                     IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1131
                            Filed September 14, 2016


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

D.C., Father,
       Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Pocahontas County, Adria A.

Kester, District Associate Judge.



       An incarcerated father appeals the termination of his parental rights and

asks for permanency to be deferred for six months.            REVERSED AND

REMANDED FOR FURTHER PROCEEDINGS.



       Daniel L. Feistner, Humbolt, for appellant father.

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

Attorney General, for appellee State.

       Joseph L. Tofilon of Thatcher & Tofilon, P.L.C., Fort Dodge, guardian ad

litem for minor child.



       Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.

       Duane, an incarcerated father, appeals the order terminating his parental

rights to his three-year-old daughter, R.C. In granting the State’s petition to

terminate, the juvenile court relied on Iowa Code section 232.116(1)(e) and (h)

(2015).1 On appeal, Duane claims the State did not offer clear and convincing

evidence supporting those grounds. He also alleges the Iowa Department of

Human Services (DHS) did not make reasonable efforts to reunite him with R.C.

Duane further argues the juvenile court should have deferred permanency for six

months to allow him the opportunity to reestablish himself in the community and

reengage with his daughter.

       After reviewing the record de novo, we conclude continuation of the child’s

placement for an additional six months is appropriate, given R.C.’s bond with

Duane, the strong parenting potential shown by Duane when he is sober, his

commitment to substance-abuse programs offered by the department of

corrections, and the short-term nature of his incarceration.        See Iowa Code

§ 232.104(2)(b). Accordingly, we reverse the termination order and remand for

further proceedings.

       Our decision to continue placement is also influenced by Duane’s

reasonable-efforts argument. A parent’s incarceration does not absolve the DHS

of its duty to provide reunification services, including visitation if reasonable. See

In re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000); see also In re K.M., No.

16-0795, 2016 WL 4379375, at *5 (Iowa Ct. App. Aug. 17, 2016); In re K.L.P.,


1
 The juvenile court order also terminated the parental rights of R.C.’s mother. She is
not a party to this appeal.
                                         3


No. 15-1371, 2015 WL 6507840, at *4–5 (Iowa Ct. App. Oct. 28, 2015). Here,

the DHS failed to follow the mandate from In re S.J. to make a record concerning

the reasonableness of facilitating visitation or other contact between R.C. and her

father while he was confined at the Fort Dodge Correctional Facility.       In the

absence of any record regarding why visits were not offered, we are reluctant to

accept the State’s supposition that an additional six months of services would not

lead to a successful reunification of father and daughter.

I.     Facts and Prior Proceedings

       R.C. was born in December 2012. Her parents, Duane and Jessica, were

not married but had a shared custody arrangement. R.C. was removed from her

home and adjudicated as a child in need of assistance (CINA) just after her first

birthday based on her parents’ substance-abuse issues. R.C. was returned to

her parents’ custody in November 2014. Duane was on probation at the time for

public intoxication, third or subsequent offense.

       During the spring of 2015, Jessica relapsed into substance abuse and

spent time in jail for an operating-while-intoxicated charge. Duane, who was

living with his mother, assumed primary care of R.C. From service providers’

observations of Duane interacting with R.C., the DHS believed Duane had good

parenting skills. But a night of heavy drinking ended Duane’s custody of R.C.

Around 1:00 a.m. on June 2, 2015, a passing motorist discovered R.C.

unattended in her stroller in the traveled portion of a street in the town of

Laurens. A few hours later, the police arrested Duane for child endangerment

and public intoxication.      Duane’s probation was revoked based on his

consumption of alcohol; pursuant to a plea agreement, the State dismissed the
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child-endangerment charge and Duane pleaded guilty to third-offense public

intoxication.   In August 2015, he received a pair of indeterminate two-year

sentences to be served consecutively.

       The DHS worker testified she met with Duane in July 2015 while he was in

the Pocahontas County jail but had no contact with him after he went to prison.

At the termination hearing, the DHS worker had the following exchange with

Duane’s attorney concerning visitation:

               Q. [B]ased on your knowledge, training and history in these
       types of cases, when you have a parent who’s incarcerated, what
       types of things do you do to work with a parent to try and avail them
       access to their child? A. Generally, a child that young, we do not
       provide visits while they’re incarcerated.
               Q. So you would not bring—you would not or did not bring
       [R.C.] to the jail? A. I did not bring [R.C.] to visit Duane in jail or
       prison and neither did the FSRP [Family Safety Risk Permanency]
       worker. The contact that Duane received was the monthly report
       from the FSRP worker while he was incarcerated.
               Q. Do you know if Duane asked to have [R.C.] brought to the
       jail in person or to have telephonic contact with [R.C.]? A. He did
       not ask me.
               Q. Okay. For either one? A. He did not ask me to have
       contact with [R.C.] nor did he ask me to have visits with her while
       he’s been incarcerated, to my knowledge.
               Q. And again, he can testify to that. But in general, if a
       parent is incarcerated in jail or potentially in prison and does make
       that request, how would you respond to that, through telephone or
       in-person contact? A. It would depend on the age of the child and
       how much meaningful contact they’d had prior to—what I want to
       say is how much they’ve been involved in the child’s life prior to
       their incarceration.

