*1 A.R., D.R., J.C. Interest of In the Children, J.C., Minor Mother,

A.M., Appellant.

No. 14-1204. of Iowa. Appeals

Court

Feb.

Erin M. P.L.C., Carr of Carr & Wright, Moines, Des appellant. Miller,

Thomas General, J. Attorney Miller-Todd, Kathrine S. Assistant Attor- General, ney Sarcone, John P. County At- torney, Chenoweth, and Michael Assistant County Attorney, appellee. Johnson, Altoona, Deborah for father of D.R. and A.R.

William Firm, Sales of P.C., Sales Law Moines, Des for father of J.C. and J.C. Charles Fuson Center, of Youth Law Moines, attorney Des guardian li= ad tem for minor children.

Considered POTTERFIELD, P.J., MULLINS, and TABOR and JJ. MULLINS, J. appeals mother from the termi-

nation of her rights to four chil- The Court was asked to and did make Code dren 232.116(l)(d) (2013).1 ruling in the permanency CINA cases Although January directing the TPRs to on six different for termination petitioned be filed. court ter- statutory grounds, rights pursuant,

minated the mother’s hearing April Termination was held *3 (l)(d) only. Because the record subsection 24, 2014. convincing clear and not show does identifying After the children and the that there was a child-in-need-of- evidence findings: the court made these parents, (CINA) adjudication prior in a assistance 8. The Mother has addressed a nonacci- or that there was

proceeding any of the reasons which the children in the injury any to of the children dental adjudicated in were the CINA cases. we reverse proceeding, current CINA provided drug The Mother has not 9. rights of the parental termination of the screens. mother. largely un- 10. The Mother has been cooperative profession- with and all I. BACKGROUND als and social workers. case, alleged the statu- In this testimony 11. The Mother’s from tory for termination were April 2014 best indicates that she (k) 232.116(l)(d), (f), (g), Code section acknowledge any refuses to need for (i). The court summarized and assessment, mental health treatment or case as background of the procedural counseling. follows: 12. The record establishes that .over petitions for all four children cases, the course of the child welfare she January filed in late 2013. Children half of the visits approximately attended all from Mother’s care. were removed children. with her removal, confirming Subsequent orders 13. The bottom line is Mother in need of assis- adjudicating children actively in large has been measure tance, entered in disposition and for in this working against professionals thereafter Winter/Spring 2013. Court case, any changes in unwilling to make hearings. held review Children obvious need in despite her own life custody never returned to Mother’s minimally adequate order for her be The anytime throughout [C.] the case. or four children. parent as a to one to Father’s cus- children were returned reviewed Upon backdrop, the court in or 2013 and have tody about October Iowa Code section requirements there remained reunited with Mr. [C.]. 232.116(l)-(3) analysis: provided have in other children [R.] concludes the State court hear- The Court placements and as of the last is met as the statu- family proven subsection d ing, the children were [R.] as pursuant tory ground supporting foster care and remain there her and termination of ] to the Mother Undersigned’s [ orders and understand- statutory same parental rights. ings of this time. as father, younger chil- parental nated 1. The two oldest children share (l)(d) youngest a .father. well. the two children share dren’s father under subsection termination, Following However, younger chil- the father of the two father, placed the children with their older appeal. dren does not they termi- where have remained. The court met as to Father be child need assistance after [of is deemed [,and] such a as it relates to his younger children] child in Subsequent to his two children need adjudication, parents assistance In the interests of time named herein. (cid:127) to cor- were offered or received services deems it most finality the Court rect the circumstance which led to the rely upon this statuto- prudent simply adjudication, and the circumstance con- does not find or ry ground. The Court despite tinues to exist the offer or re- consider this to be close case. ceipt of services. background will Additional facts be appeal, For the mother’s first issue on developed below. argues: prove she “The State has failed to convincing clear that the evidence *4 II. STANDARD OF REVIEW Mother was offered or received services to correct the circumstances which led to the paren review termination of We adjudication or the circumstances still AM., rights tal de novo. In re 843 exist despite offering receipt or of (Iowa 2014). N.W.2d 110 We will argument services.” Her focuses on her uphold terminating an order parental arrangements claims that the visitation rights convincing where there is clear and inadequate to allow her to demon- statutory grounds evidence of the for ter parenting progress strate her skills and to D.W., mination. In re 791 N.W.2d toward reunification with her children. 2010). (Iowa 706 Evidence is clear and In order to determine what circum- convincing when there no is serious or stances led to the and re- substantial doubt as to the correctness of correction, quired adjudi- look to the we the conclusions of law drawn from the The'juvenile cation order. court made evidence. Id. findings of fact which included: 3. There convincing is clear and evi- III. ANALYSIS support allegations dence to theAs court chose to ter Petition(s) adjudicat- & the children are only 232.116(l)(d), only minate under ed in pursuant need of assistance J.B.L., ground.2 consider that See In re Section(s) 232.2(6) Iowa Code and the Ct.App.2014). 704 aid of the required, per ground Court is parental rights To terminate under Iowa 4. The following Court makes the' 232.116(l)(d), Code section the State must specific findings of facts: Exh. 1 2& show significant dated evince concerns 3/12/13 supervise- associated with failure to chil- adjudi- 1.The court previously has allowing inappropri- dren & unvetted & cated the child to be in need of assis- (note: persons provide ate care court tance after the child to have investigation advised of SA re child physically sexually abused or unfounded). [Jo.C.] neglected as the result of the acts or omissions of parents one or both or the specify The court did under which .not previously adjudicated a child paragraph of section it found the who a family is member of the same to children were CINA.3 On our de novo re- specific finding petition allegations 2. The court made a on the 232.116(1)®, under section case, (k) {l). (g), that this was not close but did not rule parental

