                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0893
                              Filed August 17, 2016


IN THE INTEREST OF P.C. AND D.C.,
Minor children,

J.S., Mother,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clinton County, Philip J. Tabor,

District Associate Judge.



      A mother appeals from a juvenile court order terminating her parental

rights in her children. REVERSED AND REMANDED.



      Matthew D. Hatch of Hatch Law Firm, P.C., Bettendorf, for appellant

mother.

      Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

      Neill A. Kroeger, Le Claire, for minor children.



      Considered by Potterfield, P.J., and Mullins and McDonald, JJ. Tabor, J.,

takes no part.
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MCDONALD, Judge.

          Jessica appeals a juvenile court order terminating her parental rights in

her children P.C. and D.C. pursuant to Iowa Code section 232.116(1)(d), (e), (h)

(2015).      She contends the State failed to establish by clear and convincing

evidence the statutory grounds authorizing termination of her parental rights.

She also contends termination is not in the children’s best interests.

          P.C. (born 2014) and D.C. (born 2012) were adjudicated children in need

of assistance in November 2014. At that time, the children and their father,

Samuel, resided together with Jessica. Also residing with them were Samuel’s

three other children, S.C., C.C., and K.C., and the mother of those three children,

Danielle.1 In its adjudicatory order, the juvenile court found “the children are

living in a home where domestic violence has been alleged and there are

questions as to the appropriate supervision of the children, and [S.C.] was at

school with some bruising.”          Following a review hearing in March 2015, the

family’s safety plan required the father to move out of the home due to his

noncompliance with services and failure to allow service providers access to the

home. After another hearing in April 2015, P.C. and D.C. were removed from the

home. The court found that the father, while “perhaps not sleeping at home . . .

is still at the home.” The court found service providers were being denied access

to the home. The court found the home to be unsafe for these children.

          Subsequent to removal, the juvenile court terminated Jessica’s parental

rights. Termination of parental rights under chapter 232 follows a three-step

analysis. See In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). First, the court must

1
    Danielle subsequently gave birth to another child, G.C., in 2015.
                                         3


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

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

the court must apply the framework set forth in section 232.116(2) to determine if

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

if that framework supports termination, the court must consider if any statutory

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

parental rights.

       The State has the burden to 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 In re L.G., 532 N.W.2d 478, 481 (Iowa Ct. App.

1995). It means that 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, see In re H.S., 805 N.W.2d 737, 745 (Iowa

2011), we should not be passive where there is a deficient presentation of

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

quantum and quality of evidence sufficient to prove the statutory ground or

grounds authorizing termination of a parent’s rights. The clear and convincing

evidence standard is imposed to balance the parent’s interest in maintaining the

parent-child relationship and the State’s obligation to act parens patriae; to

terminate a parent’s rights in the absence of clear and convening evidence

upsets the legislatively-created balance between these competing interests.
                                          4


       We frequently state we exercise do novo review with deference, meaning

that we “give deference to the district court’s fact findings due to its opportunity to

assess the credibility of witnesses.” In re D.K., No. 15-0185, 2015 WL 9451053,

at *2 (Iowa Ct. App. Dec. 23, 2015). The rationale underlying the accepted

truism is the district court is in a superior position vis-à-vis the appellate court to

determine credibility due to the trial court’s opportunity to observe the witness’s

demeanor and nonverbal behavior believed to be relevant to credibility. The

problem is this oft-repeated truism is it is probably not true.         See State v.

Goddard, No. 14–1076, 2015 WL 3914327, at *2 (Iowa Ct. App. June 24, 2015)

(“An ounce of intrinsic merit or demerit in the evidence, that is to say, the value of

the comparison of evidence with known facts, is worth pounds of demeanour.”);

Richard A. Posner, Reflections on Judging 124 n.33 (2013) (collecting

authorities). That is not to say, however, that the appellate court should not

afford deference to the decision of the district court, even on de novo review.

