IN THE COURT OF APPEALS OF IOWA

No. 15-0549

Filed June 10, 2015

IN THE INTEREST OF S.W., F.W., H.W., J.W., AND J.W.,

Minor Children,

H.W., Father, 

Appellant,

C.W., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Story County, Stephen A. Owen, 

District Associate Judge.

A mother and father each appeal the juvenile court’s termination of their 

rights to their five children. REVERSED ON BOTH APPEALS.

Shannon J. Leighty of the Public Defender’s Office, Nevada, for appellant 

father.

Kimberly Voss-Orr, Ames, for appellant mother.

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

Attorney General, Stephen Holmes, County Attorney, and Shawna Johnson, 

Assistant County Attorney, for appellee State.

Mark Olberding, Nevada, attorney and guardian ad litem for minor 

children.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2

POTTERFIELD, J.

A mother and father each appeal the juvenile court’s termination of their 

rights to their five children.

I. Factual and Procedural Background

The five children, ranging in age from six to ten years old, came to the 

attention of the Iowa Department of Human Services (DHS) after an incident on 

September 7, 2013, in which the father assaulted the mother in the presence of 

the children. The father was arrested and incarcerated for approximately one 

year.1

The mother engaged with DHS and agreed as part of a safety plan to 

prevent the children from making contact with the father. A criminal no-contact 

order was also in place as between the mother and father. In October, DHS 

learned the mother had been in contact with the father and had been 

encouraging the children to communicate with the father through letters while he 

was incarcerated. The children were temporarily removed from the mother’s 

care on October 4, 2013. On November 4, 2013, the children were returned to 

her custody based on a stipulation by the parties attesting to the mother’s full 

cooperation with DHS and that the risk to the children was no longer present.

The children were adjudicated children in need of assistance (CINA) on 

November 13, 2013.

On January 14, 2014, the juvenile court entered a dispositional order 

adopting the recommendations of DHS. The requirements included behavioral 

 

1 Though the father was incarcerated, he regularly participated in court proceedings 

regarding the children by telephone.
3

health intervention services (BHIS) for the children; family safety, risk, and 

permanency services (FSRP) for the mother; and individual counseling for the 

children and the mother. The children remained in their mother’s care; she and 

the children received social security disability benefits.

On April 22, 2014, the mother gave consent for DHS to remove the

children temporarily from her care. Her consent followed a founded denial-ofcritical-care assessment involving the mother’s lack of food and electricity, and 

roommates who had been using marijuana. The court entered an order 

removing the children, and the children have not been returned to either parent

since that time. The five children live in several different foster homes. The 

children were in a “deplorable” state at the time of their removal, without 

adequate clothing and dirty, aggressive, and with sexualized behaviors.

A permanency hearing was held on August 20, 2014. Both the mother 

and father participated via telephone conference call. The mother and DHS 

requested a continuation of placement for an additional six months. The court 

rejected the request and directed either the State or the children’s guardian ad 

litem to initiate termination proceedings as to both the mother and father. The 

State filed a termination petition, alleging termination was proper under Iowa 

Code sections 232.116(1)(b) and (e) (2013). Section 232.116(1)(b) provides the 

juvenile court may terminate a parent’s rights to a child if it “finds that there is 

clear and convincing evidence that the child has been abandoned or deserted.” 

Section 232.116(1)(e) provides the juvenile court may terminate a parent’s rights 

to a child if all of the following have occurred:
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(1) The child has been adjudicated a child in need of 

assistance pursuant to section 232.96.

(2) The child has been removed from the physical custody of 

the child’s parents for a period of at least six consecutive months.

(3) There is 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. For the purposes of this 

subparagraph, “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.

A hearing took place on January 26, 2015. The juvenile court issued its 

termination order on March 12, 2015. It found abandonment under section 

232.116(1)(b) was not proved and did not support termination. It terminated both 

parents’ rights based on the provisions of section 232.116(1)(e).

The evidence presented to the juvenile court at the January 26 hearing 

reflected both parents’ efforts to maintain significant contact with the children and 

comply with the juvenile court’s required steps toward reunification during the six 

months prior to the hearing—since July 26, 2014.2 The State argued the efforts 

shown were not sufficient to avoid termination. The parents disagreed.

