                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-1204
                               Filed February 25, 2015

IN THE INTEREST OF A.R., D.R., J.C.
and J.C.
      Minor Children,

A.M., Mother,
      Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Colin J. Witt, District

Associate Judge.



       A mother appeals from termination of her parental rights. REVERSED.



       Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for appellant.

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

Attorney General, John P. Sarcone, County Attorney, and Michael Chenoweth,

Assistant County Attorney, for appellee.

       Deborah Johnson, Altoona, for father of D.R. and A.R.

       William Sales of Sales Law Firm, P.C., Des Moines, for father of J.C. and

J.C.

       Charles Fuson of Youth Law Center, Des Moines, attorney and guardian

ad litem for minor children.



       Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
                                             2



MULLINS, J.

       The mother appeals from the termination of her parental rights to four

children under Iowa Code section 232.116(1)(d) (2013).1 Although the State

petitioned for termination on six different statutory grounds, the juvenile court

terminated the mother’s rights pursuant to subsection (1)(d) only. Because the

record does not show by clear and convincing evidence that there was a child-in-

need-of-assistance (CINA) adjudication in a prior proceeding or that there was a

nonaccidental injury to any of the children in the current CINA proceeding, we

reverse the termination of the parental rights of the mother.

I.     BACKGROUND

       In this case, the State alleged the statutory grounds for termination were

Iowa Code section 232.116(1)(d), (f), (g), (h), (k) and (l). The juvenile court

summarized the procedural background of the case as follows:

              CINA petitions for all four children filed in late January 2013.
       Children were all removed from Mother’s care. Subsequent orders
       confirming removal, adjudicating children in need of assistance,
       and for disposition entered in Winter/Spring 2013. Court thereafter
       held review hearings. Children were never returned to Mother’s
       custody at anytime throughout the case. The [C.] children were
       returned to Father’s custody in or about October 2013 and have
       there remained reunited with Mr. [C.]. The [R.] children have been
       in other placements and as of the last court hearing, the [R.]
       children were in family foster care and remain there pursuant to
       Undersigned’s orders and understandings as of this time.
              The Court was asked to and did make a permanency ruling
       in the CINA cases in January 2014, directing the TPRs to be filed.
              Termination hearing was held April 24, 2014.


1
  The two oldest children share a father, and the two youngest children share a father.
Following termination, the juvenile court placed the older children with their father, where
they have remained. The court terminated the parental rights of the younger children’s
father under subsection (1)(d) as well. However, the father of the two younger children
does not appeal.
                                         3




       After identifying the children and the parents, the court made these

findings:

               8. The Mother has not addressed any of the reasons for
       which the children were adjudicated in the CINA cases.
               9. The Mother has not provided drug screens.
               10. The Mother has been largely uncooperative with any and
       all professionals and social workers.
               11. The Mother’s testimony from April 24, 2014 best
       indicates that she refuses to acknowledge any need for mental
       health assessment, treatment or counseling.
               12. The record establishes that over the course of the child
       welfare cases, she attended approximately half of the visits with her
       children.
               13. The bottom line is the Mother has been in large measure
       actively working against the professionals in this case, unwilling to
       make any changes in her own life despite obvious need in order for
       her to be minimally adequate as a parent to one or four children.

       Upon that backdrop, the court reviewed the requirements of Iowa Code

section 232.116(1)-(3) and provided this analysis:

               The Court concludes the State has proven subsection d is
       met as the statutory ground supporting termination as to the Mother
       [] and termination of her parental rights. The same statutory ground
       is deemed met as to Father [of the younger children] as it relates to
       his parental rights to his two children named herein. In the interests
       of time and finality the Court deems it most prudent to simply rely
       upon this statutory ground. The Court does not find or consider this
       to be a close case.

       Additional facts and background will be developed below.

II.    STANDARD OF REVIEW

       We review termination of parental rights de novo. In re A.M., 843 N.W.2d

100, 110 (Iowa 2014). We will uphold an order terminating parental rights where

there is clear and convincing evidence of the statutory grounds for termination.

In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Evidence is clear and convincing
                                           4



when there is no serious or substantial doubt as to the correctness of the

conclusions of law drawn from the evidence. Id.

III.   ANALYSIS

       As the juvenile court chose to terminate only under 232.116(1)(d), we only

consider that ground.2 See In re J.B.L., 844 N.W.2d 703, 704 (Iowa Ct. App.

2014). To terminate parental rights under Iowa Code section 232.116(1)(d), the

State must show

              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 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 [,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.

       For the mother’s first issue on appeal, she argues: “The State has failed to

prove by clear and convincing evidence that the Mother was offered or received

services to correct the circumstances which led to the adjudication or that the

circumstances still exist despite the offering or receipt of services.”             Her

argument focuses on her claims that the visitation arrangements were

inadequate to allow her to demonstrate her parenting skills and to progress

toward reunification with her children.




2
  The juvenile court made a specific finding that this was not a close case, but did not
rule on the petition allegations under section 232.116(1)((f), (g), (h), (k) or (l).
                                           5



       In order to determine what circumstances led to the adjudication and

required correction, we look to the adjudication order. The juvenile court made

findings of fact which included:

               3. There is clear and convincing evidence to support the
       allegations of the Petition(s) & the children are adjudicated in need
       of assistance pursuant to Iowa Code Section(s) 232.2(6) and the
       aid of the Court is required, per ground
               4. The Court makes the following specific findings of facts:
       Exh. 1 & 2 dated 3/12/13 evince significant concerns associated
       with failure to supervise children & allowing unvetted &
       inappropriate persons to provide care (note: court advised
       investigation of SA re child [Jo.C.] unfounded).

