IN THE COURT OF APPEALS OF IOWA
No. 17-1197
Filed October 11, 2017
IN THE INTEREST OF J.M.,
Minor Child,
J.L., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Daniel L.
Block, Associate Juvenile Judge.
Mother appeals from the order terminating her parental rights pursuant to
Iowa Code chapter 232 (2017). REVERSED AND REMANDED.
Linda A. Hall of Linda Hall Law Firm & Mediation Services, P.L.L.C.,
Cedar Falls, for appellant mother.
Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer,
Assistant Attorney General, for appellee State.
Joslyn N. Sailer of Sailer Law, PLLC., Waterloo, guardian ad litem for
minor child.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
2
MCDONALD, Judge.
Jazie, the mother, appeals from an order terminating her parental rights in
her child, J.M., pursuant to Iowa Code section 232.116(1)(e), (h), and (l) (2017).
On appeal, the mother challenges the sufficiency of the evidence supporting
each of the grounds authorizing termination of her parental rights. She also
contends the State failed to make reasonable efforts to facilitate reunification of
the family and termination is not in the best interest of J.M.
I.
This family came to the attention of the Iowa Department of Human
Services (IDHS) and the juvenile court in February 2016 when police responded
to a complaint regarding the conduct of an occupant in a local hotel. In
responding to the complaint, the police found Jazie and her paramour in the hotel
room with J.M. The teenaged Jazie was staying in the hotel for a week while she
was transitioning into a new residence. At the time the police found her in the
hotel, Jazie had been self-medicating with marijuana. Two of her close friends
had recently committed suicide. She had suffered and was suffering from
medical issues that restricted her physically and caused her to lose her
employment due to non-attendance. The police found marijuana and a handgun.
Jazie testified the handgun belonged to her paramour. Jazie and her paramour
were arrested and charged with child endangerment and possession of a
controlled substance. IDHS removed J.M. from Jazie’s care at that time.
The child was adjudicated in need of assistance in March of 2016. At that
time, IDHS put in place a plan for services to reunify Jazie and J.M. The services
included mental-health treatment, substance-abuse treatment, parenting classes,
3
and visitation, among other things. At the time of the adjudication hearing, Jazie
was nineteen years old and J.M. was one year old.
Jazie made significant progress toward reunification with the child. She
terminated her relationship with the paramour. She began mental-health and
substance-abuse treatment. She obtained steady employment, including one
full-time management position and a second part-time position. She obtained
her own residence. The Family Safety, Risk, and Permanency (FSRP) care
coordinator testified the residence was safe and appropriate for the child. Jazie
attended parenting classes, applied the lessons learned, and bettered her
parenting skills. The FSRP care coordinator testified the visits between Jazie
and J.M. improved greatly. Her visits moved from supervised to semi-
supervised.
Jazie suffered a setback in the fall and winter of 2016. In September, she
tested positive for use of marijuana. Her visits were moved from semi-
supervised back to supervised. Nonetheless, in November 2016, the juvenile
court deferred permanency pursuant to Iowa Code section 232.104(2)(b)
because of Jazie’s “increased participation in services and follow through.” Jazie
continued with her services after the permanency hearing. She also continued
with visitation three times a week for three hours each visit. However, she tested
positive for marijuana three times between December 2016 and February 2017.
Based on the failed drug tests, the State filed its petition to terminate Jazie’s
parental rights, which the district court granted.
4
II.
We review de novo proceedings terminating parental rights. See In re
A.M., 843 N.W.2d 100, 110 (Iowa 2014). The legal framework for termination
appeals is well established. See id.; In re M.W., 876 N.W.2d 212, 219–20 (Iowa
2016) (stating review is de novo and setting forth the applicable “three-step
inquiry”). Importantly, we will uphold an order terminating parental rights only if
there is clear and convincing evidence of grounds for termination. See In re
C.B., 611 N.W.2d 489, 492 (Iowa 2000). “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.” In re M.S., 889
N.W.2d 675, 679 (Iowa Ct. App. 2016). This significant burden is imposed on the
State to minimize the risk of an erroneous deprivation of a parent’s fundamental
liberty interest in raising her child. Id.
A.
Jazie challenges the sufficiency of the evidence authorizing the
termination of her parental rights pursuant to Iowa Code section 232.116(1)(e).
Iowa Code section 232.116(1)(e) authorizes the termination of parental rights
when:
(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
5
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.
“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.” In re S.W., No. 15–0549, 2015 WL 3635722, at *4 (Iowa Ct. App.
June 10, 2015) (alterations in original).
