*1 ruling supported by sub- bate court’s

stantial evidence.

AFFIRMED. M.S., Interest of Minor

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

No. 16-0975. of Appeals Court of Iowa. Oct.

I. Thomas, father,

This case involves who appeals from the order terminating his parental rights in pursuant his child 232.116(l)(h) (Z) Code *3 (2015). M.S., issue, at the child came to the attention of the Department (“IDHS”) Human Services when he tested positive for at THC birth in June of 2015. initially

The mother and man a believed to be the were father contacted IDHS. use, marijuana The mother admitted to did through with drug follow random test- Boleyn of Reynolds & Ken- Matthew W. ing, through and did follow with a line, L.L.P., Dubuque, appellant father. substance abuse evaluation. After Miller, General, Attorney Thomas J. any progress, mother failed to show Triiek, Mary Attorney A. Assistant Gener- from the was removed mother’s home al, for appellee State. adjudicated in need of assistance. The any mother has had contact with M.S. Hammer, P. Sandra Trevino of & Simon since November Jensen, P.G., Illinois, Dubuque, East for minor guardian ad litem child. IDHS learned man believed be

M.S.’s father not his father. De- cember IDHS and Thomas their had regarding first communication McDONALD, Judge. testing issue. DNA Thomas’s confirmed parent’s rights The termination of in- a paternity of the At the child. time IDHS unique deprivation flicts a of a constitu- Thomas, commenced communication with tionally liberty protected upon interest twenty-one years age, living parent. affected innocent man can The be mother, employed full-time. justly can set free. landowner to the social Thomas admitted worker he compensated. childless cannabis, had long-time been a user of Thus, parent’s

recourse. interest “[a] including marijuana cannabis oils. accuracy justice of the decision to family put place plan, requiring IDHS parental his or her terminate status ... anger management Thomas to take classes Kramer, commanding Santosky one.” v. and abstain from cannabis use. 745, 759, 455 U.S. S.Ct. (1982). Accuracy requires L.Ed.2d 599 substantially complied with the careful plan ensuing review determine IDHS’s over months. He anger whether the State has come management forward attended sessions as quantum quality of evidence neces- the ca- instructed. demonstrated sary statutory prove grounds pacity provide autho- for the physical needs rizing parent’s rights. the termination of a the child. Thomas full-time maintained requires employment. Justness consideration Thomas obtained own countervailing pre- may consideration that residence. The social worker found the ponderate against par- appropriate for the termination of a home safe and rights. every ent’s Thomas attended visitation— child. A.M., In re the child. The per to four week—with up 2014). thought the visits went well. social worker compli- Thomas’s The one area which chapter 232 codifies the of cannabis lacked was the cessation ance legislature our has struck between balance sessions, but counseling use. He attended competing interests. Pursuant these period of for at least some continued use 232.116(1), must the State pending. For this time the case was while statutory authorizing the termi ground sought to the State terminate reason alone P.L., rights. nation rights. parental (Iowa 2010). 33, 39 Section for a came on The matter 232.116(1) legisla sets forth the harms the 2016, only hearing May five months ture has determined to be of sufficient communication commenced after IDHS *4 breakup to of fami justify concern the the social testified Thomas. The worker prove It to the ly unit. is sufficient for positive Thomas continued test illegal in or con parent engaged immoral testified, however, that she THC. She also of showing duct without a harm. See Oli interact with the never observed Thomas Holmes, Jr., The Path the ver Wendell of influence, that she child while under the (1897) Law, 457, 10 459 Harv. L.Rev. supervise no concerns that he would had (“The thing first for a under business-like influence, under the and the child while standing of the matter is to understand its regarding that no concerns the she had limits, I it at and therefore think desirable safety child while in Thomas’s care. dispel out a confusion point once to and continued to use for Thomas admitted he law, morality which some between and commenced, period the case but some after height times rises the conscious theo decreasing and his he testified his use was constantly ry, more often and indeed and April in 2016. The district last use was in making is trouble detail without reach granted petition the State’s to termi- court consciousness.”). Indeed, ing point parental rights pursuant nate process be due violated the State 232.116(l)(h) (i). section and breakup of a “attemptfed] force the timely appeal. filed family, objections of natural over the children,

parents and their without some II. showing of unfitness and for the sole rea thought to in relationship parent between son that to do so was “[T]he Quilloin, constitutionally protected.” children’s best 434 child is interest.” and Walcott, 255, 255, Second, Quilloin pursu 549. U.S. 98 at 98 S.Ct. v. 434 U.S. (1978). 232.116(2), 511 ant section the State must S.Ct. L.Ed.2d “[T]he care, parental rights is in custody, prove and nurture of the child P.L., parents, primary interest of the See reside first in the whose best child. Third, at if the preparation function freedom include and obligations supply proved statutory the state can neither both the existence (quoting parent’s nor Id. Prince v. Mas harm and termination hinder.” 158, 166, sachusetts, the best interest 321 U.S. S.Ct. (1944)). time, At the court must consider