3. The to terminate or neglect identi- nent likelihood abuse examined exhibits view we have required a would be under section findings of fact. Exhibit is fied in the 232.2(6)(b); and on our de Assessment Sum- novo review we Protective Service Child next and Ja.C. The find none. We focus on whether the to children Jo.C. mary as agree children for with which we founded as to both report was —deni- provide provide al of critical care and failure to critical care and failure denial of proper supervision satisfy Exhibit is Child the re- proper supervision. —could 232.116(l)(d) section Summary quirements Assessment ter- Protective Service D.R., Ja.C., Jo.C., and A.R. mination. as to children allegation of de- report concludes the case, case, In a CINA not a termination care, provide prop- critical failure to

nial of explained: “a CINA confirmed; allegation supervision er 232.2(6)(b)4 determination under section confirmed; and the physical abuse is may to termination lead ma- allegation of “allows access obscene 232.116(1)(d), under whereas a not confirmed. terial” is CINA determination adjudica- 232.2(6)(c)(2) Pursuant to the terms of J.S., cannot.” ' and the exhibits referenced (Iowa 2014). tion order J.S., N.W.2d order, which existed the circumstances im deciding court was concerned with adjudication were denial at the time of the physical minent likelihood of harm for a *5 provide prop- critical care and failure to of determination under section CINA sup- supervision. 232.2(6)(b). er This would seem part analysis, As of its under section port a CINA determination explained: court 232.2(6)(c)(2) (n). pro- sections These “[Pjhysical neglect” abuse or and “abuse in of is a child: vide a child need assistance in neglect” or are terms of art this con- n (c) imminently has suffered or is Who chapter “physical text. Within a re-

likely to harmful effects as suffer neglect” neglect” abuse or and “abuse or following: of of the sult injury “any physical mean nonaccidental suffered a child as the result of the (1) .... (2) parent, or omissions of the child’s parent, of the child’s acts The failure person custodian, guardian, or custodian or other or other member guardian, Id. for the child.” legally responsible in the child of the. household which 232.2(42). § to exercise a reasonable de- resides supervising of in the child. gree care Id. 232.116(l)(d) requires that “[t]he Section (n) guardian’s or mental parent’s Whose adjudicated the child previously court has condition, imprisonment, or or capacity finding in assistance after to be need of in child drug or alcohol abuse results sexually physically have been or child to adequate care. receiving Applying the defi neglected.” abused §

Iowa Code 232.6. from neglect” abuse or “physical nition of J.S., in explained find- The court at made no 232.116(l)(d) analysis, it or immi- our section ing physical neglect of abuse or physically of Finding parent a "has abused alleges adjudicated under "the children were b, 232.2(6), c(2) child, imminently likely n." neglected Section or is Iowa Code paragraph identifications We find-no such neglect the child.” abuse or ruling. the CINA (d) that on appeal.” Marriage to see a termination under de novo In plain re of requires physical injury.5 Full, (Iowa 1977). In words, may rely the term “or analysis Our would end here but for neglected,” as the has ex allegations some additional both “physical art plained the term of petition peti- CINA and the termination neglect” requires abuse nonaccidental tion. The CINA alleges injury.6 physical two father of of. the children “had his if Even we were to assume the tp terminated child another adjudication was court’s CINA based on a 2012,” alleges that all of but one 232.2(6)(b) finding imminent present children case “have been (which likelihood of physical harm we do previously involved with Court.” Juvenile not), the record before the court in its parental rights terminate determination and the record before four, alleges two of the pre- children “were in the support us termination case does not viously jurisdiction under the of this physical injury. nonaccidental February through from December Accordingly, prong the first of section due to mental health issues 232.116(l)(d)(l) is not satisfied. usage.” chronic THC of a absence CINA determination that sat- (d)(1), isfies we have no identification of 232.116(l)(d) Section uses the term “has statutorily authorized circumstances which previously adjudicated” to be a the child (d)(2). require correction under previ- CINA and the clause “the court has ously adjudicated a child who is a member

areWe mindful that the mother in family of the same to be a need of child in this case did not precise argu raise this assistance after such a finding.” our (d)(1). ment under But on de novo give effort to effect to provision each (d)(2), review the issue she raised implicated case, statute the facts of the the State cannot it show that satisfied the *6 that recognized allegations of the (d)(2) requirements of predicate as the cir CINA and the termination (d)(1) cumstances set forth in were not may seeking shown above have been ignore satisfied. We cannot or counte rely on either a CINA made nance a termination a statutory previous to the current proceedings ground when after a de novo review we and/or prior termination of parental of necessary discover have no elements facts the father of all in two of the four support. at children. responsibility “[I]t is our This possibility prompted to review the facts as well as the law this court and sponte raise a question determine from the sua concerning credible evidence difference, terms, if any, anew on those “the propositions properly between the provided ‘previously adjudicated’ presented, has issue been and ‘has been ad- ” error, judicated,’ raised and if any, preserved in as those phrases are used in 232.116(l)(d). proceedings. weight trial While will be section requested The court given parties of the trial provided and the additional brief- will court not abdicate its function as trier ing on the issue. A.B., We are