       The court did not specify under which paragraph of section 232.2(6) it

found the children were CINA.3 On our de novo review we have examined the

exhibits identified in the findings of fact. Exhibit 1 is a Child Protective Service

Assessment Summary as to children Jo.C. and Ja.C. The report was founded as

to both children for denial of critical care and failure to provide proper

supervision. Exhibit 2 is a Child Protective Service Assessment Summary as to

children D.R., Ja.C., Jo.C., and A.R.       The report concludes the allegation of

denial of critical care, failure to provide proper supervision is confirmed; the

allegation of physical abuse is not confirmed; and the allegation of “allows access

to obscene material” is not confirmed.

       Pursuant to the terms of the adjudication order and the exhibits referenced

in the order, the circumstances which existed at the time of the adjudication were

denial of critical care and failure to provide proper supervision. This would seem



3
  The petition to terminate parental rights alleges “the children were adjudicated under
Iowa Code Section 232.2(6), b, c(2) and n.” We find no such paragraph identifications in
the CINA ruling.
                                            6



to support a CINA determination under section 232.2(6)(c)(2) and (n). These

sections provide a child in need of assistance is a child:

       (c) Who has suffered or is imminently likely to suffer harmful effects
       as a result of any of the following:
              (1) . . . .
              (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 § 232.6.

       The court at adjudication made no finding of physical abuse or neglect or

imminent likelihood of abuse or neglect as would be required under section

232.2(6)(b); and on our de novo review we find none. We next focus on whether

the CINA findings with which we agree—denial of critical care and failure to

provide proper supervision—could satisfy the requirements of a section

232.116(1)(d) termination.

       In a CINA case, not a termination case, our supreme court explained: “a

CINA determination under section 232.2(6)(b)4 may lead to termination of

parental rights under section 232.116(1)(d), whereas a CINA determination under

section 232.2(6)(c)(2) cannot.” In re J.S., 846 N.W.2d 36, 41 (Iowa 2014). In

J.S., the court was concerned with deciding the imminent likelihood of physical

harm for a CINA determination under section 232.2(6)(b). As part of its analysis,

the court explained:


4
 Finding a parent “has physically abused or neglected the child, or is imminently likely to
abuse or neglect the child.”
                                            7



       “[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.” Id. § 232.2(42).

Id.

       Section 232.116(1)(d) requires that “[t]he 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.” Applying the definition of “physical

abuse or neglect” from section 232.2(42) as explained in J.S., to our section

232.116(1)(d) analysis, it is plain to see that a termination under (d) requires a

physical injury.5 In other words, we may not rely on the term “or neglected,” as

the supreme court has explained that the term of art “physical abuse or neglect”

requires a nonaccidental physical injury.6

       Even if we were to assume the juvenile court’s CINA adjudication was

based on a section 232.2(6)(b) finding of imminent likelihood of physical harm

(which we do not), the record before the court in its CINA determination and the

record before us in the termination case does not support a finding of

nonaccidental physical injury.          Accordingly, the first prong of section

232.116(1)(d)(1) is not satisfied. 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).


5
  We are mindful that a termination under section 232.116(1)(d) may also be supported
by a finding of sexual abuse, but need not analyze that term under the facts of this case.
6
  In the case of In re A.B., 815 N.W.2d 764 775 (Iowa 2012), the supreme court affirmed
a section 232.116(1)(d) termination relying on a neglect finding in the CINA
determination. We discuss that case later in this opinion.
                                          8



       We are mindful that the mother in this case did not raise this precise

argument under (d)(1). But on our de novo review of the issue she raised under

(d)(2), the State cannot show that it satisfied the requirements of (d)(2) as the

predicate circumstances set forth in (d)(1) were not satisfied. We cannot ignore

or countenance a termination under a statutory ground when after a de novo

review we discover necessary elements have no facts at all in support. “[I]t is our

responsibility to review the facts as well as the law and determine from the

credible evidence rights anew on those propositions properly presented, provided

the issue has been raised and error, if any, preserved in the trial proceedings.

While weight will be given to findings of the trial court, this court will not abdicate

its function as trier de novo on appeal.” In re Marriage of Full, 255 N.W.2d 153,

156 (Iowa 1977).

       Our analysis would end here but for some additional allegations in both

the CINA petition and the termination petition. The CINA petition alleges that the

father of two of the children “had his parental rights terminated to another child in

2012,” and alleges that all but one of the children in the present case “have been

previously involved with Juvenile Court.” The petition to terminate parental rights

alleges two of the four children “were previously under the jurisdiction of this

court from February through December of 2009, due to mother’s mental health

issues and chronic THC usage.”

       Section 232.116(1)(d) uses the term “has previously adjudicated” the child

to be a CINA and the clause “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
                                            9



finding.” In our effort to give effect to each provision of the statute implicated by

the facts of the case, we recognized that the allegations of the CINA petition and

the termination petition shown above may have been seeking to rely on either a

CINA adjudication made previous to the current proceedings and/or the prior

termination of parental rights of the father of two of the four children.            This

possibility prompted this court to raise sua sponte a question concerning “the

difference, if any, between the terms, ‘previously adjudicated’ and ‘has been

adjudicated,’” as those phrases are used in section 232.116(1)(d). The court

requested and the parties provided additional briefing on the issue.

