parent’s rights, a legal standard imposed to

balance the parent’s interest in establishing and maintaining the parent-child

relationship and the State’s obligation to protect the children within its jurisdiction.

                                          III.

       Termination of parental rights under Iowa Code chapter 232 follows a

three-step analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the

court must determine if a ground for termination under section 232.116(1) has

been established. See id. Second, if a ground for termination is established, the

court must apply the framework set out in section 232.116(2) to decide if

proceeding with termination is in the best interests of the child. See id. Third, if

the statutory best-interests framework supports termination of parental rights, the

court must consider if any statutory exceptions set forth in section 232.116(3)

should serve to preclude termination. See id.
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                                            A.

       We first address the sufficiency of the evidence supporting the grounds for

termination. Each of the grounds for termination at issue in this case requires the

State to make reasonable efforts to offer services to maintain the integrity of the

family unit.     Termination may be had pursuant to Iowa Code section

232.116(1)(d) when the State proves by clear and convincing evidence the

following:

       1. The court has previously adjudicated the child to be 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 . . . [,and]
       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).1              To terminate parental rights

under paragraph (e), the State must prove by “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.” Iowa

Code § 232.116(1)(e) (emphasis added). Termination may be had under section

232.116(1)(h) where, among other things, the “[t]here is clear and convincing

evidence that the child cannot be returned to the custody of the child’s parents as



1
  “[P]hysical abuse or neglect” and “abuse or neglect” are terms of art in this context.
Within chapter 232, “physical abuse or neglect” and “abuse or neglect” mean “any
nonaccidental physical injury suffered by a child as the result of the acts or omissions of
the child’s parent, guardian, or custodian or other person legally responsible for the
child.” Iowa Code § 232.2(42). There is no evidence of “abuse or neglect” with respect
to Bradley, but Bradley does not raise the issue.
                                           8



provided in section 232.102 at the present time.” As part of its ultimate proof

under this provision, the State must establish it made reasonable efforts to return

the child to the child’s home. See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000).

“[T]he reasonable efforts requirement is not viewed as a strict substantive

requirement of termination. Instead, the scope of the efforts by the [department

of human services] to reunify parent and child after removal impacts the burden

of proving those elements of termination which require reunification efforts.” Id.

at 493; see Iowa Code § 232.102(7) (providing IDHS must make “every

reasonable effort to return the child to the child’s home as quickly as possible

consistent with the best interests of the child”).

       Bradley contends the department failed to make reasonable efforts here

due to the department’s denial of any visitation with K.L.P. There is a legal and

policy preference to maintain the integrity of the family unit where possible. See

42 U.S.C. § 671(15)(B); Iowa Code § 232.102(7) (requiring reasonable efforts to

work toward reunification); see also Santosky v. Kramer, 455 U.S. 745, 753

(1982) (“The fundamental liberty interest of natural parents in the care, custody,

and management of their child does not evaporate simply because they have not

been model parents or have lost temporary custody of their child to the State.

Even when blood relationships are strained, parents retain a vital interest in

preventing the irretrievable destruction of their family life.”). Visitation between a

parent and child is an important ingredient to the goal of maintaining the integrity

of the family unit. See In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996).

“Although . . . a parent’s imprisonment may create difficulties in providing
                                         9



reunification services, . . . imprisonment [does not] absolve the department of its

statutory mandate to provide reunification services under all circumstances.” In

re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000). “Instead, . . . the department

must assess the nature of its reasonable efforts obligation based on the

circumstances of each case.” Id. Relevant factors include, among other things:

“the age of the children, the bonding the children have or do not have with their

parent, including any existing clinical or other recommendations concerning

visitation, the nature of parenting deficiencies, the physical location of the child

and the parent, the limitations of the place of confinement, the services available

in the prison setting, the nature of the offense, and the length of the parent’s

sentence.” Id. “The department has an obligation to make a record concerning

its consideration of this issue.” Id.

       The department’s denial of any visitation between Bradley and K.L.P. was

unreasonable under the circumstances and constituted a failure to make

reasonable efforts. See In re D.M., No. 15-0228, 2015 WL 4160395, at *3 (Iowa

Ct. App. July 9, 2015) (“Reasonable efforts often include visitation.”); In re T.A.,

No. 03-0452, 2003 WL 21459553, at *5 (Iowa Ct. App. June 25, 2003) (holding

denial of visitation to incarcerated parent where possible and without sufficient

explanation “alone was a violation of its reasonable efforts mandate”). By early

December 2014, Bradley notified the department that he would be released in

February. At that time, the permanency goal was reunification with a target date

of April 2015. The department should have been aware the provision of visitation

services to Bradley would be necessary because of the timing of his release from
                                         10



incarceration preceded the target reunification date. See S.J., 620 N.W.2d at

525 (stating the court should consider the length of the parent’s sentence). The

Mount Pleasant Correctional Facility had a special visitation area for children.