       When asked to describe Duane’s relationship with R.C. before his

incarceration, the worker recalled Duane was the child’s primary caretaker in

April and May 2015, and both the DHS worker and FSRP worker were “quite

impressed” with his parenting abilities. The DHS worker also noted Duane had

the support of R.C.’s maternal grandmother. The worker acknowledged “there
                                          5


was definitely a bond” between R.C. and Duane, and she believed, “when he is

sober, Duane is a respectable and decent father.”

       The FSRP worker echoed the viewpoint that Duane exhibited positive

parenting skills before his arrest in June 2015. In her words: “He played a lot

with [R.C.]. He gave her a lot of attention.”

       Despite recognizing the bond between Duane and R.C., neither the DHS

nor the FSRP service agency made any efforts to facilitate visitation while he was

incarcerated. When cross-examined by Duane’s counsel, the FSRP worker did

not appear to have entertained the possibility of arranging visits at the

correctional facility: “Q. How does that usually work as far as somebody being

incarcerated? A. Honestly, this is the first person that I’ve had incarcerated in

prison.” The FSRP worker testified she did not know whether telephone contact

could have been provided.

       Duane testified he did not request contact with R.C. during his

incarceration because he did not know visits were available to him. He testified

that at the time he was in jail, he did not know if it was appropriate for R.C. to see

him, but had he known he was allowed some type of contact with her, he would

have taken that opportunity.

       Duane further testified at the June 3, 2016 termination hearing that he

expected to be paroled in early August 2016, after he had completed his

substance-abuse-treatment programming. He acknowledged his alcohol abuse

was “out of control” before he was arrested on June 2, 2015. Duane said he was

attending NA and AA in prison and believed they were “very good groups.” He

also testified he had been approved for disability benefits because he suffered
                                          6


from and had been taking medication for chronic back pain and extreme anxiety

with panic attacks.

       The juvenile court issued its order terminating parental rights on June 21,

2016.2 The court reasoned:

              Duane, by all reports, was a competent parent when out of
       custody and sober. Unfortunately, he was unable to maintain his
       sobriety despite at least two attempts at treatment. He believes he
       has six convictions for public intoxication.         His most recent
       treatment was completed on March 30, 2015. He was arrested
       shortly thereafter (June 2, 2015) for public intoxication and child
       endangerment. He was unable to stay out of county jail and prison
       since the birth of his child, resulting in long periods of time where
       he was unavailable to care for his child. He participates in services
       available to him from the Department of Corrections. Although
       Duane asserts he could care for his child upon his release from
       prison, it is unlikely.

The court declined to grant Duane an additional six months to work toward

reunification—noting his lack of progress in caring for R.C. due to his lack of

visitation with her. Duane now appeals.

II.    Scope of Review

       We review child-welfare appeals de novo, which means we examine both

the facts and law and 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 bears the burden to prove the allegations in its petition by clear and

convincing evidence. See Iowa Code § 232.96(2). The clear-and-convincing

standard requires more than a preponderance of evidence but less than proof


2
 The child’s guardian ad litem (GAL) recommended termination in a written report to the
court. The GAL met only with the foster parents. He did not interview any medical,
mental health, education, or service providers. See Iowa Code § 232.2(22)(b) (setting
out GAL duties). He did not meet R.C.’s mother or father and did not indicate he was
not authorized to do so by the parents’ attorneys. See id.
                                        7

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. Id.

III.   Analysis

       A court considering a petition to terminate parental rights must follow a

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

court must decide if the State has established a ground for termination under

section 232.116(1). Id. If the State has done so, the court must then apply the

framework set out in section 232.116(2) to decide if proceeding with termination

is in the best interests of the child. Id. Finally, if the statutory best-interests

framework supports termination, the court must consider if any discretionary

factors in section 232.116(3) should serve to preclude termination. Id.

       As grounds for termination, the juvenile court relied on paragraphs (e) and

(h). To terminate under paragraph (e), the court must find “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)(3) (emphasis added).

       To terminate under paragraph (h), the court must find, among other things,

“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.”        Id.

§ 232.116(1)(h)(4). 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
                                          8


requirement is not viewed as a strict substantive requirement of termination.

Instead, the scope of the efforts by the DHS to reunify parent and child after

removal impacts the burden of proving those elements of termination which

require reunification efforts.” Id.; see also Iowa Code § 232.102(7) (providing

DHS 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”).

