In the Interest of M.S., Minor Child, T.B.-w., Father

IN THE COURT OF APPEALS OF IOWA

No. 16-0975
Filed October 26, 2016

IN THE INTEREST OF M.S.,
Minor child,

T.B.-W., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Thomas J.

Straka, Associate Juvenile Judge.

A father appeals from the order terminating his parental rights.

REVERSED AND REMANDED.

Matthew W. Boleyn of Reynolds & Kenline, L.L.P., Dubuque, for appellant

father.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Sandra P. Trevino of Hammer, Simon & Jensen, P.C., East Dubuque,

Illinois, guardian ad litem for minor child.

Considered En Banc.
 2

MCDONALD, Judge.

The termination of a parent’s rights inflicts a unique deprivation of a

constitutionally protected liberty interest upon the affected parent. The innocent

man can be set free. The landowner can be justly compensated. The childless

parent has no recourse. Thus, “[a] parent’s interest in the accuracy and justice of

the decision to terminate his or her parental status is . . . a commanding one.”

Santosky v. Kramer, 455 U.S. 745, 759 (1982). Accuracy requires careful review

of the evidence to determine whether the State has come forward with the

quantum and quality of evidence necessary to prove the statutory grounds

authorizing the termination of a parent’s rights. Justness requires consideration

of any countervailing consideration that may preponderate against the

termination of a parent’s rights.

I.

This case involves Thomas, a father, who appeals from the order

terminating his parental rights in his child pursuant to Iowa Code section

232.116(1)(h) and (l) (2015). M.S., the child at issue, came to the attention of the

Iowa Department of Human Services (“IDHS”) when he tested positive for THC at

birth in June of 2015. The mother and a man initially believed to be the father

were contacted by IDHS. The mother admitted to marijuana use, did not follow

through with random drug testing, and did not follow through with a substance

abuse evaluation. After the mother failed to show any progress, M.S. was

removed from the mother’s home and adjudicated in need of assistance. The

mother has not had any contact with M.S. since November 2015.
 3

IDHS learned the man believed to be M.S.’s father was not his father. In

December 2015, IDHS and Thomas had their first communication regarding the

child at issue. DNA testing confirmed Thomas’s paternity of the child. At the

time IDHS commenced communication with Thomas, he was twenty-one years of

age, living with his mother, and employed full-time. Thomas admitted to the

social worker he had been a long-time user of cannabis, including marijuana and

cannabis oils. IDHS put in place a family plan, requiring Thomas to take anger

management classes and abstain from cannabis use.

Thomas substantially complied with the IDHS’s plan over the ensuing

months. He attended anger management sessions as instructed. Thomas

demonstrated the capacity to provide for the physical needs of the child. Thomas

maintained full-time employment. Thomas obtained his own residence. The

social worker found the home was safe and appropriate for the child. Thomas

attended every visitation—up to four per week—with the child. The social worker

thought the visits went well. The one area in which Thomas’s compliance lacked

was the cessation of cannabis use. He attended counseling sessions, but

continued to use for at least some period of time while the case was pending.

For this reason alone the State sought to terminate Thomas’s parental rights.

The matter came on for a termination hearing in May 2016, only five

months after IDHS commenced communication with Thomas. The social worker

testified Thomas continued to test positive for THC. She also testified, however,

that she never observed Thomas interact with the child while under the influence,

that she had no concerns that he would supervise the child while under the

influence, and that she had no concerns regarding the safety of the child while in
 4

Thomas’s care. Thomas admitted he continued to use for some period after the

case commenced, but he testified his use was decreasing and his last use was in

April 2016. The district court granted the State’s petition to terminate Thomas’s

parental rights pursuant to Iowa Code section 232.116(1)(h) and (l). Thomas

timely filed this appeal.

II.

“[T]he relationship between parent and child is constitutionally protected.”

Quilloin v. Walcott, 434 U.S. 246, 255 (1978). “[T]he custody, care, and nurture

of the child reside first in the parents, whose primary function and freedom

include preparation for obligations the state can neither supply nor hinder.” Id.

(quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). At the same time,

“[t]he State has a duty to assure that every child within its borders receives

proper care and treatment, and must intercede when parents fail to provide it.” In

re A.M., 856 N.W.2d 365, 376 (Iowa 2014).

Iowa Code chapter 232 codifies the balance our legislature has struck

between these competing interests. Pursuant to section 232.116(1), the State

must prove a statutory ground authorizing the termination of a parent’s rights.

See In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). Section 232.116(1) sets forth the

harms the legislature has determined to be of sufficient concern to justify the

breakup of the family unit. It is not sufficient to prove the parent engaged in

immoral or illegal conduct without a showing of harm. See Oliver Wendell

Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897) (“The first

thing for a business-like understanding of the matter is to understand its limits,

and therefore I think it desirable at once to point out and dispel a confusion
 5

between morality and law, which sometimes rises to the height of conscious

theory, and more often and indeed constantly is making trouble in detail without

reaching the point of consciousness.”). Indeed, due process would be violated if

the State “attempt[ed] to force the breakup of a natural family, over the objections

of the parents and their children, without some showing of unfitness and for the

sole reason that to do so was thought to be in the children’s best interest.”

Quilloin, 434 U.S. at 255. Second, pursuant to section 232.116(2), the State

must prove termination of parental rights is in the best interest of the child. See

P.L., 778 N.W.2d at 39. Third, if the State has proved both the existence of

statutory harm and termination of a parent’s rights is in the best interest of the

child, the court must consider whether any countervailing considerations set forth

in section 232.116(3) should nonetheless serve to preclude termination of

parental rights. See id.

