IN THE COURT OF APPEALS OF IOWA

No. 15-1371

Filed October 28, 2015

IN THE INTEREST OF K.L.P., 

Minor Child,

B.P., Father,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Mahaska County, Rose Anne 

Mefford, District Associate Judge. 

A father appeals from an order terminating his parental rights. 

REVERSED AND REMANDED.

Nicole Greenwood of Denefe, Gardner & Zingg, P.C., Ottumwa, for 

appellant.

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

Attorney General, James Blomgren, County Attorney, and Bradley Kinkade, 

Assistant County Attorney, for appellee.

Misty White-Reinier, Grinnell, for mother.

Amber Thompson, Sigourney, attorney and guardian ad litem for minor 

child.

Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.

Bradley, the father, appeals the order terminating the parent-child 

relationship between himself and K.L.P. On appeal, he contends the State failed 

to prove by clear and convincing evidence the statutory grounds authorizing the 

termination of his rights. He also argues the juvenile court should have deferred 

permanency for six months to allow him to establish a bond with K.L.P. At issue 

is what rights, if any, does an incarcerated parent have in establishing and 

maintaining a relationship with a child where the parent is released from prison 

shortly after the child’s birth but in the midst of an adjudication or termination 

proceeding.

I.

K.L.P. was born August 2014 to Amanda. At the time of K.L.P.’s birth,

Amanda was separated from but married to William, who is the established legal 

father of K.L.P. During her separation from William, Amanda had a lengthy 

relationship with Bradley prior to the time of K.L.P.’s birth. It was not contested

during this proceeding that Bradley was K.L.P.’s biological father. The juvenile 

court lacked the authority to terminate William’s parental rights as only the legal 

father of K.L.P., see In re J.C., 857 N.W.2d 495, 508 (Iowa 2014) (concluding a 

child’s established father is not a “father” within the meaning of Iowa Code 

chapter 232), but the juvenile court dismissed him from the case as an 

unnecessary party. At the time of K.L.P.’s birth, Bradley was incarcerated at 

Mount Pleasant Correctional Facility on a marijuana conviction. 
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At the end of September 2014, the child was removed from Amanda’s 

care upon the Iowa Department of Human Services (“IDHS”) receiving 

information Amanda posed a risk to the child due to Amanda’s 

methamphetamine use and bizarre behavior. The child’s guardian ad litem filed 

a report to the court on October 8, 2014. The guardian ad litem was aware 

Bradley was incarcerated but did not know where. The guardian ad litem 

recommended the juvenile court obtain additional information regarding Bradley’s 

incarceration and consider suspending visitation with Bradley or requiring IDHS 

to consult with the guardian ad litem before allowing visitation with Bradley. 

IDHS also submitted a recommendation on the same date. IDHS recommended 

Bradley participate in visitation with K.L.P. Visitation was denied Bradley.

On October 22, 2014, the child was adjudicated in need of assistance 

pursuant to Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(n) (2013). Bradley 

participated telephonically during the adjudication hearing. The juvenile court 

ordered services for Amanda. The juvenile court ordered Bradley to participate 

in visitation with the child at the discretion of IDHS in consultation with the 

guardian ad litem. The court also ordered paternity testing for Bradley. The 

guardian ad litem provided another recommendation to the juvenile court in 

conjunction with the adjudication hearing. The guardian ad litem opined it was 

not in the best interest of K.L.P. to have visitation with Bradley. Visitation was 

denied Bradley.

The matter came on for dispositional hearing in December 2014. The 

court ordered K.L.P remain a child in need of assistance in the custody of the 
4

Mahaska County Department of Human Services for purposes of placement in 

relative care. The court again ordered paternity testing. The court again ordered 

Bradley have visitation with K.L.P. at the discretion of IDHS in consultation with 

the guardian ad litem. IDHS provided a social history report and case 

permanency plan in conjunction with the hearing. The social history report 

explained Bradley had been in a relationship with Amanda but the relationship 

terminated after he was convicted and sentenced to prison. The report noted 

Bradley’s biggest concern was “focusing on K.L.P.” The report noted Bradley 

informed IDHS he would be eligible for parole in February or March 2015 upon 

completion of substance abuse treatment. IDHS recommended K.L.P. have 

visitation with Bradley. The case permanency goal was reunification with

Amanda with a target date of April 22, 2014, with a concurrent plan of termination 

of parental rights/adoption. Although the permanency goal was reunification and 

although IDHS was aware of Bradley’s impending release, visitation was denied 

Bradley.

