                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0731
                              Filed August 7, 2019


IN THE INTEREST OF T.G., N.G., A.G., and J.G.,
Minor Children,

C.G., Father,
       Appellant,

D.B., Mother,
       Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Scott Strait,

District Associate Judge.



      A father and mother separately appeal the termination of their parental

rights. REVERSED AND REMANDED ON BOTH APPEALS.



      J. Joseph Narmi, Council Bluffs, for appellant father.

      Amanda Heims, Council Bluffs, for appellant mother.

      Thomas J. Miller, Attorney General, and Anna T. Stoeffler, Assistant

Attorney General, for appellee State.

      Roberta J. Megel of State Public Defender’s Office, Council Bluffs, attorney

and guardian ad litem for minor children.



      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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VAITHESWARAN, Presiding Judge.

          A mother and father had four children together, born in 2013, 2015, 2016,

and 2018. The department of human services intervened after two of the children

were hospitalized for failure to thrive. On their discharge, the department initiated

in-home services. The parents informed the department that “members of their

family are of small stature.” The department agreed but found there stature was

not inconsistent with malnourishment.

         The State sought and obtained an order temporarily removing the three

oldest children from the parents’ custody. When the youngest child was born, he

too was removed.

         At the adjudicatory hearing, the father again asserted the children’s weight

and size was a familial trait. He sought genetic testing to confirm his assertion.

The mother seconded the request. She also noted her first three children were

born prematurely.1

         The district court concluded it lacked “the ability to order or require medical

staff to undergo” genetic testing “at this point in time.” The court encouraged the

department to “continue to pursue this avenue of questioning with medical

personnel.” The children were adjudicated in need of assistance over the parents’

objection.

         The parents continued to assert a belief that the children did not suffer from

malnutrition but were genetically predisposed to low height and weight. At the

parents’ behest, the oldest child was evaluated by a gastroenterologist, who



1
    Separate documentation indicated the fourth child also was premature.
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substantiated their belief. Following an initial evaluation, he noted the child’s

“overall body . . . [was] quite similar to that of his father’s.”                 He

 recommended a “full genetic consultation.” Testing uncovered “a chromosomal

abnormality involving the 18th chromosome.”            Based on the result, the

gastroenterologist confirmed that “the likely cause for [the child’s] decreased

growth parameters was an underlying genetic problem which extended through

numerous family members.” He further stated the disparity in the child’s “bone

age” and chronological age could “only be accounted for on a chromosomal basis,

since there appear to be no underlying endocrine abnormalities.” He opined that

the child would not “benefit from participating in a structured feeding therapy

program.” The department did not complete genetic testing on the remaining

children.

       The State petitioned to terminate parental rights. Following a hearing, the

district court granted the petition as to both parents pursuant to Iowa Code section

232.116(1)(e), (f), and (h) (2018). This appeal followed.

I.     Mother

       The mother contends (A) the State failed to prove the grounds for

termination cited by the district court; (B) the State failed to make reasonable

efforts to reunify the parents with their children; and (C) the district court should

not have terminated her parental rights based on the parent/child bond. We find

the first issue dispositive.

       Iowa Code section 232.116(1)(e) requires proof of several elements,

including proof of the absence of “significant and meaningful contact.” The phrase
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“includes but is not limited to the affirmative assumption by the parents of the duties

encompassed by the role of being a parent.” Iowa Code § 232.116(1)(e)(3).

       This affirmative duty, in addition to financial obligations, requires
       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.

       The State failed to prove this ground for termination. The mother exercised

regular visitation with the children up to four or five times a week. Although her

contact was later reduced, she actively engaged with the children throughout the

child-in-need-of-assistance and termination proceedings. See In re T.A.L., 505

N.W.2d 480, 483 (Iowa 1983) (concluding parental rights should not have been

terminated for lack of significant and meaningful contact where the father

maintained “adequate visitation” with the child).

       We turn to Iowa Code section 232.116(1)(f) and (h), which require proof of

several elements, including proof the children could not be returned to parental

custody.   From the outset, a significant question developed as to whether

malnutrition was truly the cause of the children’s low height and weight. At the

termination hearing, a service provider conceded the children were “small for their

age” despite having been out of their parents’ care for the previous fifteen months.

Indeed, the oldest child was hospitalized with the same symptoms after he was

placed in foster care. And, as noted, the gastroenterologist who evaluated the

oldest child ruled out non-genetic causes for the child’s small stature. Even the

department case manager agreed the two oldest children remained off the growth
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chart after being in the State’s custody for eight months. While she continued to

espouse the view that “there’s more factors than just the genetic component as to

why [the oldest child] is so far behind,” she conceded she was not “a medical

personnel to understand all of the pieces of . . . the testing and what all is taken

into account.”

       The only other basis for removal, according to the department case

manager, was the condition of the parents’ home. She agreed that, on a visit

shortly before the termination hearing, the apartment to which the mother had

moved “was clean” and “things were put away.”