       Duane argues the State did not make reasonable efforts to reunify him

with R.C.    He contends that prior to R.C.’s removal in June 2015, he was

maintaining regular contact with his daughter. He emphasizes the record shows

he was a good parent when sober and he had a bond with R.C. Once he was

incarcerated, Duane was not informed by either the DHS or the FSRP workers

that visitation or other contact was a possibility. He insists he would have sought

to have continued contact with R.C. if he had known such contact was an option.

        In determining whether the DHS has made reasonable efforts, we

consider “[t]he type, duration, and intensity of services or support offered or

provided to the child and the child’s family.” Iowa Code § 232.102(10)(a)(1).

Among the services commonly provided, we have recognized visitation between

a parent and child as perhaps the most important “ingredient to the goal of

reunification.”   See In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996).

Therefore, the concept of reasonable efforts includes “a visitation arrangement

designed to facilitate reunification while protecting the child from the harm

responsible for the removal.” Id.; see also C.B., 611 N.W.2d at 493.

       Our case law acknowledges a parent’s incarceration may create

difficulties in providing reunification services, but we have not excused the DHS
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from evaluating the reasonableness of visitation when a parent is serving time in

jail or prison. See In re S.J., 620 N.W.2d at 525. In that case, decided sixteen

years ago, we held the DHS must determine what would be reasonable based on

the circumstances of the individual case. See id. We articulated a list of factors

for the DHS to consider in deciding whether visitation with an incarcerated parent

is reasonable, including:

       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. We specifically held the DHS “has an obligation to make a record concerning

its consideration of this issue.” Id.

       In this case, the DHS did not meet its obligation to document its

consideration of providing R.C. visitation with Duane while he was incarcerated.

The DHS worker offered only generalized testimony that “a child that young”

would not be provided visits with an incarcerated parent. “The child’s age alone

does not justify denying visitation.” See In re K.M., 2016 WL 4379375, at *6.

The worker here also said such visitation would depend on the child’s

relationship with the parent before the incarceration. In this case, Duane was the

child’s primary caregiver at the time of his arrest and had developed a strong

bond with her. He was incarcerated in Fort Dodge, which is about forty-five miles

away from Pocahontas County where R.C.’s foster parents lived. The record

contains no information about the services available in the prison setting or any

clinical or other professional recommendations concerning the appropriateness
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of R.C. having contact with her father under these conditions. Without such

information, we cannot find the DHS made reasonable efforts to facilitate

reunification.

       In its brief, the State asserts: “Even if the father had been able to speak

with [R.C.] by telephone or to visit with her in prison, such contact would not have

been significant and meaningful to [R.C.].”      The State makes this assertion

without citation to the record, and we find nothing offered in the juvenile court to

support the State’s position. In fact, experts in child welfare have debunked such

a bald assumption, citing studies that show “letters, telephone calls, and visits

between children and their incarcerated parents lead to children’s improved self-

esteem and lower levels of anxiety.” See Jean C. Lawrence, ASFA in the Age of

Mass Incarceration: Go to Prison-Lose Your Child?, 40 Wm. Mitchell L. Rev. 990,

1004 (2014). We refuse to assume contact with her incarcerated father would

not have been meaningful to R.C.

       The State also contends providing the father contact with R.C. would not

have changed the result because she could not have been returned to his care at

the time of the termination hearing as he remained in prison. See Iowa Code

§ 232.116(1)(h). We agree the State proved the elements of paragraph (h). But

reasonable efforts is a requirement in every CINA case, regardless of the ground

ultimately alleged by the State for termination of parental rights.         See id.

§ 232.102(7). We find a failure to satisfy the reasonable-efforts requirement in

this case.

       We now turn to the father’s request for an additional six months to attempt

reunification. We recognize time is “a critical element” when a child is in foster
                                       11

care. See C.B., 611 N.W.2d at 495. The legislature has set the amount of time

that a court must afford a parent before entertaining the termination of parental

rights, and we view termination proceedings with a sense of urgency once that

period has passed. See id.; see also Iowa Code § 232.116(1). But severing the

parent-child relationship is only appropriate “where more harm is likely to befall

the child by staying with his or her parents than by being permanently separated

from them.” In re H.H., 528 N.W.2d 675, 677 (Iowa Ct. App. 1995). We cannot

yet say R.C. faces greater harm in delaying permanency than being permanently

separated from her father.

      Under the circumstances of this case, we conclude the father should have

been afforded an additional six months to attempt reunification.      The social

workers agreed the father was a good and attentive parent when sober, with R.C.

strongly bonding with him before his incarceration. The father’s incarceration

was not long-term, and he availed himself of appropriate substance-abuse

programs while under the supervision of the department of corrections.        We

reverse the order terminating the father’s parental rights and remand for further

proceedings.

      REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
