IN THE COURT OF APPEALS OF IOWA

No. 16-0893

Filed August 17, 2016

IN THE INTEREST OF P.C. AND D.C.,

Minor children,

J.S., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Philip J. Tabor, 

District Associate Judge.

A mother appeals from a juvenile court order terminating her parental 

rights in her children. REVERSED AND REMANDED.

Matthew D. Hatch of Hatch Law Firm, P.C., Bettendorf, for appellant 

mother.

Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant 

Attorney General, for appellee State.

Neill A. Kroeger, Le Claire, for minor children.

Considered by Potterfield, P.J., and Mullins and McDonald, JJ. Tabor, J., 

takes no part.
2

MCDONALD, Judge.

Jessica appeals a juvenile court order terminating her parental rights in

her children P.C. and D.C. pursuant to Iowa Code section 232.116(1)(d), (e), (h) 

(2015). She contends the State failed to establish by clear and convincing 

evidence the statutory grounds authorizing termination of her parental rights. 

She also contends termination is not in the children’s best interests.

P.C. (born 2014) and D.C. (born 2012) were adjudicated children in need 

of assistance in November 2014. At that time, the children and their father, 

Samuel, resided together with Jessica. Also residing with them were Samuel’s

three other children, S.C., C.C., and K.C., and the mother of those three children, 

Danielle.

1

 In its adjudicatory order, the juvenile court found “the children are 

living in a home where domestic violence has been alleged and there are 

questions as to the appropriate supervision of the children, and [S.C.] was at 

school with some bruising.” Following a review hearing in March 2015, the 

family’s safety plan required the father to move out of the home due to his 

noncompliance with services and failure to allow service providers access to the 

home. After another hearing in April 2015, P.C. and D.C. were removed from the 

home. The court found that the father, while “perhaps not sleeping at home . . . 

is still at the home.” The court found service providers were being denied access 

to the home. The court found the home to be unsafe for these children.

Subsequent to removal, the juvenile court terminated Jessica’s parental 

rights. Termination of parental rights under chapter 232 follows a three-step 

analysis. See In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). First, the court must 

 

1 Danielle subsequently gave birth to another child, G.C., in 2015.
3

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

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

the court must apply the framework set forth in section 232.116(2) to determine if 

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

if that framework supports termination, the court must consider if any statutory 

exceptions set out in section 232.116(3) should serve to preclude termination of 

parental rights. 

The State has the burden to 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 In re L.G., 532 N.W.2d 478, 481 (Iowa Ct. App.

1995). It means that 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, see In re H.S., 805 N.W.2d 737, 745 (Iowa 

2011), we should not be passive where there is a deficient presentation of 

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

quantum and quality of evidence sufficient to prove the statutory ground or 

grounds authorizing termination of a parent’s rights. The clear and convincing 

evidence standard is imposed to balance the parent’s interest in maintaining the 

parent-child relationship and the State’s obligation to act parens patriae; to 

terminate a parent’s rights in the absence of clear and convening evidence 

upsets the legislatively-created balance between these competing interests. 
4

We frequently state we exercise do novo review with deference, meaning 

that we “give deference to the district court’s fact findings due to its opportunity to 

assess the credibility of witnesses.” In re D.K., No. 15-0185, 2015 WL 9451053, 

at *2 (Iowa Ct. App. Dec. 23, 2015). The rationale underlying the accepted 

truism is the district court is in a superior position vis-à-vis the appellate court to 

determine credibility due to the trial court’s opportunity to observe the witness’s 

demeanor and nonverbal behavior believed to be relevant to credibility. The 

problem is this oft-repeated truism is it is probably not true. See State v. 

Goddard, No. 14–1076, 2015 WL 3914327, at *2 (Iowa Ct. App. June 24, 2015) 

(“An ounce of intrinsic merit or demerit in the evidence, that is to say, the value of 

the comparison of evidence with known facts, is worth pounds of demeanour.”); 

Richard A. Posner, Reflections on Judging 124 n.33 (2013) (collecting 

authorities). That is not to say, however, that the appellate court should not 

afford deference to the decision of the district court, even on de novo review. 

