Opinion
No. 2-756 / 02-1295
Filed October 16, 2002
Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge.
Father appeals from the order terminating his parental rights to his daughter. REVERSED.
Dan McClean of McClean Law Offices, Dyersville, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Jean Becker, Assistant County Attorney, for appellee-State.
Monica Ackley, Dubuque, guardian ad litem for minor child.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
Derrick T. appeals from the order terminating his parental rights to his daughter, Derricka, who was born on June 12, 2001. We conclude the State failed in its burden to prove by clear and convincing evidence the elements necessary for termination, and therefore reverse the termination.
Derrick was not married to Derricka's mother, Leola H., and he received Derricka's custody when she was removed from Leola's care the day after her birth due to Leola's illegal drug use. The juvenile court later adjudicated Derricka in need of assistance (CINA), pursuant to Iowa Code section 232.2(6)(n) (2001). However, Derricka was returned to Leola's care in August of 2001, after Leola secured a place to live and became more self-sufficient. On December 11, 2001, Derricka was again removed from Leola's home and placed in the custody of the Department of Human Services (DHS) for foster care placement.
On June 21, 2002, the State filed a petition seeking to terminate the parental rights of Derrick and Leola to Derricka. Following a trial, the court terminated Derrick's parental rights to Derricka pursuant to section 232.116(1)(h) (Supp. 2001). The court found that during Derricka's placement with Derrick he left Derricka with individuals unknown to DHS, failed to take advantage of offered daycare services, and spent inappropriate amounts of time driving around with Derricka. The district court noted its belief that due to Derricka's age she was imminently adoptable, and concluded termination was therefore in her best interests. Derrick appeals from this order.
The court also terminated Leola's parental rights to Derricka. She does not appeal from this order.
We review proceedings to terminate parental rights de novo — we review the facts as well as the law and adjudicate parents' rights anew. See In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). We give weight to the findings of the juvenile court, particularly with respect to the credibility of witnesses, but are not bound by them. See In re L.L., 459 N.W.2d 489, 493 (Iowa 1990). The State must prove its case for termination by clear and convincing evidence. See In re K.L.C., 372 N.W.2d 223, 228 (Iowa 1985). "Clear and convincing evidence" means there are no serious or substantial doubts as to the correctness or conclusions of law drawn from the evidence. See Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct.App. 1983). The "clear and convincing evidence" standard of proof is more than a preponderance of the evidence and less than evidence beyond a reasonable doubt. King v. King, 291 N.W.2d 22, 23 (Iowa 1980).
In order to prove termination was appropriate pursuant to section 232.116(1)(h), the State was required to establish by clear and convincing evidence that the child (1) is three years of age or younger, (2) has been adjudicated CINA, (3) has been removed from the parent's physical custody for at least six of the last twelve months or the last six consecutive months, and (4) cannot be retuned to the custody of the parent at the present time. We find the first three elements were unquestionably met, and therefore turn our attention to the question of whether the State met its burden to prove Derricka cannot be returned to Derrick's custody.
In its termination order, the juvenile court focused primarily on the factual and legal predicates for termination of Leola's parental rights. Its factual findings with regard to Derrick are quite meager. Specifically, the court found that when Derrick had placement of Derricka, the DHS "had several points of concerns," including that he would leave her with persons unknown to the DHS, that he did not take advantage of offered daycare services, and that he spent inappropriate amounts of time driving in his vehicle with Derricka as a passenger. The court also found that, after DHS returned Derricka to Leola, Derrick had little contact with her or DHS. Finally, it noted that at the time of the termination hearing, Derrick was in custody awaiting trial for a felony drug conviction.
Upon our de novo review of the entire record, we conclude the court erred in its determination that the grounds of termination regarding Derrick were established by "more than clear and convincing evidence." We conclude the reasons given by the court for its decision to terminate Derrick's parental rights, either individually or collectively, do not constitute clear and convincing evidence Derricka cannot be returned to Derrick's care. See Iowa Code § 232.116(1)(h).
First, the juvenile court credited the DHS's concerns that Derrick was leaving Derricka with individuals who were not DHS-approved. At trial it was revealed that the DHS was concerned with three particular incidents where unauthorized individuals cared for Derricka. The first was Ariene, Derricka's teenaged sister, the second a roommate of Derrick, and the third an unknown individual. Although we defer to DHS's opinion this situation was not optimal, without at the least some corresponding evidence these were dangerous individuals or that they in fact provided unsafe or inappropriate care to Derricka, we find such evidence insufficient to constitute clear and convincing evidence that Derrick could not safely resume care of his daughter.
In addition, the court appeared to place great significance on the fact that Derrick could not assume care of Derricka following the termination hearing because he was then incarcerated awaiting trial on a drug charge. A parent's unavailability caused by incarceration is not a defense to a termination action. See In re R.L.F., 437 N.W.2d 599, 602 (Iowa Ct.App. 1989). However, at the termination trial Derrick testified the prosecutor had offered him a suspended sentence and that he expected to be discharged from jail on the day of the termination hearing. This evidence was unrefuted by any evidence offered by the State. Consequently, the court's conclusion Derrick could not because of incarceration assume care of Derricka following the termination hearing is not supported by clear and convincing evidence.
The record does support a finding that Derrick did not contact DHS with any regularity and that he did not fully take advantage of services. However, by most accounts Derrick did have appropriate visits with Derricka, she did well while in his custody, and the two were quite bonded. Family therapist Jodi Knautz testified that Derrick was cooperative for the first three weeks during his short-lived custody of Derricka. Reports entered into the record consistently contain such notations as "Derricka and her father appear quite bonded," "[t]he interaction is always appropriate between Derrick and his daughter," "he does very well with her," "he appears to be providing for her needs," and "Derrick does fine with his parenting." These are not the types of comments routinely made about parents whose rights the State seeks to terminate. See Harter v. State, 260 Iowa 605, 609, 149 N.W.2d 827, 829 (1967) (noting case history records are entitled to much probative force when a parent's record is being examined).
Moreover, we find it important to note that when Derricka was removed from Derrick's care and returned to Leola, the reason was not due to his lack of cooperation with DHS or any particular failings on his part. As noted, for the first three weeks of Derricka's placement with Derrick, family therapist Jodi Knautz found Derrick to be cooperative with her attempts to teach him simple parenting skills and how to provide a routine for his daughter.
Accordingly, upon our de novo review, we conclude the State failed in its burden to present clear and convincing evidence of each element necessary for termination. Although Derrick certainly cannot claim a flawless record as a parent, the record of his shortcomings does not clearly and convincingly prove that Derricka cannot be returned to his custody if reasonable reunification services are provided. Moreover, the State has not established on this record that Derricka's best interests require termination of Derrick's parental rights at this time.