The State has the burden to prove its case 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

is the highest evidentiary burden in civil cases. It means there must be no

serious or substantial doubt about the correctness of a particular conclusion

drawn from the evidence. See id. This significant burden is imposed on the

State to minimize the risk of an erroneous deprivation of the parent’s

fundamental liberty interest in raising his child. See Santosky, 455 U.S. at 759.

We therefor cannot rubber stamp what has come before; it is our task to ensure

the State has come forth with the quantum and quality of evidence necessary to
 6

prove each of the elements of its case. See id. at 769 (“A majority of the States

have concluded that a ‘clear and convincing evidence’ standard of proof strikes a

fair balance between the rights of the natural parents and the State’s legitimate

concerns. We hold that such a standard adequately conveys to the factfinder the

level of subjective certainty about his factual conclusions necessary to satisfy

due process.”).

III.

When we pull this particular dragon out of its cave to count its teeth and

claws in the light of day, we can see it is without strength. See Holmes, 10 Harv.

L. Rev. at 469.

A.

We first address the sufficiency of the evidence supporting the statutory

grounds authorizing termination of parental rights. The juvenile court terminated

the father’s rights pursuant to section 232.116(1)(l), which requires the State to

prove the following:

(1) The child has been adjudicated a child in need of assistance pursuant
to section 232.96 and custody has been transferred from the child’s
parents for placement pursuant to section 232.102;
(2) The parent has a severe substance-related disorder and presents a
danger to self or others as evidenced by prior acts;
(3) There is clear and convincing evidence that the parent’s prognosis
indicates that the child will not be able to be returned to the custody of
the parent within a reasonable period of time considering the child’s
age and need for a permanent home.

“Substance-related disorder” is defined by statute to mean “a diagnosable

substance abuse disorder of sufficient duration to meet diagnostic criteria

specified within the most current diagnostic and statistical manual of mental

disorders published by the American psychiatric association that results in a
 7

functional impairment.” Iowa Code § 125.2(14). The State did not produce any

evidence the father has a “diagnosable substance abuse disorder.” The State

also did not produce any evidence the father presents a danger to himself or

others. The social worker involved with this family testified to the contrary—she

had no safety concerns. The State failed to meet its burden of production and

persuasion with respect to this ground. See, e.g., In re M.F., No. 16-0434, 2016

WL 2743488, at *3 (Iowa Ct. App. May 11, 2016).

The juvenile court also terminated the father’s rights pursuant to section

232.116(1)(h).1 This section requires the State 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.” Iowa Code § 232.116(1)(h)(4).

“[A] child cannot be returned to the custody of the child’s parent under section

232.102 if by doing so the child would be exposed to any harm amounting to a

new child in need of assistance adjudication.” In re M.M., 483 N.W.2d 812, 814

(Iowa 1992).

What was the adjudicatory harm authorizing the termination of this

parent’s rights? We find none. The evidence established Thomas was able to

meet the physical needs of the child. Thomas maintained full-time employment

1
The State contends Thomas failed to preserve his challenge to this ground because he
admitted the child could not be returned to his care at the time of the termination
hearing. We disagree. First, the statute requires the State to prove the child would be
exposed to an appreciable risk of adjudicatory harm. Second, Thomas did not admit the
child would be exposed to adjudicatory harm if returned to his care at the time of the
termination hearing. Instead, he testified it would not be inappropriate to have a
transition period. Third, this is not an issue of error preservation. Even if the parent
admitted return of the child would expose the child to adjudicatory harm, the admission
only serves as strong evidence, perhaps irrefutable evidence, in support of the State’s
case. The testimony does not waive the issue or relieve the State of its burden of proof.
 8

in a position he has held for more than three years. The social worker found

Thomas’s home was safe and appropriate for the child. The guardian ad litem’s

report noted the “home is appropriate, clean and there are no immediate safety

concerns.” The social worker testified the father has everything he needs for the

child. This was evidenced during visitations, during which the father provided for

the child’s physical needs, including clothing, food, and diapers.

The evidence established Thomas was eager and able to meet the

emotional and social needs of the child. The father attended every single

visitation—up to four per week—with the child. Thomas had to make special

arrangements with his employer to make sure he was able to attend each and

every visitation. This required careful planning on his part and evidences his

intent to parent this child. The social worker thought the visits went well. She

testified Thomas has “the skills necessary to parent the child.” The Family

Safety, Risk, and Permanency (FSRP) reports document Thomas’s visits with the

child. They contain numerous entries demonstrating Thomas’s good parenting

skills. By way of example:

Thomas reported that [M.S.] has a Dr appointment coming up and
plans on attending so he can be more informed about his
health. . . . Thomas was attentive to M.S.’s needs. He burped him,
cleaned the booger’s from his nose, and cleaned up his spit up.
M.S. was sitting up by himself on the floor. He swung his hands in
the air smiling and laughing, lost his balance, and fell backwards.
Thomas was quick to console him and make sure he was ok. M.S.
did not fuss much about the fall.

From another visit:

M.S. was happy to see Thomas when he seen [sic] him he smiled
and started kicking his legs in joy. Thomas was very happy to see
M.S. he picked him up and checked up on him about weather [sic]
or not he needed to be changed or if he has ate [sic]. He played
 9

with M.S. until he was tired and took a nap. Later he woke up and
Thomas was quick to feed him and change him to make sure he
was happy.