       Section 232.116(1)(d) requires that “[t]he court has previously adjudicated

the child to be in need of assistance.” Iowa Code § 232.116(1)(d)(1) (emphasis

added).    Nine subsequent subparagraphs require that the child “has been

adjudicated” a child in need of assistance. See id. § 232.116(1)(e), (f), (g), (h),

(j), (k), (l), (m), and (n) (emphasis added). One subparagraph requires that the

child “meets the definition of child in need of assistance.”                 See id. §

232.116(1)(d)(i).    The remaining subparagraphs do not require any CINA

determination. See id. § 232.116(1)(a), (b), (c), and (o).7




7
  A summary of the essential elements of subsections (a) through (o) of section
232.116(1) helps further illustrate the significance of the requirements for each possible
ground for termination:
               (a) Parents’ consent
               (b) Child has been abandoned or deserted
               (c) Newborn infant voluntary released
               (d) Court previously adjudicated CINA, parents offered or
       received services, circumstance continues to exist
               (e) Child has been adjudicated CINA, removed for statutory time,
       parents lack significant and meaningful contact
                                           10



       In 1986, our supreme court decided the case of In re N.H., 383 N.W.2d

570 (Iowa 1986), and applied Iowa Code section 232.116(3) (1985), an early

version of what is now section 232.116(1)(d). The court reversed a decision of

the juvenile court and stated:

               Our review of the record leads us to conclude that the
       mother’s petition for termination [of the father’s parental rights]
       should have been granted. In separate proceedings, the juvenile
       court has already adjudicated both N.H. and C.H. to be children in
       need of assistance. The juvenile court in those proceedings found
       there was clear and convincing evidence that the father engaged in
       a rigid pattern of extraordinary emotional abuse on his stepchildren
       and N.H. for a period of years and that he engaged in similar abuse
       of his older natural children. Further, the children were frequent
       recipients of torturing physical abuse administered by the father.
       C.H. was born during the pendency of those proceedings and was
       adjudicated a child in need of assistance based on the father’s acts
       toward the other children in the family. The court noted that the
       female children had been sexually abused by the father and that he


               (f) Child four years or older has been adjudicated CINA, removed
       for statutory time, cannot be returned
               (g) Child has been adjudicated CINA, court has terminated as to
       another child of family, parent unable or unwilling to respond to services,
       additional delay would not correct
               (h) Child three years or younger has been adjudicated CINA,
       removed for statutory time, cannot be returned
               (i) Child meets CINA definition based on abuse or neglect,
       significant risk to life or imminent danger, services would not correct in
       reasonable time.
               (j) Child has been adjudicated CINA, parent imprisoned for crime
       against child and unlikely to be released for at least five years,
               (k) Child has been adjudicated CINA, parent with mental illness
       and dangerous, prognosis prevents return of child in reasonable time
               (l) Child has been adjudicated CINA, parent with severe
       substance abuse and dangerous, and prognosis prevents return of child
       in reasonable time
               (m) Child has been adjudicated CINA, parent convicted of felony
       and imprisoned for abuse or neglect of child
               (n) Child has been adjudicated CINA, parent convicted of
       specified child endangerment crimes, imminent danger to child
               (o) Parent convicted of felony sex offense on minor, other
       circumstances, minimum confinement of at least five years.
See Iowa Code § 232.116(1) (emphasis added).
                                            11



       also had some preoccupation with the sexuality of the male
       children. The court commented that unless there was a remarkable
       and unexpected change in the father’s psychological condition, the
       children were not safe from his imaginative ways of abusing the
       children.
               . . . The court of appeals affirmed the juvenile court’s
       decisions in an unpublished opinion. In re R.E., 355 N.W.2d 64
       (Iowa 1983). . . .
               Also in the record in this appeal is a report of counseling
       received by the father after the CINA adjudications. . . .
               . . . The evidence is clear and convincing that the services
       offered to and received by the father have not corrected the
       situation which led to the physical abuse of N.H. by the father.

N.H., 383 N.W.2d at 573-748 (holding modified on other grounds by In re P.L.,

778 N.W.2d 33 (Iowa 2010)).

       In January 1985, the mother filed a petition to terminate the father’s

parental rights to N.H. and C.H. Id. at 571. In August 1982, the juvenile court

had ordered the father to remove himself from the home based on findings he

had abused N.H and her two half-siblings. In February 1983, N.H. and the half-

siblings were adjudicated CINA. A month later, C.H.9 was adjudicated CINA

based on the earlier CINA adjudication of N.H. and the two half-siblings.

Following the father’s appeal from those 1983 CINA adjudications, the court of

appeals affirmed the juvenile court’s decisions. Id. at 573. The significance of

N.H. to our analysis is that the CINA adjudications were in proceedings

commenced by the State and separate from the termination case commenced by

the mother. Thus, a court had previously adjudicated N.H. and C.H. to be CINA,

and a subsequent termination proceeding was commenced without a current or


8
  A matter of contention in the N.H. case was the timing of the offer or receipt of services
intended to correct the circumstances which led to the adjudications. N.H., 383 N.W.2d
at 570-574.
9
  C.H. was born after the father had been ordered to remove himself from the home.
                                             12



new CINA proceeding or allegation. This result follows a plain reading of what

was then Iowa Code section 232.116 (1985), and is our current section

232.116(1)(d).

       More recently, our supreme court has decided a case which, without citing

N.H., applied the clause “previously adjudicated” to a current proceeding. In the

case of A.B., the supreme court affirmed a juvenile court order terminating a

father’s parental rights under Iowa Code section 232.116(1)(d).10 815 N.W.2d at

764. The father’s rights to another child had previously been terminated. Id. at

766. In April 2011, the children were adjudicated CINA based on findings that

placement in “the home would be contrary to the children’s welfare because of

improper supervision and exposure to illegal drugs.” Id. at 767. Services were

offered and received by the father. Id. at 776.

