IN THE COURT OF APPEALS OF IOWA

No. 14-0100

Filed March 26, 2014

IN THE INTEREST OF J.C. AND D.H.,

Minor Children,

S.M., Mother,

Appellant,

T.H., Father,

Appellant.

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Appeal from the Iowa District Court for Warren County, Richard B. Clogg, 

Judge.

A mother of two children and the father of one of the children appeal the 

termination of their parental rights. AFFIRMED IN PART AND REVERSED IN 

PART. 

Jeremy M. Evans of Sporer & Flanagan, P.L.L.C., Des Moines, for 

appellant mother.

Justin T. Rogers of Rogers Law Firm, P.L.L.C., Des Moines, for appellant 

father.

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

Attorney General, John Criswell, County Attorney, and Tracie Sehnert, Assistant 

County Attorney, for appellee State.

Joseph Vogel, Des Moines, attorney and guardian ad litem for minor 

children.

Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ. Vogel, 

J., takes no part.
2

VAITHESWARAN, J.

A mother of two children,

1

born in 2001 and 2008, and the father of one of 

the children appeal the termination of their parental rights. Both parents 

challenge the evidence supporting the grounds for termination cited by the district 

court and contend termination was not in the children’s best interests.

I. Mother

The twenty-nine-year-old mother began consuming alcohol when she was 

twelve years old. In time, her usage increased significantly and was marked by 

periodic seven-to-ten day binges and accompanying blackouts. 

The department of human services first became involved with the family in 

2007. Over the years, the department afforded the mother numerous services to 

address her addiction, at times with the children remaining in her care and at 

other times with the children removed from her care. The mother consistently 

relapsed. Each time, the mother’s relatives willingly took in the children. 

Following the two most recent removals, the children were placed with the older 

child’s paternal grandmother. The older child wished to remain with the 

grandmother.

In light of the mother’s relapses, the State petitioned to terminate her 

parental rights. At a hearing on the petition, the mother acknowledged that,

despite her participation in multiple in-patient and out-patient treatment 

programs, she was not in a position to have the children immediately returned to 

her care. She variously stated, “I do not think I am ready,” “I am not ready for 

 

1 The mother has a third child who is not a subject of this appeal. The father of the 

younger child has not appealed the termination of his parental rights.
3

them to live with me,” and “I do not think it would be wise [to have them returned] 

right now.” Although she testified she had not consumed alcohol for 

approximately four months, she said she did not believe she was sober enough 

to have her children come home that day. When asked why, she responded, “I 

would like to be more secure in my sobriety before that happens.” When asked 

what action she wanted the court to take, she responded, “[N]ot to terminate my 

rights so that maybe a year from now when I am stable for a little while, at least a 

year, I could—be a full-time mom again.” Later, she clarified that she was not 

asking for additional time to facilitate reunification but was seeking the 

preservation of her parental rights subject to having the grandmother serve as 

the children’s guardian. She also clarified that her older child could remain with 

his grandmother, as he wished.

On our de novo review, we conclude the State proved at least one of the 

grounds for termination cited by the district court. See In re S.R., 600 N.W.2d 63, 

64 (Iowa Ct. App. 1999) (setting forth the standard of review and stating we may 

affirm if we find clear and convincing evidence to support any of the grounds 

cited by the district court); see also Iowa Code § 232.116(1)(f) (2013) (requiring 

proof of several elements, including proof that children cannot be returned to 

parent’s custody). 

The mother also contends termination is not in the children’s best interests

because their bonds with her side of the family would be severed. See In re P.L., 

778 N.W.2d 33, 39 (Iowa 2010). The record reveals that the children previously 

had a relationship with the mother’s sister, but that relationship was tumultuous. 

There is scant if any additional evidence of ties with other members of the 
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mother’s family. Based on this record, we are persuaded that termination of the 

mother’s parental rights was in the children’s best interests. 

II. Father

The district court terminated the parental rights of the older child’s father

pursuant to Iowa Code sections 232.116(1)(d), (e), (f), and (i). The father 

contends the State failed to prove these grounds for termination. On our de novo 

review, we agree. See S.R., 600 N.W.2d at 64.

Iowa Code section 232.116(1)(d) requires proof that the child was 

previously adjudicated in need of assistance and “[s]ubsequent 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.” This provision 

obligates the State to make reasonable efforts towards reunification of parent 

with child. See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). 