The mother had two two-hour visitations scheduled per week, and the 

record shows she took advantage of those opportunities. Visitation reports from 

August 4 through December 30, 2014 show in that period, the mother was 

 

2 Because the juvenile court relied upon Iowa Code section 232.116(1)(e), the pertinent 

facts for this court to consider are those that occurred “during the previous six 

consecutive months.” We consider facts beginning on July 26, 2014, six months prior to 

the date of the hearing. Additionally, in deference to the juvenile court’s determination 

that the mother’s testimony was “somewhat less than credible,” our review of the facts 

as to the period between July 26, 2014, and January 26, 2015, is based upon the 

testimony of DHS worker Jodi Krambeer and Children and Families of Iowa (CFI) worker 

Jennica Vest and the exhibits admitted at the hearing.
5

offered thirty-nine visitations.3 She attended twenty-nine of them. She cancelled 

two of the visitations due to transportation problems. She cancelled eight others,

claiming health issues prevented her from attending. Her CFI worker noted the 

mother always called ahead to communicate cancellations.

Though the visitations were sometimes described as “chaotic” due to the 

behavior of one or more of the five children, the mother’s interactions were 

generally positive. The mother would provide a meal for the children, play games 

with them, and encourage them with their homework. Sometimes the children 

would act out, and the mother would redirect them or give them consequences 

for continued poor behavior. The overseeing CFI worker would sometimes have 

to encourage the mother to redirect the children, and on one occasion the mother 

became overwhelmed with the behavior of one of her daughters and had to 

remove herself from the situation. However, on the whole, the mother took 

advantage of the visitations and put forth observable effort in parenting the 

children during the visitation hours.

On September 16, 2014, the mother filed an application for additional 

services to ensure that visitations included all five of her children after one or

more of the children had not been present at several visitations. On January 6, 

2015, she filed another application for additional services, asking the court to 

compel DHS to inspect her new apartment so she could begin hosting visitations 

with the children in her own home.

 

3 There are some gaps in the record leaving us no evidence regarding four specific dates 

upon which the mother would normally have received visitation. It is unclear from the 

record whether visitation was in fact offered on those dates or whether the mother 

attended. We will only consider the visitation dates for which we have specific evidence.
6

The mother was in telephone contact with her children during this period. 

Though one of the children’s foster parents testified the frequency of the calls 

was irregular, she also testified there were periods during which the mother 

would call to speak to the child every night. The mother visited one of the 

children when that child was in the hospital and became agitated when she was 

initially refused access to her daughter. The mother was also in regular 

telephone contact with DHS and CFI to discuss her children and her case.

Regarding the mother’s efforts to complete DHS requirements, the record 

reflects she attended four individual counseling sessions with a CFI worker 

between November 11, 2014, and January 13, 2015. However, she cancelled 

two sessions and failed to attend two other prescheduled sessions in that same 

time period. The mother was required to attend a parenting class. She 

completed seventy percent of a parenting program before she stopped attending. 

The record reflects she stopped attending in “Fall of 2014.” It is not clear how 

many classes she attended on or following July 26, 2014. However, the mother 

did reach out to the organization offering the classes in January of 2015 in 

preparation for the termination hearing, and she was informed she was welcome

to return to assess whether she could complete the final three classes.

She was also required to find suitable housing. She secured an 

apartment on November 1, 2014, and asked that visitations take place in that 

apartment. The suitability of the apartment for visitations is contested,4but DHS 

 

4

The mother lives in the apartment with a male roommate who has a criminal history 

that concerns the State and the children’s guardian ad litem. The mother insists their 

relationship is platonic.
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has not visited the site to make a determination. The CFI worker has visited the 

apartment and reports no concerns about safety.

The father was released from incarceration in August of 2014. The 

juvenile court had imposed two requirements on him: “contact DHS when he is 

released from the correctional facility” and “cooperate with all DHS services upon 

his discharge.” The father did contact DHS and filed an application with the 

juvenile court for additional services, asking for visitation with the children to 

commence immediately. He began weekly supervised visitation on October 26, 

2014. Between October 26 and December 30, 2014, he was offered ten 

visitation hours. He attended nine in full but arrived an hour late on the other 

occasion purportedly due to a misunderstanding regarding the start time of the 

visitation.