       In September 2011, the State filed a petition to terminate the parental

rights of the father. Id. at 768. After a hearing, the court terminated the parental

rights to two children pursuant to Iowa Code section 232.116(1)(d), (g), (h), and

(l). Id. at 770. The father appealed. Id. at 772. After the court of appeals issued

a ruling to reverse the juvenile court, the supreme court granted the State’s

request for further review. Id. at 772-73. The supreme court vacated the court of

appeals decision and found termination was proper under section 232.116(1)(d).

Id. at 776. After quoting section 232.116(1)(d), the court stated:




10
   The supreme court reversed a decision by the Iowa court of appeals which had
reversed the juvenile court. In its termination ruling, the juvenile court had relied on Iowa
Code section 232.116(1)(d), (g), (h), and (l). In re A.B., No. 12-0133, 2012 WL 1247106
at *4 (Iowa Ct. App. Apr 11, 2012).
                                          13



               There is no dispute that A.B. and S.B. were adjudicated as
       CINA based on findings they had been neglected by both parents.
       In its uncontested CINA adjudication order of April 20, 2011, the
       juvenile court concluded that “placement outside the parental home
       [wa]s necessary because continued placement in or a return to the
       home would be contrary to the children’s welfare because of
       improper supervision and exposure to illegal drugs.” The fighting
       issue here is whether this circumstance that led to the CINA
       adjudication continued to exist despite the offer of services to [the
       father].

Id. at 775 (emphasis added).

       As shown by the emphasis in the quote above, the fighting issue in A.B.

was “whether [the] circumstance that led to the CINA adjudication continued to

exist despite the offer of services to [the father].”11 We cannot ignore, however,

that our supreme court determined that the CINA adjudication which formed the

predicate to the termination was the adjudication made in the course of the

present case.12 We must try to reconcile what appear to be different applications

of the “previously adjudicated” clause between the cases of N.H. and A.B.

       The fact pattern of N.H., and the analysis by the court, support a

conclusion that 232.116(1)(d) was designed to permit a termination proceeding

without the need for a current CINA adjudication if the other prerequisites have

been satisfied. Most of the remaining subparagraphs of 232.116(1) allow for

termination if the child “has been adjudicated” CINA, as opposed to the




11
   The parties apparently did not raise an issue concerning whether a CINA adjudication
based on neglect would support a termination under section 232.116(1)(d). Compare
A.B., 815 N.W.2d at 775 with J.S., 846 N.W.2d at 41.
12
   We acknowledge that as a matter of technical court filings, the CINA case is a
separate court file from the termination case, having a separate case number. As a
practical matter, however, in most termination cases the case flows continuously from a
CINA case. Cf. N.H., 383 N.W.2d at 573.
                                            14



subparagraph (d) requirement that the court “has previously adjudicated” CINA.13

In the context of all other subparagraphs of 232.116(1) and the holding in N.H.,



13
   Nine subsequent subparagraphs require that the child “has been adjudicated” a child
in need of assistance. See id. § 232.116(1)(e), (f), (g), (h), (j), (k), (l), (m), and (n)
(emphasis added). One subparagraph requires that the child “meets the definition of
child in need of assistance.” See id. § 232.116(1)(d)(i). The remaining subparagraphs
do not require any CINA determination. See id. § 232.116(1)(a), (b), (c), and (o); and
footnote 7 above.
         A review of the legislative history of section 232.116(1)(d) adds perspective to
our analysis. In 1978, the Iowa Legislature completely revised the juvenile justice laws
effective July 1, 1979. 1978 Iowa Acts ch. 1088 § 65. The section of that legislation
which was the predecessor to our current section 232.116(1)(d), and was the statute in
effect when N.H. was decided, read as follows:
         3. The court finds that:
                 a. One or both parents has physically or sexually abused the child;
         and
                 b. 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 as the result of the acts or omissions of the parent or
         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;
         and
                 c. There is clear and convincing evidence that the parents had
         received or were offered services to correct the situation which led to the
         abuse.
Iowa Code § 232.114 (1979), renumbered as § 232.116 in 1981.
         On May 7, 1986, just weeks after the March 19, 1986 N.H. decision, the
legislature amended paragraph (c) of section 232.116(3) to read as follows:
                 c. There is clear and convincing evidence that the parents had
         received or were offered but refused services or failed to cooperate to
         correct the situation which led to the abuse or that the parents had
         received services to correct the situation which led to the abuse but the
         services did not correct the abusive situation.
1986 Iowa Acts ch. 1186 § 11 (underlines to signify additions). The preface to that
legislation stated, in part: “providing for involuntary termination of parental rights under
certain conditions involving ineffectiveness of corrective services.”             The 1986
amendment appears to address some of the concern raised in N.H. regarding timing and
effectiveness of offered services. The legislation made no amendments in response to
the N.H. interpretation that a current termination action was appropriately reliant on an
earlier CINA adjudication in a separate proceeding.
         In 1987, the legislature again amended the section and re-numbered the section
as 232.116(1)(c) but made only minor wording changes.
         In 1989, the legislature, struck section 232.116(1)(c) and re-wrote it as follows:
         c. 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
                                           15



termination under subparagraph (d) can properly be based on an adjudication in

a prior proceeding separate from the current proceedings leading to termination.

       From a review of the court of appeals opinion in A.B., and the subsequent

supreme court ruling vacating the court of appeals, it would appear that the issue

of the meaning of the term “previously adjudicated” was not raised or argued.

We repeat the supreme court’s identification of the fighting issue: “The fighting

issue here is whether this circumstance that led to the CINA adjudication

continued to exist despite the offer of services to [the father].” Id. at 775. The

fact pattern in A.B. and the conclusion reached by the court support a conclusion

the “previously adjudicated” CINA could be also in the same proceedings.