Virtually all the department’s reunification efforts were directed at the 

mother. The only “service” the department offered the father was a request to 

have him provide a urine sample for drug testing. That request was made

despite the absence of any evidence of substance abuse or any assertion that 

the father’s parenting skills were inadequate. The father did not provide the 

sample, and the department made no further reunification efforts. 

At the termination hearing, the department social worker overseeing the 

case turned the State’s burden of proof on its head, testifying the father “has not 

really proven that [the child] does not need protected from him.” She continued, 
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I think . . . the first thing he could have done differently was really 

right at the beginning when the children were initially removed to 

drop a [urine test]. If his [test] was clean things would have 

progressed in one . . . manner . . . . [I]f it was dirty, then we would 

have a whole other set of issues to deal with and we would have 

had a path to proceed down. But we never got to that point. 

Needless to say, the father had no obligation to prove his parental fitness. The

obligation to prove he lacked fitness rested squarely on the State’s shoulders. 

See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The State failed to present 

clear and convincing evidence that the father either was in need of services to 

correct the circumstances leading to the child’s adjudication or that he was 

afforded those services. See Iowa Code § 232.116(1)(d). 

Section 232.116(1)(e) requires proof of several elements, including proof 

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.” 

“Significant and meaningful contact”

includes but is not limited to the affirmative assumption by the 

parents of the duties encompassed by the role of being a parent. 

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. § 232.116(1)(e)(3). The absence of significant and meaningful contact was 

not proven. 

The older child’s grandmother testified that the child saw his father 

“probably once a week.” She stated, “[H]e calls his dad. His dad comes over. 

He—loves his dad. He does not want his dad’s right terminated in no way, 
6

shape, or form.” She said it was “[v]ery important” to the child that the father’s 

parental rights stay intact. 

The father confirmed he had been seeing the child every weekend for the 

previous four years, either at his parents’ home or at his own home. He testified 

that he jointly cared for the child for the first three years of the child’s life, after 

which the mother left the state for approximately two years. On her return, the 

father filed a petition seeking custody of the child. He was denied physical care 

because of his job as an over-the-road truck driver. Pursuant to the decree, he 

exercised every-other-weekend visitation for “[q]uite a while” before transitioning 

to weekly visits. There is nothing to suggest he abdicated the role of noncustodial parent. Indeed, the department social worker acknowledged that the 

father “had been seeing [the child] pretty regularly.” She also agreed the child 

wanted “a relationship with his father” and shared a bond with him. 

The State insisted this was not enough. In it’s view, the father should 

have stepped forward to seek custody of the child during the child-in-need-ofassistance proceeding. Again, the burden was not on the father to prove 

significant and meaningful contact. The burden rested with the State to prove its 

absence, and the State failed to establish this element.

The State also impermissibly cited an adoption subsidy that the 

grandmother stood to receive if the father’s rights were terminated. See In re 

C. & K., 322 N.W.2d 76, 81 (Iowa 1982) (“We have said economic and cultural 

advantages elsewhere do not tip the balance from the home of natural parents in 

favor of someone else.”). The grandmother said she was unaware of the subsidy 

until the termination hearing. It was clearly not a factor in her willingness to 
7

adopt the children if both parents’ rights were terminated. But the grandmother 

stood firm in her belief that the child’s relationship with the father should not be 

terminated. The father, in turn, said he was more than willing to have his monthly 

child support withholdings go to his mother if the child remained in her care. 

Based on this record, we conclude economic benefits did not favor termination of 

the father’s parental rights. 

Section 232.116(1)(f) requires proof of several elements, including proof 

that the child “cannot be returned to the custody of the . . . parents.” The father 

expressed a willingness to have his child placed in his custody immediately. He 

noted that he had a full-time job that allowed him to support the child and was 

living in a home that would accommodate him. The only evidence the State 

mustered to counter these assertions was the outdated criminal history of the 

father’s girlfriend. This evidence was insufficient to prove this ground for 

termination.

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.

We conclude the State failed to prove any of the grounds for termination 

cited by the district court. Accordingly, we reverse the termination decision as it 

relates to this father. In light of our conclusion that the grounds were not proven, 
8

we find it unnecessary to address the best interests argument raised by the 

father.

III. Disposition

We affirm the termination decision as to the mother. We reverse the 

termination decision as to the father.

AFFIRMED IN PART AND REVERSED IN PART.