A dispositional review hearing was held in February 2015. The juvenile 

court ordered the permanency goal be changed from reunification to the 

termination of parental rights. Bradley participated telephonically and objected to 

the termination of his parental rights. The juvenile court ordered the child remain 

in the custody of the county department of human services for the purpose of 

continued placement in relative care. The court again ordered Bradley to take a 

paternity test. The juvenile court again ordered Bradley have visitation with 

K.L.P. at the discretion of IDHS in consultation with the guardian ad litem. IDHS 
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provided a report to the court in conjunction with this hearing. The report noted 

paternity testing had not yet been completed. The report noted Bradley could be 

released from incarceration at any time to a substance abuse treatment facility 

upon a bed becoming available. The report recommended Bradley have 

visitation with the child. Visitation was denied Bradley.

In April 2015, the matter came on for termination hearing. The child was 

only seven months old at the time of the termination hearing. The mother 

consented to termination, and her rights are not at issue in this appeal. By the 

time of the termination hearing, Bradley had been paroled to the Ottumwa 

Residential Facility. Bradley opposed the termination of his parental rights and 

requested an additional six months to pursue reunification. The juvenile court 

ordered termination of the Bradley’s rights pursuant to Iowa Code section 

232.116(1)(d), (e), and (h) (2013), although there does not appear to be any 

discussion of paragraph (d) in the juvenile court’s findings or conclusions. The 

juvenile court found Bradley was the biological father of K.L.P. although paternity 

testing was never completed because the caseworker filled out the wrong forms. 

The juvenile court found the father was still incarcerated at the time of the 

termination hearing, although he was not. Bradley timely filed this appeal.

II.

We review de novo proceedings terminating parental rights. See In re 

A.M., 843 N.W.2d 100, 110 (Iowa 2014). We examine both the facts and law, 

and we adjudicate anew those issues properly preserved and presented. See In 

re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). The State has the burden to 
6

prove the allegations of the petition by clear and convincing evidence. See Iowa 

Code § 232.96. Clear and convincing evidence is more than a preponderance of 

the evidence and less than evidence beyond a reasonable doubt. See L.G., 532 

N.W.2d at 481. It means there must be no serious or substantial doubt about the 

correctness of a particular conclusion drawn from the evidence. See id.

Because our review is de novo, we should not be passive where there is a 

deficient presentation of evidence and merely rubber stamp what has come 

before. Instead, we must satisfy ourselves the State has come forth with the 

quantum and quality of evidence sufficient to prove the statutory grounds 

authorizing the termination of a parent’s rights, a legal standard imposed to 

balance the parent’s interest in establishing and maintaining the parent-child 

relationship and the State’s obligation to protect the children within its jurisdiction.

III.

Termination of parental rights under Iowa Code chapter 232 follows a 

three-step analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the 

court must determine if a ground for termination under section 232.116(1) has 

been established. See id. Second, if a ground for termination is established, the 

court must apply the framework set out in section 232.116(2) to decide if 

proceeding with termination is in the best interests of the child. See id. Third, if 

the statutory best-interests framework supports termination of parental rights, the 

court must consider if any statutory exceptions set forth in section 232.116(3) 

should serve to preclude termination. See id.
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A.

We first address the sufficiency of the evidence supporting the grounds for 

termination. Each of the grounds for termination at issue in this case requires the 

State to make reasonable efforts to offer services to maintain the integrity of the 

family unit. Termination may be had pursuant to Iowa Code section 

232.116(1)(d) when the State proves by clear and convincing evidence the 

following:

1. The court has previously adjudicated the child to be 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 . . . [,and]

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.

Iowa Code § 232.116(1)(d) (emphasis added).

1

 To terminate parental rights 

under paragraph (e), the State must prove by “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.” Iowa 

Code § 232.116(1)(e) (emphasis added). Termination may be had under section 

232.116(1)(h) where, among other things, the “[t]here is clear and convincing 

evidence that the child cannot be returned to the custody of the child’s parents as 

 

1

“[P]hysical abuse or neglect” and “abuse or neglect” are terms of art in this context. 

