                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-1674
                               Filed February 6, 2019


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

T.A., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District

Associate Judge.



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

REVERSED AND REMANDED.



       Charles E. Isaacson of Charles Isaacson Law P.C., Des Moines, for

appellant father.

       Thomas J. Miller, Attorney General, and Anagha L. Dixit, Assistant Attorney

General, for appellee State.

       Kayla Ann J. Stratton of Juvenile Public Defender’s Office, Des Moines,

guardian ad litem for minor child.

       Jessica A. Millage, Des Moines, for intervenors.



       Considered by Potterfield, P.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.

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

to Iowa Code section 232.116(1)(d), (e), and (f) (2018).1          He challenges the

sufficiency of the evidence supporting the grounds for termination under each of

these paragraphs.

       I. Background Facts and Proceedings.

       The child was born in March 2014. The father lived with the mother and the

child for approximately one month after the child was born. Thereafter, the father’s

contact with the child was inconsistent. The father contends the mother prevented

him from seeing the child, though the father claims he spoke with the child weekly

by phone after moving to Florida in 2016 and sent the mother money for the child’s

support.

       The child was removed from the mother’s care in February 2017 and was

adjudicated to be a child in need of assistance. The father moved back to Iowa

and had supervised visits with the child until October 2017. His last visit with the

child occurred on October 3, 2017. The father did not attempt to set up further

visits with the child until February 2018, the same month the State petitioned to

terminate the father’s parental rights. Because the father had not seen the child in

four months, the Department of Human Services (DHS) worker told him the visits

needed to occur in a therapeutic environment with the child’s therapist.

       The father contacted the child’s therapist to set up a visit. However, after

observing the child’s “anxious response” at the prospect of being separated from


1
  The termination of parental rights petition regarding the child’s mother was dismissed
after the mother died during the course of the proceedings.
                                           3


the maternal grandparents, with whom the child was placed, the therapist

recommended suspending visitation until the juvenile court determined whether to

terminate the father’s parental rights. In a letter dated March 26, 2018, the child’s

therapist wrote:

       With a termination hearing coming up it would be damaging to start
       the process of establishing a relationship between [the father] and
       [the child] if [the father]’s rights may be terminated. Should [the
       father]’s rights not be terminated it is recommended that contact with
       [the child] first take place in a therapeutic environment before moving
       to other types of visitation. [The child] has a secure attachment to
       his Grandfather and care must be taken not to interrupt that
       attachment.

       The termination hearing was held in March, April, and June 2018. The

juvenile court entered an order terminating the father’s parental rights to the child

in September 2018.

       II. Scope and Standard of Review.

       We review termination of parental rights de novo. See In re A.S., 906

N.W.2d 467, 472 (Iowa 2018). “We are not bound by the juvenile court’s findings

of fact, but we do give them weight, especially in assessing the credibility of

witnesses.” See id. (citation omitted).2 We may affirm the termination if clear and

convincing evidence supports one of the grounds the juvenile court relied on. See

In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).




2
  The juvenile court’s findings of fact are skimpy—almost nonexistent. The court’s order
sets forth no evidence to support the substantive elements of each ground upon which it
terminated the father’s parental rights.
                                              4


       III. Discussion.

       A. Section 232.116(1)(d).

       To terminate parental rights pursuant to section 232.116(1)(d), the State

must prove the following by clear and convincing evidence:

              (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 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.

       There is insufficient evidence to support termination under section

232.116(1)(d). To meet the requirements of subparagraph (1), the child had to

suffer a physical injury. See Iowa Code § 232.2(42) (“‘Physical abuse or neglect’

or ‘abuse or neglect’ means any nonaccidental physical injury suffered by a child

as the result of the acts or omissions of the child’s parent, guardian, or custodian

or other person legally responsible for the child.”); In re J.S., 846 N.W.2d 36, 41

(Iowa 2014) (noting “‘physical injury to the child is a prerequisite’ to finding past

physical abuse or neglect” (citation omitted)). The child was adjudicated to be in

need of assistance pursuant to section 232.2(6)(c)(2) “for denial of critical care due

to drug use by the mother.”3 No facts supporting this finding were set out in the

adjudication order. The mother is now deceased. The circumstances which led



3
 Iowa Code section 232.2(6)(2) defines a “child in need of assistance” as an unmarried
child under the age of eighteen who has suffered or is imminently likely to suffer harmful
effects as a result of 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.
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to the adjudication no longer exist. In any event, the juvenile court made no finding

that the child was physically or sexually abused or neglected by the mother or the

father. Accordingly, we reverse the termination of the father’s parental rights under

section 232.116(1)(d).