88 L.Ed. same whether counter duty vailing set forth State has to assure considerations section “[t]he 232.116(3) every pre should nonetheless serve to child within its borders receives treatment, parental rights. in See proper care must clude termination fail it.” parents provide id. tercede when rights pursuant

The State has the burden the father’s to section by convincing its case clear prove 232.116(l)(i), requires which the State to evidence. See Code 232.96. Clear following: convincing more than (1) The child has adjudicated been preponderance of and less the evidence pursuant need of assistance beyond a than evidence reasonable doubt. to section 232.96 custody L.G., been transferred from the child’s Ct.App.1995). highest evidentiary It is the parents placement pursuant burden civil It means cases. there must 232.102; be no serious or substantial about doubt (2) has a particular of a severe substance- correctness conclusion drawn from presents See id. This related disorder evidence. a dan- significant is imposed on the State burden ger self others as evidenced depri to minimize risk of an erroneous acts; prior liberty vation fundamental (3) convincing There is clear and evi- in raising Santosky, interest his child. See parent’s prognosis dence that the in- 759,102 U.S. S.Ct. 1388. We there dicates that the child will be able for cannot stamp rubber what has come custody to be to the returned before; it is our task to ensure the State *5 parent period within a reasonable quantum has come forth the qual and considering time the age child’s and ity necessary prove of evidence each of permanent for a need home. the elements of its case. at See id. (“A majority S.Ct. 1388 of the States by “Substance-related disorder” defined convincing have concluded that a ‘clear and diagnosable statute to “a mean substance proof evidence’ standard of strikes a fair of sufficient abuse disorder duration to rights balance the between the natural diagnostic specified meet criteria within parents legitimate and the con State’s diagnostic the most current and statistical cerns. hold that We such a standard ade published by manual mental disorders quately conveys to the factfinder the level psychiatric the American association that subjective certainty his factual about impairment.” results in functional Iowa necessary satisfy pro conclusions due 125.2(14). § pro- Code The State did not cess.”). any “diag- evidence the duce father has

nosable substance abuse disorder.” The III. produce State also did not evidence presents danger to himself or father pull particular we this dragon When out The social others. worker involved with of its cave to its count teeth and claws family contrary—she to the testified light day, we can see it is without Holmes, safety concerns. The strength. had State failed Harv. L.Rev. at of production per- its burden and meet See, respect ground. to this

suasion with M.F., 16-0434, e.g., In re No. 2016 WL A. Ct.App. May *3 sufficiency firstWe address the of 2016). supporting statutory the evidence juvenile The court also terminat

grounds authorizing paren rights. juvenile tal pursuant The court terminated ed the father’s required This

232.116(l)(h).1 requires every each and visitation. This section convincing planning part on his and evidences by “clear and careful returned parent the child cannot be intent to this child. The social evidence that his parents of the child’s custody thought to the the visits went well. worker She present at the section 232.102 provided necessary has “the skills testified Thomas 232.116(1)00(4). “[A] time.” Code Family Safety, The parent the child.” custody (FSRP) be returned Risk, cannot Permanency reports section 232.102 the child’s under visits with the document child. exposed so doing the child would demon- They contain numerous entries amounting to new child need any harm good parenting strating Thomas’s skills. MM., adjudication.” of assistance By way example: (Iowa 1992). reported that a Dr. [M.S.] has adjudicatory harm autho- What was coming up plans on appointment rizing of this the termination attending he can be more informed so none. The es- rights? We find health_Thomas was atten- about his to meet tablished Thomas able him, burped tive to needs. He M.S.’s Thomas main- physical needs of child. nose, booger’s from his cleaned employment position full-time in a tained up spit up. sitting cleaned M.S. was years. for more than three he held on floor. up by swung himself He social found Thomas’s home worker smiling laugh- in the air hands appropriate child. was safe and balance, ing, fell lost his backwards. guardian report litem’s ad noted to console him quick appropriate, “home clean and there are make ok. M.S. did fuss sure he was safety social no immediate concerns.” The the fall. much about everything the father worker testified From another visit: for the child. This was evi- needs *6 visitations, during during the denced which happy to see Thomas when he M.S. was physical provided father for the child’s him seen he smiled started [sic] food, needs, including clothing, and dia- kicking legs joy. Thomas was pers. happy picked up to he him very see M.S. up on him and checked about weather established Thomas The evidence changed to be or or not he needed [sic] to eager and meet the emotional and able played if He [sic]. he has ate with M.S. of father at- social needs the child. The nap. until he was tired and took a La- every single to visitation—up four tended up quick ter he and Thomas was to per Thomas had to woke week—with child. him to change him and make special arrangements his em- feed sure make with happy. to he ployer make sure he was able attend Instead, hearing. pre- The nation he testified it would State contends Thomas failed to challenge ground peri- inappropriate be to have a serve his because not transition this Third, preser- of returned od. is not an issue error admitted the child could not be this of hear- Even if the return of his care at the time the termination vation. admitted First, adjudica- ing. disagree. requires expose would the child to We statute harm, only exposed tory serves the child would be the admission the State harm, evidence, evidence, adjudicatory strong perhaps appreciable risk of irrefutable to an Second, testimony support of Thomas did not admit the child the State’s case. exposed adjudicatory not or relieve the State of be harm does waive the issue proof. of care at the time of the termi- its burden returned to his