There are other, less questionable reasons to exercise “de novo review with

deference,” including: notions of judicial comity and respect; recognition of the

appellate court’s limited function of maintaining the uniformity of legal doctrine;

recognition of the district court’s more intimate knowledge of and familiarity with

the parties, the lawyers, and the facts of a case; and recognition there are often

undercurrents in a case—not of record and available for appellate review—the

district court does and should take into account when making a decision.

Regardless of the rationale offered in justification of the rule, on de novo review,

the appellate court can afford the district court deference only to the extent the

district court makes specific and non-conclusory findings material to the legal
                                          5


issue or issues presented. That did not happen in this case. The juvenile court

made written findings in support of the termination order pursuant to section

232.117(1). The findings were non-specific and conclusory in nature without

clearly identifying how the facts related to the specified grounds for termination.

       The State first contends termination of Jessica’s parental rights was

authorized by section 232.116(1)(d). That section provides termination may be

ordered if (1) the child was previously adjudicated in need of assistance after

finding of physical or sexual abuse or neglect or a child, “who is a member of the

same family,” was so adjudicated after such a finding and (2) subsequent to the

adjudication, despite the offer or receipt of services by the parents, the

circumstance which led to adjudication continues to exist.         See Iowa Code

§ 232.116(1)(d).    There is no allegation of sexual abuse here.       The relevant

consideration is thus whether there has been a previous finding of physical

abuse or neglect.

       But ‘physical 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.’

In re J.S., 846 N.W.2d 36, 41 (Iowa 2014) (quoting Iowa Code § 232.2(42)); see

also In re M.W., 876 N.W.2d 212, 220 (Iowa 2016).

       On de novo review, we conclude the State has not satisfied its burden in

proving this ground for termination. In February 2012, according to the State,

S.C. and C.C. were adjudicated in need of assistance pursuant to Iowa Code

section 232.2(6)(b). The State asserts on appeal “[t]he circumstances leading to

that adjudication included domestic violence and mental health issues.” The
                                        6


assertions are unsupported. The meaning of “physical abuse and neglect” was

clarified in J.S. Pursuant to the clarification, termination is not proper in the

absence of a finding of nonaccidental physical injury.      See In re M.W., 876

N.W.2d 212, 220 (Iowa 2016) (providing that in the absence of evidence of a

“nonaccidental physical injury” to a child who is the subject of a termination

proceeding, or to a child who is a member of the same family, the parents’ rights

may not be terminated under section 232.116(1)(d)). There is no such finding of

record in this case. The State has thus not proved a prior finding of abuse and

neglect, within the meaning of chapter 232, as narrowed and clarified in J.S., and

has not proved whether the circumstances continue to exist despite the receipt of

services. See In re A.R., 865 N.W.2d 619, 629 (Iowa Ct. App. 2015) (“In the

absence of clear and convincing evidence of a previous adjudication, and in the

absence of evidence of circumstances which led to an adjudication, we have

insufficient evidence upon which to evaluate what services were offered or

received and for what purpose.”), overruled on other grounds by M.W., 876

N.W.2d at 221.

      The State also contends termination of parental rights was authorized

under section 232.116(1)(e). This section requires the State to 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.”

“Significant and meaningful contact”

      includes but is 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
                                        7


      the child, and requires that the parents establish and maintain a place of
      importance in the child’s life.

Iowa Code § 232.116(e)(3).

      Here, the evidence showed Jessica has maintained significant and

meaningful contact with the children. She has weekly visits with them. See In re

G.B., No. 14-1516, 2014 WL 6682456, at *3 (Iowa Ct. App. Nov. 26, 2014)

(concluding regular visitation supported finding of significant and meaningful

contact). She has limited financial means, but she brought the children clothes,

books, and other gifts on her visits with them. See In re A.I.-A.M., No. 11-1120,

2011 WL 3925560, at *4 (Iowa Ct. App. Sept. 8, 2011) (concluding that providing

for child supported finding of significant and meaningful contact); see also In re

