                    IN THE COURT OF APPEALS OF IOWA

                                     No. 15-1338
                               Filed October 14, 2015


IN THE INTEREST OF J.T., I.T., AND M.T.,
Minor Children,

S.T., Mother,
Appellant.
________________________________________________________________


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

Associate Judge.



       A mother appeals the termination of her parental rights. REVERSED AND

REMANDED.



       Michael Horn of Kuntz, Laughlin & Horn, Des Moines, for appellant

mother.

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

Attorney General, John P. Sarcone, County Attorney, and Annie Fox Reynolds,

Assistant County Attorney, for appellee State.

       Daniel Rothman of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman,

P.C., West Des Moines, for appellee father.

       Christopher Kemp of Kemp & Sease, Des Moines, attorney and guardian

ad litem for minor children.



       Considered by Doyle, P.J., and Mullins and Bower, JJ.
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DOYLE, Presiding Judge.

       A mother appeals the termination of her parental rights to her children,

J.T., I.T., and M.T.1 She contends: (1) the State failed to prove the grounds for

termination; and (2) the juvenile court should have declined to terminate her

rights because (a) the children are in legal custody of a relative, (b) the ten-year-

old child expressed a desire to be returned to his parents’ care, and (c) the

children are closely bonded with their mother. Upon our de novo review, we

conclude termination was not warranted.

       I. Background Facts and Proceedings.

       Following a July 23, 2015 hearing, the juvenile court entered an order

terminating the mother’s parental rights pursuant to Iowa Code section

232.116(1)(f) (2015) as to the two older children and (h) as to the youngest child.

Iowa Code section 232.116(1) paragraphs (f) and (h) are essentially the same

but for the applicable age of the child and the amount of time the child has been

out of the home. See Iowa Code § 232.116(1)(f) (“The child is four years of age

or older” and “has been removed . . . for at least twelve of the last eighteen

months”), (h) (“The child is three years of age or younger” and “has been

removed . . . for at least six months of the last twelve months”). Both paragraphs

(f) and (h) require the State to prove, by clear and convincing evidence, “the child

cannot be returned to the custody of the child’s parents . . . at the present time.”

See id. § 232.116(1)(f)(4), (h)(4). It is this element that the mother challenges.




1
 The father’s parental rights to the children were also terminated and are not at issue
here, as he has not appealed
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       II. Scope and Standards of Review.

       Our review of termination decisions is de novo. In re A.M., 843 N.W.2d

100, 110 (Iowa 2014). We give weight to the juvenile court’s findings, especially

assessing witness credibility, although we are not bound by them. In re D.W.,

791 N.W.2d 703, 706 (Iowa 2010). An order terminating parental rights will be

upheld if there is clear and convincing evidence of grounds for termination under

section 232.116(1). See id.    Evidence is “clear and convincing” when there are

no serious or substantial doubts as to the correctness of the conclusions of law

drawn from the evidence. See id.

       In determining whether parental rights should be terminated under chapter

232, the juvenile court “follows a three-step analysis.” Id. Step one requires the

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

established” by the State. Id. If the court finds grounds for termination, the court

moves to the second step of the analysis: deciding if the grounds for termination

should result in a termination of parental rights under the best-interest framework

set out in section 232.116(2). Id. at 706-07. Even if the court finds “the statutory

best-interest framework supports termination of parental rights,” the court must

proceed to the third and final step: considering “if any statutory exceptions set out

in section 232.116(3) should serve to preclude termination of parental rights.” Id.

at 707.