681 legislature The State and the dissent contend fact the included alleged anger management ground is- this this within statutory exclusive scheme support the termination establishes the failure to comply sues of Thomas’s plan, alone, standing with the case parental rights. Neither nor the State - grounds sufficient to. justify the specific identifies the termi- adjudicatory dissent nation parental rights. See generally harm meaning within the of section Greenwood Manor v. Dep’t Pub. 232.102 fact allegedly supports. which Health; 2002) (Iowa 641 N.W.2d 835 Regardless, there is not clear and convinc- (stating “guided courts by are the maxim ing temperament evidence that Thomas’s ‘expressio alterius,’ i.e., unius est -exclusio poses appreciable an adjudicatory risk of ‘expression thing one is the exclu- Although harm the child. the social ” another,’ sion stating the exclusion of originally thought anger manage- worker comprehensive an item from a statute Thomas, ment sessions might helpful intent); legislature’s evidence the concerns were unfounded. She testi- C.L.H., Ct. fied there were three minor incidents near App.1993), overruled on grounds other beginning of the case where Thomas P.L., (“The 39at failure was frustrated and acted testi- angrily but parents comply plan DHS’s case no fied there recent giving conduct independent cannot be an ground to ter- any Importantly, her concern. no there is Indeed, parental rights.”). minate the ter- any anger Thomas directed mination parental rights because of a frustration toward child. There is also plan, failure follow case engaged physi- evidence Thomas harm, showing without a would run cal anyone during violence toward pen- process. Quillom, afoul of due dency event, of this In any case. 549; K., U.S. re C. and S.Ct. management anger attended sessions as (Iowa 1982) (interpret- N.W.2d plan. set forth the case The social ing require proof termination statute to alleged worker anger conceded the man- harm to infirmity). constitutional avoid agement give pause issue “would [her] The dissent contends Thomas was dis- having as far as father] interactions” [the regarding honest his cannabis use because child. positive April after tested The State and dissent also con the social because worker testified the testing positive tend Thomas for cannabis drug test result—in December—was one *7 of plan contravention the case is suffi highest she had levels seen. ever support cient to the termination evidence posi- supports Neither fact the dissent’s of parental rights. The to com failure First, marijuana tion. en- hair tests ply plan enough. the case is not compass period. ninety-day. positive a A authority to a parent’s rights terminate is test in to May February, would relate back wholly legisla a creature of statute. The prior to last admitted use. Sec- comprehensive ture enacted scheme ond, quantity of THC metabolite de- specifying grounds the exclusive upon in a hair has no to tected test correlation which the State seek to can terminate a of frequency use. See Mi- amount parent’s rights. al., Iowa Code Taylor Comparison chelle et Can- Of 232.116(l)(a)-(p). § Absent from this Self-Reported In Hair nabinoids With comprehensive authority scheme Heavy, Light is the to In Consumption Cannabis Users, parent’s rights terminate a fail Drug mere And and Alco- Non-Cannabis 14, 2016), comply to plan. ure with IDHS’s hol (Early case View June Review 682 Instead, must a nex establish