The visitation records show the father struggled to redirect the children 

and appeared uncertain as to his role in the children’s lives. The two boys 

seemed to respond very positively to the visitations and were happy to have their 

father back in their lives. The three girls were less enthusiastic about visitation 

with the father. However, the father has attempted to bond with the girls. For 

example, during one visitation, he helped the girls paint their fingernails and 

joked with them about doing so. He provided dinner for the children on a few 

occasions. He brought the children presents for Christmas. At the prodding of 

the overseeing CFI worker, he began over time to redirect the children when they 

behaved poorly, though he generally lacked control of the children during 

visitation.
8

Since his release, the father has entered a program at the Door of Faith 

Mission to improve general life skills through counseling. He works at the 

mission’s thrift store as part of the program and participates in anger 

management classes and parenting classes. His participation in the program, if 

completed, will culminate in the father finding housing and gaining employment. 

The program typically takes twelve months to complete.

The juvenile court terminated the rights of both parents to the children 

pursuant to Iowa Code section 232.116(1)(e) without specific discussion of the 

statutory requirements as related to the facts. The mother and father each 

separately appeal the juvenile court’s termination order.

II. Standard of Review

We review the juvenile court’s order terminating parental rights de novo. 

In re A.M., 843 N.W.2d 100, 110 (Iowa 2014).

III. Discussion

On de novo review of termination orders, we first determine “if a ground 

for termination exists under section 232.116(1).” In re P.L., 778 N.W.2d 33, 39 

(Iowa 2010). If such a ground exists, we then consider whether termination is in 

the children’s best interests as defined in section 232.116(2). See id. We may in 

any case decline to terminate a parent’s rights if the considerations of section 

232.116(3) weigh against doing so. See id.

Facts supporting termination must be established by clear and convincing 

evidence. See Iowa Code § 232.117(3). “Evidence is ‘clear and convincing’ 

when there are no serious or substantial doubts as to the correctness [of] 
9

conclusions of law drawn from the evidence.” In re D.W., 791 N.W.2d 703, 706 

(Iowa 2010).

Both parents concede the first two requirements of Iowa Code section 

232.116(1)(e) are met.5 They instead argue there is not clear and convincing 

evidence in the record to support a finding they did not maintain significant and 

meaningful contact with the children during the relevant six-month period. 

“‘[S]ignificant 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.” Iowa Code § 232.116(1)(e)(3). The duties contemplated by the statute

“require[] 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 require[] that the parents establish 

and maintain a place of importance in the child’s life.” Id.

Turning first to the statutory requirement of maintaining significant and 

meaningful contact with the children, we evaluate the parents’ actions in light of 

the statutory definition of an affirmative duty to make a genuine effort to complete 

the responsibilities prescribed in the case permanency plan. The record 

supports the parents’ compliance, and we therefore do not find clear and 

convincing evidence in the record affirmatively establishing they have not 

maintained significant and meaningful contact with the children.

 

5 The children were each individually adjudicated a child in need of assistance in prior 

juvenile court proceedings, with the resulting adjudication order filed on November 13, 

2013. The children have been removed from the mother’s physical custody since April 

22, 2014, and from the father’s physical custody since his arrest in September of 2013.
10

We first address the mother’s claim. Although the mother cancelled 

several visitations during the relevant six-month period, she attended a 

significant majority of them.6 The juvenile court relied heavily on the mother’s 

cancellations of visits. It is true that a small number of visitations can reflect a 

lack of significant and meaningful contact, but our cases reflect that the number 

of visitations attended by the mother in this case is much greater than the 

number attended by parents whose rights we have terminated under this 

statutory standard. See, e.g., A.J., 553 N.W.2d at 912 (noting mother visited 

children only one time and father visited six times in the relevant six-month 

period); In re L.M.F., 490 N.W.2d 66, 68 (Iowa Ct. App. 1992) (noting mother 

visited child one time and called once every two or three months).