The State and the dissent contend Thomas’s alleged anger management

issues support the termination of Thomas’s parental rights. Neither the State nor

the dissent identifies the specific adjudicatory harm within the meaning of section

232.102 which this fact allegedly supports. Regardless, there is not clear and

convincing evidence that Thomas’s temperament poses an appreciable risk of

adjudicatory harm to the child. Although the social worker originally thought

anger management sessions might be helpful to Thomas, the concerns were

unfounded. She testified there were three minor incidents near the beginning of

the case where Thomas was frustrated and acted angrily but testified there was

no recent conduct giving her any concern. Importantly, there is no evidence

Thomas directed any anger or frustration toward the child. There is also no

evidence Thomas engaged in any physical violence toward anyone during the

pendency of this case. In any event, Thomas attended anger management

sessions as set forth in the case plan. The social worker conceded the alleged

anger management issue “would not give [her] pause as far as [the father] having

interactions” with the child.

The State and dissent also contend Thomas testing positive for cannabis

in contravention of the case plan is sufficient evidence to support the termination

of his parental rights. The failure to comply with the case plan is not enough.

The authority to terminate a parent’s rights is wholly a creature of statute. The

legislature has enacted a comprehensive scheme specifying the exclusive

grounds upon which the State can seek to terminate a parent’s rights. See Iowa
 10

Code § 232.116(1)(a)-(p). Absent from this comprehensive scheme is the

authority to terminate a parent’s rights for mere failure to comply with IDHS’s

case plan. The fact the legislature has not included this ground within this

exclusive statutory scheme establishes the failure to comply with the case plan,

standing alone, is not sufficient grounds to justify the termination of parental

rights. See generally Greenwood Manor v. Iowa Dep’t of Pub. Health, 641

N.W.2d 823, 835 (Iowa 2002) (stating courts are “guided by the maxim ‘expressio

unius est exclusio alterius,’ i.e., the ‘expression of one thing is the exclusion of

another,’” stating the exclusion of an item from a comprehensive statute is

evidence of the legislature’s intent); In re C.L.H., 500 N.W.2d 449, 453 (Iowa Ct.

App. 1993), overruled on other grounds by P.L., 778 N.W.2d at 39 (“The failure of

the parents to comply with DHS’s case plan cannot be an independent ground to

terminate parental rights.”). Indeed, the termination of parental rights because of

a parent’s failure to follow the case plan, without a showing of harm, would run

afoul of due process. See Quilloin, 434 U.S. at 255; In re C. and K., 322 N.W.2d

76, 81 (Iowa 1982) (interpreting termination statute to require proof of harm to

avoid constitutional infirmity).

The dissent contends Thomas was dishonest regarding his cannabis use

because Thomas tested positive after April 2016 and because the social worker

testified the drug test result–in December—was one of the highest levels she had

ever seen. Neither fact supports the dissent’s position. First, hair tests for

marijuana encompass a ninety-day period. A positive test in May would relate

back to February, prior to Thomas’s last admitted use. Second, the quantity of

THC metabolite detected in a hair test has no correlation to the frequency or
 11

amount of use. See Michelle Taylor et al, Comparison Of Cannabinoids In Hair

With Self-Reported Cannabis Consumption In Heavy, Light And Non-Cannabis

Users, Drug and Alcohol Review (Early View June 14, 2016),

http://onlinelibrary.wiley.com/doi/10.1111/dar.12412/pdf (“Furthermore, we were

unable to use hair testing to determine the quantity of cannabis used by an

individual in a specified time frame. As a result, the real life application of hair

testing for cannabis use is likely to be limited.”). The laboratory conducting the

test in this case specifically does not distinguish among low, medium, and high

use of cannabis based on the quantity of metabolites present in the hair sample

because, with respect to marijuana, the quantity has no correlation to frequency

or amount of use, unlike other drugs. From the hair-test data one can soundly

conclude only that Thomas used marijuana between February and May, a fact

not in dispute. It is a mistake to go further, as the dissent does, to draw an

inference of recent and significant use unsupported by medical literature and

unsupported by the laboratory actually conducting the test and reporting the

results.

Even assuming the test results could be interpreted as the dissent

suggests, the mere fact of use does not establish adjudicatory harm. Cf. Iowa

Code § 232.2(6)(n) (listing as adjudicatory harm a parent’s “drug or alcohol

abuse [that] results in the child not receiving adequate care” (emphasis added));

Iowa Code § 232.116(1)(l) (requiring proof of harm to self or others); see In re

J.S., 846 N.W.2d 36, 42 (Iowa 2014) (holding mother’s use of methamphetamine,

in and of itself, did not constitute adjudicatory harm); In re J.W., No. 14-0515,

2014 WL 3749419, at *3 (Iowa Ct. App. July 30, 2014) (holding the mother’s
 12

status as a prior substance abuser did not necessarily establish adjudicatory

harm); In re L.R., No. 09-1544, 2010 WL 200817, at *7 (Iowa Ct. App. Jan. 22,

2010) (reversing termination order where State failed to establish nexus between

parent’s alcohol abuse and risk of adjudicatory harm to the child).

Instead, the State must establish a nexus between the father’s cannabis

use and an appreciable risk of adjudicatory harm to the child within the meaning

of section 232.102. See, e.g., In re Rebecca C., 175 Cal. Rptr. 3d 264, 269 (Cal.

Ct. App. 2014) (“In other words, DCFS essentially argues that, when a parent

engages in substance abuse, dependency court jurisdiction is proper. This is not

what the dependency law provides. Further, if DCFS’s position were accepted, it

would essentially mean that physical harm to a child is presumed from a parent’s

substance abuse under the dependency statutes, and that it is a parent’s burden

to prove a negative, i.e., the absence of harm. Again, this is not what the

dependency law provides.”); L.D. v. Dep’t of Children & Family Servs., 957 So.