5. mindful that a termination under case In the of In re 815 N.W.2d 764 (Iowa 2012), 232.116(l)(d) supreme may supported be also court affirmed 232.116(l)(d) abuse, relying a termination of sexual but need not neglect finding in the CINA determination. analyze that term under the facts of this case. opinion. We discuss that case later in this the father’s 232.116(l)(d) [of requires “[t]he Section granted. child have been adjudicated rights] should previously has court juvenile Iowa Code separate proceedings, of assistance.” to be in need added). 232.116(l)(d)(l) Nine (emphasis adjudicated already § both N.H. and ethat requir subparagraphs in need of assis- subsequent C.H. to be children ” a child in adjudicated “has been pro- the child court in those tance. The 232.116(l)(e), §id. of assistance. See need ceedings found there was clear and con- (em (n) (m), (k), (i), (f), and (j), (g), vincing engaged evidence that the father added). re subparagraph One phasis extraordinary emo- rigid pattern in a definition child “meets the that the quires stepchildren on his and tional abuse id. of assistance.” See child need period years and that he N.H. for 232.116(l)(d)(i). remaining subpar- § in similar abuse of his older engaged determi require any CINA agraphs do not Further, natural children. the children (c), 232.116(l)(a), (b), § nation. See id. torturing frequent recipients (o ).7 by the fa- physical abuse administered during pen- was born ther. C.H. court decided was ad- N.H., dency proceedings of those case of In re of assistance judicated a child need 1986), Iowa Code section applied 232.116(3) acts toward the (1985), version of what based on the father’s early an 232.116(1)(d). family. The court in the The court other children is now section the female children had been a decision noted that reversed sexually stated: abused the father and preoccupation also had some with the he leads us to review of the record Our sexuality of the male children. petition for conclude that the mother’s (i) based on Child meets summary elements of sub- 7. A of the essential definition life, neglect, significant (o) risk (a) abuse through of section sections danger, would not cor- imminent services significance of the helps illustrate the further time. rect reasonable possible requirements for each CINA, adjudicated par- (j) been Child has termination: against imprisoned child and ent for crime (a) consent Parents’ five unlikely to be released for least (b) abandoned or desert- Child has been years, ed CINA, (k) adjudicated Child has (c) voluntary released Newborn infant dangerous, parent with mental illness *7 CINA, (d) adjudicated previously Court child in rea- prognosis prevents return of services, cir- parents offered or received time sonable to exist cumstance continues CINA, (l) adjudicated has been Child CINA, (e) adjudicated re- been Child has parent with severe substance abuse time, sig- statutory parents lack moved dangerous, prognosis prevents return meaningful contact nificant and of child in reasonable time (f) CINA, been years or older has Child four (m) adjudicated has been Child CINA, statutory adjudicated removed for imprisoned felony and parent convicted time, cannot be returned neglect of child for abuse or CINA, CINA, adjudicated (n) (g) adjudicated been Child has has been Child specified as to another child of éndan- parent court has terminated child convicted crimes, unwilling danger re- child family, parent unable or to germent imminent services, (o) felony delay offense spond additional would convicted of sex Parent circumstances, minor, minimum other not correct on (h) years. younger at least five years three confinement of Child CINA, (emphasis add- § statutory Code adjudicated See Iowa removed ed). time, cannot be returned that unless court commented there was from the termination by case commenced unexpected change Thus, a remarkable the mother. previously a court had condition, psychological the father’s adjudicated CINA, N.H. and C.H. to be imagina- were not safe from his children and a subsequent termination proceeding ways abusing tive the children. was commenced without a current or new proceeding allegation. CINA This result ... of appeals The court affirmed the follows a plain reading of what was then juvenile court’s in an unpub- decisions (1985), Iowa Code section 232.116 and is R.E., opinion. lished In re 232.116(1)(d). our current section (Iowa [App.]1983).... appeal Also the record is a recently, supreme More court has report of counseling by received the fa- which, N.H., decided a citing case without adjudications.... ther after the CINA applied “previously adjudicated” the clause ... The evidence is clear and convinc- proceeding. to a current In the case of ing A.B., that the services offered to and re- supreme juve court affirmed a by ceived the father have not corrected nile court order terminating pa father’s the situation which physical led to the rental Iowa Code section by abuse of 232.116(1)(d).10 N.H. the father. 815 N.W.2d at 764. The father’s to another previ child had N.H., 383 N.W.2d at (holding 573-748 ously been terminated. Id. at 766. In P.L., grounds by modified 2011, April adjudicated the children were (Iowa 2010)). 778 N.W.2d 33 CINA based on findings placement In January peti- the mother filed a “the home contrary would be chil tion to parental terminate the father’s dren’s improper welfare because of super rights to N.H. and C.H. Id. at 571. exposure vision and illegal drugs.” Id. August court had or- at 767. Services were offered and re dered the father to remove himself from ceived the father. Id. at 776. home based on he had abused N.H. and her half-siblings. two In Febru- September the State filed a ary N.H. and the half-siblings to terminate the rights of adjudicated later, CINA. A month C.H.9 the father. Id. at 768. a hearing, After adjudicated CINA based on the earli- the court terminated the parental rights to er CINA of N.H. and the two pursuant two children to Iowa Code sec- half-siblings. 232.116(l)(d), (l). Following ap- the father’s tion (g), Id. at peal adjudications, from those 1983 CINA appealed. The father Id. at 772. the court of appeals affirmed the After court appeals a ruling issued court’s signifi- decisions. Id. at 573. The juvenile court, to reverse the supreme cance of N.H. to our analysis is that the granted request State’s for fur- adjudications were in proceedings ther review. Id. at 772-73. commenced separate appeals vacated the court of decision *8 8. A matter of contention in supreme the N.H. case was by 10.The a reversed decision timing receipt of the offer or of services appeals the Iowa court of which had reversed intended to correct the circumstances which juvenile court. ruling, In its termination N.H., adjudications. led to the 383 N.W.2d at juvenile court had relied on Iowa Code 570-574. 232.116(l)(d), (h), (l). (g), section and 2012 WL 1247106 at n 4 A.B., 12-0133, No. 9. C.H. was born after the father had been 11, 2012). Ct.App.Apr. ordered to remove himself from the home. that led to the circumstance [the] “whether proper was and found 232.116(l)(d). to exist de- adjudication After continued Id. at 776. CINA section 232.116(l)(d), fa- spite [the the court the offer of services quoting however, that ignore, We cannot ther].” stated: that court determined A.B. and S.B. that dispute is no There pred- formed the adjudication which based on adjudicated as CINA adjudica- icate to the termination was by neglected findings they had present course of the tion made uncontested CINA In its parents. both 2011, try must to reconcile what case.12 We April order of adjudication applications to be different appear “placement that court concluded adjudicated” “previously clause between neces- [wa]s home outside the A.B. in or the cases of N.H. and placement sary because continued contrary be to the home would a return N.H., analy- pattern fact and the The of im- welfare because to the children’s conclusion that support a sis to ille- exposure supervision proper 232.116(l)(d) permit a ter- designed here is fighting The issue gal drugs.” the need for a proceeding mination without led to this circumstance whether if adjudication current CINA continued to ex- the CINA have been satisfied. Most prerequisites [the services to despite the ist offer of 232.116(1) subparagraphs of remaining ]. father if the child “has been allow for termination added). (emphasis Id. at 775 CINA, opposed to the sub- adjudicated” as (d) requirement the court paragraph quote in the emphasis As shown adjudicated” CINA.13 previously in A.B. was “has above, issue fighting July justice laws effective an revised the parties apparently did not raise The 11. § Acts ch. 1088 65. The adjudica- 1979. 1978 Iowa concerning a CINA whether issue pre- legislation which was the section of that neglect support a termi- would tion based on 232.116(l)(d), 232.116(l)(d). current section Compare decessor to our nation under section J.S., A.B., effect when N.H. was the statute in at 775 with and was decided, follows: read as N.W.2d at 41. that: 3. court finds tech- acknowledge that as a matter of parents physically We has a. One or both separate filings, child; a the CINA case is nical court sexually abused the case, having a court file from the termination adjudicated previously b. The court matter, practical separate number. As case a child in need of assistance the child to be however, cases the case in most termination physi- to have been after the child continuously case. from a CINA flows sexually the result of the cally abused as Cf. N.H., 383 N.W.2d at 573. parents, parent or omissions of the acts or adjudicated a previously or the court has require subsequent subparagraphs 13. Nine family of the same child who is a member ” adjudicated child that the child “has been after such a child in need of assistance to be 232.116(1)(e), §id. in need of assistance. See finding; and (k), {l), (m), (n) (£), (emphasis (g), (j), convincing evi- There is clear c. added). requires that the subparagraph One or were parents had received that the dence child in need of the definition of child "meets to correct situation services offered 232.116(l)(d)(i). § See. id. assistance." abuse. which led to the require any remaining subparagraphs do (1979), § 232.114 renumbered Code 232.116(l)(a), §id. CINA determination. See § in 1981. 