The mother appears to take her role as the children’s mother seriously 

during visitation, and her multiple applications for additional services indicate she 

is committed to improving in that role. Between visitation, calls to the children in 

their foster homes, and visiting her daughter in the hospital, the mother has 

clearly demonstrated continued interest in the children, genuine efforts to 

maintain communication with them, and efforts to establish and maintain a place 

of importance in their lives.

Significant and meaningful contact includes an affirmative duty to put forth 

a genuine effort to complete DHS’s requirements in her case permanency plan. 

 

6 The juvenile court found “the frequency of missed visitations noticeably increased in 

October of 2014.” The court’s finding mirrors one witness’s testimony at the hearing. 

However, on our review of the record, the statement does not appear to be accurate. 

The mother cancelled two visitations out of eight in October, which is roughly average 

over the course of her visitations since the children were removed from her care.
11

While the mother’s compliance with these requirements—particularly individual 

counseling and parenting classes—has not been perfect, there is record 

evidence demonstrating reasonable efforts to achieve those goals. In the 

relevant six-month period, she has attended individual counseling, been in 

contact with the provider of her parenting classes, and moved into an apartment. 

Even if that apartment is ultimately unsuitable for visitation, the mother has 

reasonably attempted to comply with the requirement that she find suitable 

housing. While they may not be sufficient for reunification, the mother put 

forward genuine efforts to complete the responsibilities prescribed in the case 

permanency plan since July 26, 2014.

We agree with the mother that the record does not affirmatively establish

by clear and convincing evidence a failure to maintain significant and meaningful 

contact with the children. On our de novo review, we find Iowa Code section 

232.116(1)(e) does not support termination of the mother’s parental rights.

As to the father’s claim, we again do not find clear and convincing 

evidence in the record affirmatively establishing he has not maintained significant 

and meaningful contact with the children throughout the relevant six-month 

period. Upon his release, the father swiftly began exercising his visitation rights, 

and the record reflects he has consistently attended visitation, demonstrating his 

continued interest in the children. Though his interactions with the children have 

been—in the words of the juvenile court—“fairly superficial,” they nevertheless 

demonstrate genuine efforts to establish and maintain communication and a 

place of importance in the children’s lives. The father struggles with parenting, 

but in a few short months he demonstrated a desire and genuine effort to 
12

improve. On our de novo review, we find Iowa Code section 232.116(1)(e) does 

not support termination of the father’s parental rights.

The court relied upon its finding that both parents’—but particularly the 

father’s—interactions with the children were negative. This court has previously 

upheld terminations when visitations were frequent but of such poor quality that 

the duties of being a parent were clearly lost on the visiting parent. See, e.g., In 

re M.L., Nos. 02-1530, 02-1525, 2002 WL 31538225, at *2 (Iowa Ct. App. Nov. 

15, 2002) (“The individual who supervised visitation consistently commented on 

the absence of positive interaction between [the mother] and the children.”). This 

is not such a case. The supervising CFI worker was not shy to criticize both 

parents for poor interactions during visitations, but she also praised the parents 

for their positive interactions, growth as parents, and effective redirections.

In a general sense, the juvenile court appears in its analysis to have relied 

upon the parents’ actions prior to the relevant six-month period, which are 

improper considerations under the significant-and-meaningful-contact element of 

section 232.116(1)(e)(3). On our de novo review, we have limited our 

consideration to the applicable statutory period, and we find reasonable efforts 

from both parents to maintain significant and meaningful contact with the children

during the statutory period and to comply with DHS recommendations.

IV. Conclusion

It is clear both parents have serious obstacles in their lives preventing 

reunification at this time, and the children are struggling with very serious 

behavioral and health issues. But it cannot be said that the parents have not 

maintained significant and meaningful contact with their children during the 
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relevant six-month period. Both parents exhibited genuine efforts to remain part 

of their children’s lives and to improve their parenting and life skills. Iowa Code 

section 232.116(1)(e) is not a proper basis for terminating the parents’ rights to 

their children.

Because we find the juvenile court’s reliance on section 232.116(1)(e) 

improper, we do not address whether termination is in the children’s best 

interests or the mother’s request for six additional months to achieve compliance. 

We reverse the juvenile court’s termination order as to both parents’ rights to all 

five children.

REVERSED ON BOTH APPEALS.