2d 1203, 1205–06 (Fla. Dist. Ct. App. 2007) (holding drug addiction, standing

alone, is insufficient basis to terminate parental rights); In re Adoption of Zoltan,

881 N.E.2d 155, 161 (Mass. App. Ct. 2008) (reversing termination of parental

rights where agency failed to demonstrate nexus between marijuana use and

parenting ability); In re Danalia L., No. 1-10-2906, 2011 WL 10072924, at *3 (Ill.

App. Ct. Mar. 25, 2011) (affirming dismissal of case where there was no

evidence establishing a nexus between marijuana use and harm to the children

or that “the marijuana use created an injurious environment”); In re Children of

T.R., 750 N.W.2d 656, 663 (Minn. 2008) (holding “substance or alcohol use

alone does not render a parent palpably unfit”); New Jersey Div. of Child Prot. &
 13

Permanency v. C.R., No. FN-09-111-12, 2015 WL 3726304, at *4 (N.J. Super.

Ct. App. Div. June 16, 2015) (“When drug use is a basis for an allegation of

abuse and neglect, there must be proof that the drug use exposed the child to

imminent danger or a substantial risk of harm.”); Dep’t of Human Servs. v. C.J.T.,

308 P.3d 307, 310 (Or. Ct. App. 2013) (holding past marijuana use, without

nexus between current use and threat of harm to the children, was insufficient to

support termination of parental rights); Dep’t of Human Servs. v. A.M.C., 260

P.3d 821, 825 (Or. Ct. App. 2011) (“[A] parent’s condition, even if reprehensible

or pathological, does not justify termination of parental rights unless the conduct

or condition is seriously detrimental to the child. The conduct or condition, in

other words, does not speak for itself.”); In re A.T.E., 222 P.3d 142, 148 (Wyo.

2009) (affirming denial of termination petition where agency did not provide

evidence linking father’s marijuana use with “his unfitness as a parent”). As

noted above, due process requires the termination statute to be interpreted to

require proof of harm. See See Quilloin, 434 U.S. at 255; In re C. and K., 322

N.W.2d at 81.

The record does not establish a nexus between Thomas’s cannabis use

and an appreciable risk of adjudicatory harm to the child. The State attempts to

spackle the evidentiary cracks and holes in its case with speculation-and-

conjecture putty. Speculation and conjecture are not enough; clear and

convincing evidence is required. Here, Thomas testified he has never interacted

with the child while impaired and would not do so. He testified his last use of

cannabis was in April 2016 and his days of cannabis use were behind him. The

social worker testified she never observed Thomas interact with the child while
 14

impaired. She testified she did not believe Thomas would use while supervising

the child. The social worker conceded Thomas’s conduct was not a safety

concern with respect to the child. The prosecutor conceded during closing

argument that the child’s safety was not at issue. In the final FSRP report

provided to the juvenile court prior to the termination hearing, Thomas’s

protective capacity was praised:

Thomas has the support of his Mother, Sister, Girlfriend, and
brother. Thomas has proven able to provide [a] safe home and
stable place for M.S. Thomas has been motivated to do what he
needs to done [sic] in order for him to have M.S. full time. He has
been able to have a stable home for him and M.S. and attended
meetings with SASC. Thomas has been able to show proof that he
has a stable home and job in which he can pay all of his bills. He
has been able to provide[ ] food and clothing during every visit.

In sum, there is not clear and convincing evidence establishing a nexus

between the father’s conduct and an appreciable risk of adjudicatory harm to the

child. The State’s reports admit as much. The social worker involved in the case

admitted as much. The prosecutor admitted as much. We agree.

B.

The failure to prove the statutory grounds authorizing termination of

Thomas’s rights requires reversal. We nonetheless address whether the State

proved by clear and convincing evidence whether termination of Thomas’s

parental rights is in the best interest of the child. “When we consider whether

parental rights should be terminated, we ‘shall give primary consideration to the

child’s safety, to the best placement for furthering the long-term nurturing and

growth of the child, and to the physical, mental, and emotional condition and

needs of the child.’” In re M.W., 876 N.W.2d 212, 224 (Iowa 2016) (quoting Iowa
 15

Code § 232.116(2)). In making this determination, we may consider a number of

factors. See In re D.W., 791 N.W.2d 703, 708 (Iowa 2010).

We begin by asking what facts support the conclusion termination of

Thomas’s parental rights is in the best interest of the child. The State and

dissent recite boilerplate case law regarding the child’s need for permanency.

However, neither identifies the evidence regarding the child’s safety, health, or

welfare suggesting the child would be better off being placed with someone other

than his loving and caring biological father. Instead, both seem to place the

burden on the father to establish why it is in the child’s best interest to maintain

the child-parent relationship. It is not his burden of proof; it is the State’s.

The State has not established by clear and convincing evidence

termination of this child’s relationship with a caring father is in the child’s best

interests. It is undisputed Thomas can meet the physical needs of the child.

Thomas has held steady, full-time employment. He has an appropriate and safe

residence for the child. He has demonstrated the capacity to provide the items

necessary for his care. Thomas also showed a concerted effort to provide for the

emotional and social needs of the child. Thomas attended every visit with the

child. The social worker testified the visits went well. As will be set forth in detail

below, this is confirmed by contemporaneous records documenting the

visitations. As set forth above, the State’s own reports provide Thomas has a

strong support network and can provide his son with a safe and appropriate

home. Finally, Thomas is making a good faith effort to resolve his substance

abuse and making progress in the effort. See Karrie B. ex rel. Reep v. Catherine
 16

J., 181 P.3d 177, 185–86 (Alaska 2008) (concluding it was proper to consider a

parent’s professed intent to change when declining to terminate parental rights).