Within chapter 232, “physical abuse or neglect” and “abuse or neglect” mean “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.” Iowa Code § 232.2(42). There is no evidence of “abuse or neglect” with respect 

to Bradley, but Bradley does not raise the issue.
8

provided in section 232.102 at the present time.” As part of its ultimate proof 

under this provision, the State must establish it made reasonable efforts to return 

the child to the child’s home. See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). 

“[T]he reasonable efforts requirement is not viewed as a strict substantive 

requirement of termination. Instead, the scope of the efforts by the [department 

of human services] to reunify parent and child after removal impacts the burden 

of proving those elements of termination which require reunification efforts.” Id.

at 493; see Iowa Code § 232.102(7) (providing IDHS must make “every 

reasonable effort to return the child to the child’s home as quickly as possible 

consistent with the best interests of the child”). 

Bradley contends the department failed to make reasonable efforts here 

due to the department’s denial of any visitation with K.L.P. There is a legal and 

policy preference to maintain the integrity of the family unit where possible. See

42 U.S.C. § 671(15)(B); Iowa Code § 232.102(7) (requiring reasonable efforts to 

work toward reunification); see also Santosky v. Kramer, 455 U.S. 745, 753 

(1982) (“The fundamental liberty interest of natural parents in the care, custody, 

and management of their child does not evaporate simply because they have not 

been model parents or have lost temporary custody of their child to the State. 

Even when blood relationships are strained, parents retain a vital interest in 

preventing the irretrievable destruction of their family life.”). Visitation between a 

parent and child is an important ingredient to the goal of maintaining the integrity 

of the family unit. See In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996). 

“Although . . . a parent’s imprisonment may create difficulties in providing 
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reunification services, . . . imprisonment [does not] absolve the department of its 

statutory mandate to provide reunification services under all circumstances.” In 

re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000). “Instead, . . . the department 

must assess the nature of its reasonable efforts obligation based on the 

circumstances of each case.” Id. Relevant factors include, among other things: 

“the age of the children, the bonding the children have or do not have with their 

parent, including any existing clinical or other recommendations concerning 

visitation, the nature of parenting deficiencies, the physical location of the child 

and the parent, the limitations of the place of confinement, the services available 

in the prison setting, the nature of the offense, and the length of the parent’s 

sentence.” Id. “The department has an obligation to make a record concerning 

its consideration of this issue.” Id.

The department’s denial of any visitation between Bradley and K.L.P. was 

unreasonable under the circumstances and constituted a failure to make 

reasonable efforts. See In re D.M., No. 15-0228, 2015 WL 4160395, at *3 (Iowa 

Ct. App. July 9, 2015) (“Reasonable efforts often include visitation.”); In re T.A., 

No. 03-0452, 2003 WL 21459553, at *5 (Iowa Ct. App. June 25, 2003) (holding 

denial of visitation to incarcerated parent where possible and without sufficient 

explanation “alone was a violation of its reasonable efforts mandate”). By early 

December 2014, Bradley notified the department that he would be released in 

February. At that time, the permanency goal was reunification with a target date 

of April 2015. The department should have been aware the provision of visitation 

services to Bradley would be necessary because of the timing of his release from 
10

incarceration preceded the target reunification date. See S.J., 620 N.W.2d at

525 (stating the court should consider the length of the parent’s sentence). The 

Mount Pleasant Correctional Facility had a special visitation area for children. 

Bradley testified it was a good environment for visitation, including a play area, 

cribs, and television. See id. (stating the court should take into consideration the 

limitations of the institution and setting for visitation). The Ottumwa facility also 

allowed for parent-child visitation. It appears from the record neither the 

caseworker not the guardian ad litem had any personal knowledge regarding the 

facilities at issue and whether visitation could be had there.

There are very few, if any, countervailing reasons why visitation should 

have been denied in this case. The guardian ad litem opined visitation was not in 

the child’s best interest because the child would receive little benefit from the 

visitation due to her young age. It seems just as likely that the father should 

have had visitation with the child precisely because she was of young age so she 

could have developed a bond before his imminent release. See Jean C. 