http://onlinelibrary.wiley.com/doi/10.llll/ (“Furthermore, cannabis use and were un- us between the father’s we dar.l2412/pdf adjudicatory harm appreciable an risk testing hair determine able to use meaning of by an used individual to the child within quantity cannabis result, See, C., e.g., As a re Rebecca 228 specified in a time frame. In 232.102. 264, 720, testing Cal.App.4th Cal.Rptr.3d of hair for can- 269 application 175 real life limited.”). (2014) (“In words, likely essentially nabis use is other DCFS conducting that, engages in this case laboratory argues test when a among distinguish abuse, juris specifically dependency does court substance medium, low, high use of cannabis is not what proper. diction This Further, quantity pres- of metabolites on the dependency provides. based law because, sample with re- in the hair accepted, ent it position were DCFS’s quantity no marijuana, spect to physical that harm to a essentially mean use, frequency or amount of correlation presumed parent’s from a sub child is hair-test drugs. other From the unlike dependency stat stance abuse under the only soundly data one can conclude utes, parent’s and that it is a burden February marijuana Thomas used between i.e., negative, the absence of harm. dispute. It is a May, a fact not Again, dependency this is not what the law further, does, go as the dissent mistake Dep’t v. provides.”); L.D. Children & signifi- inference recent and an draw Servs., 1203, Family 957 1205-06 So.2d by unsupported medical literature cant use (Fla.Dist.Ct.App.2007) (holding drug addic laboratory actual- unsupported tion, alone, insufficient standing basis reporting conducting test and ly rights); Adoption In re parental terminate results. Zoltan, 185, Mass.App.Ct. 155, (2008) (reversing termi N.E.2d assuming the test results Even agency parental nation of where sug interpreted as the dissent could be mari nexus between failed demonstrate of use does not estab gests, the mere fact ability); re juana parenting In use harm. Iowa Code adjudicatory lish Cf L„ 1-10-2906, 2011 Danalia No. WL 232.2(6)(n) adjudicatory § harm (listing as 2011) (Ill.App.Ct. at *3 Mar. “drug or alcohol abuse [that] (affirming dismissal case where there receiving adequate child not results in the ” establishing a nexus be added)); (emphasis care chil marijuana use and harm to the tween 232.116(1)(Z) proof of harm (requiring marijuana an dren or that “the use created J.S., others); self or see environment”); injurious In re Children 2014) (Iowa (holding mother’s use (Minn.2008) T.R., itself, in and of methamphetamine, did or alcohol (holding “substance use alone J.W., harm); re adjudicatory constitute unfit”); parent palpably does render 14-0515, 3749419, at *3 No. 2014 WL Perma Jersey New Div. Child Prot. & 30, 2014) Ct.App. July (holding the C.R., FN-09-111-12, nency No. v. prior mother’s status as a substance abus *8 3726304, (N.J.Super.Ct.App.Div. at *4 WL necessarily adjudicato er did not establish 16, 2015) (“When drug use is basis harm); L.R., 09-1544, June 2010 ry In re No. neglect, 200817, 22, allegation for an of abuse and Ct.App. at *7 Jan. WL 2010) proof drug that use must be (reversing termination where there order danger or a exposed child imminent failed to establish nexus State between harm.”); Dep’t Human parent’s adjudica alcohol risk of risk of abuse and substantial rvs, C.J.T., child). 57, Or.App. 308 tory harm to the Se v. 258

683 (2013) 307, (holding past marijua court prior hearing, P.3d 310 the termination use, protective capacity praised: nexus current use Thomas’s na without between children, threat of harm to and Mother, support Thomas has the of his support pa insufficient termination Sister, Girlfriend, and brother. Thomas rights); Dep’t rental Human Servs. v. proven provide [a] able safe home A.M.C., 821, 81, Or.App. P.3d place and for stable M.S. Thomas has (.2011) (“[A] condition, if rep even been motivated to do what he needs to pathological, justify or not rehensible does for him done order to have [sic] parental rights termination of unless the full time. He has been able to have seriously or conduct condition detrimen stable home for him and M.S. and at- condition, tal to the child. The conduct meetings tended with SASC. Thomas words, itself.”); speak in other does not has been able to that proof show he has A.T.E., re (Wyo.2009) In 222 P.3d job a stable home and in which he can (affirming petition denial pay all of his He bills. has been able to agency provide where did not evidence provide[ clothing during food and every ] linking marijuana father’s with “his use visit. above, parent”).

unfitness as a As noted sum, In there is not clear convincing process requires the termination stat due establishing a nexus between the interpreted require proof ute to be appreciable father’s conduct and an risk Quilloin, harm. See See 434 U.S. adjudicatory harm to the child. 549; K, 98 S.Ct. In re C. and 322 N.W.2d reports State’s admit as much. The social at 81. worker involved in the case admitted as prosecutor much. The admitted as much. The record does establish agree. We nexus between Thomas’s cannabis use and appreciable adjudicatory an risk of harm B. attempts spack-

to the child. The State evidentiary le the cracks and holes in its statutory The failure to speculation-and-conjecture putty. case grounds authorizing termination of Thom- Speculation conjecture enough; are rights requires as’s reversal. nonethe- We convincing required. clear and evidence is proved by less address whether Here, inter Thomas testified he never convincing clear and evidence whether ter- impaired acted with the while parental rights mination of Thomas’s his last do so. He testified use the best interest of the child. “When we in April days cannabis was 2016 and his parental rights consider whether should of cannabis were him. The use behind terminated, give primary we ‘shall consid- social worker testified she never observed safety, eration to the child’s the best im Thomas interact with the child while furthering long-term placement paired. She testified she not believe did nurturing growth of supervising use mental, Thomas would while physical, emotional condi- ” M.W., Thom child. The social worker conceded tion In re and needs the child.’ (Iowa 2016) safety as’s conduct not a concern with (quoting 232.116(2)). con respect prosecutor making the child. The during closing argument determination, may ceded a number we consider D.W., safety child’s was not at issue. In the final factors. See (Iowa 2010). report provided juvenile to the FSRP *9 convincing evidence. The termination asking support facts by what begin We pa- rights the absence of such the father’s the conclusion legislative interest the balanc- rights proof upsets is in the best the scheme rental boiler- against dissent recite ing parent’s rights The and the the child. State’s need regarding the child’s duty protect case law plate children within its borders. However, identi- neither permanency. must be reversed The termination order safe- regarding the child’s fies evidence ground on this as well. health, suggesting the child