       B. Section 232.116(1)(e).

       Without citing to any evidence, the juvenile court concluded there was “clear

and convincing evidence that the father has not maintained significant and

meaningful contact with the child during the previous six months and [has] made

no reasonable efforts to resume care of the child despite being given the

opportunity to do so.” Terminating parental rights under section 232.116(1)(e)

requires clear and convincing evidence establishing the following:

              (1) The child has been adjudicated a child in need of
       assistance pursuant to section 232.96.
              (2) The child has been removed from the physical custody of
       the child’s parents for a period of at least six consecutive months.
              (3) There is 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.

The father disputes the sufficiency of the evidence showing he failed to maintain

significant and meaningful contact with the child.

       “[S]ignificant and meaningful contact” refers to a parents’ affirmative

assumption of parental duties. Iowa Code § 232.116(1)(e)(3). In addition to

financial obligations, parental duties include “continued interest in the child, a

genuine effort to complete the responsibilities prescribed in the case permanency

plan, a genuine effort to maintain communication with the child, and requires that

the parents establish and maintain a place of importance in the child’s life.” Id.
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       There is insufficient evidence to establish that the father failed to maintain

significant and meaningful contact. Although the father failed to visit the child for

a period of four months, the evidence shows the father made a genuine effort to

complete the responsibilities prescribed in the case permanency plan in the six

months preceding the termination hearing. During this period, he obtained his own

housing, completed a substance-abuse evaluation, and consistently attended

therapy. Although the father did not have contact with the child during this period,

the DHS denied him that opportunity based solely on the recommendation of the

child’s therapist. The child’s therapist did not recommend suspending visits out of

any concern regarding the father but rather based on the possible termination of

the father’s parental rights. The State cannot deny the father contact with the child

based on the possible termination of his parental rights and then have his parental

rights terminated based on his lack of contact with the child. We therefore reverse

the termination of the father’s parental rights under section 232.116(1)(e).

       C. Section 232.116(1)(f).

       Termination is appropriate under section 232.116(1)(f) when clear and

convincing evidence establishes the following:

              (1) The child is four years of age or older.
              (2) The child has been adjudicated a child in need of
       assistance pursuant to section 232.96.
              (3) The child has been removed from the physical custody of
       the child’s parents for at least twelve of the last eighteen months, or
       for the last twelve consecutive months and any trial period at home
       has been less than thirty days.
              (4) There is clear and convincing evidence that at the present
       time the child cannot be returned to the custody of the child’s parents
       as provided in section 232.102.
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There is no dispute that the first three elements under this section have been met.

With regard to the final element, “[a] child cannot be returned to the custody of the

child’s parent under section 232.102 if by doing so the child would be exposed to

any harm amounting to a new child in need of assistance adjudication.” In re M.S.,

889 N.W.2d 675, 680 (Iowa Ct. App. 2016) (citation omitted).

       The termination order makes no finding as to the adjudicatory harm to which

the child would be exposed if returned to the father, and we are unable to find a

nexus between the father’s conduct and an appreciable risk of adjudicatory harm

to the child. See id. at 682 (“[T]he State must establish a nexus between the

father's [conduct] and an appreciable risk of adjudicatory harm to the child within

the meaning of section 232.102.”). Although the DHS was concerned about the

father’s alcohol use based on reports from the mother and the maternal

grandparents, his substance-abuse evaluation indicated no concerns regarding his

alcohol use, and chemical testing revealed no alcohol or drug use. The father was

attending therapy, and his therapist testified he was making progress. Although

the father acknowledged that placing the child in his custody at the time of the

termination hearing would be contrary to the child’s best interests due to the lack

of visitation,4 this concession does not equate with proof of adjudicatory harm. We

reverse the termination of the father’s parental rights under section 232.116(1)(f).




4
 The father testified that he was only asking the court to start the reunification process to
allow him the opportunity to regain custody.
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      D. Conclusion.

      Because the State failed to prove the grounds for termination by clear and

convincing evidence, we reverse the order terminating the father’s parental rights

and remand for further proceedings.

      REVERSED AND REMANDED.