Lawrence, ASFA In the Age of Mass Incarceration, 40 Wm. Mitchell L. Rev. 990, 

1002 (2014) (explaining “continuing contact between the incarcerated parent and 

the child can have an ameliorating and positive effect on both the parent and the 

child”). The guardian ad litem also opined visitation should be denied because of 

the travel required to facilitate visitation. We do not find an hour-long car ride for 

an infant to be of such great concern that it should override the greater concern 

for maintaining the integrity of the family unit. Further, these types of generalized 

concerns unrelated to the imminent risk of harm to the child are insufficient 
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reasons to deny visitation. See Iowa Code § 232.107 (“[U]nless the court finds 

that substantial evidence exists to believe that reasonable visitation or 

supervised visitation would cause an imminent risk to the child’s life or health, the 

order shall allow the child’s parent reasonable visitation or supervised visitation 

with the child.”); In re E.C.-N., No. 12-0135, 2012 WL 1066883, at *3 (Iowa Ct. 

App. Mar. 28, 2012) (reversing termination order where the agency failed to 

provide visitation due to generalized concerns). We are also concerned 

regarding the de facto delegation of visitation rights to the guardian ad litem. 

See, e.g., In re Marriage of Stephens, 810 N.W.2d 523, 530-31 (Iowa Ct. App. 

2012) (“The legislature has granted to the court the responsibility to make an 

impartial and independent determination as to what is in the best interests of the 

child, and this decision cannot be controlled by the agreement or stipulation of 

the parties.”). We thus hold the department failed to make reasonable efforts 

under the circumstances. 

B.

Bradley contends the juvenile court should have granted him an additional

six months to attempt reunification. To defer permanency for six months, the 

juvenile court must “enumerate the specific factors, conditions, or expected 

behavioral changes which comprise the basis for the determination that the need 

for removal of the child[ren] from the child[ren]’s home will no longer exist at the 

end of the additional six-month period.” Iowa Code § 232.104(2)(b).

Even if IDHS had made reasonable efforts with respect to Bradley, we 

conclude Bradley should have been granted an additional six-month period to 
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reunite with the child. The basis for removal of the child from the home was 

solely due to the mother’s substance abuse. See, e.g., In re J.L.S., No. 06-0380, 

2006 WL 1279202, at *3 (Iowa Ct. App. May 10, 2006) (making a distinction 

between the parents’ respective cases where the child was removed from the 

mother and the evidence related to the mother’s “problems and why the children 

could not be returned to her care” as opposed to the father). Here, Bradley was 

unavailable to care for K.L.P. after her removal from the mother’s care because

of his incarceration. While the fact of incarceration rendered Bradley unavailable 

to care for the child at the time of removal, the fact of incarceration did not pose 

any particular risk to the child. The mere fact of incarceration is an insufficient 

ground, in and of itself, to terminate a parent’s rights. See In re T.A., 2003 WL 

21459553, at *2 (Iowa Ct. App. 2003) (“Our courts, however, have rejected the 

notion that termination is a necessary result of conviction of a crime and resulting 

imprisonment.”). The evidence showed Bradley may have been discharged from 

the residential facility in as little as thirty days depending on how quickly he could 

complete the required services. Thus, the specific basis or condition precluding 

the reunification of K.L.P. and Bradley could have been corrected within the 

statutory time period.

An additional consideration leads us to conclude Bradley should have the 

opportunity to parent K.L.P. While incarcerated, Bradley availed himself of 

classes to address issues resulting in his incarceration and issues regarding his 

parenting. He completed a lengthy substance abuse treatment program. He 

was given a certificate of appreciation for his efforts in the narcotics anonymous 
13

group. He completed a parenting class. He completed the DHS 101 four-week 

program.2 Upon release to the Ottumwa facility, Bradley obtained full-time 

employment. He participated in group classes. We are not naïve to Bradley’s 

criminal history and prior involvement with the department of human services 

related to other children. If that caused concern for the department, the 

department should have provided Bradley with services addressing those 

concerns. Going forward, the department should provide Bradley with services 

to address those concerns. However, it seems we should proceed on the 

assumption that the department of corrections provides services to incarcerated 

persons for the purpose of rehabilitation and behavior modification. Given that

assumption, Bradley has availed himself of these services and there is a realistic 

possibility he could be released from the residential facility and have the 

opportunity to parent his child. On this record he should be given the 

opportunity.

IV.

For the foregoing reasons, we reverse the termination order and remand 

this matter for further proceedings.

REVERSED AND REMANDED.

 

2 Bradley was issued a certification of completion for this class on August 8, 2014, prior 

to the time of the child’s birth and the initiation of this case.