In sum, the State failed to prove the second element of its case by clear

and convincing evidence. The termination of the father’s rights in the absence of

such proof upsets the legislative scheme balancing the parent’s rights against the

State’s duty to protect children within its borders. The termination order must be

reversed on this ground as well.

C.

Finally, we consider whether termination under the circumstances

achieves justice—that is, whether there are countervailing considerations that

should serve to preclude termination of Thomas’s parental rights even if the State

had proved its case. We conclude the closeness of the parent-child relationship

should serve to preclude termination under the circumstances. See Iowa Code

§ 232.116(3)(c).

The evidence shows two things: Thomas has a strong bond with the child,

and Thomas provides excellent and loving care for the child. The guardian ad

litem reports that “M.S. appears to be bonded with [the father] and often

searched out [the father] while he was playing. M.S. appeared comfortable at

[the father’s] apartment.” The FSRP reports are replete with contemporaneous

entries documenting the good visits the father has with the child. For ease of

reading, we have left the entries largely unedited:

M.S. was very happy to see Thomas as he smiled. Thomas was
equally just as happy to see him and picked him up out of the car
seat. Thomas began holding him then set him down on the grown
[sic] and played with him and watched him crawl for his toys and
followed him around making sure he could play with his toys in a
 17

safe environment. Thomas made sure that M.S. ate and that he
also had a clean diaper.

Another report shows the following:

M.S. was very happy to see Thomas he was smiling, kicking and
reaching for Thomas. Thomas took him out of the car seat and
hugged him and kissed him on the cheek he was happy to see
M.S. Thomas asked provider the information about when M.S.
was last changed and when he ate and had a bottle. . . Thomas
began playing with M.S. and soothing him and holding him.
Thomas was able to follow M.S.’s cues when he is crying. . . .
Once M.S. woke up Thomas fed him some Jar food which he ate
and made him a bottle which he had no issues with either.
Thomas then changed him to ensure that he was dry and
continued to play with him and some toys that Thomas purchased
for him.

The provider reported a different visit:

[M.S.] smiled when he seen [sic] Thomas; at the visit I observed
Thomas fix [M.S.] a bottle for feeding time, after he was done
eating Thomas burped M.S. and comforted him when he became
fussy. Thomas interacted with M.S. with teething toys and tickling
him while making funny sounds. Thomas also brought M.S.
diapers for daycare . . .

The provider noted the following at a different visit:

When Thomas arrived to the youth house he walked in and went
straight to M.S. M.S. was very happy to see Thomas he smiled
when Thomas went to get him out. Thomas and [his girlfriend]
greeted M.S. and they were both happy to see him. They then
placed him on the ground for tummy time and they took pillows and
placed them all around the house so that they can block M.S. off so
that he can’t hurt himself.

In another entry:

Thomas was prepared with the diaper bag. Thomas and [his
girlfriend] let M.S. crawl around on the floor. They followed him and
made sure he didn’t crawl anywhere he could get hurt. M.S. was
making babbling sounds and Thomas was mimicking him and trying
to get him to say “daddy.”

The provider reported the following from a different visit:
 18

M.S. was very happy to see Thomas he started smiling and kicking
his feet. Thomas smiled with him and picked him up and started
playing with him. Thomas let him play in his jumper for a little while
and then took him out of the jumper and played with him on the
floor.

Another entry:

Thomas played with M.S. while he crawled around on the ground.
Thomas was very protective of where he crawled to and what
area’s [sic] of the room he blocked off. Thomas fed M.S. and
changed his diaper and made sure that he was dry.

On another visit, the provider noted:

When M.S. woke up he was happy to see Thomas. M.S. smiled
and reach his hands up for Thomas to pick him up. Thomas picked
him up and he was happy and jumping Thomas’s arms. Thomas
pulled out the toys to play with M.S. on the floor. . . [Thomas’s
girlfriend] went into the kitchen and made breakfast for them all.
Thomas began to feed M.S. some pancakes and eggs.

On another visit:

Thomas welcomed M.S. with hugs and kisses and told M.S. that he
loved him. During the visit Thomas feed M.S. a bottle of milk and
gave him baby food, he also made sure M.S.’s diaper was
changed. After M.S. ate Thomas burped him and rocked him in his
arms until M.S. went to sleep. When M.S. woke up Thomas
interacted with him with teething toys and toy balls, he also made
funny noised while M.S. crawled around on the floor . . . When the
visit was over Thomas put M.S in the car seat, kissed him and
[said] to him that he loved him.

Although we have documented only a few entries in the interest of brevity,

the record is replete with other entries and reports documenting similar

interactions. We conclude termination of this father’s parental rights under the

circumstances presented fails to achieve justice.

IV.

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

and management of their child does not evaporate simply because they have not
 19

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.” Santosky, 455 U.S. at

753. “Termination is a drastic, final step, which improvidently employed can be

fraught with danger. Termination must only occur where more harm is likely to

befall the child by staying with his or her parents than by being permanently

separated from them.” In re H.H., 528 N.W.2d 675, 677 (Iowa Ct. App. 1995).

Thus, the spirit of assistance proceedings is to improve parenting skills and

maintain the parent-child relationship rather than rush to terminate the parent-

child relationship. See In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App.