There are other, less questionable reasons to exercise “de novo review with 

deference,” including: notions of judicial comity and respect; recognition of the 

appellate court’s limited function of maintaining the uniformity of legal doctrine; 

recognition of the district court’s more intimate knowledge of and familiarity with 

the parties, the lawyers, and the facts of a case; and recognition there are often 

undercurrents in a case—not of record and available for appellate review—the 

district court does and should take into account when making a decision. 

Regardless of the rationale offered in justification of the rule, on de novo review, 

the appellate court can afford the district court deference only to the extent the 

district court makes specific and non-conclusory findings material to the legal 
5

issue or issues presented. That did not happen in this case. The juvenile court 

made written findings in support of the termination order pursuant to section 

232.117(1). The findings were non-specific and conclusory in nature without 

clearly identifying how the facts related to the specified grounds for termination. 

The State first contends termination of Jessica’s parental rights was 

authorized by section 232.116(1)(d). That section provides termination may be 

ordered if (1) the child was previously adjudicated in need of assistance after 

finding of physical or sexual abuse or neglect or a child, “who is a member of the 

same family,” was so adjudicated after such a finding and (2) subsequent to the 

adjudication, despite the offer or receipt of services by the parents, the 

circumstance which led to adjudication continues to exist. See Iowa Code 

§ 232.116(1)(d). There is no allegation of sexual abuse here. The relevant 

consideration is thus whether there has been a previous finding of physical 

abuse or neglect. 

But ‘physical 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.’ 

In re J.S., 846 N.W.2d 36, 41 (Iowa 2014) (quoting Iowa Code § 232.2(42)); see 

also In re M.W., 876 N.W.2d 212, 220 (Iowa 2016).

On de novo review, we conclude the State has not satisfied its burden in

proving this ground for termination. In February 2012, according to the State, 

S.C. and C.C. were adjudicated in need of assistance pursuant to Iowa Code 

section 232.2(6)(b). The State asserts on appeal “[t]he circumstances leading to 

that adjudication included domestic violence and mental health issues.” The
6

assertions are unsupported. The meaning of “physical abuse and neglect” was 

clarified in J.S. Pursuant to the clarification, termination is not proper in the 

absence of a finding of nonaccidental physical injury. See In re M.W., 876 

N.W.2d 212, 220 (Iowa 2016) (providing that in the absence of evidence of a 

“nonaccidental physical injury” to a child who is the subject of a termination 

proceeding, or to a child who is a member of the same family, the parents’ rights 

may not be terminated under section 232.116(1)(d)). There is no such finding of 

record in this case. The State has thus not proved a prior finding of abuse and 

neglect, within the meaning of chapter 232, as narrowed and clarified in J.S., and 

has not proved whether the circumstances continue to exist despite the receipt of 

services. See In re A.R., 865 N.W.2d 619, 629 (Iowa Ct. App. 2015) (“In the 

absence of clear and convincing evidence of a previous adjudication, and in the 

absence of evidence of circumstances which led to an adjudication, we have 

insufficient evidence upon which to evaluate what services were offered or 

received and for what purpose.”), overruled on other grounds by M.W., 876 

N.W.2d at 221.

The State also contends termination of parental rights was authorized 

under section 232.116(1)(e). This section requires the State to 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.” 

“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 
7

the child, and requires that the parents establish and maintain a place of 

importance in the child’s life.

Iowa Code § 232.116(e)(3). 

Here, the evidence showed Jessica has maintained significant and 

meaningful contact with the children. She has weekly visits with them. See In re 

G.B., No. 14-1516, 2014 WL 6682456, at *3 (Iowa Ct. App. Nov. 26, 2014) 

(concluding regular visitation supported finding of significant and meaningful 

contact). She has limited financial means, but she brought the children clothes, 

books, and other gifts on her visits with them. See In re A.I.-A.M., No. 11-1120, 

2011 WL 3925560, at *4 (Iowa Ct. App. Sept. 8, 2011) (concluding that providing 

for child supported finding of significant and meaningful contact); see also In re 