ty, welfare C. being placed with better off loving caring other his and than Finally, someone we consider whether ter Instead, seem to biological both father. mination under the circumstances achieves on the father to establish place is, burden justice—that whether there are coun child’s best interest why it is in the tervailing serve considerations should relationship. It child-parent maintain the preclude pa termination of Thomas’s it proof; his is the State’s. is not burden of proved rental even if the State had the closeness of the its case. conclude We by has not established The State relationship serve to parent-child should convincing evidence termination clear and preclude termination under the circum relationship caring a of this child’s with 232.116(3)(c). stances. See It in the best interests. is father is child’s Thomas things: shows two physical can undisputed Thomas meet the strong a and bond with of the child. Thomas has held needs provides loving Thomas excellent and care employment. He has an steady, full-time guardian for the child. The ad litem re- for the appropriate and safe residence ports appears that “M.S. be bonded capacity child. He demonstrated often out with and searched [the father] necessary for his provide items care. playing. he while [the father] also effort to Thomas showed concerted appeared comfortable father’s] [the provide for the emotional and social needs apartment.” reports are re- FSRP every visit of the child. Thomas attended plete contemporaneous entries docu- with The social worker with child. testified menting good visits the father has As set forth in the visits well. will be went reading, For have the child. ease we below, by contem detail confirmed largely left the entries unedited: documenting the visita poraneous records above, very happy As to see Thomas as tions. set forth the State’s own M.S. was reports provide strong sup equally just has a Thomas was smiled. him him out port provide happy picked up can his son with to see network and Finally, holding appropriate began safe home. car seat. Thomas on making good grown faith effort to him then him set down played with him making resolve substance abuse and watched [sic] him progress toys Karrie B. ex him crawl for his the effort. See followed rel, J., Reep making play v. sure he could Catherine P.3d around (Alaska 2008) (concluding toys it environment. Thomas 185-86 a safe parent’s professed that he proper consider made sure that M.S. ate and also change declining diaper. intent when termi had a clean parental nate rights). following: report Another shows sum, very happy to see Thomas he State failed M.S. was reaching for smiling, kicking second element of its case clear and *10 babbling took making Thomas. Thomas him out was Thom- sounds and him him hugged mimicking car seat and and him trying get kissed as was and happy cheek he “daddy.” on the was see M.S. him say information provider Thomas asked provider reported following from a changed about when was last and M.S. different visit: ... Thom- when he ate and had a bottle very happy M.S. was see he Thomas began playing soothing as with M.S. and smiling kicking started and his feet. him holding and him. Thomas able Thomas him picked smiled with and him cry- to follow cues M.S.’s when he up playing and started with him. Thom- _Once ing up M.S. woke Thomas fed him play jumper as let for a little him some food he Jar which ate and while and then took him out of jump- him made a bottle which he had played er on and with him the floor. issues with either. then Thomas entry: Another changed him to dry ensure that he was played Thomas with M.S. while he play continued to and with him and ground. around on the crawled Thomas toys purchased that for some Thomas very protective of where he crawled him. to and area’s [sic] what room he reported The provider visit: different blocked off. Thomas fed M.S. and when he seen Thom- [sic] smiled [M.S.] changed his diaper and made sure as; at I Thomas fix the visit observed dry. he was feeding time, a bottle for [M.S.] after he visit, provider On another eating Thomas noted: burped was done M.S. and comforted him he when became up happy M.S. woke he was When see fussy. Thomas interacted with M.S. Thomas. M.S. smiled and reach his teething toys tickling with and him while up pick hands for Thomas to him up. making funny sounds. Thomas also picked up him he hap- Thomas and was brought diapers daycare M.S. ... py jumping arms. Thom- and toys to pulled play out the with M.S. provider following noted the a dif- girlfriend] on floor [Thomas’s ... ferent visit: into the kitchen went and made break- youth When Thomas arrived began fast for them all. Thomas to feed straight he and house walked in went pancakes eggs. some M.S. very happy to Thom- M.S. M.S. was see get as he when Thomas smiled went On another visit: girlfriend] him out. Thomas and [his hugs Thomas welcomed M.S. greeted they happy M.S. were both and told that he him. kisses M.S. loved They placed to see him. then him on During the visit Thomas feed M.S. a ground they time tummy food, gave baby him bottle milk and placed pillows took them all around diaper he made sure also M.S.’s they the house so that can block M.S. off changed. After M.S. ate Thomas so that he can’t hurt himself. him burped him in his and rocked arms entry: In another sleep. until went When M.S. M.S. prepared diaper Thomas was with the with him up woke interacted balls, girlfriend] bag. teething toys toy Thomas and he also let [his They funny on floor. M.S. crawl around noised while M.S. made crawled him followed and made sure he on the visit didn’t around the floor ... When get put in the anywhere crawl could hurt. M.S. was over car *11 judgment reverse the of seat, perfection. to him that We him and [said] kissed juvenile the court. him. he loved only a documented Although have we REMANDED. AND REVERSED brevity, of the in the interest few entries with other entries and replete record POTTERFIELD, DOYLE, TABOR, documenting similar interactions. reports JJ., MULLINS, concur. of this father’s conclude termination We the circumstances parental rights under C.J., DANILSON, specially. concurs justice. fails to achieve presented