Z.T.D., 478 N.W.2d 426, 428 (Iowa Ct. App. 1991) (holding it would be error to

terminate parental rights on the basis of economic factors alone).      Her case

permanency plan required her to address her mental health issues, and she has

regularly attended counseling to do so. See In re T.S., No. 15-0892, 2015 WL

4641792, at *3 (Iowa Ct. App. Aug. 5, 2015) (concluding case plan compliance

supported finding of significant and meaningful contact).      She has received

parenting advice from service providers and states she intends to adopt that

advice if the children are placed in her care. See In re S.W., No. 15-0549, 2015

WL 3635722, at *5 (Iowa Ct. App. June 10, 2015) (concluding compliance with

case plan, including finding suitable housing and seeking out parenting classes,

supported finding of significant and meaningful contact).    She has moved into

an apartment. See id. There is unrebutted evidence she has a bond with the

children that suggests she has established and maintained a place of importance
                                         8

in their lives. See In re J.C., No. 14-0100, 2014 WL 1234432, at *3 (Iowa Ct.

App. Mar. 26, 2014) (concluding parent-child bond supported finding of

significant and meaningful contact). On de novo review, we conclude the State

failed to meet its evidentiary burden.

       Finally, termination under section 232.116(1)(h) requires, relevantly, “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.” Implicit in this

requirement is a determination that a child would suffer adjudicatory harm if

returned to the parent’s care. See In re J.R., 478 N.W.2d 409, 412 (Iowa Ct.

App. 1991). That showing must be made by clear and convincing evidence. See

In re D.P., 465 N.W.2d 313, 315 (Iowa Ct. App. 1990).

       We conclude the State has failed to meet its burden. The State asserts

Jessica’s decision to continue a relationship with Samuel disqualifies her from

having the children returned to her care. The State ignores credible evidence

that Jessica has sought to improve her life over the course of this case. She has

steady employment.      She has a residence.        She has sought mental health

counseling. She has obtained parenting advice. Earlier reports suggest she

lacked insight into the issues raised with this family; her testimony at the

termination hearing suggests greater awareness of those issues and efforts to

address them. See In re T.C., No. 09-1169, 2009 WL 3775248, at *2 (Iowa Ct.

App. Nov. 12, 2009) (considering parenting progress in determining child could

be safely returned to mother’s care).        More important, there is not sufficient

evidence to show Samuel poses a material risk of harm to these children. While

Samuel has been elusive and difficult in dealing with service providers, that alone
                                           9

cannot suffice to justify termination of Jessica’s parental rights. See In re L.L.D.-

W., No. 08-2076, 2009 WL 607562, at *2 (Iowa Ct. App. Mar. 11, 2009). A

relationship with a parent who “brings very little to the table in terms of stability

and support” need not necessitate termination. In re E.N.S., No. 09-1619, 2010

WL 200816, at *3 (Iowa Ct. App. Jan. 22, 2010). From our review of the record,

we are persuaded these children could be safely returned to Jessica’s care.

        We are not blind to the challenges facing this family. Work remains to be

done.    We sit not in moral judgment of Jessica’s decision to continue her

relationship with Samuel. We hope Samuel is aware of the role—positive or

negative—he may yet play in Jessica’s attempt to retain care of her children and

is aware of the changes that may be required of him.              We do sit in legal

judgment, however, reviewing the application of the facts to the law. In that

regard, the State has not met its burden of proof with respect to any ground

authorizing termination of Jessica’s parental rights. We reverse and remand this

matter for further proceedings.

        REVERSED AND REMANDED.

        Potterfield, P.J., concurs; Mullins, J., concurs specially.
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MULLINS, Judge. (concurring specially)

       I concur in the conclusion of the majority opinion in this case, but write

separately to begin a discussion with a different articulation of an appellate

court’s role in giving deference to credibility findings. As the majority opinion

hints, one of the problems with truisms is they often go untested or do not have

carefully defined parameters. Our supreme court has explained:

       Our rule governing review of equity cases provides:

              In equity cases, especially when considering the
              credibility of witnesses, the court gives weight to the
              fact findings of the trial court, but is not bound by
              them.
       Iowa R. App. P. [6.904(3)(g)]. There is good reason for us to pay
       very close attention to the trial court’s assessment of the credibility
       of witnesses. A trial court deciding dissolution cases “is greatly
       helped in making a wise decision about the parties by listening to
       them and watching them in person.” In Re Marriage of Callahan,
       214 N.W.2d 133, 136 (Iowa 1974). In contrast, appellate courts
       must rely on the printed record in evaluating the evidence. We are
       denied the impression created by the demeanor of each and every
       witness as the testimony is presented. See Lehmkuhl v. Lehmkuhl,
       259 Iowa 686, 692, 145 N.W.2d 456, 460 (1966).