       We note anecdotally that numerous unreported opinions of the court of

appeals have affirmed (1)(d) terminations without any citation to N.H. or any

analysis as to the significance, if any, of the clause “previously adjudicated.” We

also note that (1)(d) termination allegations frequently appear in termination

petitions—together with multiple other statutory grounds—without any allegation

of a CINA petition having been granted in a previous case proceeding. See, e.g.,

In re C.W., No. 14-1501, 2014 WL 5865351, *1 (Iowa Ct. App. Nov. 13, 2014); In



       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.
1989 Iowa Acts ch. 229, § 8.
       Then in 2001, the legislature added a paragraph to section 232.116(1)
which required renumbering former 232.116(1)(c) as our current version of
section 232.116(1)(d).
                                           16



re E.R., No. 08-0333, 2008 WL 1885617, *1 (Iowa Ct. App. Apr. 30, 2008); In re

S.E., No. 01-1815, 2002 WL 31640707, *1 (Iowa Ct. App. Nov. 25, 2002).

       We reconcile N.H. and A.B. by concluding that our supreme court has

determined a “previous adjudication” should be interpreted to mean an

adjudication in either a prior or the current proceeding so long as the adjudication

is previous to the filing of the termination petition.

       In the case now before us, having already determined there was no

finding of abuse in the current proceeding which would satisfy section

232.116(1)(d), we have searched the record for evidence of a CINA adjudication

in a prior proceeding. The State alleged in the removal petition, “[T]hese children

have previously been involved with [the] Juvenile Court.”               The State also

asserted in its termination petition the children “were previously under the

jurisdiction of this court from February through December of 2009, due to the

mother’s mental health issues and chronic THC usage.” During the termination

hearing, the State asked and the mother acknowledged that “for the two older

children, this is the second time that they’ve had CINA cases.” The mother also

stated during her hearing testimony that she had five, rather than four, children.

The DHS’s report to the court stated, “Since the opening of the service case in

2009, [the mother] has been offered many services.” Finally, the mother made

statements to the service providers that she believed she would get the children

back because they had been removed and returned to her before.14




14
  We note that the younger two children’s father has had his parental rights terminated
to a child of his with a different mother. The juvenile court took judicial notice of that
                                           17



       On our de novo review of the record, we find some indication a prior CINA

case existed.     Apparently, the family previously was involved in some child

welfare proceedings, but the record does not reflect whether there was a CINA

adjudication in those proceedings, let alone whether there was a finding of

physical or sexual abuse or neglect as required under section 232.116(1)(d)(1).

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.

       Therefore, on the record before us and the grounds determined by the

juvenile court in its termination order, we reverse the termination of mother’s

parental rights for lack of clear and convincing evidence (1) that there was a

CINA adjudication in a prior proceeding that satisfies section 232.116(1)(d)(1)

and (2) that there was a nonaccidental injury to any of the children in the current

CINA proceeding.15 We need not address the mother’s remaining appeal issue.

       We will frame and address one remaining issue generated by the State

and by the dissent: Should we terminate the mother on a ground pled in the

petition but upon which the juvenile court did not rely?

       The State’s petition to terminate alleged five separate statutory grounds in

its petition to terminate: section 232.116(1)(d), (f), (h), (k) and (l). The juvenile

judge, per Iowa Rule of Civil Procedure 1.904(1) made findings of fact,


case file but did not mention it in the termination ruling. Further, we do not regard that
child to be a “member of the same family” for the purposes of paragraph (1)(d).
15
   As the determination regarding section 232.116(1)(d)(1) is dispositive, we cannot
reach section 232.116(1)(d)(2).
                                            18



conclusions of law, and a ruling which relied on only one ground, section

232.116(1)(d), to terminate. The State did not file a rule 1.904(2) motion or make

any other effort to obtain a ruling on the other four grounds it had alleged

supported termination.

       The mother appealed the court’s ruling. The State did not cross-appeal

seeking appellate review of the juvenile court’s failure to find that termination was

proved under any ground other than (d). The mother was required to follow our

appellate rules governing appeals of termination cases, including the use of form

5 of Iowa Rule of Appellate Procedure 6.1401. The rule directed her to identify

and argue only those code sections upon which her rights were terminated; that

is, those as ordered by the juvenile court. The State responded to her petition on

appeal, but included a statement that “[i]t is clear that termination of the mother’s

parental rights could also have been ordered pursuant to Iowa Code Section

232.116(1)(f) and (h) for the reasons stated herein for termination pursuant to

Iowa Code Section 232.116(1)(d).”16 The State’s response was not a cross-

appeal, arguably went beyond the issues raised by the mother, and per rule

6.203, the mother was not allowed to reply.

       As we indicated above, we requested and the parties provided additional

briefing on the difference between “previously adjudicated” and “has been

adjudicated.” The parties were given the same deadline and were not given an

opportunity to respond to the brief of the other party.             The mother’s brief



16
  We note the State limits its request to affirm on only two of the remaining four grounds
that it had pled in its petition, apparently acknowledging it had alleged two other grounds
that were not supported by the evidence.
                                         19



attempted to respond to the issue on which we requested briefing. The State’s

brief also responded to the issue, but then, perhaps realizing that the termination

was in jeopardy, went beyond the issue on which we requested briefing and

offered an alternative argument for affirming the juvenile court. It argued we

should rely on grounds which the State had alleged in its petition to terminate but

upon which the juvenile court had made no findings and upon which it did not

rule. On the last page of the State’s brief, and ironically after arguing that the

mother had not preserved error on her appeal issues, the State argued: “The

record also shows that the termination petition relied upon Iowa Code Sections

232.116(l)(f), (h), (k) and (l). The appellate court could affirm termination of the

mother’s parental rights pursuant to Iowa Code Sections 232.116(l)(f) and (h). In

re T.N.M., 542 N.W.2d 574, 575 (Iowa Ct. App. 1995).”