Z.T.D., 478 N.W.2d 426, 428 (Iowa Ct. App. 1991) (holding it would be error to 

terminate parental rights on the basis of economic factors alone). Her case 

permanency plan required her to address her mental health issues, and she has 

regularly attended counseling to do so. See In re T.S., No. 15-0892, 2015 WL 

4641792, at *3 (Iowa Ct. App. Aug. 5, 2015) (concluding case plan compliance 

supported finding of significant and meaningful contact). She has received 

parenting advice from service providers and states she intends to adopt that 

advice if the children are placed in her care. See In re S.W., No. 15-0549, 2015 

WL 3635722, at *5 (Iowa Ct. App. June 10, 2015) (concluding compliance with 

case plan, including finding suitable housing and seeking out parenting classes, 

supported finding of significant and meaningful contact). She has moved into 

an apartment. See id. There is unrebutted evidence she has a bond with the 

children that suggests she has established and maintained a place of importance 
8

in their lives. See In re J.C., No. 14-0100, 2014 WL 1234432, at *3 (Iowa Ct. 

App. Mar. 26, 2014) (concluding parent-child bond supported finding of 

significant and meaningful contact). On de novo review, we conclude the State 

failed to meet its evidentiary burden. 

Finally, termination under section 232.116(1)(h) requires, relevantly, “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.” Implicit in this 

requirement is a determination that a child would suffer adjudicatory harm if 

returned to the parent’s care. See In re J.R., 478 N.W.2d 409, 412 (Iowa Ct. 

App. 1991). That showing must be made by clear and convincing evidence. See 

In re D.P., 465 N.W.2d 313, 315 (Iowa Ct. App. 1990). 

We conclude the State has failed to meet its burden. The State asserts 

Jessica’s decision to continue a relationship with Samuel disqualifies her from 

having the children returned to her care. The State ignores credible evidence 

that Jessica has sought to improve her life over the course of this case. She has 

steady employment. She has a residence. She has sought mental health 

counseling. She has obtained parenting advice. Earlier reports suggest she 

lacked insight into the issues raised with this family; her testimony at the 

termination hearing suggests greater awareness of those issues and efforts to 

address them. See In re T.C., No. 09-1169, 2009 WL 3775248, at *2 (Iowa Ct. 

App. Nov. 12, 2009) (considering parenting progress in determining child could 

be safely returned to mother’s care). More important, there is not sufficient 

evidence to show Samuel poses a material risk of harm to these children. While 

Samuel has been elusive and difficult in dealing with service providers, that alone 
9

cannot suffice to justify termination of Jessica’s parental rights. See In re L.L.D.-

W., No. 08-2076, 2009 WL 607562, at *2 (Iowa Ct. App. Mar. 11, 2009). A 

relationship with a parent who “brings very little to the table in terms of stability 

and support” need not necessitate termination. In re E.N.S., No. 09-1619, 2010 

WL 200816, at *3 (Iowa Ct. App. Jan. 22, 2010). From our review of the record, 

we are persuaded these children could be safely returned to Jessica’s care. 

We are not blind to the challenges facing this family. Work remains to be 

done. We sit not in moral judgment of Jessica’s decision to continue her

relationship with Samuel. We hope Samuel is aware of the role—positive or 

negative—he may yet play in Jessica’s attempt to retain care of her children and 

is aware of the changes that may be required of him. We do sit in legal 

judgment, however, reviewing the application of the facts to the law. In that 

regard, the State has not met its burden of proof with respect to any ground

authorizing termination of Jessica’s parental rights. We reverse and remand this 

matter for further proceedings.

REVERSED AND REMANDED.

Potterfield, P.J., concurs; Mullins, J., concurs specially.
10

MULLINS, Judge. (concurring specially)

I concur in the conclusion of the majority opinion in this case, but write 

separately to begin a discussion with a different articulation of an appellate 

court’s role in giving deference to credibility findings. As the majority opinion 

hints, one of the problems with truisms is they often go untested or do not have 

carefully defined parameters. Our supreme court has explained:

Our rule governing review of equity cases provides:

In equity cases, especially when considering the 

credibility of witnesses, the court gives weight to the 

fact findings of the trial court, but is not bound by 

them.