1997). Neither federal nor state law allows the State to terminate a parent’s

rights in pursuit of Skinnerian utopia. There is no authority that allows the State

to terminate a parent-child relationship where the child loves the father, the father

loves the child, the father can meet the physical and emotional needs of the

child, and placement with the father poses no appreciable risk of adjudicatory

harm to the child. This father is not perfect, but the law does not require

perfection. We reverse the judgment of the juvenile court.

REVERSED AND REMANDED.

Potterfield, Doyle, Tabor, and Mullins, JJ., concur. Danilson, C.J., concurs

specially. Vogel, Vaitheswaran, and Bower, JJ., dissent.
 20

DANILSON, Chief Judge. (concurring specially).

I specially concur because I agree with the result but find it unnecessary to

enter the fray on the issue of whether there is risk of an adjudicatory harm to the

child. Rather, I conclude the State has failed to meet its burden of proof that the

child was removed from the physical custody of the father as required by Iowa

Code section 232.116(1)(h).

Here, the father raised as an issue the failure of the State to meet its

burden with respect to Iowa Code section 232.116(1)(h). Upon our de novo

review, we must find there “is clear and convincing evidence that the child cannot

be returned to the custody of the child’s parents.” Iowa Code § 232.116(1)(h)(4).

But the parents have never been married and it is undisputed that the child has

never been in the custody of the father. See In the Interest of B.L., 470 N.W.2d

343, 346 (Iowa 1991) (acknowledging that unless paternity is immediately

admitted at birth, a father has no custody rights until a court order grants such

rights as provided by Iowa Code section 675.40).

Our supreme court has interpreted the word “parents” to mean plural or

singular by statutory construction and as provided by Iowa Code section 4.1(17).

In re Marriage of N.M., 491 N.W.2d 153, 155 (Iowa 1992).2 This interpretation

aids the State in this case in establishing the third element of Iowa code section

232.116(1)(h)(3) which requires proof the child was removed from the parents’

home, or a parent’s home, for at least six of the last twelve months, or for the last

six consecutive months so long as any trial period has lasted less than thirty

2
Iowa Code section 4.1(17) provides, “Unless otherwise specifically provided by law the
singular includes the plural, and the plural includes the singular.”
 21

days. Because the child had been removed from the mother’s care for this

period of time, the State need not prove the child was removed from the father’s

home.

Nonetheless, the supreme court has not yet interpreted the fourth

requirement in Iowa Code section 232.116(1)(h)(4) requiring proof “[t]here is

clear and convincing evidence that the child cannot be returned to the custody of

the child’s parents as provided by section 232.102 at the present time.” Iowa

Code § 232.116(1)(h)(4). Certainly the father cannot defend with evidence that

the mother is able to have the child returned to her. See In re D.G., 704 N.W.2d

454, 460 (Iowa Ct. App. 2005) (stating that one parent cannot assert facts or

legal positions pertaining to the other parent). And because the father never had

custody, the child was never removed from his care and custody cannot be

“returned” to him. Under our facts, to find clear and convincing evidence of this

fourth requirement, the word “returned” must either be ignored or interpreted to

encompass the situation where custody cannot be “awarded” to the father. Until

our supreme court addresses this issue, I decline to adopt such an interpretation

and conclude the State has failed to meet its burden of proving the fourth

element or requirement of Iowa Code section 232.116(1)(h).3

3
When custody is removed from a parent there is also an obligation to warn the parent
of the potential of termination of parental rights, a warning not necessarily afforded to a
noncustodial parent. See Iowa Code § 232.102(8). Other alternatives to terminate
parental rights are available to the State under Iowa Code section 232.116(1). See In re
C.F.-H., No. 16-0918, 2016 WL 4379340 (Iowa Ct. App. Aug. 17, 2016) (Danilson, C.J.,
dissenting).
 22

VOGEL, Judge. (dissenting).

Because I agree with the district court’s decision to terminate Thomas’s

parental rights to M.S., I dissent from the majority opinion. I conclude the State

offered sufficient evidence to prove the child could not be returned to Thomas’s

care at the time of the termination hearing due to his failure to abstain from

controlled substances coupled with his history of anger management problems.

M.S., the child at issue, came to the attention of the Iowa Department of

Human Services (DHS) when he tested positive for THC at birth in June of 2015.

While the mother initially informed the DHS that another man was the father of

the child, Thomas knew of his status as the child’s father during the early stages

of the pregnancy and contacted the mother a few days before M.S.’s birth, asking

to see the child. Thomas was aware of the DHS’s involvement with M.S. but did

not reach out to the DHS until he was contacted by letter in November 2015.

When Thomas was first identified as M.S.’s father, M.S. could not be placed with

him without the risk of suffering adjudicatory harm. Thomas was told he needed

to remove the risk factors before he could move forward with unsupervised

visitation and eventual placement of the child in his care. Those expectations

included: Thomas abstaining from using drugs, complying with random drug

testing, working on his life stressors, and following through on individual

counseling and recommendations. The goal was for M.S. to “live in a safe and

stable environment, free from illegal substances, with caretakers who are clean,

sober and maintaining the stability of their mental health.”
 23

I. Marijuana Use.

From the initial conversations between the DHS and Thomas in December

2015, even before his paternity of M.S. was confirmed by the DHS, Thomas was

aware of his need to provide two clean drug screens in order to move beyond

fully supervised visitation with M.S. As of the time of the termination hearing in

May 2016, he had utterly failed to comply with this directive. Thomas was open

about his long-time use of cannabis, including marijuana and cannabis oils. He

testified he began using controlled substances when he was twelve, stopped

using them only while in a juvenile residential treatment facility, and admitted to

daily use of marijuana after that stay. He has tried and failed three times in the

past to complete drug treatment programs. He also admitted using at least three

times during the course of the child-in-need-of-assistance proceeding.