232.116 (o); (b), (c), and footnote above. 7, 1986, just the March May weeks after On decision, legislature amend- N.H. history legislative of section A review of the (c) to read paragraph 232.116(l)(d) analy- perspective ed to our adds Legislature completely as follows: the Iowa sis. *9 the context of all other subparagraphs any any analysis citation N.H. or as to 232.116(1) N.H., holding significance, and the in if any, termi- “pre clause (d) viously adjudicated.” nation subparagraph proper- can We also note that ) (l)(d ly adjudication allegations an termination prior frequently be based on in a in appear termination petitions together proceeding separate from the pro- current — multiple with statutory grounds— ceedings leading to termination. without allegation of a CINA From a appeals review the court of having granted in a previous case A.B., opinion in subsequent and the su- See, C.W., proceeding. e.g., In re No. 14- preme ruling vacating the court of 1501, (Iowa 5865351, 2014 WL Ct.App. *1 appeals, appear it would the issue of 13, 2014); E.R., 08-0333, Nov. In re No. meaning of the term “previously adju- (Iowa 1885617, 2008 WL *1 Ct.App. Apr. dicated” was argued. not raised or We 30, 2008); S.E., 01-1815, No. repeat supreme court’s identification of n 31640707, WL Ct.App. Nov. fighting issue: fighting “The issue 2002). here is whether this circumstance that led adjudication to the We reconcile N.H. and A.B. con continued to ex- cluding that our despite ist court has the offer of deter services to [the a “previous adjudication” mined father].” Id. at 775. The should be pattern fact in interpreted to adjudication mean an A.B. and the conclusion ei reached prior ther a or the current proceeding so support a conclusion “previously long as the is previous to adjudicated” CINA could be also in the filing of the petition. termination same proceedings. We note anecdotally that numerous un In us, the case now before having reported opinions of the court of appeals already determined there finding was no (l)(d) have affirmed terminations without abuse proceeding current which c. There is clear and convincing evi- legislature, struck section parents dence that the had received or were 232.116(l)(c) and re-wrote it as follows: offered but refused services or failed to co- c. The court finds that both of the follow- operate to correct the situation which led to ing have occurred: parents the abuse or that the had received (1) The previously adjudicated court has services to correct the situation which led the child to be a child in need of assistance to the abuse but the services did not correct after physi- child to have been the abusive situation. cally sexually neglected abused or as the (underlines § Iowa Acts ch. 1186 result of the acts or omissions of one or additions). signify preface legisla- to that parents, both or the court previously stated, part: tion "providing for involun- adjudicated a child who is a member of the tary under cer- family same to be a child in need of assis- involving tain conditions ineffectiveness of tance finding. after such a corrective services.” The 1986 amendment (2) Subsequent child in need of appears to address some of the concern raised adjudication, assistance parents regarding timing in N.H. and effectiveness of offered or received services to correct the legislation offered services. The made no circumstance adjudication, which led to the response amendments in interpre- to the N.H. and the circumstance continues to de- exist tation that a current termination action was spite receipt the offer or of services. appropriately reliant on adju- an earlier CINA 229, § 1989 Iowa Acts ch. separate dication proceeding. legislature Then in legislature again para- added a amended the graph section and required re-numbered to section the section which 232.116(1)(c) 232.116(l)(c) only renumbering but made wording minor former as our cur- changes. 232.116(l)(d). rent version of section *10 232.116(l)(d), of- we which to evaluate what services were satisfy section would purpose. of a fered or received and for what for evidence the record have searched prior in a adjudication proceeding. CINA Therefore, on the record before us and alleged petition, in the removal The State grounds juvenile determined “[Tjhese in- previously been children have order, in its termination we reverse The Juvenile Court.” [the] volved with parental rights the termination of mother’s peti- in its termination State also asserted convincing lack of clear and evidence previously under the children “were tion (1) adjudication there a in that was CINA Febru- jurisdiction of this from prior proceeding a satisfies section through December of due to ary 232.116(l)(d)(l) (2) that a there was mental health issues and chronic mother’s injury any nonaccidental of the children During the usage.” termination THC proceeding.15 in the current We CINA and the mother hearing, the State asked remaining not need address chil- acknowledged that “for two older appeal issue. dren, they’ve time this is second will re We frame address one cases.” The mother also stated had CINA maining issue generated testimony had hearing her that she during we by the dissent: Should terminate four, five, The rather than children. pled a mother on stated, report the court “Since DHS’s upon but which the court did of the service opening case rely? many offered ser- mother] has been [the Finally, state- the mother made vices.” alleged The to terminate State’s that she providers to the service ments statutory grounds peti- its separate five back get 232.116(l)(d), (f), she the children believed would tion terminate: section re- they (k) (l). removed and because had been juvenile judge, per The 1.904(1) her turned to before.14 Rule of Civil Procedure law, fact, of made of conclusions record, of we our de novo review the On ruling only one and a which relied on case prior indication find some 232.116(l)(d), section to terminate. ground, Apparently, family previously existed. rule mo- did not file a The State pro- child involved in some welfare was make effort to obtain tion or reflect ceedings, but the record does not four it had ruling on the other there a CINA whether was alleged supported termination. alone whether there proceedings, those let ruling. appealed mother court’s abuse physical was a sexual seeking cross-appeal required section The State did neglect 232.116(l)(d)(l). fail- court’s appellate of clear review of the absence proved of a ad- ure to find that termination convincing previous evidence (d). The any ground other than judication, and in the absence of evidence under appel- to follow our adjudica- required mother was which led an circumstances governing appeals rules tion, upon have evidence late we insufficient family” for the of the same younger children's to be "member 14. We note that the two (l)(d). paragraph purposes father has had his terminated to a child of his with a different mother. judicial regarding case juvenile court notice of that took 15. As determination 232.116(l)(d)(l) dispositive, cannot did not it in the termination file but mention 232.116(l)(d)(2). Further, regard ruling. we do not that child reach *11 (Z). (k) cases, the use of of Iowa including appellate form 5 and The court could parental Procedure The the mother’s Appellate Rule of 6.1401. affirm rights pursuant identify argue rule her to and to Iowa Code Sections directed 232.116(1)(f) (h). T.N.M., and 542 only upon sections which her those code (Iowa terminated; Ct.App.1995).” is, those N.W.2d rights that were by juvenile court. The State ordered the appealed The mother the termination responded petition on but appeal, to her making an argument based on the one a that that “[i]t included statement is clear juvenile ground upon which court re- the termination of the mother’s course, by lied. Of she was limited been to pursuant could also have ordered only to ground rules that one and it would (h) 232.116(l)(f) Iowa and for Code Section improper argued have been for her to have herein for termination reasons stated any ground upon juvenile which the court pursuant Section to Code rely. ruling, did not on our de 232.116(l)(d).”16 response The State’s properly review of novo the issue raised on cross-appeal, arguably a went be- not appeal, we have there is found insufficient mother, yond by the issues raised and support evidence to a termination under per 6.203, 232.116(l)(d). rule the mother was not allowed argues The State reply. to should, effect, expand that we re- a trial view to de novo: look at the entire above, requested As we indicated we and find record anew facts that provided parties additional brief- juvenile court did not find and make our ing on “previously the difference between independent ruling statutory own on adjudicated” “has adjudicated.” grounds juvenile about which the court parties given The the same deadline made no The argues determination. State given opportunity and were not an to re- statutory we affirm should on a on spond of the party. to the brief The which the mother opportu- would have no attempted to to respond brief nity respond, to and from which she would requested briefing. issue on which The we opportunity appeal. have no issue, responded State’s brief also to the then, but realizing termi- perhaps that the argu unfairness of State’s nation jeopardy, beyond was in went can ment be if we illustrated look at this requested issue on briefing which we following way. situation Iowa re argument offered an affirm- alternative quires parties to preserve error at the ing juvenile court. It argued expressly district and has declined rely grounds should which State “plain to follow the rule. error” State v. had alleged in its to terminate but (Iowa 1999). Rutledge, 600 N.W.2d upon juvenile which the court made no had do recognize ‘plain not “[W]e error’ rule upon which it did not rule. appellate which allows review of constitu brief, On the page last the State’s challenges tional not preserved the dis ironically arguing after mother timely trict court level in a proper and had preserved appeal not error on her McCright, manner.” State v.