       Despite the case manager’s concession that malnutrition and the home’s

cleanliness were the only grounds for removal, the department also based its

termination recommendation on the mother’s mental illness. We will address

whether her illness precluded a return of the children to her custody.

       The mother was diagnosed with several disorders, took medication to

manage the symptoms, and had a decade-long relationship with a therapist and

psychiatrist. According to a department report, the therapist “would meet for as

many sessions that [the mother] needed and then they would pause again.” During

most of 2018, there was a pause in sessions. However, at the termination hearing,

the mother testified her psychiatrist wanted to see her once a month “due to DHS

being in [her] life” and her increased struggle with “bad anxiety.” She also stated

her therapist wished to see her once every two months. She had appointments

with both in the month before the termination hearing and had another appointment

scheduled with her therapist. In addition, when she began experiencing increased
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anxiety during the last two months of 2018, she went to an emergency room for

treatment. She testified she felt less anxious when the children were in her care.

       As for the mother’s medication management, she was told to stop taking

certain medicines during her pregnancy with her fourth child. After she gave birth

to the child in mid-2018, she experienced postpartum depression. She resumed

taking her medication but was late on one monthly injection towards the end of

2018 because the medicine was not delivered to her pharmacy on a timely basis.

With these exceptions, the mother largely complied with her medication regimen.

Because she had an established system in place to address her mental health and

because she used the system as needed, we conclude the mother’s mental health

diagnoses did not preclude a return of the children to her custody.

       Finally, we address the mother’s compliance with visitation. As noted, the

mother exercised up to five semi-supervised visits with the children per week. The

department did not move to “fully unsupervised visitation” because of “continued

concern regarding the lack of feeding schedules in the home environment.” As

discussed, the gastroenterologist largely dispelled this concern. The department

also reduced semi-supervised visits in the two months preceding the termination

because of the mother’s increased anxiety.         As noted, the mother obtained

treatment for her anxiety. Although she missed several visits during this period,

we are not convinced her failure to fully participate constituted independent

grounds for termination.

       Our conviction that termination was not warranted is bolstered by the

department’s placement of the burden on the parents to “prove to [the department]

and juvenile court that they have learned the skills to eradicate the initial concerns
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that brought [the department] into their lives.” The burden to prove the statutory

elements of termination rested with the State. See In re A.S., 906 N.W.2d 467,

476 (Iowa 2018) (“The burden remains on the State to prove the grounds for

termination.”). The State failed to meet that burden. We reverse the termination

decision as to the mother and remand for further proceedings.               We find it

unnecessary to address the remaining issues raised by the mother.

II.    Father

       The father contends (A) the State failed to prove the grounds for termination

cited by the district court; (B) termination is not in the children’s best interests;

(C) the State failed to make reasonable efforts at reunification; and (D) the district

court should have invoked exceptions to termination.

       A.      Grounds for Termination

       As noted, the district court terminated the father’s parental rights pursuant

to several statutory grounds. We may affirm the court’s decision on any ground

supported by the record. See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We

focus on section 232.116(1)(f) and (h).       Both   provisions   require   proof   the

children could not be returned to the parent’s custody at the time of the termination

hearing. See Iowa Code § 232.116(f)(4), (h)(4); In re D.W., 791 N.W.2d 703, 707

(Iowa 2010).

       The father testified he was housed at a residential correctional facility at the

time of the termination hearing following his arrest on a probation violation for not

having consistent employment. He acknowledged the children were unable to live

with him at the facility. Accordingly, he was not in a position to have the children
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returned to his custody at the time of the termination hearing. The State proved

the elements of section 232.116(1)(f) and (h).

      B.     Best Interests

      The father next contends termination is not in the child’s best interests. In

assessing best interests, we “give primary consideration to the child’s safety, to

the best placement for furthering the long-term nurturing and growth of the child,

and to the physical, mental, and emotional condition and needs of the child.” Iowa

Code § 232.116(2); A.S., 906 N.W.2d at 474. The father testified he was “four-

eleven” and weighed “[a] hundred five.” As discussed, the physician’s report on

the oldest child’s small stature ruled out malnutrition as the cause and raised

serious doubts about the diagnosis of malnutrition for the remaining children. It

was also noteworthy that the father’s older children from another relationship were

returned to his home on a trial basis and the department case manager conceded

the home “was deemed appropriate for the length of time that the children were in

the home.” Finally, the father expected an imminent release from the residential

correctional facility, was employed, and exercised regular visitation with the

children, to whom he was bonded. Without further investigation of the malnutrition

issue, we conclude termination was not in the children’s best interests. We reverse

the termination decision as to the father and remand for further proceedings. We

find it unnecessary to address the remaining issues he raises.

      REVERSED AND REMANDED ON BOTH APPEALS.
