                     IN THE COURT OF APPEALS OF IOWA

                                        No. 18-1167
                                 Filed September 12, 2018


IN THE INTEREST OF E.C.,
Minor Child,

E.M., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cass County, Amy L. Zacharias,

District Associate Judge.



       The father appeals from the termination of his parental rights. REVERSED

AND REMANDED.



       Gina C. Badding of Neu, Minnich, Comito, Halbur, Neu & Badding, PC,

Carroll, for appellant father.

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

General, for appellee State.

       Karen L. Mailander of Mailander Law Office, Atlantic, guardian ad litem for

minor child.



       Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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POTTERFIELD, Presiding Judge.

       The father appeals the termination of his parental rights to his child, E.C.,

born in July 2014.     The juvenile court terminated the father’s parental rights

pursuant to Iowa Code section 232.116(1)(d), (h), and (i) (2018). The father

challenges the statutory grounds, maintains termination is not in E.C.’s best

interests, and argues a permissive factor weighs against termination. He asks us

to reverse the termination and return E.C. to his care but argues in the alternative

that the juvenile court should have given him an extension of time to work toward

reunification.

I. Background Facts and Proceedings.

       E.C., the child at issue, is the daughter of the mother and the father. E.C.’s

older half-sibling, J.L., has the same mother, Beth, but is not the biological child of

the father.1 At the time these proceedings began, in September 2016, Beth was

caring for E.C. and J.L. and was no longer in a relationship with J.L.’s father or with

E.C.’s s father.

       Both children were removed from the mother’s care by emergency order

after she was arrested for driving while under the influence of methamphetamine;

E.C. was in the vehicle at the time. The reason is unclear, but the Iowa Department

of Human Services (DHS) did not immediately make contact with the father.

Instead, both E.C. and J.L. were placed in shelter care.

       In November 2016, both children were adjudicated a child in need of

assistance (CINA) pursuant to Iowa Code section 232.6(b), (c)(2), and (n) (2016).


1
 J.L.’s father never took part in services. When we refer to “the father” throughout, we
mean E.C.’s father.
                                         3


Around the same time, the mother moved into the father’s home, and they resumed

a relationship.   The pair received services together, and both E.C. and J.L.

participated in visits together with both the mother and the father.

       DHS continued to have concerns about the mother’s mental health and her

ability to refrain from using methamphetamine, but the department believed the

father was a positive support for her. As of April 2017, DHS reported to the court

that the father was “a responsible and caring father figure to both children.”

Similarly, in its April 2017 combined review/modification order, the court noted the

father “has been cooperative and receptive to feedback. [He] is employed and

provides for the family.” The parents progressed to semi-supervised visits with the

children.

       As of July 2017, DHS scheduled a one-week trial period for the children to

be in the mother and father’s care. When the service provider dropped the children

off at the home, the mother and father had been arguing. The next day, the service

provider returned to the family home “to help de-escalate” and asked the father to

leave. The father told the service provider he was ending his relationship with the

mother and moving out.       Both E.C. and J.L. were left in the mother’s care.

However, later that day, DHS received a call on the child-abuse intake hotline,

during which the caller alleged the mother had taken the children to get physicals

and appeared “twitchy,” “anxious,” and “fidgety.” The service provider returned to

the family home to check on the mother, who admitted she had not been taking

her anti-anxiety medication or attending therapy. The unsupervised visit was then

ended early, and the children were placed in foster care near the mother’s home.
                                          4


The mother took a drug test that day, which later returned positive results for

methamphetamine and amphetamines.

       After the father moved out of the family home, the parents started receiving

separate services and visits.     The visits returned to fully supervised for both

parents. J.L. told DHS he did not want to attend visits with the father, and J.L.

began attending them only sporadically. The father often asked about J.L. and

indicated he would like to see him and wanted to continue to be a placement option

for him.

       The notes from the September 2017 family team meeting indicate “needs”

for the mother, including attending parenting class, mental-health therapy, and

medication management. The “family goal” states, “[The mother] will maintain

sobriety and manage her mental health, for a period of six consecutive months, as

evidenced by maintaining a regular routine including sleep times, regulating and

managing her anger, and communicating better with others.” Additionally, the

mother agreed to engage in a number of things, such as drug testing. The notes

are silent as to any needs or goals for the father, other than stating he agrees to

participate in drug testing, as required. There is no evidence in the record DHS

ever asked the father to participate in drug testing other than taking the initial drug

evaluation at the beginning of the proceedings, which indicated the father did not

need any follow up.