       The mother appealed the termination making an argument based on the

one ground upon which the juvenile court relied. Of course, she was limited by

the rules to only that one ground and it would have been improper for her to have

argued any ground upon which the juvenile court did not rely. In this ruling, on

our de novo review of the issue properly raised on appeal, we have found there

is insufficient evidence to support a termination under section 232.116(1)(d). The

State argues that we should, in effect, expand our review to a trial de novo: look

at the entire record and find anew the facts that the juvenile court did not find and

make our own independent ruling on statutory grounds about which the juvenile

court made no determination. The State argues we should affirm on a statutory
                                         20



ground on which the mother would have no opportunity to respond, and from

which she would have no opportunity for appeal.

       The unfairness of the State’s argument can be illustrated if we look at this

situation in the following way. Iowa requires parties to preserve error at the

district court, and has expressly declined to follow the “plain error” rule. State v.

Rutledge, 600 N.W.2d 324, 325 (Iowa 1999). “[W]e do not recognize a ‘plain

error’ rule which allows appellate review of constitutional challenges not

preserved at the district court level in a proper and timely manner.” State v.

McCright, 569 N.W.2d 605, 607 (Iowa 1997).               “Even issues implicating

constitutional rights must be presented to and ruled upon by the district court in

order to preserve error for appeal.” In re K.C., 660 N.W.2d 29, 38 (Iowa 2003).

Our supreme court has also stated: “[W]e hold rule 179(b) applies to juvenile

court CINA proceedings. By failing to timely file a rule 179(b) motion in juvenile

court, [the mother] waived both her due process and statutory challenges to the

deficiencies of the court’s dispositional order.” In re A.M.H., 516 N.W.2d 867,

872 (Iowa 1994) (former rule 179(b) is now rule 1.904(2)).

       If the case before us were one in which the juvenile court had terminated

under two statutory grounds (call them A and B), and the mother only appealed

on A, the State would argue that we must affirm on ground B since no appeal

was taken on it.17 But, what if, while limiting our examination to issue A, we

concluded that termination could not be affirmed on that ground, and we

discovered a plain error on issue B which demonstrated that the State had not


17
  See, e.g., In re A.J., 553 N.W.2d 909, 911 (Iowa Ct. App. 1996) overruled on other
grounds by In re P.L., 778 N.W.2d 33 (Iowa 2010).
                                          21



met its burden of proof to terminate on either ground, thus concluding that the

case should be reversed, even on a ground not argued by the mother? The

State would no doubt object, insisting that we could not rely on a ground not

properly raised on appeal, even though the facts clearly did not support

termination. The State might be correct, because we require parties to preserve

error at the trial level and properly raise issues on appeal, and we do not follow

the plain error rule.

       We do not follow the plain error rule, but the State asks us to follow a

“plainly correct” rule, even when the mother has had no opportunity to respond.

The State is asking us to affirm on an issue which it did not preserve via a rule

1.904(2) motion and on which it did not file a cross-appeal.18 As such, the State

did not preserve the issue for appellate review. Further, the State raised the

issue in response to the petition and in the additional briefing, knowing the

mother had no opportunity to argue in defense of the allegations.

       The State cites a reported decision from this court that appears to support

its position, the case of In re T.N.M., 542 N.W. 574, 575 (Iowa Ct. App. 1995).

The dissent cites to a number of cases that are not termination-of-parental-rights

cases,19 and cites two reported termination cases: In re Robbins, 230 N.W.2d



18
   The dissent points out the State, as the prevailing party, was not required to file a
cross-appeal or rule 1.904(2) motion to argue a different ground for affirmance on
appeal. Nonetheless, as we explain later in this opinion, given the limitations of the
expedited procedures specific to termination appeals, the manner in which this matter
was raised in our court did not afford the mother any opportunity to respond.
19
   Regent Ins. Co. v. Estes Co., 564 N.W.2d 846, 848 (Iowa 1997); Midwest Mgmt. Corp.
v. Stephens, 353 N.W.2d 76, 78 (Iowa 1984); Israel v. Farmers Mut. Ins. Ass’n, 339
N.W.2d 143, 146 (Iowa 1983); Citizens First Nat’l Bank v. Hoyt, 297 N.W.2d 329, 332
(Iowa 1980).
                                         22



489, 491 (Iowa 1975), as well as T.N.M., 542 N.W.2d 574. The dissent also cites

one unreported termination case, In re S.Z, No. 03-1237, 2003 WL 22346186, at

*3 (Iowa Ct. App. Oct. 15, 2003), and one unreported CINA case, In re J.B., No.

08-1557, 2009 WL 1140492, at *2 (Iowa Ct. App. Mar. 11, 2009).

       The cited cases that are not termination cases, and the reported

termination cases that pre-date the expedited termination appeals procedures

established in 2002—T.N.M. and Robbins—are cases that would have allowed

full briefing: brief, responsive brief, and reply brief. It is not uncommon in fully-

briefed cases for a party to argue on appeal that the appellate court should affirm

a trial court decision on a ground upon which the trial court did not rely. If such

an argument were raised by appellant in its brief, the appellee would have a

chance to respond. If raised by appellee in a responsive brief, the appellant

would have an opportunity to respond in its reply brief. This procedure provides

at least some semblance of due process: an opportunity to be heard, by brief.

From our review of the cases cited, we cannot be sure that is what transpired in

each of those cases, but we know that those opportunities at least existed in

each case under traditional briefing rules. Due process requires that the parties

have an “opportunity to be heard,” whether or not they exercise that opportunity.