While Thomas appeared to be honest and open about his marijuana use,

the drug screen test results belie Thomas’s contention that he had reduced his

marijuana consumption from daily usage when this case started to only the

occasional use. Thomas’s hair stat test in December 2015 was “probably one of

the highest the Department has seen for marijuana” at 17.63 pg/mg. The

screening cut-off for a positive test is 1.0 pg/mg. In February, two months after

the first test and after being informed of the steps necessary for him to gain

custody of M.S., Thomas’s test results were almost as high as it had been in late

December: 17.02 pg/mg. Despite this startlingly high result, Thomas claimed to

have only used once in those two months after a stressful family team meeting in

mid-January. The hair stat test on May 5 showed a reduced, but still very high,
 24

level of 11.39 pg/mg, in spite of Thomas’s claim that the last time he used was a

month earlier on April 6.

The urine analysis test results also do not show a decrease in usage over

the course of these proceedings.4 A test given on April 26 showed a level of

THC of 113. A test given two weeks later on May 10 showed a level of THC of

244. The screening cutoff for these tests is 50. Thomas had no explanation as

to why the level would increase so dramatically in two weeks when he claimed he

last used on April 6. His only explanation was his admission that he used a

“detox kit” before the April 26 test. Thomas admitted he used the kit to

“essentially mask whether or not THC [was] in [his] system.” Even Thomas

admitted he had not made any substantial progress towards sustained sobriety in

the five months he had been involved in services.

II. Life Stressors.

Of particular concern is Thomas’s concession that he uses marijuana to

help cope with stress. He admitted using marijuana following a confrontational

family team meeting in January. He admitted using marijuana in March when his

mother kicked him out of her house because of a fight they were having. He also

admitted using marijuana on April 6 after learning of the murder of a good friend.

The DHS worker remained concerned that raising a child is a stressful

endeavor and that if Thomas became stressed he may turn to his coping

4
The record in this case indicates Thomas had positive urine drug screens on February
18, March 23, April 26, April 27, and May 10. The only negative test came on February
14, but the DHS worker indicated she doubted the accuracy of that negative test in light
of Thomas’s admissions as to when he last used and the positive test result that
occurred four days later. The test result for March 23 indicated a level of THC above
500; the test on April 26 indicated a level of 113; the test the next day on April 27
indicated a level of 306; and the test on May 10 indicated a level of 244.
 25

mechanism—marijuana—while caring for M.S. and when not under the watchful

eye of the DHS representative. As noted by the DHS worker, Thomas “has a

lengthy history with the substance, and it is an illegal, mind-altering substance.”

And while the DHS worker had not seen him use drugs during a supervised visit,

all she and this court can glean from this record is Thomas’s continued use

based on the positive drug tests.

III. Anger Management.

Besides the continued marijuana use, DHS also had concerns about

Thomas’s anger management. As mentioned above, at the termination hearing,

Thomas admitted to escalating an interaction at a family team meeting in

January. After which he admitted using marijuana to help him cope with the

stress. In February, the DHS worker arrived at Thomas’s mother’s house with

M.S. for a supervised visit. Thomas had not been informed of the visit due to a

miscommunication and had to be awakened to exercise his visitation. With the

child present, Thomas let his frustration and anger at the miscommunication be

known to all present. The DHS worker testified Thomas was “very frustrated,”

“very agitated,” and “became very argumentative and defensive.” It was “pretty

hard to be able to calm him down.” Thomas’s family had to assist for thirty to

forty-five minutes to try to calm him down. The DHS worker made it clear that if

Thomas would not calm down, she would end the visit with M.S. “because it was

not an appropriate environment for [the child] to be in with [the] father that upset.”

A month later in the middle of March, Thomas’s mother kicked him out of

her house due to a conflict between the two, resulting in Thomas having to live

on friends’ couches for a month before he was able to obtain housing for himself.
 26

Again, due to the stress with his mother, Thomas admitted he used marijuana to

cope with the situation. Thomas’s anger problems long predate M.S.’s birth. For

example, just one year before M.S.’s birth, Thomas was arrested and spent forty

days in jail as a result of a physical altercation with his father. He admitted at the

time of the fight, he was consuming alcohol. Thomas’s mother related to the

DHS that Thomas “has always had anger issues and can go from 0 to 90 in a

matter of seconds when provoked.” Thomas agreed with his mother’s

assessment.

VI. Analysis.

A. Statutory Grounds for Termination. While Thomas was participating

in anger-management counseling at the time of the termination hearing and was

making some progress, Thomas’s pattern throughout this case has been to lash

out in anger and frustration when conditions are placed on him. To cope, he

turns to marijuana use. Thomas did comply in part with the DHS case plan by

maintaining employment and providing adequate housing, even after he was

kicked out of his mother’s house. But despite this minimal progress, I would find

termination is appropriate pursuant to section 232.116(1)(h), which requires, in

part, the State to produce “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)(4). “[A] child cannot be returned

to the custody of the child’s parent under section 232.102 if by doing so the child

would be exposed to any harm amounting to a new child in need of assistance

adjudication.” In re M.M., 483 N.W.2d 812, 814 (Iowa 1992).
 27

The time for determining whether a child can be returned to a parent’s

custody is the time of the termination hearing. See In re M.W., 876 N.W.2d 212,

223–24 (Iowa 2016) (“Finally, there is clear and convincing evidence in the

record that at the time of the termination hearing, the children could not be safely