       In its September permanency review order, the court noted the father had

been encouraged to move out of the home of his new girlfriend—where he had

relocated after the mother made him move out—and in a short time, the father had

done so, moving to a new town, paying rent and utilities, and obtaining the
                                          5


necessary furniture and household items for the home. The father attended J.L.’s

soccer practices and visited E.C. at her daycare; he called the foster family daily

to check on the children and speak with them. The court stated, “[The father] has

really made progress as he has a home and is willing for both children to come live

with him.” The court noted the ultimate goal was to transition both E.C. and J.L. to

the father’s care and listed as the only impediment that the father lacked legal

citizenship.

       The father had a number of unsupervised visits with E.C. In the service

provider’s report of visits that took place between September 20 and October 20,

2017, the provider noted as a “strength” that the father “positively interacts with the

child[] and uses age-appropriate discipline such as time outs. [The father] is

bonded with the child[] as evidenced by affection he shows the child[] by holding,

hugging and kissing the child[]. [The father] struggles with disciplining [E.C.].”

Additionally, the provider reported the father’s “protective capacities have slightly

increased in this reporting period as he consistently attended visits with the child[],

has been cooperating with [family safety, risk, and permanency (FSRP)] services,

is receptive to parenting skills taught by FSRP and is following DHS

recommendations.”

       In early November 2017, the father took the children out of the county during

his unsupervised visit. DHS then ended his supervised visits “due to him not

following DHS guidelines.” There is no indication the father took the children

somewhere unsafe or with unsafe individuals. In the social worker’s December

report to the court, the worker indicated visits returned to supervised because J.L.

reported that during an unsupervised visit, the father and his girlfriend went into
                                             6


their bedroom and shut the door. According to J.L., the father reported he was

taking a nap. In the same report, the social worker noted, “There have also been

concerns expressed that [the father] is not bonded to [J.L.] and will focus his

attention on [E.C.] during the visits. It is reported that [J.L.] is aware of [the father’s]

lack of attention and becomes emotionally upset.” For the “permanency goal and

plan,” the worker stated:

       At the last court hearing [DHS] offered a modified permanency plan
       for both children. On behalf of [E.C.], the permanency goal was to
       place with her father . . . . The permanency goal for [J.L.] was to
       place with [the father], suitable other. It was hoped this could occur
       following increased and successful interactions between the children
       and [the father]. However, [the father] is still struggling with his
       parenting and he is having difficulty attaching to [J.L.].

       In her report to the court, the guardian ad litem (GAL) encouraged the court

to reconsider the goal of reunification, stating, “[The father] has also struggled to

focus on the children, and his lack of bond with [J.L.] is a huge concern.”

       In a January 2018 addendum to a previous court report, the social worker

wrote at length about a conversation she had with the father’s immigration

attorney, emphasizing that the paperwork for lawful immigration that the father had

filled out “is not something that happens quickly and could take 6-8 months as

immigration is backlogged” and that it “could take 20 to 24 months to get a green

card if each step along the way is approved.” The worker also stated that the father

was unable to follow through with parenting the children. She asked the court to

change the permanency goal to that of termination.

       In the GAL’s May 2018 report to the court, she stated her strong belief that

the court should grant the petition for termination, indicating, “Above all, I would
                                               7


want to see [E.C.] and [J.L.] stay together. They are very bonded and have

weathered a great deal of trauma together.”

       The termination hearing took place in June, and the court terminated both

the mother’s and the father’s parental rights. Only the father appeals.

II. Standard of Review.

       We review termination proceedings de novo. In re M.W., 876 N.W.2d 212,

219 (Iowa 2016). “There must be clear and convincing evidence of the grounds

for termination of parental rights.” Id. “Clear and convincing evidence is more than

a preponderance of the evidence and less than evidence beyond a reasonable

doubt.” In re M.S., 889 N.W.2d 675, 679 (Iowa Ct. App. 2016). “It is the highest

evidentiary burden in civil cases.” Id. “This significant burden is imposed on the

State to minimize the risk of an erroneous deprivation of the parent’s fundamental

liberty interests in raising his child.” Id.