       III. Discussion.

       The State notes this is a difficult case. We agree. The children were

removed from parental custody in April 2014 due to allegations of drug use by

the parents in the home with the children and ongoing domestic abuse. The
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children were placed with their paternal aunt. The father’s parental rights were

terminated primarily because he did not seek adequate help for his substance

abuse and anger issues leading to repeated incidents of domestic abuse against

the mother.    The mother took advantage of the services offered to her but

continued to maintain her relationship with the father knowing that he was not

participating in the services he needed to address his substance abuse and

violence issues. By the time of the termination hearing, the only real concern

was the mother’s relationship with the father.         A family safety, risk, and

permanency provider testified “there was not really any parenting concerns” with

the mother, but she was concerned about the mother’s lasting relationship with

the father. Asked about her concerns if the father were not around, in Antarctica

for example, the provider answered:

               If he wasn’t present, there wouldn’t be any concerns. [The
       mother] addressed all her substance abuse concerns right from the
       start and knocked out all of her treatment right away. I don’t think
       she missed any appointments in treatment, and hasn’t really
       missed any therapy. She completed her parenting class. She’s
       been on top of everything. It’s just the relationship with [the father]
       that’s been the concern.

The DHS social worker testified similarly. In recommending termination of the

mother’s parental rights, the worker testified:

               I support termination with regards to her, too. I don’t believe
       these last 14, 15 months that she really has truly gained insight into
       her situation with [the father] and how their history of domestic
       violence and drug usage, how that really, truly impacts her children,
       or I feel like she would have addressed that earlier on in this case.

She saw no obstacle to the mother getting her children back, but for her

relationship with the father. She testified that “if it was provable today that [the

father] was out of the picture, [she] would have no additional reservations about
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the safety of the kids with [the mother,” agreeing the mother had “addressed her

substance abuse . . . . My concern is just her relationships.”

       The mother testified the court’s April 16, 2015 permanency order directing

the county attorney to institute termination of parental rights proceedings was a

“wake-up call” for her. That was the first time it was obvious to her that she had

to choose between the father and her children. She testified the father moved

out of her home April 16, 2015, and they had not lived together since. Besides

seeing the father in passing at visitations with the children, the mother testified

her only contact with the father after April 16, 2015, was to give him a total of

three rides to the children’s birthday parties and baseball games. She said she

had no other contact with him because she did not “want anything to interfere

with [her] chances of being not terminated with [her] children. It’s not worth the

risk.” She said she intended to divorce the father and explained why she had not

yet done so.

       The juvenile court concluded:

       In [the mother’s] case, the unfortunate source of the adjudicatory
       harm to her sons which fulfils the final element of these termination
       grounds proceeds directly from their father, rather than her. [The
       mother] has done everything anyone has asked of her in regards to
       treatment and direct care of her children; by all reports she is
       strongly bonded to the children, cares for them deeply, and
       earnestly strives to satisfy their physical, mental, and emotional
       needs—further, these attempts are more than minimally adequate.
              This is not to say [or] imply that [the father] alone bears the
       total weight of the separation from and the harm to the
       children: both parents have continuously and actively participated in
       a cycle of domestic violence, drug use, and child neglect. The
       major difference is that when forcibly separated by government
       action, [the mother] becomes a capable parent—[the father] does
       not. However, this separation is just that: forced. Together, [the
       mother and father] have exposed their children to violence, neglect,
       and devastatingly dangerous drug abuse—each share in a
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       necessary portion of failure leading to the harms placed upon [the
       children].
               [The mother] has been informed, repeatedly and to the point
       that she has become acrimonious regarding it, that her relationship
       with a man who is unwilling to participate in services is the “main
       reason” that reunification could not take place. Regardless of
       whether the conversations turned on the onus of [the father’s]
       danger to the children, his lack of participation in services, or his re-
       emerged drug use and criminal involvement, [the mother] was on
       notice for at least a year that her relationship with [the father] was
       the core deficit—perhaps the only remaining direct deficit—in her
       ability to parent. It is entirely possible (though the court does not
       rest its conclusion on the issue) that [the mother and father] remain
       in contact even now at this late date, long after the State has
       activated the machinery of irrevocable separation. Regardless of if
       this is so, the extensive and invariant history of disastrous reunion
       between the two is sufficient enough to be reliably predictive: an
       inference case law commands this court to make. This clear and
       convincing inference is strengthened by the closeness of residence
       between [the mother and father’s] family, the suspicious and
       collusive questioning of DHS professionals regarding how to
       demonstrate separation, [the father’s] sudden residency with [the
       mother] in October-November 2014, and the refusal of the mother
       to sustain a civil no contact order, file for separation, or file for
       divorce with [the father]. Perhaps the most painful evidence is [the
       mother’s] letter to the court which is part of exhibit record in these
       cases: It is obvious from reading that [the mother] loves her
       children dearly, and blames herself, stating that she “can never
       forgive herself” for this separation.        Absent from this letter,
       however, is any awareness of the critical role that her relationship
       with [the father] has played in her continued separation from her
       children. This honest and heartfelt statement to the court contains,
       by notable absence, the fullest proof of the problem in this case.
               Unfortunately, [the mother] has failed to adequately protect
       her children from their father. The court finds it is fatal to her
       capacity to parent and unlikely to change. It should be noted that
       the past behavior here is not the drug use, but the unshakable
       relationship with [the father]. Should it be only the drug use, the life
       changes of [the mother] in this case would buck such reliance on
       history.