The State failed to prove by clear and convincing evidence this ground to
support termination of Jazie’s rights. Jazie has demonstrated a continued
interest in the child. Jazie attended 99% of her three weekly visits with J.M. The
case worker testified the visits went well. Jazie made genuine efforts to comply
with the case plan. At the time of the termination hearing, she provided negative
drug tests. She was to be successfully discharged from substance-abuse
treatment. She was still attending mental-health counseling. She was
participating in parenting classes. She had attained financial stability, working
two jobs. She had also obtained safe and appropriate housing. The evidence
also showed she maintained an important place in J.M.’s life. The testimony
showed Jazie and J.M. were bonded. There is not clear and convincing
evidence Jazie failed to maintain significant and meaningful contact with J.M.
Termination pursuant to Iowa Code section 232.116(1)(e) was not proved.
6
B.
Jazie challenges the sufficiency of the evidence in support of paragraph
(l). Iowa Code section 232.116(1)(l) states the a court may terminate parental
rights when:
(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.
A “substance-related disorder” is defined as “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 functional impairment.”
Iowa Code § 125.2(14). When assessing the sufficiency of the evidence in
support of this ground, “[i]t is no longer sufficient for the court to assess in lay
terms whether the parent suffers from ‘a severe, chronic substance problem,’ as
the definition of substance-related disorder requires consideration of diagnostic
criteria from the DSM–V.” In re M.F., No. 16-0434, 2016 WL 2743488, at *3
(Iowa Ct. App. May 11, 2016); see also In re G.B., No. 14-1516, 2014 WL
6682456, at *4 (Iowa Ct. App. Nov. 26, 2014) (“The definition of substance-
related disorder requires consideration of diagnostic criteria from the DSM–5.”).
There was not clear and convincing evidence in support of this ground.
The State did not prove the mother presents a danger to herself or others. See
7
In re M.S., 889 N.W.2d at 682 (providing drug use alone, specifically marijuana
use, alone does not establish adjudicatory harm). The State argues Jazie poses
a risk of harm to the child as evidenced by the fact J.M. tested positive for
marijuana at the time of removal. This could serve as a prior act showing an
appreciable risk of danger to the child. However, that test result was more than
one year prior to the termination hearing. The social worker working directly with
the family testified she had no safety concerns about Jazie’s home or parenting.
The State also did not prove by clear and convincing evidence that Jazie’s
prognosis related to this condition precluded return of the child to her care. Jazie
was actively engaged in treatment at the time of the termination hearing. She
was a leader in her treatment group and showed no signs of relapse. At the time
of the termination hearing, Jazie had provided negative drug tests for two
months. Jazie’s prognosis was good and showed she would be able to provide
care for the child if returned to her care.
We conclude the State failed to prove by clear and convincing evidence
that Jazie is a danger to herself or others and that her 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.
C.
Jazie also challenges the sufficiency of the evidence supporting the
termination of her rights pursuant to Iowa Code section 232.116(1)(h). The
parties only dispute section 232.116(1)(h)(4), which requires “clear and
convincing evidence that the child cannot be returned to the custody of the child’s
8
parents as provided in section 232.102 at the present time.” Under this element,
a child cannot be returned to a parent if the child would remain a child in need of
assistance or would be exposed to harm amounting to a new child-in-need-of-
assistance adjudication. See In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). “We
have interpreted this to require clear and convincing evidence the child[] would
be exposed to an appreciable risk of adjudicatory harm if returned to the parent’s
custody at the time of the termination hearing.” In re E.H., No. 17-0615, 2017
WL 2684420, at *1 (Iowa Ct. App. June 21, 2017).
It is not disputed that Jazie relapsed during the course of these
proceedings, testing positive for marijuana in the fall and winter of 2016. This
was the primary fact supporting IDHS’s recommendation to terminate parental
rights. The IDHS case manager testified J.M. should not be returned to Jazie
because of “[h]er ongoing continued use of illegal substances . . . and the overall
safety of the child. I think that mom is young and still has some parenting skills
she needs to learn and she has not followed through with those court-ordered
requirements.”
We conclude the State failed to prove by clear and convincing evidence
the nexus between marijuana use and harm to the child. “[T]he mere fact of
[drug] use does not establish adjudicatory harm.” In re M.S., 889 N.W.2d at 682.
The State must show a “nexus” between the parent’s drug use and “appreciable
risk of adjudicatory harm to the child.” Id. The most relevant authority regarding
the nexus between marijuana use and adjudicatory harm is M.S. In that case,
the father regularly exercised visitation with the child and built a bond with the
child. However, the father tested positive for marijuana during the course of
9
proceedings. At the termination hearing, the father testified his days of use were
behind him. A social worker testified the father’s conduct was never a safety
concern with respect to the child. Id. This court found the State failed to prove
the child would be exposed to an appreciable risk of adjudicatory harm on the
facts. Id.