III. Discussion.

       “Our review of termination of parental rights under Iowa Code chapter 232

is a three-step analysis.” M.W., 876 N.W.2d at 219. The first step is to determine

whether any ground for termination under section 232.116(1) has been

established.” Id. Only if we find a statutory ground for termination supported by

clear and convincing evidence, we proceed to consider if termination is in the best

interests of the child. See id. at 219–20 (stating we proceed to the second step “if

we find that a ground for termination has been established”). Finally, we determine

whether the parent has proven the existence of a permissive factor weighing

against termination. See id. at 220.
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       Here, the State’s petition to terminate the father’s parental rights alleged

termination was appropriate under paragraphs (d), (h), and (i). The juvenile court

then purportedly terminated the father’s rights pursuant to each of the three

grounds. We have some question whether the juvenile court’s statement at the

conclusion of its ruling that all three subsections were proved as to the father was

a scrivener’s error, as the court’s finding of facts relating to paragraphs (d) and (i)

contain findings pertaining only to Beth. There is a “general principle that in

termination of parental rights proceedings each parent’s parental rights are

separate adjudications, both factually and legally.” In re D.G., 704 N.W.2d 454,

459 (Iowa 2005). But even if the court’s ruling contained a scrivener’s error and

the juvenile court did not actually find sufficient evidence under each of the

grounds, we must consider all three, as we may affirm on any ground raised before

the juvenile court. See M.W., 876 N.W.2d at 221.

       The court may terminate parental rights according to section 232.116(1)(d)

if there is clear and convincing evidence to support both of the following:

              (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 not clear and convincing evidence to support this paragraph; the court

made no finding of physical abuse or neglect or imminent likelihood of abuse or

neglect. See In re A.R., 865 N.W.2d 619, 623 (Iowa Ct. App. 2015), overruled on
                                          9

other grounds by M.W., 876 N.W.2d at 221. “[I]t is plain to see that a termination

under (d) requires a physical injury.” Id. at 623–24. “In other words, we may not

rely on the term ‘or neglected,’ as the supreme court has explained the term of art

‘physical abuse or neglect’ requires a nonaccidental injury.” Id. at 624. In the CINA

adjudication order, the juvenile court found that E.C. and her older sibling are “at

a direct risk of harm if Beth is under the influence of illegal substances when caring

for them,” but this supports the adjudication under section 232.2(6)(c)(2) rather

than (6)(b). See In re J.S., 846 N.W.2d 36, 41–42 (2014) (determining that general

statements about the mother’s admitted methamphetamine use, her repeated

positive drug tests, and current methamphetamine addiction “are not enough by

themselves to prove that a child is imminently like to suffer physical harm under

section 232.2(6)(b)”). “[A] CINA determination under section 232.2(6)(b) may lead

to termination of parental rights under section 232.116(1)(d), whereas a CINA

determination under section 232.2(6)(c)(2) cannot.” Id. at 41. Here, because the

court failed to make any findings in the adjudication order that E.C. or J.L. were

“physically or sexually abused or neglected,” within the statutory meaning, the first

element of paragraph (d) is not met. There is insufficient evidence to support

termination of the father’s parental rights under Iowa Code section 232.116(1)(d).

       For the same reasons as stated above, we conclude that there is not clear

and convincing evidence in the record to support termination of the father’s

parental rights pursuant to section 232.116(1)(i), which allows the court to

terminate if:

              (1) The child meets the definition of child in need of assistance
       based on a finding of physical or sexual abuse or neglect as a result
       of the acts or omissions of one or both parents.
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              (2) There is clear and convincing evidence that the abuse or
       neglect posed a significant risk to the life of the child or constituted
       imminent danger to the child.
              (3) There is clear and convincing evidence that the offer or
       receipt of services would not correct the conditions which led to the
       abuse or neglect of the child within a reasonable period of time.

There have been no findings of physical or sexual abuse, and “[n]eglect means

physical injury.” In re K.A., No. 03-1301, 2004 WL 61117, at *4 (Iowa Ct. App. Jan.

14, 2004) (citing Iowa Code § 232.2(42) (defining “physical abuse or neglect” or

“abuse or neglect” as “any nonaccidental physical injury suffered by a child)).

Moreover, even      if the juvenile     court’s findings about Beth’s use of

methamphetamine while parenting and driving E.C. met the definition, this does

not make the provision applicable to the father. See, e.g., In re J.C., No. 14-0100,

2014 WL 1234432, at *4 (Iowa Ct. App. Mar. 26, 2014) (“We are left with section

232.116(1)(i), which requires proof of several elements, including proof that ‘the

offer or receipt of services would not correct the conditions which led to the abuse

or neglect of the child within a reasonable period of time.’ As discussed, the

department did not identify conditions that needed to be corrected with respect to

this father and, for all practical purposes, did not offer services. This ground for

termination was not satisfied.”).