VOGEL, VAITHESWARAN, and JJ., BOWER, dissent. IV. liberty in “The fundamental DANILSON, Judge, (concurring Chief care, parents the custo

terest of natural specially). of dy, management their child does agree I specially I concur because with they evaporate simply because have unnecessary it to enter the result but find parents or lost tem not been model have fray of the on the issue whether there is of their child to the custody State. porary adjudicatory risk of an harm to the child. relationships when blood are Even Rather, I has strained, conclude the State failed parents retain a vital interest proof its that the child meet burden preventing the irretrievable destruction of physical custody from the family Santosky, 455 removed their life.” U.S. at required by father as Iowa Code section 102 S.Ct. 1388. “Termination is 232.116(l)(h). drastic, step, improvidently final which em fraught danger. ployed can be Ter Here, as an the father raised issue the only occur mination must where more its failure meet burden with State likely by staying harm is to befall the child 232.116(l)(h). respect to section than parents by being his or her review, Upon our de novo we must find separated from In re permanently them.” convincing “is there clear and H.H., (Iowa CtApp. 677 N.W.2d that be returned to the child cannot 1995). Thus, spirit pro of assistance custody of Iowa parents.” the child’s improve parenting ceedings is to skills and 232.116(l)(h)(4). parents Code But the relationship parent-child maintain the it have never been married and is undis- parent- rather than rush to terminate the puted that the child has never been H.L.B.R., relationship. custody of In the the father. See Interest (Iowa Ct.App.1997). Nei N.W.2d (Iowa 1991) B.L., 343, 346 ther nor state law federal allows State (acknowledging paternity that is im- unless parent’s rights pursuit to terminate birth, mediately admitted father authority utopia. There is no Skinnerian no custody rights until a court order par State to terminate a allows the grants provided by such as Iowa relationship ent-child where the child loves 675.40). Code section child, father, the father loves the physical supreme interpreted can and emotional Our father meet court singular “parents” plural placement needs with the word mean adjudi by statutory provided poses appreciable father risk construction 4.1(17). In catory This father is Code re Mar- harm the child. section N.M., riage perfect, require the law N.W.2d but does 1992).2 interpretation proving This aids the the fourth requirement element or establishing 232.116(l)(h).3 in this case in the third ele- of Iowa Code section 232.116(l)(h)(3) of Iowa ment code requires proof

