IN THE COURT OF APPEALS OF IOWA

No. 24-1091

Filed September 18, 2024

IN THE INTEREST OF J.W. and A.W.,

Minor Children,

K.W., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, 

Judge.

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

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

Andrew C. Abbott of Abbott Law Office, PC, Waterloo, for appellant mother.

Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney 

General, for appellee State.

Rachel C. Bailie Antonuccio of Juvenile Public Defenders Office Waterloo, 

Waterloo, attorney and guardian ad litem for minor children.

Considered by Tabor, C.J., and Chicchelly and Sandy, JJ.
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CHICCHELLY, Judge.

A mother appeals the order terminating her parental rights to two children: 

J.W., born in February 2020, and A.W., born in July 2022.1 She challenges the 

evidence showing the grounds for termination. Because clear and convincing 

evidence supports termination of the mother’s parental rights to A.W. under one of 

the grounds found by the juvenile court, we affirm. But we find the record does not 

support terminating the mother’s parental rights to J.W. based on either ground 

found by the juvenile court, so we vacate the termination of her parental rights to 

J.W. and remand for further proceedings.

I. Background Facts and Proceedings.

The family came to the attention of the Iowa Department of Health and 

Human Services in December 2022 when A.W. was admitted to the hospital for 

failure to thrive. More concerns surfaced in the weeks that followed. A.W. was 

treated for a severe diaper rash that had become infected. The treating doctor 

described it as one of the worst cases she had seen in her thirty years of pediatric 

practice and consulted a wound care specialist about treatment. The doctor also 

reported that A.W. showed signs of social neglect: not smiling or making eye 

contact, not crying or otherwise indicating her need to eat, and not expressing pain. 

A.W. then contracted RSV and lost considerable weight over a short period, which 

led to her hospitalization. The mother refused to accept any responsibility for 

A.W.’s condition and seemed incapable of following directions about feeding A.W. 

1 The mother gave birth to N.W. in January 2024, but N.W. remained in the 

mother’s custody at the time of the termination hearing and is not involved in this 

appeal.
3

and treating her diaper rash. The juvenile court removed A.W. from the mother’s 

custody, and the State petitioned to adjudicate A.W. as a child in need of 

assistance (CINA). The juvenile court granted the petition in January 2023.

J.W. was removed in June 2023 after he was found on a city street in his 

diapers, covered in feces. There were also concerns that J.W. had not received 

the recommended treatment for an eye condition, and the condition of the home 

was described as unsanitary. As a result, the juvenile court adjudicated J.W. a 

CINA based on concerns that he was not receiving adequate supervision. 

The mother attended most visits with the children, but her visits remained 

fully supervised and service providers remained concerned about the mother’s 

caretaking ability. The mother ended visits early when she became overwhelmed 

and seemed unable to recognize basic safety concerns. The state of the home 

continued to be a concern. Although the mother received services to address her 

parenting deficiencies, the concerns that led to the CINA adjudications remained. 

In January 2024, the State petitioned to terminate the mother’s parental 

rights to both children under Iowa Code section 232.116(1)(e) and (h) (2024). After 

a termination hearing in April 2024, the juvenile court terminated the mother’s 

parental rights to the children under both paragraphs. 

II. Discussion.

The mother challenges the termination of her parental rights to each child 

under section 232.116(1)(e) and (h). We review her claim de novo. See In re 

W.M., 957 N.W.2d 305, 312 (Iowa 2021). “We are not bound by the factual findings 

of the juvenile court, though we give them respectful consideration, particularly 

with respect to credibility determinations.” Id. The State must prove the grounds 
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for termination by clear and convincing evidence, meaning “there are no ‘serious 

or substantial doubts as to the correctness [of] conclusions of law drawn from the 

evidence.’” Id. (alteration in original) (citation omitted). Because the juvenile court 

terminated the mother’s parental rights to the children on two grounds, we may 

affirm if either ground is supported by the record. Id. at 313.

A. Termination of Parental Rights to A.W.

We begin with the mother’s challenge to the termination of her parental 

rights to A.W. under Iowa Code section 232.116(1)(h). The court may terminate 

under this section if it finds:

(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.

(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 mother does not dispute that A.W. meets the elements for termination 

under section 232.116(1)(h)(1)–(3). Instead, she argues the State failed to prove 

by 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.” Id. 

§ 232.116(1)(h)(4). A child cannot be returned to the parents as provided in 

section 232.102(6) if the child will suffer harm that would justify a CINA 

adjudication. “At the present time” means at the time of the termination hearing. 
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See In re A.B., 956 N.W.2d 162, 168 (Iowa 2021) (interpreting the phrase as used 

in Iowa Code section 232.116(1)). 

Clear and convincing evidence shows that A.W. could not be returned to 

the mother’s custody at the time of the termination hearing. The mother’s visits 

remained fully supervised throughout the CINA proceedings, and service providers 

often needed to intervene because the mother could not provide the care needed. 

The mother ended visits early because she could not handle supervising A.W. 

along with N.W., who was still in the mother’s custody, and J.W. The mother 

testified that she cannot manage all three children on her own. Because A.W. was 

at risk of adjudicatory harm if returned to the mother’s custody at the time of the 

termination hearing, the grounds for termination under section 232.116(1)(h) have 

been met. 