returned to the custody of R.W. . . . Upon our de novo review, we conclude that

there is clear and convincing evidence in the record that the children could not

safely be returned to the custody of R.W. under Iowa Code section 232.102 at

the time of the termination hearing.” (emphasis added)). As noted, Thomas

admitted there had not been “any substantial progress towards sustained

sobriety” and admitted the child could not be “fully returned to him today.” He

conceded he would require “some unsupervised and overnight visits first,” a

request the DHS employee did not recall him making at earlier stages of the

proceedings. It was clear to the DHS that M.S. could not be returned to

Thomas’s custody at the time. M.S. has never been in Thomas’s custody since

birth and has never been cared for by Thomas in an unsupervised setting.

Despite five months of services, Thomas has been unable to progress beyond

supervised visitation with M.S. due to his continued use of marijuana and

cannabis oil. His attempts to address his anger problems remain a work in

progress. While the DHS casework did not have safety concerns during

Thomas’s supervised visitation, there has never been a time when his care of

M.S. has not been fully supervised by the DHS. Thomas himself testified the

child could not be returned to his care at the present time. M.S. is just as likely to

suffer an adjudicatory harm at the time of the termination hearing as he would
 28

have been if he had been placed in Thomas’s care the moment DHS became

aware of his paternity.

This is not a case where another relative has offered to assist an addicted

parent unable to care for the child. Cf. In re J.S., 846 N.W.2d 36, 42 (Iowa

2014). Thomas continues to claim he has abstained from marijuana use in the

face of test results that tell a very different story. He has not shown he could

provide a drug-free home for M.S.; he has no plan in place for M.S. to be cared

for when he is using marijuana; he has no plan in place for handling stress,

including the stress of caring for a very young child, other than turning to his

standard coping mechanism, his drug of choice—marijuana. See id. (noting the

children at issue had a grandparent who was willing and able to step in and

relieve the drug-addicted mother of her parenting duties when the mother “was

not up to the task”).

After five months of services, Thomas has only made minimal progress,

leaving this child imminently likely to suffer adjudicatory harm if returned to this

parent’s care. See Iowa Code § 232.2(6)(c)(2), (n), (o); see also id. § 232.116(2)

(requiring consideration of child’s safety and physical, mental, and emotional

condition and needs). “Child protection statutes ‘are designed to prevent

probable harm to the child and do not require delay until after harm has

occurred.’” J.S., 846 N.W.2d at 43 (quoting In re L.L., 459 N.W.2d 489, 494

(Iowa 1990)). Moreover, as is repeatedly cited in our case law, Thomas has

chosen to put his needs ahead of this child’s needs. In re J.L.W., 570 N.W.2d

778, 781 (Iowa Ct. App. 1997) (“At some point, the rights and needs of the child

rise above the rights and needs of the parents.”), overruled on other grounds by
 29

In re P.L., 778 N.W.2d 33 (Iowa 2010). By refusing to provide two clean drug-

tests, Thomas has continued to demonstrate his drug use is more important than

providing a drug-free environment for his child. This, coupled with his ongoing

anger management, continues to paint a picture where M.S. would be at risk of

adjudicatory harm if placed in his care. “Where the parent has been unable to

rise above the addiction and experience sustained sobriety in a noncustodial

setting, and establish the essential support system to maintain sobriety, there is

little hope of success in parenting.” In re N.F., 579 N.W.2d 338, 341 (Iowa Ct.

App. 1998).

B. Six-Month Extension. Thomas, admitting the child cannot be in his

care at the present time, requests a six-month extension of time to work toward

reunification. See Iowa Code § 232.104(2)(b). To grant such an extension, the

court must be able to enumerate specific factors or expected behavioral changes

that show the need for removal will no longer exist at the end of the additional six

months. Id. A three-month extension was already granted to Thomas, and I

agree with the district court an additional extension is not warranted here. What

progress Thomas has made has been tentative at best and does not indicate the

need for removal will no longer exist in six months. See In re A.A.G., 708

N.W.2d 85, 92 (Iowa Ct. App. 2005).

C. Impediments to Termination and Best Interests. Thomas also

contends his rights should not be terminated because of the closeness of the

parent-child relationship. See Iowa Code § 232.116(3)(c). The statutory factors

weighing against termination are permissive, not mandatory. In re D.S., 806

N.W.2d 458, 474–75 (Iowa Ct. App. 2011). The court has discretion, based on
 30

the unique circumstances of each case and the best interests of the child, to

apply the factors in section 232.116(3) to save the parent-child relationship. In re

A.M., 843 N.W.2d 100, 113 (Iowa 2014).

Under the circumstances, I conclude the permissive exception cannot

serve to preclude termination. Thomas knew he was this child’s father when the

mother became pregnant. Thomas took no action to become involved in the

child’s life until the DHS contacted him. Since then, Thomas’s only interactions

with this young child have been supervised visits of brief duration, and he had not

even requested his supervised visitations be increased or asked the DHS to

progress beyond supervised visitation as of the time of the termination hearing.

Moreover, my consideration of this child’s best interests militates against invoking

this permissive exception. See Iowa Code § 232.116(2). The child is not placed

in foster care but placed in the maternal grandparents’ home, who have

expressed a desire and willingness to adopt M.S. I would affirm the termination

of Thomas’s parental rights.

Vaitheswaran and Bower, JJ. join this dissent.