       Finally, we consider whether the conditions for section 232.116(1)(h) have

been met. The court may terminate pursuant to paragraph (h) if:

               (1) The child is three years of age or younger.
               (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 six months of the last twelve months,
       or for the last six consecutive months and any trial period at home
       has been less than thirty days.
                                             11


               (4) There is clear and convincing evidence that the child
        cannot be returned to the custody of the child’s parents as provided
        in section 232.102 at the present time.

Iowa Code § 232.116(1)(h). The only element in dispute is the fourth—whether

E.C. could have been returned to the father’s care at the time of the termination

hearing. Pursuant to section 232.102(11), the out-of-the-home placement “shall

be terminated and the child returned to the child’s home if the court finds by a

preponderance of the evidence that the child will not suffer” another adjudicatory

harm.

        It is unclear what adjudicatory harm the juvenile court believed E.C. would

suffer if the out-of-home placement was ended. As he has throughout the entire

duration of this case, the father has employment and a safe home. There have

never been any concerns about his mental health or improper use of alcohol or

drugs. Moreover, when the mother and father were dating again and the mother

relapsed on methamphetamine, the department told the father he had to choose

between the mother and the children; the father immediately ended the relationship

and moved toward parenting both children2 on his own.

        During his closing argument, the father argued the department was

“nitpicking his parenting style and because of that they are artificially keeping him

from” E.C. We agree with him, to an extent. For one, the social worker testified at

length about the “ongoing issue” of the father “often bring[ing] gifts” for E.C. to

visits. There was no testimony the gifts were unsafe or otherwise not appropriate


2
  For a period of time, the department considered placing J.L. with the father as a “suitable
other.” See Iowa Code § 232.102(1)(a)(1) (providing that the court may enter an order
transferring the legal custody of a child to a “parent who does not have physical care of
the child, other relative, or other suitable person”).
                                          12


for E.C.’s age, and the father has been financially independent for the life of this

case. We struggle to comprehend the department’s negative emphasis on a

parent choosing to spend their extra money on their child. Additionally, when

asked about safety concerns she has, the social worker testified the father often

lets E.C. choose what equipment or activity she wants to play at the park during

visits. When asked to explain herself further, she did not disagree that the father

was supervising and participating with the child but testified the issue was that the

father was following along rather than “set[ting] the standards.”

       The social worker testified about some struggles J.L. and the father have

had in their relationship. She then testified that the older child has verbalized that

he is ready for permanency; she focused on how detrimental it could be to E.C. if

the father’s rights were not terminated and, as a result, E.C. and J.L. no longer

lived together in one home. We understand the juvenile court was receiving

evidence regarding two children and three parents, but there are no parental rights

between J.L. and the father. And while we recognize that the department thinks

these siblings need to remain together, that is not part of the statutory-grounds

analysis. Yet in its written ruling, the juvenile court concluded subsection (h)

applied, in part, because the father shows a lack of bond with J.L.

       Finally, the service provider testified the father is unable to redirect E.C.

without help from the service provider and chooses to spend visits on his phone

rather than spending time with E.C. We acknowledge there are some instances in

the record that supports this testimony, but not enough to support the court’s

finding in the written termination order that “there was no parenting style to ‘nitpick’

because there was not parenting [by the father].”
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       Upon our de novo review of the record, there is not clear and convincing

evidence E.C. would be at risk of suffering an adjudicatory harm if returned to the

father’s care. See Iowa Code § 232.116(1)(h)(4). We understand this may mean

that she is separated from J.L. and understand why that is a concern, but we

cannot get ahead of ourselves. E.C.’s perceived best interests of remaining with

her half-sibling does not override our mandate to apply the three-step framework

as written, first determining if there is a statutory ground for termination. Moreover,

the question of the father’s citizenship has no bearing on whether E.C. can be

returned to his care; citizenship is not a requirement of being an able parent.

Because there is not a statutory ground for termination, we may proceed no further

in the three-step framework toward termination. Nor would we want to, as the

father has a fundamental liberty interest in the care, custody, and control of E.C.

See In re K.M., 653 N.W.2d 602, 607 (Iowa 2002).

       We reverse the juvenile court’s termination of the father’s parental rights to

E.C. and remand for an order pursuant to Iowa Code section 232.117(2)

dismissing the termination petition as to him. See In re J.L., 868 N.W.2d 462, 468

(Iowa 2015).

       REVERSED AND REMANDED.