       On the other hand, since 2002 our appellate rules governing termination

cases have limited the appellant’s brief—now called a petition on appeal—to cite

the statutes under which the court terminated the parental rights, and to argue

those issues briefly, limiting the petition to twenty pages (excluding attachments).

The appellee then files a response to the petition. No reply briefs are allowed.
                                         23



These procedures allow the parties to appeal expeditiously, and the appellate

court to hone in quickly on the issues on appeal.         The court may allow full

briefing, but absent full briefing, the petitioner on appeal (most often the

terminated parent) has no opportunity to be heard on any other issue raised by

the appellee (most often the State).

       The unreported termination case and the unreported CINA case cited by

the dissent were decided under the expedited rules referenced above.            The

termination case, In re S.Z., 2003 WL 22346186, at *1, involved a mother’s

appeal claiming “the State did not meet its burden of proof . . . on any of the

grounds in the petition for termination.” The State’s petition for termination had

alleged the mother’s rights should be terminated under section 232.116(1)(b),

(g), (i), and (k). See S.Z., 2003 WL 22346186, at *1. The petition listed as

reasons for termination, the language from section 232.116(1)(b), (d), (e), (f) and

(i), but without citation to    paragraphs (d), (e), or (f).     The juvenile court

terminated the mother’s rights under section 232.116(1)(b), (g), (i), and (k). The

State conceded the rights should not have been terminated under (g) or (k), but

sought to affirm under (d), (e) and (f) because the reasons set forth in the petition

included the statutory language from those paragraphs, even though neither the

petition nor the juvenile court order cited to those paragraphs. Id. at *2.

       Our court found that termination was not proper under any paragraph of

subsection 232.116(1) upon which the juvenile court had relied, but proceeded to

affirm under section 232.116(1)(f). which had not been cited in the petition (but

for which there were factual allegations) and had not been cited by the juvenile
                                          24



court. Id. at *1. If this were a reported decision of our court, it would have

precedential value; but as an unreported decision we are not bound by its

conclusion.

       The other juvenile court case cited by the dissent, In re J.B., is a CINA

case that was remanded for full briefing. 2009 WL 1140492, at *1. This case

was decided after the 2002 rules change, but because of the opportunities

provided by full briefing as discussed above, we do not find it controlling.

       Also influencing our analysis is this familiar principle: “While the district

court terminated the parental rights on more than one statutory ground, we only

need to find grounds to terminate parental rights under one of the sections cited

by the district court in order to affirm the district court’s ruling.” In re A.J., 553

N.W.2d 909, 911 (Iowa Ct. App. 1996) overruled on other grounds by P.L., 778

N.W.2d 33. That principle has been cited by 107 cases in Iowa according to

Westlaw’s citation headnote service. One of those cites is to the case of In re

R.K., 649 N.W.2d 18, 19 (2002). That case kept the essence of the principle, but

its slightly reworded version has been cited another fifty-four times, and as

recently as August 2014. See In re Q.E., No. 14-0783, 2014 WL 3939918, at *3,

856 N.W.2d 2 (Iowa Ct. App. Aug. 13, 2014). We do not believe the principle

should be re-written to effectively say, “We need not find any grounds which were

approved by the court, but only need to find grounds to terminate under any

section pled by the State or for which factual allegations were made by the

State.” In effect, that is what the State is asking us to do.
                                          25



       Parental rights are among those that are the most guarded in our society.

They are rights of constitutional significance. See In re C.M., 652 N.W.2d 204,

211 (Iowa 2002).       Our legislature has developed a sophisticated statutory

scheme that provides for the protection of children while honoring parental rights.

Our court rules require a trial court to issue findings, conclusions of law, and a

ruling. Iowa R. Civ. P. 1.094(1). Those same rules allow a party to request the

court to rule on matters upon which it has not ruled. Iowa R. Civ. P. 1.904(2).

Our appellate rules and practice allow a de novo review in certain cases on

issues properly preserved. They allow cross-appeals. The State relies on the

case of T.N.M. to bypass the requirements of several of our rules, which are

designed to ensure due process and fundamentally fair procedures. For us to

follow T.N.M. and allow shortcuts in termination-of-parental-rights cases under

our expedited procedures would denigrate safeguarding procedures and offend

fair play, fundamental fairness, and due process. We, therefore, distinguish this

case from T.N.M. and other reported cases that hold a court may affirm a trial

court on any ground pled and proven, even though not the basis of the trial

court’s decision.20 We hold that parental rights cases in which a juvenile court

has declined to terminate—either directly or by omission—under a statutory

provision that was alleged in the State’s petition to terminate may not on appeal

be affirmed on the basis of that statutory provision if the appeal is subject to the




20
   We acknowledge our supreme court reserves the right to reverse itself, but
respectfully determine we have the responsibility to distinguish principles on which the
supreme court has not specifically ruled. See State v. Eichler, 83 N.W.2d 578, 578
(Iowa 1957).
                                          26



limited briefing rules now in effect, unless full briefing is allowed either by request

of the parties or sua sponte by the appellate court.

       REVERSED.

       Potterfield, P.J., concurs; Tabor, J., dissents.
                                         27



  TABOR, J. (dissenting).

       I respectfully dissent.   I would affirm the termination of the mother’s

parental rights under Iowa Code sections 232.116(1)(f) and (h); these grounds

were alleged and proven by the State at the termination hearing, and argued as

an alternative basis for affirming on appeal.