issues, (Iowa argued: 1997). “The record also “Even impli issues shows that the termination relied cating constitutional pre must be 232.116(l)(f), upon Iowa Code Sections to sented and ruled upon the district request 16. We ently note the State limits acknowledging alleged its it had two other only remaining affirm on two grounds supported four that were not the evi- pled petition, appar- it had its dence. rule, plain not error ap We do follow preserve error for in order to “plainly but the State asks us follow K.C., 660 N.W.2d re peal.” rule, correct” even when the mother has 2008). also stated: Our respond. opportunity had no State 179(b) applies rule hold “[W]e asking us to affirm on an issue which it By failing to proceedings. court CINA rule preserve via a motion did 179(b) file rule motion timely which a cross-ap- and on it did file *12 both her due mother] waived [the such, preserve As not peal.18 did statutory challenges to the process and Further, for appellate the issue review. or dispositional of the court’s deficiencies response the issue in to the State raised A.M.H., 867, 872 In 516 N.W.2d der.” re petition briefing, and in the additional the 179(b) 1994) (former (Iowa is rule rule now knowing opportunity the mother had no to 1.904(2)). in the argue allegations. defense of in us were one which If case before reported The State cites a decision from under juvenile court had terminated posi- to its appears support court that this (call B), them A and statutory grounds two T.N.M., tion, the case In re 542 N.W.2d A, only on appealed and mother (Iowa 574, The Ct.App.1995). 575 dissent on that we must affirm argue would State are to a number of cases that not cites appeal B taken on it.17 no ground since cases,19 termination-of-parental-rights and But, if, limiting our examina- what while reported two termination cases: In cites A, to we concluded that termi- (Iowa tion issue Robbins, 489, re 230 N.W.2d 491 that not be affirmed on T.N.M., nation could 1975), as well as 542 N.W.2d 574. plain error on ground, and we discovered one unreported The dissent also cites ter- S,Z, case, 03-1237, B that the State issue which demonstrated mination No. 2003 (Iowa 22346186, 15, proof not burden of to termi- *3 Oct. Ct.App. had met its at WL case, 2003), concluding unreported and one ground, on thus nate either J.B., 08-1557, 1140492, No. 2009 at reversed, re WL on a should be even that case (Iowa 11, 2009). Ct.App. *2 Mar. the mother? The ground argued by not that object, insisting no doubt State would cited that are not termination The cases rely properly on a ground we could not cases, cases reported and the termination though the facts appeal, raised on even expedited pre-date clearly support The did not termination. in procedures established 2002— appeals correct, require might be because we State and cases that would T.N.M. Robbins—are brief, to at the level parties preserve briefing: error trial respon- allowed full have brief, appeal, reply on and brief. It is not un- properly raise issues sive a party in for fully-briefed eases plain we do not follow the error rule. common See, 909, A.J., any op- court did not afford the mother e.g., re N.W.2d 911 553 (Iowa 1996) Ct.App. portunity respond. overruled on other to 2010). P.L., (Iowa by In re 778 N.W.2d 33 Co., 19.Regent v. Estes 564 N.W.2d Ins. Co. State, points as the 18. The dissent out 846, (Iowa 1997); Mgmt. Corp. 848 Midwest required file a prevailing party, was not (Iowa 1984); Stephens, 78 v. 353 N.W.2d argue cross-appeal or rule motion to Ass’n, N.W.2d Mut. Ins. Israel v. Farmers appeal. a different for affirmance on- (Iowa 1983); First Nat’l Citizens Nonetheless, opin- in explain we later this Hoyt, v. Bank ion, given expedited the limitations of 1980). appeals, procedures specific to termination in the manner which matter was raised argue appeal appellate on termination.” The State’s ter- should affirm a trial court decision a mination alleged had rights mother’s ground upon which the trial court should be did terminated under (i), (k). S.Z., 232.116(l)(b), rely. argument by (g), If such an raised See brief, appellant appellee in its WL *1. would The termination, listed as respond. have a If reasons lan- chance to raised guage 232.116(l)(b), (d), (e), from brief, appellee a responsive appel- (f) (i), but without citation opportunity para- lant would an respond have (f). (d), (e), graphs reply procedure its brief. This provides terminated under sec- at least process: some semblance due 232.116(l)(b), (k). (i), tion (g), heard, an opportunity to be brief. State conceded the should not have cited, From our review cases (g) (k), terminated but cannot be transpired sure that what *13 (f) (d), (e) sought to affirm under cases, each of those but we know that because the reasons set forth in peti- the opportunities those at least in existed each tion included statutory language the from case under briefing traditional rules. Due paragraphs, those even though neither the process requires parties that the have an petition nor juvenile the court order cited heard,” “opportunity to be whether or not to paragraphs. those Id. at *2. they opportunity. exercise that Our court found that termination was hand, On the other since 2002 appel- our not proper any paragraph under of subsec- late governing rules termination cases tion upon which juvenile the appellant’s have limited the brief —now relied, proceeded had but to affirm petition appeal called a on cite the —to 232.116(l)(f). under section which not had statutes under which the court terminated (but petition been cited in the for which parental the rights, and to argue those allegations) there were factual not had briefly, limiting issues petition the to twen- by been cited the court. Id. at *1. ty attachments). pages (excluding ap- If reported this were a decision of our pellee response then petition. files a to the court, value; it precedential would have reply No briefs allowed. proce- are These but as an unreported decision not we are dures parties allow the to appeal expedi- by bound its conclusion. tiously, appellate and the court to in hone quickly on on appeal. the issues The court The other by case cited may allow briefing, full but absent full dissent, J.B., the In re is a CINA ease that briefing, (most petitioner the on appeal was full briefing. remanded for 2009 WL often parent) the terminated has no oppor- 1140492,at *1. This case was decided after tunity any to be on heard other issue change, the 2002 rules but because of (most by raised appellee often the opportunities provided by full briefing as State). above, discussed we do not find it control ling.