We affirm the termination of the mother’s parental rights to A.W.

B. Termination of Parental Rights to J.W.

Next, we turn to the mother’s contention that the juvenile court erred by 

terminating her parental rights to J.W. under section 232.116(1)(e) and (h). We 

begin with the termination of her parental rights under section 232.116(1)(h).

On appeal, the mother notes that J.W. does not meet the age requirements 

for termination under section 232.116(1)(h), which applies to children “three years 

of age or younger.” Iowa Code § 232.116(1)(h)(1). Although J.W. was three years 

old when the State filed the termination petition, he turned four before the 

termination hearing. As with the other requirements for termination under 

section 232.116(1)(h), we determine the child’s age at the time of the termination 

hearing rather than on the date the termination petition is filed. See In re A.M.S., 
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419 N.W.2d 723, 725 (Iowa 1988) (holding that the court may terminate parental 

rights if the criterion in section 232.116(1) is met at the time of the termination 

hearing); In re J.A., No. 13-0889, 2013 WL 5758054, at *3 (Iowa Ct. App. Oct. 23, 

2013) (noting that “the child’s age must be determined upon the date of completion 

of the termination hearings”). Because J.W. did not meet the age criteria for 

termination at the time of the termination hearing, the juvenile court erred by 

terminating the mother’s parental rights to J.W. under section 232.116(1)(h).2

The juvenile court also terminated the mother’s parental rights to J.W. under 

section 232.116(1)(e).3 The mother does not dispute that the evidence shows the 

2 Section 232.116(1)(f) is like section 232.116(1)(h) except it applies to children 

four years and older, see Iowa Code § 232.116(1)(f)(1), who have been “removed 

from the physical custody of the child’s parents for at least twelve of the last 

eighteen months, or for the last twelve consecutive months and any trial period at 

home has been less than thirty days,” id. § 232.116(1)(f)(3). Because J.W. meets 

the age requirements for termination under section 232.116(1)(f), we would order 

a limited remand to the juvenile court so the State could seek leave to amend the 

petition to conform to proof if the record showed that J.W. met the other criterion 

for termination under section 232.116(1)(f). See In re M.T., 613 N.W.2d 690, 693 

(Iowa Ct. App. 2000) (affirming termination of parental rights after a limited remand 

to amend the termination petition to include the correct code section where parties 

failed to notice error in the code section based on the child’s age “until well after 

the termination order had been entered”). But J.W.’s removal does not meet the 

removal requirement of section 232.116(1)(f)(3). Although the court entered the 

termination order one day after the twelve-month requirement was met, J.W. had 

been removed for less than ten months at the time of the termination hearing, when 

we apply the criteria. See J.A., 2013 WL 5758054, at *3 (declining to order a 

limited remand to amend the termination petition to conform to proof when the 

juvenile court erroneously terminated parental rights to four-year-old child under 

section 232.116(1)(h) because the child had been removed for only ten months at 

the time of the termination hearing, which failed to satisfy section 232.116(1)(f)(3)).

3 Although the termination petition alleged that both the mother’s and the father’s 

parental rights could be terminated under section 232.116(1)(e), it appears that 

this ground for termination was directed toward the father, who was in a community 

based correctional facility at the time of the termination hearing. As the juvenile 

court found, the father “has been an inconsistent presence in the children’s life” 

and “has not maintained any meaningful contact with his children.”
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first two elements for termination under this paragraph. See Iowa Code 

§ 232.116(1)(e)(1) (stating the child must be adjudicated CINA), (2) (stating the 

child must be removed from the parent’s physical custody for at least six 

consecutive months). She disputes the third element, requiring “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.” The definition of “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 juvenile court’s findings do not support terminating the mother’s 

parental rights under section 232.116(1)(e). In addressing the father’s 

deficiencies, the court found he “has not meaningfully participated in services 

throughout the juvenile court’s involvement,” had ceased visiting the children, and 

was “unavailable” to them. But when making findings about the mother, the court 

focused on her inability to supervise the children and keep them safe despite the 

receipt of services. Those facts show the children could not be returned to the 

mother’s custody as required for termination under section 232.116(1)(h). They 

do not show the mother failed to maintain significant and meaningful contact as 

required to terminate parental rights under section 232.116(1)(e). 
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We agree that the record does not support a finding that the mother failed 

to maintain significant and meaningful contact with either child. The State’s 

argument that the mother failed to maintain significant and meaningful contact with 

J.W. because she failed to attend every medical appointment is unavailing.4 Its 

argument about the mother’s continued reliance on service providers to assist her 

during supervised visits goes to the mother’s ability to resume custody of the 

children under section 232.116(1)(h), not a lack of significant and meaningful 

contact under section 232.116(1)(e).

Because the record does not support terminating the mother’s parental 

rights to J.W. under either section 232.116(1)(e) or (h), we vacate that portion of 

the order and remand for further proceedings.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

4 There were concerns about the mother’s attendance during A.W.’s physical 

therapy/occupational therapy appointments, which were scheduled every two 

weeks. The mother had not attended any of those appointments since July 2023, 

missing twenty-five in total. But it appears that the mother had better attendance 

at J.W.’s medical appointments because her visitation coincided with them.