which the child re- VOGEL, Judge, (dissenting). home, parents’ par- moved from the or a agree I Because with the district court’s home, ent’s for at least six the last parental decision to terminate Thomas’s months, or for twelve the last six consecu- M.S., rights to I from majority dissent *12 long period months so as tive trial opinion. I conclude the State offered suffi- thirty days. less than lasted Because the cient to prove child the could not child had been removed from the mother’s be returned care at the time time, period care for this of the State need of the termination hearing due to fail- his not the child was removed from the ure to abstain from controlled substances father’s home. with his of coupled history anger manage- Nonetheless, supreme the court has not problems. ment interpreted yet requirement the fourth in M.S., issue, the child came to the 232.116(l)(h)(4) requir- Iowa Code section attention of the Department Hu- of “[tjhere ing proof convincing clear and (DHS) posi- man Services when he tested evidence that the child cannot be returned for THC at in tive birth June of 2015. custody parents to the of the as child’s initially the mother While informed the provided by section present 232.102 at the man DHS that another was the father 232.116(l)(h)(4). § time.” Iowa Code Cer- the his status as knew the tainly the father cannot defend with evi- during early stages child’s father dence that the mother is able to have the pregnancy and contacted the mother a D.G., re returned to her. See In child birth, days asking few before M.S.’s to see (Iowa (stat- Ct.App.2005) N.W.2d the child. Thomas aware of the ing parent that one cannot facts or assert DHS’s involvement with but M.S. did legal positions par- pertaining to other to the reach out DHS until he was ent). contact- And because the father never had by ed letter November 2015. When custody, the child was never from removed first identified as fa- M.S.’s custody care and cannot be “returned” ther, placed M.S. with him could facts, to him. our Under to find clear and of suffering adjudicatory without the risk convincing require- evidence of this fourth ment, harm. Thomas was told he needed must word “returned” either be remove risk factors before ignored he could interpreted encompass unsupervised move forward visitation custody situation where cannot be “award- placement in his eventual supreme ed” the father. Until our issue, expectations court I care. Those Thom- addresses this decline included: from adopt interpretation abstaining using drugs, an complying such and conclude testing, drug working failed to meet its burden with random on his 4.1(17) provides, parent. 2. Iowa Code section "Unless noncustodial specifically provided 232.102(8). otherwise sin- by law the Other alternatives to terminate gular plural, plural includes and the in- parental are to the available State un- singular.” cludes the 232.116(1), der Iowa Code section See In re C.F.-H., 16-0918, No. 2016 WL 4379340 parent custody 3. When from removed 17, 2016) C.J., (Danilson, Ct.App. Aug. obligation there is also an to warn the dissenting). potential parental termination of rights, warning necessarily afforded to a February, 1.0 stressors, following through pg/mg. on five test is two life being the first test and after counseling and recommenda- months after individual necessary to “live in a for him to steps goal tions. The informed environment, M.S., free from gain custody of Thomas’s test results safe and stable substances, high caretakers who are as it been in late illegal were almost as had clean, maintaining stability Despite this pg/mg. sober and December: 17.02 result, health.” high of their mental Thomas claimed to startlingly once in two months only have used those Marijuana I. Use. meeting family after a stressful team mid-January. May initial conversations between The hair test on From the stat reduced, very high, Thomas December the DHS and showed a but still level con- paternity M.S. was pg/mg, spite even before of 11.39 of Thomas’s claim DHS, Thomas was aware firmed a month the last time he used was drug screens provide his need to two clean April earlier on *13 beyond supervised to fully in order move analysis The urine test results also do As of of the visitation the time with M.S. usage in not show a over decrease May 2016, in he hearing had given proceedings.4 course of these A test utterly comply this directive. with failed April on a of THC 113. showed level long-time his use open Thomas about was May on given A later test two weeks cannabis, including marijuana and can- a level of THC 244. The showed began using he oils. He testified nabis screening for tests 50. cutoff these twelve, controlled substances when he was why explanation had no as to Thomas in using only juvenile them while a stopped dramatically in level increase so two facility, and residential treatment admitted he last used on when he claimed weeks daily marijuana stay. use of after that only explanation April 6. ad- His three in the He has tried and failed times that a “detox kit” before mission he used complete drug pro- past treatment April Thomas admitted he test. grams. using He also at least admitted “essentially mask used the kit whether during three times course the child- system.” not THC in Even [his] [was] proceeding. in-need-of-assistance he not made Thomas admitted had appeared to be honest Thomas While progress sustained so- substantial towards use, open marijuana about his and briety in the five months he been had drug screen Thomas’s test results belie in involved services. mari- contention that he had reduced his juana consumption daily usage from when II. Life Stressors. only this case use. started occasional particular concern con- Thomas’s in Of is Thomas’s hair stat test December marijuana help he uses highest one the De- cession that “probably of the marijuana” cope using He mari- partment seen for at 17.63 with stress. admitted screening posi- juana following family for confrontational pg/mg. The cut-off a a positive test result that four 4. The in case Thomas occurred record indicates drug February days result for March 23 positive screens on later. The test indi- had urine 500; 27, May on April April 10. cated a level of THC above the test March 113; April negative February level of the test only on 26 indicated a came test 306; day April on 27 indicated a level of the DHS she doubted next but worker indicated light May negative on level of accuracy in the test indicated a test of that used Thomas's as when last admissions he meeting January. team He admitted end the visit with M.S. it “because was not using marijuana March when appropriate his mother an for [the child] environment him out of her house to be with that upset.” [the] kicked because a father fight they having. He also admitted were A March, month later in the middle of on using marijuana April learning 6 after Thomas’s mother kicked him out her good of the murder of friend. a. two, house due a conflict between the resulting having DHS worker remained concerned in Thomas to live on raising a child ais stressful endeavor friends’ couches a month before he was and that Thomas became housing stressed he able to Again, obtain for himself. may to his coping turn mechanism—mari- mother, due to the stress with his Thomas juana-while caring M.S. and when he marijuana admitted used to cope with eye under watchful repre- the situation. anger problems DHS worker, As long predate sentative. noted the DHS example, M.S.’s birth. For lengthy history just birth, Thomas “has year one before M.S.’s substance, illegal, it an mind-alter- was arrested spent forty days jail ing substance.” And while the physical work- result of altercation DHS.