The unreported termination case and the unreported by CIÑA case cited Also our influencing analysis is fa- this dissent were under expedited decided miliar principle: “While the district court rules referenced above. The termination parental rights terminated the on more case, S.Z., 22346186, *1, 2003 WL ground, at than one statutory only to need appeal involved a claiming grounds “the find to terminate State did not its proof meet burden of ... under one by of the sections cited any on grounds district court in order affirm the district A.J., T.N.M. and allow shortcuts termination- re 553 N.W.2d ruling.” In court’s overruled, (Iowa expedit- on of-parental-rights cases Ct.App.1996) P.L., 778 by procedures denigrate safeguard- N.W.2d would ed by cited 107 cases has been fair principle ing procedures play, That and offend funda- citation according fairness, We, to Westlaw’s process. due mental is cites to therefore, service. One those headnote from distinguish case R.K., re 649 N.W.2d case of In reported T.N.M. and other cases that hold (2002). kept case the essence That may affirm a trial court on a court reworded version slightly but its principle, though even ground pled proven, not times, fifty-four cited another has been the trial court’s the basis of decision.20 We recently August 2014. See re and as in which a parental rights hold that cases 14-0783, Q.E., 2014 WL No. juvenile court has declined to terminate— *3, Aug. Ct.App. directly by omission—under a either 2014). principle do not believe the We alleged statutory provision that effectively say, re-written should be may State’s to terminate any grounds find which ‘We need appeal be affirmed on basis of that need by only but approved subject statutory provision appeal if the any sec- grounds to terminate under find effect, briefing the limited rules now in or for which factual pled by tion briefing by unless is allowed either full allegations were made the State.” request parties sponte or sua *14 effect, asking is us that is what the State court. appellate to do. REVERSED. among are rights Parental those society. most in our guarded that are the P.J., concurs; POTTERFIELD, signifi They constitutional rights are of TABOR, J., dissents. C.M., 652 N.W.2d cance. See (Iowa 2002). legislature has de 211 Our TABOR, (dissenting). J. statutory scheme

