                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0980
                                Filed October 1, 2014

IN THE INTEREST OF A.S. and E.S.,
      Minor Children,

J.S., Mother,
       Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,

District Associate Judge.



       A mother appeals the termination of her parental rights to two children.

REVERSED AND REMANDED.



       Zachary D. Crowdes, Cedar Rapids, for appellant.

       Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant County

Attorney, Jerry Vander Sanden, County Attorney, and Kelly Kaufman, Assistant

County Attorney, for appellee

       Kimberly Opatz of Linn County Advocates, Cedar Rapids, for father of

E.S.

       Troy Powell of Powell Law Firm, Cedar Rapids, for father of A.S.

       Carrie Bryner, Cedar Rapids, attorney and guardian ad litem for minor

children.

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

       This termination-of-parental-rights case involves a hard-working mother

who has a very close bond with her four-year-old son and eleven-year-old

daughter and interacts well with them during supervised visits. On appeal, she

argues the State failed to prove by clear and convincing evidence either (1) the

children could not be presently returned to her care, or (2) she has a severe

substance-abuse disorder that prevents her from safely parenting the children.

She also contends terminating her parental rights will be detrimental to the

children due to the closeness of their relationship.

       After reviewing the entire record de novo—including the three months

leading up to the termination hearing—we reject the State’s claim that clear and

convincing evidence supports the statutory grounds for termination.         While

admittedly the mother’s greatest strides came at the end of the year, we do not

believe that is cause for ignoring their significance.   We also agree with the

mother’s argument that severing ties would have a negative impact on her

children under the standards in Iowa Code sections 232.116(2) and

232.116(3)(c) (2013). Accordingly, we reverse and remand.

       At interest in this case are A.S., who was born in 2003, and E.S., who was

born in 2009. The record shows E.S. is an active four-year-old and is meeting

developmental milestones. The record also shows that his sister, A.S., is a bright

youngster, who has been diagnosed on the autism spectrum. Because of that

condition, A.S. “thrives on very extreme structure,” according to the DHS case

worker.
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         The mother was eighteen when her daughter A.S. was born. At birth, A.S.

tested positive for THC, the active component in marijuana, resulting in a

founded child abuse report from the Department of Human Services (DHS). The

mother did not have a substance abuse assessment or engage in treatment at

that time.

         The family came to DHS attention again in January 2012, when A.S.’s

father was arrested for a probation violation and was caring for the girl while

“heavily intoxicated.” A.S. was returned to the mother’s care later that month on

the condition that the mother and children live with the maternal grandmother.

One year later, both A.S. and E.S. were removed from parental custody after the

parents tested positive for synthetic marijuana. At that time, the mother and

children were living with E.S.’s father. The juvenile court adjudicated A.S. and

E.S. as children in need of assistance (CINA).1 The DHS placed the children in

separate foster homes.

         The mother maintained employment throughout the case. Until November

2013, she worked the second shift (3:30 p.m. to midnight) at LeanCor, a

company in North Liberty, where she had been employed for three years. Her

commute was forty-five minutes to an hour each way.                 She balanced that

employment with substance treatment in the mornings, as well as visitations with

her children. She testified these demands on her time made it challenging to

satisfy the DHS drug testing requirements, especially on days when the testing

center’s “drop hours” were limited to 2 p.m. to 7 p.m. In the absence of a finding



1
    The adjudication date for A.S. was March 7, 2012 and for E.S. was February 5, 2013.
                                          4



from the juvenile court that the mother’s version was incredible, we give credit to

her explanation for the missed drug tests.

       The mother testified that in mid-December of 2013, she quit her job with

LeanCor so she could focus on attending visitations with her children and could

comply with the demands of substance testing and treatment. To continue to

support herself and achieve stability for reunification with the children, the mother

replaced the one full-time job with three part-time positions, working various

hours at Wendy’s, the Aladdin Restaurant, and for a temp agency.                 Since

changing jobs, the mother has not missed a drug test and has been consistent in

her visitations.

