                     IN THE COURT OF APPEALS OF IOWA

                                    No. 18-1470
                               Filed March 20, 2019


IN THE INTEREST OF A.G.,
Minor Child,

B.G., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Decatur County, Monty Franklin,

District Associate Judge.



       A father appeals the termination of his parental rights to his child.

REVERSED AND REMANDED.



       Jenna K. Lain of The Law Office of Jenna K. Lain, PLLC, Corydon, for

appellant father.

       Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

       Bryan J. Tingle of Tingle Law Office, Des Moines, attorney and guardian ad

litem for minor child.



       Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, Judge.

       A father appeals the termination of his parental rights to his child, born in

2015. He contends (1) the State failed to prove the ground for termination cited

by the district court and (2) termination is not in the child’s best interests. We find

the first issue dispositive.

I.     Background Facts and Proceedings

       The child came to the attention of the department of human services in early

2017 on information that the mother was using methamphetamine while caring for

her. The father also admitted to illicit drug use. The district court ordered the child

removed from the parents’ care and later adjudicated her in need of assistance.

The child was placed with the father’s sister.

       The department afforded the father supervised visits with the child twice

each week. According to the department social worker assigned to the case, his

participation was initially “inconsistent,” but within two months of the child’s

removal, his attendance became “more regular.”

       The department recommended that the father “complete[] a substance

abuse and a mental health evaluation and follow[] all recommendations, including

drug testing.” Again, the father was slow to comply but, within five months of the

child’s removal, the department reported he had scheduled a substance-abuse

evaluation. The department also reported the father’s participation in visits and

services had “increased and been more consistent over time” and he “appear[ed]

to be bonded” with his child.

       The father completed a substance-abuse evaluation in short order, which

culminated in a recommendation “that he attend [a] Substance Abuse Extended
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Outpatient Program.” The father agreed to do so. He initially tested negative for

all substances, later had two positive tests for benzodiazepines, and finally tested

negative for all tested substances.

         Shortly thereafter, the district court granted the father six additional months

to work toward reunification. The court conditioned reunification on “consistent

participation” in services and “continued participation . . . with mental health and

substance abuse treatment and continued participation in visits.” The court also

ordered the parents to “abstain from the use of all mind altering substances.”

         In time, the department reported that the father secured employment,

attended visits that did not interfere with his work schedule, and saw his therapist

and substance-abuse counselor “on a consistent basis.”               Nonetheless, the

department recommended changing the permanency goal from reunification to

termination of parental rights on the ground the father had “not fully engaged in

services or showed any consistency or desire to have [the child] returned to his

care.”    The department also noted the father’s sister could no longer care for the

child on a long-term basis, requiring the child’s transfer to foster care.

         Less than one month after the department filed this report, the father’s

substance-abuse counselor reported that the father “completed his treatment

goals” and met the requirements “for a successful discharge” from the outpatient

program. The counselor stated the father’s previous two drug tests “were negative

for all tested substances” and the father elected to “attend[] outpatient sessions on

a voluntary basis to continue working on relapse prevention.”

         Despite this progress, the department persisted in its recommendation of

termination, expressing concern about two missed mental-health appointments,
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loss of employment, and apparent cancellation of certain supervised visits. The

district court ruled it was “no longer confident that reunification could occur”

because the father “has not been consistent and committed with mental health

treatment, substance abuse treatment, or visitations with the child.” The court

changed the permanency goal from reunification to termination of parental rights

and ordered visits with the child to remain supervised. At the same time, the court

stated, “[I]f the parents commit to services, the department” could ask for

reconsideration “and move towards semi-supervised or unsupervised visits.”

          The State filed a petition to terminate parental rights.           Following a

termination hearing that spanned two days over a two-month period, the district

court granted the petition. The father appealed.1

II.      Ground for Termination

         The district court terminated the father’s parental rights pursuant to Iowa

Code section 232.116(1)(h) (2018), which requires proof of several elements,

including proof by clear and convincing evidence that the child cannot be returned

to the parent’s custody. On our de novo review, we are not persuaded the State

proved this element.

         The father was afforded six additional months to work toward reunification.

During that period, he successfully completed outpatient substance-abuse

treatment, agreed to continue in the program on a voluntary basis, participated in

six of eight mental-health sessions during an eleven-week period, secured other

employment, and attended supervised visits with the child.



1
    The mother’s parental rights were also terminated. She did not appeal.
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       At the termination hearings, the department caseworker conceded she had

“no concerns that [the father was] using illegal substances.” Although she stated

he made insufficient progress in his mental-health treatment, she acknowledged

he reengaged in mental-health services during the last three months of the six-

month extension period.      She testified, “Through those three months, his

attendance was consistent for the most part.”

       The father’s mental-health counselor confirmed his attendance at three-

fourths of the scheduled sessions and stated he was unaware “of any anger

difficulties experienced by” the father since he reengaged in services three months

earlier. The counselor also stated he observed “no indications that [the father]

would be a danger to his daughter if he should receive custody of his daughter.”

       As for visits with the child, the caseworker acknowledged the father was

forced to cancel one because of work orientation and another because it was his

first day at a new job. She also conceded one of the visits reported to have been

missed was in fact canceled by the service provider. Finally, she agreed the father

contacted her about rescheduling visits and about seeking accommodation of his

four-day-on-four-day-off work schedule. She stated the service provider could not

facilitate weekend visits and notice was too short to accommodate other requests.

She did not explain why the department failed to adjust future visits after learning

of the work schedule.

       Despite the father’s significant progress on all fronts, the department

caseworker testified the father had not shown he could be a “committed and

capable” caretaker. On our de novo review, we are convinced he was not afforded

the opportunity. As the father testified, “I have done what they wanted me to. I did
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drag my feet a little bit in the beginning, took a backseat . . . and I regret that. I’m

working on it.”

       We conclude the State failed to prove the child could not be returned to the

father’s custody. We reverse the order terminating the father’s parental rights to

the child and remand for the entry of an order dismissing the termination petition

as to him.

       REVERSED AND REMANDED.