veloped sophisticated I affirm respectfully I dissent. would provides protection for the of children parental termination of the mother’s rights. honoring parental while Our sections rights under Iowa Code findings, to rules a trial court issue require 232.116(l)(f) (h); these law, Iowa ruling. of and a R. conclusions at the alleged proven by State 1.904(1). allow a P. Those same rules Civ. as an al- hearing, argued termination request court to rule on mat party to appeal. affirming on ternative basis for it upon which has not ruled. R. ters 1.904(2). terminate petition seeking The to appellate P. rules and State’s Civ. Our cited in certain practice allow de novo review (f) (as Ja.C., 232.116(l)(d), Jo.C. and to preserved. They properly cases on issues years age or four The relies D.R. who were all cross-appeals. allow State on (as older), (h) years to A.R. who was three require bypass T.N.M. to the case of (l). (k), The rules, age younger), our which are ments of several of the State had juvenile court decided designed process due and funda ensure (d) statutory as a proved paragraph procedures. fair For us to follow mentally supreme which the distinguish principles on acknowledge court re- 20. We itself, specifically State v. respect- ruled. See has not right to but serves the reverse (Iowa 1957). Eichler, 578 fully responsibility N.W.2d have the 83 determine we 634 termination, on by for and did not ad- relied the trial would have