Similarly, in this case, Jazie exercised regular visitation with the child and
built a bond with the child. The evidence showed the child had difficulty
separating from Jazie at the end of visitation. Like the father in M.S., Jazie
demonstrated the capacity to overcome her substance abuse. There is no
evidence she was ever under the influence of drugs while caring for J.M. after the
incident that led to the child’s removal. She tested negative in the months
preceding the termination hearing. Her substance-abuse counselor testified
Jazie was actively engaged in treatment, was a leader in her treatment group,
and displayed no behavioral indicators of relapse. Jazie’s IDHS case manager
did testify to one visit to Jazie’s home where the home smelled of marijuana in
February 2017. Although concerning, we find termination should not be
supported by this testimony because the child was not in Jazie's care at the time
and Jazie's FSRP coordinator visited Jazie's home far more frequently without
issue. The FSRP coordinator attended visitations in Jazie’s home three times
per week but never raised any concerns regarding marijuana use in the home
and testified the home was safe and stable. The coordinator testified the visits
were appropriate and Jazie was attentive to J.M.’s needs.
We also find it insufficient to establish the child would be exposed to an
appreciable risk of adjudicatory harm merely because Jazie is young and has
10
parenting skills to learn. The fact Jazie is young militates in her favor. She has
the capacity to change. See In re L.P., No. 06-0458, 2006 WL 2265258, at *1
(Iowa Ct. App. Aug. 9, 2006) (holding “termination is not appropriate under the
circumstances of this case involving an immature, yet loving and otherwise
capable mother.”). The evidence showed she has. Jazie attended parenting
classes. Jazie’s social worker testified Jazie was very cooperative with these
services and made dramatic improvements in her parenting during visits with
J.M. We reject IDHS’s contention that Jazie needlessly delayed participating in
parenting classes. She enrolled in the programs IDHS identified for her, but
there was a waitlist for the programs.
There is additional reason to believe J.M. would not be exposed to an
appreciable risk of adjudicatory harm if returned to Jazie’s care. Since this case
was initiated, Jazie has maintained stable employment at two restaurants,
working more than full-time, for an extended period of time. She is even in a
managerial role at one of her jobs. She has obtained financial stability. Financial
stability is an important indicator of increased maturity and appropriate parental
supervision. See In re N.S., No. 13-0598, 2013 WL 3279985, at *5 (Iowa Ct.
App. June 26, 2013) (noting the importance of a history of stable housing and
employment in the ability to offer a safe environment); In re T.B., No. 03-1425,
2004 WL 57739, at *2 (Iowa Ct. App. Jan. 14, 2004) (repeatedly emphasizing a
lack of consistent employment as an indicator of irresponsible parenting); In re
D.T.J., No. 02-0943, 2002 WL 1758417, at *1 (Iowa Ct. App. July 31, 2002)
(explaining a lack of consistent employment and ability to support a child, along
11
with a lack of stable housing and transportation, were critical facts in terminating
parental rights under paragraph (h)).
Jazie has a strong support system to maintain sobriety and continue to
grow as a parent. She maintains a close, lifelong relationship with her
godmother Alicia, who has training in social work. Alicia testified to Jazie’s
dramatic growth in maturity and parenting skills. Alicia serves a strong mentoring
role in Jazie’s life. Barbara, another close friend of Jazie, testified on Jazie’s
behalf. The two have been friends for over six years. Barbara is incredibly
supportive of Jazie’s relationship with J.M. Jazie also testified to her supportive
peer groups at her places of employment. Strong communal relationships are
another factor we consider in determining the safety of the child and future
prospects for responsible parenting. See In re A.M.E., No. 11-0074, 2011 WL
944423, at *3 (Iowa Ct. App. Mar. 21, 2011) (mentioning community support as a
factor in the transition to responsible parenting); In re N.F., 579 N.W.2d 338, 340
(Iowa Ct. App. 1998) (noting the importance of a support system to maintain
sobriety).
“Children do not need to have perfect parents to succeed. In fact,
imperfect parents have valuable life lessons to impart.” In re K.S., No. 16-0605,
2016 WL 5933516, at *3 (Iowa Ct. App. Oct. 12, 2016). We recognize that Jazie
is not a perfect parent. She has made some mistakes in the past year and a half.
But she has also demonstrated the capacity for change and self-improvement.
The trial testimony reflects she will likely continue in that direction and be able to
provide appropriate and safe care of J.M. if given the opportunity. There is not
12
clear and convincing evidence that J.M. would be at an appreciable risk of
adjudicatory harm if returned to Jazie’s care.
III.
For the foregoing reasons, we reverse the termination of Jazie’s parental
rights in J.M.
REVERSED AND REMANDED.