       The State filed the petition to terminate the mother’s parental rights on

December 23, 2013. The juvenile court held a contested hearing on March 10

and March 14, 2014.       On May 22, 2014, the district court issued its order

terminating the mother’s parental rights, citing Iowa Code sections 232.116(1)(f)

and (l). The mother now appeals.2

       A. Statutory Grounds for Termination

       We review termination proceedings de novo. In re A.M., 843 N .W.2d 100,

110 (Iowa 2014). Although we give weight to the juvenile court’s fact finding—

especially when assessing witness credibility—we are not bound by its

determination. Id. The grounds for termination must be supported by clear and

convincing evidence. In re D.S., 806 N.W.2d 458, 465 (Iowa Ct. App. 2011).

Evidence is “clear and convincing” when there are no serious or substantial


2
  The children have separate fathers. The juvenile court also terminated their parental
rights, but neither father appeals.
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doubts as to the correctness of conclusions of law drawn from the evidence. Id.

The clear-and-convincing standard is more burdensome than proof by a

preponderance, but less so than proof beyond a reasonable doubt. In re B.B.,

826 N.W.2d 425, 428 (Iowa 2013).

       The juvenile court based its termination decision on two statutory grounds:

section 232.116(1)(f) and (l). We will examine the evidence supporting each of

those grounds in turn.

       Section 232.116(1)(f) has four elements: the State must show by clear and

convincing evidence (1) the child is four years old or older, (2) has been

adjudicated CINA, (3) has been removed from his or her home for twelve of last

eighteen months, and (4) cannot be returned to the parent’s care as provided in

section 232.102 at the present time. As the mother argues in her petition on

appeal, the dispositive issue is the fourth element—whether the children can be

safely returned to her care.

       The mother turns to the language of section 232.102, contending the State

did not offer clear and convincing evidence that returning the children to her care

would put them at risk of physical abuse or some other harm justifying a CINA

adjudication. Children cannot be returned to a parent’s custody under section

232.102 if by doing so they would remain a CINA or would be exposed to any

harm amounting to a new CINA adjudication. See In re R.R.K., 544 N.W.2d 274,

277 (Iowa Ct. App. 1995), overruled on other grounds by In re P.L., 778 N.W.2d

33, 39 (Iowa 2010); see also In re M.M., 483 N.W.2d 812, 814 (Iowa 1992) (“The
                                         6



threat of probable harm will justify termination, and the perceived harm need not

be the one that supported the child’s initial removal from the home.”).

      The State’s responsive petition on appeal does not focus on what, if any,

evidence shows harm would befall the children if they are returned to their

mother’s care. Instead, the State’s argument is a free-ranging indictment of the

mother, claiming she “has yet to make a choice that would put the welfare of her

children over feeding her addictions and chaotic lifestyle.”           We find this

accusation unsupported by the record.

      The evidence showed the mother’s last positive drug test, which was for

synthetic marijuana, was June 17, 2013—nine months before the termination

hearing.   The mother’s undisputed testimony was that when she did use

synthetic marijuana, she never did so while supervising the children. The DHS

case worker testified that from December 2013 until March 2014, the mother’s

substance abuse treatment has had a positive impact on her.               The record

showed the mother had been living with the grandmother and the DHS had no

concerns about that home. The DHS worker also acknowledged it was possible

for the mother to provide a stable residence for her children. The worker also

admitted the mother was likely to be more consistent in her engagement with the

children now that she had ended her relationship with E.S.’s father.

      The State’s brief also quotes liberally from the mother’s recent mental

health evaluation, which recommended she participate in individual counseling

for depression and anxiety. The State argues the mother has “never addressed

these issues appropriately.” But the State does not acknowledge the evidence
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that the mother has been unable to qualify for health insurance that would cover

the recommended treatment and medication. The DHS case worker testified she

was aware of the mother’s struggle to obtain insurance. The DHS worker also

disagreed with the mental health evaluator’s view the mother needed remedial

work on her parenting skills, testifying, “From what I observed overall, I would say

[the mother] does a really good job with her children.”