       The State’s petition seeking to terminate the mother’s parental rights cited

section 232.116(1)(d), (f) (as to Ja.C., Jo.C. and D.R. who were all four years of

age or older), (h) (as to A.R. who was three years of age or younger), (k), and (l).

The juvenile court decided the State had proved paragraph (d) as a statutory

ground for termination, and did not address the other potential grounds.

       The majority limits its analysis to the evidence supporting paragraph (d).

Under the general rule of appellate review, “[w]e are obliged to affirm an appeal

where any proper basis appears for a trial court’s ruling, even though it is not one

upon which the court based its holding.” See Citizens First Nat’l Bank v. Hoyt,

297 N.W.2d 329, 332 (Iowa 1980); see also Regent Ins. Co. v. Estes Co., 564

N.W.2d 846, 848 (Iowa 1997) (restating “well-established” proposition that

appellee may seek to save judgment on alternative basis presented to the trial

court); Midwest Mgmt. Corp. v. Stephens, 353 N.W.2d 76, 78 (Iowa 1984) (noting

supreme court “will affirm a decree in equity if it can be sustained upon any

pleaded basis which is supported by the record, regardless of the basis used by

the trial court”). Our court has applied this principle in termination of parental

rights cases.   See T.N.M., 542 N.W.2d at 575 (finding clear and convincing

evidence for termination on voluntary consent ground when juvenile court
                                         28



rejected that basis and terminated on abandonment ground); In re J.B., No. 08-

1557, 2009 WL 1140492, at *2 (noting we can “affirm the juvenile court on any

ground pled, even if was not a ground relied on by the court”); In re S.Z, No. 03-

1237, 2003 WL 22346186, at *3 (Iowa Ct. App. Oct. 15, 2003) (citing Israel v.

Farmers Mut. Ins. Ass’n, 339 N.W.2d 143, 146 (Iowa 1983) (“In reviewing de

novo, we will affirm if there is a proper basis for the decree entered by the trial

court, even though the reasons for affirming are different than those upon which

the trial court relied.”)); see also Robbins, 230 N.W.2d at 491 (finding it

“unnecessary to decide whether the second ground alleged in the petition

properly stated a basis for termination under section 232.41(2)(d), which,

although not relied on by the trial court, would have justified termination”).

       The majority does not directly overrule T.N.M., but appears to find it is no

longer viable law after the adoption of the expedited appellate rules for

termination-of-parental-rights cases. The majority engages in a useful discussion

of the due process rights afforded parents in child welfare cases. But I find it

unhelpful to accuse the State of “bypassing requirements” and taking “shortcuts”

which “offend fair play” when our case law has not addressed the interplay

between the expedited appellate rules and the accepted principles of appellate

practice. For instance, the majority faults the State for not filing a cross-appeal or

asking the juvenile court to enlarge its findings under Iowa Rule of Civil

Procedure 1.904(2). But under the existing law, the State was not required to file

a cross-appeal.     “It is well-settled law that a prevailing party can raise an

alternative ground for affirmance on appeal without filing a notice of cross-
                                         29



appeal, as long as the prevailing party raised the alternative ground in the district

court.” Duck Creek Tire Serv., Inc. v. Goodyear Corners, L.C., 796 N.W.2d 886,

893 (Iowa 2011).      The State raised the alternative statutory grounds for

termination in the juvenile court and presented clear and convincing evidence in

support of their elements.     Likewise, under existing law, the State, as the

prevailing party, was not required to file a motion to enlarge the juvenile court’s

findings. See Johnston Equip. Corp. of Iowa v. Indust. Indem., 489 N.W.2d 13,

16–17 (Iowa 1992) (overruling case which required successful party to ask trial

court to enlarge its findings to address second basis for recovery).

       The State also raised the alternative grounds for affirming the juvenile

court at its earliest opportunity on appeal.     The State argued in its original

response to the mother’s petition on appeal:

                The termination petition did not rely totally on Iowa Code
       section 232.116(1)(d) for termination of the mother’s parental rights.
       It is clear that termination of the mother’s parental rights could also
       have been ordered pursuant to Iowa Code section 232.116(f) and
       (h) . . . . Because the circumstances that led to the adjudication
       had not been corrected, the children could not safely be returned to
       the mother’s care at the present time.

The mother admitted as much at the termination hearing.                The mother

acknowledged she was not saying “Give me my kids back today,” but was asking

for another six months so that she could secure stable housing for herself and

her four children.   She also acknowledged she could benefit from parenting

classes so that she could develop better coping skills.

       The DHS worker testified at the hearing that in addition to a lack of

suitable housing, the mother had unaddressed mental health issues and possible
                                         30



substance abuse needs. In addition, the termination record showed the mother

did not participate in the services offered to her by the DHS, attending only about

half of the scheduled visitations with her children.      Moreover, when she did

attend visitations they did not always go well; the mother would yell at the

children and use physical discipline.           The encounters were described as

“chaotic.” The younger children would cower from their mother and the older

children reported they would not feel safe in their mother’s care. The mother also

was hostile to the DHS workers and harassed the foster family caring for the

younger boys. The children’s guardian ad litem advocated for termination and

recommended the juvenile court suspend visitations with the mother. The record

did not provide any evidence these children could have been safely returned

home with the mother at the time of the termination hearing. See D.W., 791

N.W.2d at 707 (holding we do not “gamble with the children’s future” by asking

them to wait for a stable biological parent).

       Given these circumstances, I would agree with the juvenile court—this

was not a “close case.”      In the interest of achieving permanency for these

children sooner than later, I would affirm on the alternative grounds in sections

232.116(1)(f) and (h)—which were included in the State’s petition and proven at

trial. I believe such an outcome is in the best interests of the children under the

framework in Iowa Code section 232.116(2).