In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). “We are not bound

by the district court’s findings of fact but we do give them deference because the

district court had an opportunity to view, firsthand, the demeanor of the witnesses

when testifying.” In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992).

Those cases fairly represent the guiding principles fashioned over time in our

case law. As with most brief statements of legal principles, the above quotes fail

to qualify the limits or context of the weight or deference appellate courts give or
                                             11


should give to our trial courts. In application, determinations of credibility and

demeanor are subject to parameters we often fail to address or articulate.2

         In criminal and civil law cases, trial courts often instruct jurors to consider

credibility as follows:

         You will decide the facts from the evidence. Consider the evidence
         using your observations, common sense and experience. You
         must try to reconcile any conflicts in the evidence; but, if you
         cannot, you will accept the evidence you find more believable.
                 In determining the facts, you may have to decide what
         testimony you believe. You may believe all, part or none of any
         witnesses’ testimony.
                 There are many factors which you may consider in deciding
         what testimony to believe, for example:
                 1.     Whether the testimony is reasonable and consistent
         with other evidence you believe;
                 2.     The    witnesses’    appearance,    conduct,    age,
         intelligence, memory and knowledge of the facts; and,
                 3.     The witnesses’ interest in the trial, their motive,
         candor, bias and prejudice.

Iowa Civ. Jury Instructions 100.9. That instruction finds its roots in 100-year-old

case law approving these instructions to a jury:

         You are the judges of the credibility of the witnesses and the weight
         to be given to each and all of them. Where there is a conflict in the
         evidence, you should harmonize it if you can; but if you cannot so
         do, you should give to each witness such credit as you deem him
         entitled, or none if entitled to none.

Burger v. Omaha & C.B. St. Ry. Co., 117 N.W. 35, 38–39 (Iowa 1908). Jurors

are also instructed: “[D]o not be influenced by any personal sympathy, bias,

prejudices or emotions.” Iowa Civ. Jury Instructions 100.2.

         On our review of trial court opinions for cases tried to the bench, judges

often quote from Jury Instruction 100.9 to highlight the factors they considered in

reaching their decision in the case.           Trial judges are encouraged to make

2
    This discussion only scratches the surface of concepts of demeanor and credibility.
                                         12


credibility findings in their written rulings so that both the parties and the

appellate courts can understand the reasons for the conclusions reached. There

is little doubt credibility determinations can be significant and helpful when

considering the reliability of evidence that is in dispute. Care must be taken,

however, to distinguish between likeability of the witness and credibility:

credibility and likeability do not necessarily correlate. See id. at 100.9. Trial

courts have the opportunity to observe the demeanor; we do not have that

opportunity on appeal. So, we defer to the observations of the trial court as to

what the judge can see and hear that we cannot. Deference is not, however, a

black and white concept. Giving “weight” to the trial court’s findings implies a

measured approach. An appellate court should consider the reasons given by

the trial court in support of its credibility findings as it measures the weight to be

given on appeal to the findings.

       We recognize the difficulties and pitfalls when trial judges include written

credibility findings in rulings. If the findings are too harsh, the judge may be

subject to claims of impartiality or bias. Matter of Jenkins, 503 N.W.2d 425, 426–

27 (Iowa 1993) (explaining that regarding credibility of witnesses, “[o]bjective

observations explained by a trial court are helpful in the review process. Clearly,

the ones here do not qualify”). If the findings are too weak, they may be of little

use. Judicial credibility findings might appropriately consider the factors included

in the jury instructions quoted above. Demeanor is but one of many factors to

consider when deciding what testimony to believe.