Bradley testified it was a good environment for visitation, including a play area,

cribs, and television. See id. (stating the court should take into consideration the

limitations of the institution and setting for visitation). The Ottumwa facility also

allowed for parent-child visitation.     It appears from the record neither the

caseworker not the guardian ad litem had any personal knowledge regarding the

facilities at issue and whether visitation could be had there.

       There are very few, if any, countervailing reasons why visitation should

have been denied in this case. The guardian ad litem opined visitation was not in

the child’s best interest because the child would receive little benefit from the

visitation due to her young age. It seems just as likely that the father should

have had visitation with the child precisely because she was of young age so she

could have developed a bond before his imminent release.               See Jean C.

Lawrence, ASFA In the Age of Mass Incarceration, 40 Wm. Mitchell L. Rev. 990,

1002 (2014) (explaining “continuing contact between the incarcerated parent and

the child can have an ameliorating and positive effect on both the parent and the

child”). The guardian ad litem also opined visitation should be denied because of

the travel required to facilitate visitation. We do not find an hour-long car ride for

an infant to be of such great concern that it should override the greater concern

for maintaining the integrity of the family unit. Further, these types of generalized

concerns unrelated to the imminent risk of harm to the child are insufficient
                                         11



reasons to deny visitation. See Iowa Code § 232.107 (“[U]nless the court finds

that substantial evidence exists to believe that reasonable visitation or

supervised visitation would cause an imminent risk to the child’s life or health, the

order shall allow the child’s parent reasonable visitation or supervised visitation

with the child.”); In re E.C.-N., No. 12-0135, 2012 WL 1066883, at *3 (Iowa Ct.

App. Mar. 28, 2012) (reversing termination order where the agency failed to

provide visitation due to generalized concerns).         We are also concerned

regarding the de facto delegation of visitation rights to the guardian ad litem.

See, e.g., In re Marriage of Stephens, 810 N.W.2d 523, 530-31 (Iowa Ct. App.

2012) (“The legislature has granted to the court the responsibility to make an

impartial and independent determination as to what is in the best interests of the

child, and this decision cannot be controlled by the agreement or stipulation of

the parties.”). We thus hold the department failed to make reasonable efforts

under the circumstances.

                                         B.

       Bradley contends the juvenile court should have granted him an additional

six months to attempt reunification. To defer permanency for six months, the

juvenile court must “enumerate the specific factors, conditions, or expected

behavioral changes which comprise the basis for the determination that the need

for removal of the child[ren] from the child[ren]’s home will no longer exist at the

end of the additional six-month period.” Iowa Code § 232.104(2)(b).

       Even if IDHS had made reasonable efforts with respect to Bradley, we

conclude Bradley should have been granted an additional six-month period to
                                         12



reunite with the child. The basis for removal of the child from the home was

solely due to the mother’s substance abuse. See, e.g., In re J.L.S., No. 06-0380,

2006 WL 1279202, at *3 (Iowa Ct. App. May 10, 2006) (making a distinction

between the parents’ respective cases where the child was removed from the

mother and the evidence related to the mother’s “problems and why the children

could not be returned to her care” as opposed to the father). Here, Bradley was

unavailable to care for K.L.P. after her removal from the mother’s care because

of his incarceration. While the fact of incarceration rendered Bradley unavailable

to care for the child at the time of removal, the fact of incarceration did not pose

any particular risk to the child. The mere fact of incarceration is an insufficient

ground, in and of itself, to terminate a parent’s rights. See In re T.A., 2003 WL

21459553, at *2 (Iowa Ct. App. 2003) (“Our courts, however, have rejected the

notion that termination is a necessary result of conviction of a crime and resulting

imprisonment.”). The evidence showed Bradley may have been discharged from

the residential facility in as little as thirty days depending on how quickly he could

complete the required services. Thus, the specific basis or condition precluding

the reunification of K.L.P. and Bradley could have been corrected within the

statutory time period.

       An additional consideration leads us to conclude Bradley should have the

opportunity to parent K.L.P.      While incarcerated, Bradley availed himself of

classes to address issues resulting in his incarceration and issues regarding his

parenting. He completed a lengthy substance abuse treatment program. He

was given a certificate of appreciation for his efforts in the narcotics anonymous
                                           13



group. He completed a parenting class. He completed the DHS 101 four-week

program.2      Upon release to the Ottumwa facility, Bradley obtained full-time

employment. He participated in group classes. We are not naïve to Bradley’s

criminal history and prior involvement with the department of human services

related to other children.      If that caused concern for the department, the

department should have provided Bradley with services addressing those

concerns. Going forward, the department should provide Bradley with services

to address those concerns.         However, it seems we should proceed on the

assumption that the department of corrections provides services to incarcerated

persons for the purpose of rehabilitation and behavior modification. Given that

assumption, Bradley has availed himself of these services and there is a realistic

possibility he could be released from the residential facility and have the

opportunity to parent his child.         On this record he should be given the

opportunity.

                                           IV.

       For the foregoing reasons, we reverse the termination order and remand

this matter for further proceedings.

       REVERSED AND REMANDED.




2
  Bradley was issued a certification of completion for this class on August 8, 2014, prior
to the time of the child’s birth and the initiation of this case.
