In re Interest of M.S., No. 16–0975.

• Court: Court of Appeals of Iowa
• Writing for the Court: McDONALD, Judge.
• Citation: 889 N.W.2d 675
• Parties: In the Interest of M.S., Minor child, T.B.-W., Father, Appellant.
• Decision Date: 26 October 2016
• Docket Number: No. 16–0975.

889 N.W.2d 675

In the Interest of M.S., Minor child,

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

No. 16–0975.

Court of Appeals of Iowa.

Oct. 26, 2016.

889 N.W.2d 677

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.

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, 102 S.Ct. 1388, 71 L.Ed.2d 599 (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.

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—

889 N.W.2d 678

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 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, 98 S.Ct. 549, 54 L.Ed.2d 511 (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, 64 S.Ct. 438, 88 L.Ed. 645 (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 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, 98 S.Ct. 549. 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.

889 N.W.2d 679

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, 102 S.Ct. 1388. 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 prove each of the elements of its case.See id. at 769, 102 S.Ct. 1388 ("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...