Iowa R. App. P. [6.904(3)(g)]. There is good reason for us to pay 

very close attention to the trial court’s assessment of the credibility 

of witnesses. A trial court deciding dissolution cases “is greatly 

helped in making a wise decision about the parties by listening to 

them and watching them in person.” In Re Marriage of Callahan,

214 N.W.2d 133, 136 (Iowa 1974). In contrast, appellate courts 

must rely on the printed record in evaluating the evidence. We are 

denied the impression created by the demeanor of each and every 

witness as the testimony is presented. See Lehmkuhl v. Lehmkuhl,

259 Iowa 686, 692, 145 N.W.2d 456, 460 (1966).

In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). “We are not bound 

by the district court’s findings of fact but we do give them deference because the 

district court had an opportunity to view, firsthand, the demeanor of the witnesses 

when testifying.” In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992). 

Those cases fairly represent the guiding principles fashioned over time in our 

case law. As with most brief statements of legal principles, the above quotes fail 

to qualify the limits or context of the weight or deference appellate courts give or 
11

should give to our trial courts. In application, determinations of credibility and 

demeanor are subject to parameters we often fail to address or articulate.2

In criminal and civil law cases, trial courts often instruct jurors to consider 

credibility as follows:

You will decide the facts from the evidence. Consider the evidence 

using your observations, common sense and experience. You 

must try to reconcile any conflicts in the evidence; but, if you 

cannot, you will accept the evidence you find more believable.

In determining the facts, you may have to decide what 

testimony you believe. You may believe all, part or none of any 

witnesses’ testimony.

There are many factors which you may consider in deciding 

what testimony to believe, for example:

1. Whether the testimony is reasonable and consistent 

with other evidence you believe;

2. The witnesses’ appearance, conduct, age, 

intelligence, memory and knowledge of the facts; and,

3. The witnesses’ interest in the trial, their motive, 

candor, bias and prejudice.

Iowa Civ. Jury Instructions 100.9. That instruction finds its roots in 100-year-old 

case law approving these instructions to a jury: 

You are the judges of the credibility of the witnesses and the weight 

to be given to each and all of them. Where there is a conflict in the 

evidence, you should harmonize it if you can; but if you cannot so 

do, you should give to each witness such credit as you deem him 

entitled, or none if entitled to none.

Burger v. Omaha & C.B. St. Ry. Co., 117 N.W. 35, 38–39 (Iowa 1908). Jurors 

are also instructed: “[D]o not be influenced by any personal sympathy, bias, 

prejudices or emotions.” Iowa Civ. Jury Instructions 100.2. 

On our review of trial court opinions for cases tried to the bench, judges 

often quote from Jury Instruction 100.9 to highlight the factors they considered in 

reaching their decision in the case. Trial judges are encouraged to make 

 

2 This discussion only scratches the surface of concepts of demeanor and credibility.
12

credibility findings in their written rulings so that both the parties and the 

appellate courts can understand the reasons for the conclusions reached. There 

is little doubt credibility determinations can be significant and helpful when 

considering the reliability of evidence that is in dispute. Care must be taken, 

however, to distinguish between likeability of the witness and credibility: 

credibility and likeability do not necessarily correlate. See id. at 100.9. Trial 

courts have the opportunity to observe the demeanor; we do not have that 

opportunity on appeal. So, we defer to the observations of the trial court as to 

what the judge can see and hear that we cannot. Deference is not, however, a 

black and white concept. Giving “weight” to the trial court’s findings implies a 

measured approach. An appellate court should consider the reasons given by 

the trial court in support of its credibility findings as it measures the weight to be 

given on appeal to the findings.

We recognize the difficulties and pitfalls when trial judges include written 

credibility findings in rulings. If the findings are too harsh, the judge may be 

subject to claims of impartiality or bias. Matter of Jenkins, 503 N.W.2d 425, 426–

27 (Iowa 1993) (explaining that regarding credibility of witnesses, “[o]bjective 

observations explained by a trial court are helpful in the review process. Clearly, 

the ones here do not qualify”). If the findings are too weak, they may be of little 

use. Judicial credibility findings might appropriately consider the factors included 

in the jury instructions quoted above. Demeanor is but one of many factors to 

consider when deciding what testimony to believe.