       The State notes that visitation remained fully supervised at the time of the

termination hearing.    While this is true, the DHS provided an unsatisfying

explanation as to why it limited the mother’s time with the children. The mother

testified since she quit her second-shift job in December, she had repeatedly

asked for more evening visits with her children, but the worker said they could

not be scheduled. The DHS case worker testified that despite the mother being

consistent in attending visits since December, the worker needed to see yet more

consistency for the children’s sake.

       When we view the evidence presented at the termination hearing in its

entirety, we do not find clear and convincing proof that A.S. and E.S. would be

exposed to harm of the kind that would merit a new CINA adjudication if returned

to the mother’s care. The mother has not used synthetic marijuana, or other illicit

drugs, since June 2013. The mother gave up stable employment to comply with

the directives of the DHS to achieve reunification with her children. Her visits

with the children are consistent and go very well.          By all accounts, she is

progressing in her substance abuse treatment.             The State’s suggestion of

possible harm is too elusive to qualify as clear and convincing evidence.
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        We next examine the second ground for termination, section 232.116(1)(l),

which has three elements: the State must prove: (1) the children have been

adjudicated CINA and their custody has been transferred from the parent for

placement under section 232.102, (2) the parent has a severe substance-related

disorder and presents a danger to herself or others as evidenced by prior acts,

and (3) there is clear and convincing evidence the parent’s prognosis indicates

that the children will not be able to be returned to the custody of the parent within

a reasonable period of time considering their age and need for a permanent

home.     The mother argues the record lacks clear and convincing proof of

elements two and three. We agree.

        The mother testified she was addicted to marijuana and synthetic

marijuana, known as K2, but by the time of the termination hearing she had been

successfully engaging in treatment for three months and had not used drugs for

nine months. She testified she occasionally drank wine with dinner, but did not

get drunk and did not believe that she risked relapsing based on this alcohol

consumption. The State did not present any evidence to the contrary. In fact,

the DHS worker testified that since December the mother “has been doing

wonderfully in substance abuse treatment.”

        Nowhere in the record is the mother’s substance-related disorder

described as “severe” and the State did not offer evidence that her drug addiction

continued to present a danger to herself or others. The mother has been able to

successfully maintain employment throughout the case and is now in drug

treatment and undergoes regular drug testing. The record does not reveal a
                                        9



prognosis for the mother that would prevent returning the children to her custody

within a reasonable period of time considering their age and need for a

permanent home.

      Our supreme court has said “a parent who was once unfit may not

automatically be deemed forever unfit.” In re D.J.R., 454 N.W.2d 838, 845 (Iowa

1990). That is not to say that parents can take their time in addressing their

problems.    We adhere to “the principle that the statutory time line must be

followed and children should not be forced to wait for their parent to grow up.” In

re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998). In this case, we recognize

the mother realized late in the game that she needed to comply with the DHS

expectations or face termination of her parental rights. But she did arrive at that

realization approximately three months before the termination hearing. We do

not believe it was proper to discount her improvement from December 2013

through March 2014 simply because the CINA case was on a trajectory toward

termination. The State bears the burden to satisfy the statutory elements under

section 232.116(1) by clear and convincing proof. The State did not carry its

burden in this case.

      C.     Best Interests and the Family Bonds

      The mother also argues termination was not in the children’s best

interests, citing Iowa Code sections 232.116(2) and (3).        The best-interest

decision depends on the factors in section 232.116(2), including the children’s

safety, the best placement for their long-term nurturing and growth, and their

physical, mental and emotional condition and needs.        The “factors weighing
                                        10



against termination in section 232.116(3) are permissive, not mandatory, and the

court may use its discretion, based on the unique circumstances of each case

and the best interests of the child, whether to apply the factors in this section to

save the parent-child relationship.” In re A.M., 843 N.W.2d 100, 113 (Iowa 2014)

(citation and internal quotation marks omitted).