(Internal citation omitted.)

       To be sure, we share the juvenile court’s concerns about the history of the

relationship between the mother and the father. Certainly, a court can consider
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past performance to gain insight into a parent’s future parenting, In re O’Neal,

303 N.W.2d 414, 422-23 (Iowa 1981), but have we become so cynical that we do

not believe a person can turn over a new leaf? We think not. Past performance

is not an absolute predictor of the future; it only may be indicative of what the

future holds. See In re R.M., 431 N.W.2d 196, 199 (Iowa Ct. App. 1988).

      Some three months elapsed between the April 16 permanency hearing

and the July 23 termination hearing. The mother testified she terminated her

relationship with the father after her “wake-up call” at the April permanency

hearing. In a July 7, 2015 letter to the DHS social worker, the mother’s therapist

stated:

      Since [the mother’s] last court date, she reported cutting all ties with
      [the father]. I felt like she was really honest about her feelings.
      She has a lot of frustration towards [the father] and really not
      wanting anything to do with him because his focus isn’t their
      children. I believe after court in April was a big wake-up call and it
      really hit [the mother].

We find no clear and convincing evidence in the record that the mother and

father clandestinely resumed their relationship after April 16, 2015. The fact that

the mother gave the father three rides to family events is not enough. The DHS

worker testified she received a text message on April 29, 2015, from the mother’s

sister that somebody reported the father was back at the mother’s home. The

sister had not personally seen the father there; somebody told her.              That

“somebody” was not identified. The DHS worker did not confront the mother with

this information. This “evidence” is far from clear and convincing. And to the

juvenile court’s credit, it was not considered in reaching its decision. There is
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nothing more in the record other than suspicion, innuendo, and speculation by

the State’s witnesses. This is not clear and convincing evidence.

       The juvenile court’s termination was founded on the mother’s relationship

with the father: “the core deficit—perhaps the only remaining direct deficit—in her

ability to parent.” The court concluded “the extensive and invariant history” of the

relationship between the two was “sufficient enough to be reliably predictive” that

the two would continue a relationship in the future, thereby exposing the children

to an adjudicatory harm for which they were originally removed from the home.

We disagree. There is no clear and convincing evidence in the record that the

mother and father continued their relationship after the April permanency

hearing. Prior to that time, the mother’s relationship with the father appeared

unshakable. But we must take into account the mother’s permanency hearing

epiphany, when it finally became obvious to her that she had to choose between

her children or the father. We can speculate that she did and will continue her

relationship with the father, based upon their history, the closeness between the

mother’s residence and that of the father’s family, and the fact that she had not

yet filed for divorce from the father. Speculation is not enough. We are not so

naïve to think there is no possibility the mother and father have continued some

clandestine relationship, but it is the State’s duty to prove by clear and convincing

evidence that a relationship did continue and that because of the nature of the

relationship, the children would be exposed to adjudicatory harm by the father if

the children were returned to the mother’s home. The State has not met its

burden in this case.
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      For this reason, we reverse the juvenile court’s order terminating the

mother’s parental rights to her children. We remand the case to the juvenile

court for further proceedings consistent with this opinion. We need not address

the mother’s other arguments raised on appeal, nor do we retain jurisdiction.

      REVERSED AND REMANDED.