ground termination”). grounds. justified potential dress the other majority analysis limits its to the majority directly overrule does (d). supporting paragraph evidence Un T.N.M., appears longer but to find it is no review, general appellate rule der the adoption viable law after the of the expe obliged appeal to affirm an are “[w]e appellate dited rules for termination-of- appears a trial proper where basis for parental-rights majority cases. The en though it ruling, court’s even is not one gages a useful discussion of the due upon holding.” which the court based its parents in child process afforded Hoyt, Bank v. See Citizens First Nat'l unhelpful But I welfare cases. find it (Iowa 1980); 329, 332 N.W.2d see also of “bypassing require accuse the State Co., Regent Ins. Co. v. Estes 564 N.W.2d taking “of ments” and “shortcuts” which (Iowa 1997) (restating “well-estab play” fend fair when our case law has not appellee may proposition lished” seek interplay the expe addressed between judgment pre- to save on alternative basis appellate accepted dited rules and the court); Mgmt. trial sented Midwest principles appellate practice. For in Corp. Stephens, v. stance, majority faults the State for 1984) (noting supreme court “will affirm a filing cross-appeal asking ju if it equity decree can be upon sustained venile court to enlarge its any pleaded basis which is supported 1.904(2). Iowa Rule of Civil Procedure record, regardless of the basis used law, But under existing State court”). the trial Our court applied not required cross-appeal. to file a “It principle termination of parental well-settled law that a prevailing party can T.N.M., rights cases. See N.W.2d raise an alternative affirmance (finding clear and convincing evidence appeal filing without a notice of cross- on voluntary consent appeal, long as prevailing party *15 ground juvenile rejected when court raised the alternative in the dis basis and terminated on abandonment Serv., trict court.” Duck Creek Tire Inc. J.B., 08-1557, ground); In re No. 2009 WL Comers, L.C., Goodyear v. 796 N.W.2d 1140492, (noting at *2 we can “affirm the (Iowa 2011). 893 The State raised the juvenile on ground pled, even if statutory grounds alternative for termi court”); a ground by was not relied on the juvenile nation in the and presented S.Z., 03-1237, No. 2003 WL convincing clear and in support evidence at *3 Ct.App. Oct. Likewise, their existing elements. 2003) (citing v. Israel Farmers Mut. Ins. law, State, prevailing the as the party, was Ass’n, (Iowa 1983) 339 N.W.2d required to enlarge not file motion to the (“In reviewing novo, de we will affirm if juvenile findings. court’s See Johnston there a proper basis for the decree Indem., Equip. Iowa Corp. v. Indust. by entered the trial though even 13, 16-17 (Iowa 1992) (overrul 489 N.W.2d affirming reasons for are different than ing required case which party successful relied.”)); upon those which the trial court enlarge ask trial court to its Robbins, (find- see also at N.W.2d recovery). second address basis for it ing “unnecessary to decide whether the ground alleged second in the petition prop- also State raised the alternative erly stated a for affirming basis termination under for court at 232.41(2)(d), which, section although opportunity appeal. not earliest on its evidence these children could have been original response its argued in State safely returned home with mother at appeal: on mother’s hearing. time of the termination See rely not petition did The termination D.W., at (holding do Iowa Code totally with the “gamble children’s future” 232.116(l)(d) termination asking biological them to wait for a stable rights. It is clear mother’s parent). paren- of the mother’s tal also have been ordered rights could circumstances, Given these I would 232.116(f) Iowa Code section pursuant to agree with court—this was not (h).... the circumstances Because In the of achieving a “close case.” interest adjudication had not been that led to the permanency these children sooner than corrected, safely could not the children later, I would affirm on alternative care at the be returned 232.116(l)(f) (h)— grounds in sections present time. were included the State’s which proven at trial. I believe such an ter- as much The mother admitted outcome is the best interests hearing. The mother acknowl- mination children under the framework my saying “Give me edged she was 232.116(2). Code asking for an- today,” kids but was back months so that she could secure other six her for herself and four housing

stable acknowledged also she

children. She so parenting from classes

could benefit develop coping better skills.

that she could hearing testified at

The DHS worker to a lack of suitable hous-

that in addition QUARRIES, INC., WENDLING had mental ing, mother unaddressed Petitioner-Appellant possible substance abuse health issues and , v. addition, termination record needs. not participate the mother did showed APPEAL PROPERTY ASSESSMENT DHS, to her the services offered Iowa, BOARD OF the STATE half of the scheduled attending only about Respondent-Appellee. Moreover, her children. visitations with No. 14-0626. they did attend visitations when she did *16 well; yell always go the mother would Appeals of Iowa. Court physical discipline. at the children use Feb. were described “chaot- encounters younger children would cower ic.” The the older children

from their mother and feel safe

reported they would not their hos- The mother also was

mother’s care. workers and harassed

tile to the DHS boys. family caring younger

foster guardian ad litem advocated

The children’s ju- and recommended with the suspend court' visitations

venile provide

mother. The record did