       The mother contends the strength of her bond with the children weighs

against termination of her parental rights. See Iowa Code § 232.116(3)(c) (the

court need not terminate the relationship between the parent and the child if the

court finds “[t]here is clear and convincing evidence that the termination would be

detrimental to the child at the time due to the closeness of the parent-child

relationship”). She asserts her connection with the children is “undisputed” and

“the benefit of being raised by their biological mother would far outweigh any

minimal harm” from giving her additional time to resume custody.

       In our discretion, we find the unique circumstances of this case and the

best interests of A.S. and E.S. tip the scale toward saving the mother-child

relationship. Three factors strongly influence our decision: (1) the mother’s close

relationship with both children, (2) the mother’s proven ability to meet the special

needs of A.S., given her autism diagnosis, and (3) the termination’s effect of

separating the siblings from each other and from their maternal grandmother.

       The record is replete with descriptions of the special connection between

this mother and her children. E.S.’s father, who was estranged from the mother

by the time of the termination hearing, testified she was an “excellent mother”

who would not “put the kid’s in harm’s way.” This father was living with A.S. and
                                        11



the mother in a FEMA trailer after the Cedar Rapids flood when the mother

became pregnant with E.S. He described the mother and A.S. as “two peas in a

pod.” He said the mother takes a lot of time with her daughter “because of what

she’s been through with [A.S.] as far as her autism and all of that.” And he

testified A.S. “loves to be around her mom.”

       When asked about her children, the mother testified: “I love them both to

pieces.” The mother attributed her “really, really strong bond” with A.S. to the

girl’s autism and all that they had been through together.      The mother also

described an attachment with E.S.: “We also have a strong bond.           He’s a

cuddler. He loves to sit and cuddle and watch movies.”

       The DHS case worker confirmed the mother has a strong bond with both

children. The worker acknowledged the mother enrolled A.S. in a special school

program to address her autism while the girl was still in her care. The worker

also explained that E.S. is “devastated” when an expected visit with his mother

does not occur.    The FSRP (family safety, risk, and permanency) worker also

testified that termination would be hard on the children.

       On the issue of the relationship between the siblings and with their

maternal grandmother, the record shows the DHS gave too little value to these

ties. The mother testified A.S. and E.S. love each other, but because they’re

rarely together while in foster care, their relationship has become strained. When

the DHS case worker was asked whether she was concerned about splitting up

the children, she responded: “Ideally, the department would always like to have

children placed together, if possible. However, I think at this point moving the
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children would be more damaging than helpful.” We do not believe the pure

momentum of a CINA case should control the best-interests determination. Our

supreme court has held that whenever possible brothers and sisters should be

kept together. In re L.B.T., 318 N.W.2d 200, 202 (Iowa 1982); In re T.J.O., 527

N.W.2d 417, 420 (Iowa Ct. App. 1994).            If A.S. and E.S. can be ultimately

reunited with their mother, the children will benefit from being with their natural

sibling.

       We take a similar view toward the children’s relationship with their

maternal grandmother. The grandmother testified at the termination hearing that

she has a very strong bond with the children and as the “matriarch” of the family

she would step in if she perceived any risk of harm to A.S. or E.S. The State

offered evidence the foster families have been good about allowing the children

to maintain a relationship with the grandmother, but the possibility that

connection will be preserved on some level is not the same as returning the

children to the care of their extended biological family.

       Given our findings above, we conclude the State did not meet its burden

to prove the grounds for termination by clear and convincing evidence. We also

believe it was not in the best interests of the children to sever the legal ties to

their mother. Accordingly, we reverse the order terminating the mother’s parental

rights and remand the case for further proceedings with the permanency goal of

reuniting the children with their mother.

       REVERSED AND REMANDED.
