In the Interest of P.C. and D.C., Minor Children, J.S., Mother

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.
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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.
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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.
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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
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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
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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
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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
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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
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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.
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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
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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.
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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.