er not seen him drugs during use had father. He admitted the time of the visit, supervised all fight, she and this court can consuming alcohol. Thom- glean this record is Thomas’s from contin- as’s mother related the DHS that positive use on drug ued based always anger tests. “has had issues *14 go

can from to 90 a matter of in seconds Anger Management. III. provoked.” agreed when Thomas his with mother’s assessment. use, marijuana the continued Besides also DHS had concerns about Thomas’s Analysis. YI. above, anger management. As mentioned hearing, at the termination Statutory Thomas admit- A. for Termi- Grounds escalating to at family ted an interaction participating a nation. While Thomas was meeting team in January. After in anger-management counseling which at using marijuana help cope admitted him hearing to time of the termination and was February, the stress. In making DHS progress, pattern some Thomas’s throughout worker arrived at Thomas’s mother’s this case has been lash to out supervised anger house with M.S. for a in visit. and frustration when conditions not placed cope, Thomas had been of the visit are on informed him. To he turns to to a marijuana to comply due miscommunieation had be use. Thomas in did to his awakened exercise visitation. part plan by With the DHS case maintain- present, the child his ing Thomas let frustra- employment providing adequate anger tion and at the housing, miscommunieation be even after he was out kicked n to present. despite known all worker DHS his. But this mini- mother’s house. frustrated,” “very Thomas testified mal progress, I find termination is would “very agitated,” very argu- and “became appropriate pursuant “pretty 232.116(l)(h), mentative and It requires, part, defensive.” which in to be able to calm convincing hard him down.” “clear evi- produce family thirty had assist for that the cannot Thomas’s be returned dence forty-five try custody parents pro- minutes to to calm him down. the child’s present The DHS worker made it if in at the clear that vided section 232.102 down, 232.116(l)(h)(4). Thomas calm time.” “[A] she would adjudica- just as to suffer an custody likely is to the M.S. returned child cannot be of the termination tory harm at the time section 232.102 parent child’s under if he had exposed hearing would be as he would have been so the child by doing to a in need amounting new child the moment placed harm in care been M.M., re In adjudication.” paternity. assistance became aware DHS 1992). (Iowa N.W.2d where another relative This is not case determining whether The time for parent an addicted has offered assist custody to a child can be returned J.S., re to care for the child. unable Cf hearing. termination time of the is the (Iowa 2014). 36, 42 M.W., 223-24 See he has abstained from continues claim 2016) (“Finally, there is clear and in of test results marijuana use the face record that convincing story. He has very tell a different hearing, termination the time of drug-free provide shown he could safely returned to children could M.S.; for plan place home for he has Upon our de novo of ft.W.... custody using to be eared when he review, that there clear and conclude we marijuana; plan place he has no in the record that the convincing evidence stress, handling including the stress car- safely be could not returned children very young for a other than ing under Iowa sec- custody of R.W. Code mechanism, turning coping to his standard tion at the time 232.102 choice—marijuana. id. drug added)). noted, As hearing.” (emphasis grand- (noting the children at issue had a “any there not been Thomas admitted had willing step and able to who was so- towards sustained progress substantial drug-addicted relieve the mother not be briety” the child could and admitted parenting the mother her duties when today.” con- to him He “fully returned task”). up “was not to the unsuper- require “some ceded he would services, five months of After first,” request overnight visits vised and leaving only progress, made minimal him did not recall mak- employee the DHS *15 adju- imminently likely this to suffer child It stages proceedings. of the ing at earlier dicatory harm if returned to this clear to the DHS M.S. could not 232.2(6)(c)(2), (n), § Iowa Code care. See custody at the to Thomas’s be returned 232.116(2) (o)-, § (requiring see also id. in Thomas’s time. has never been safety physical, consideration of child’s custody and has been since birth never mental, and emotional condition unsupervised Thomas in an cared needs). protection “Child statutes ‘are de- services, setting. Despite five months to the signed prevent probable harm to to progress unable be- Thomas has been delay require until after child and do to yond supervised visitation with M.S. due ” J.S., at harm has 846 N.W.2d occurred.’ marijuana his continued use and canna- L.L., 489, 459 (quoting 43 In re N.W.2d attempts anger oil. to address his bis His (Iowa 1990)). Moreover, 494 as is re- in problems progress. remain a work law, in our Thomas has peatedly cited case the DHS did not have While casework put his of this chosen to needs ahead safety during super- concerns Thomas’s J.L.W., In re 570 child’s needs. N.W.2d visitation, there has never been a vised (“At Ct.App.1997) some 781 has not time when his care of M.S. been of the point, rights him- and needs child rise fully supervised by the DHS. Thomas par- above the and needs could not be re- self testified child ents.”), grounds by In present at overruled on other turned to his care time. P.L., (Iowa 2010). By 232.116(3) apply re in section 778 N.W.2d factors re refusing drug-tests, to provide parent-child relationship. two clean save the AM., (Iowa 2014). Thomas has to demonstrate his continued N.W.2d drug important than-providing use is more circumstances, I Under the conclude the drug-free environment for his child. permissive exception pre- cannot serve This, coupled ongoing anger with his man- clude termination. Thomas knew he was agement, paint picture continues this child’s father when the mother became adjudicato- where M.S. would be at risk pregnant. Thomas took no action to be- in ry placed harm his care. “Where come in the child’s involved life until the parent has been unable to above the rise then, DHS him. contacted Since experience addiction sobri- sustained only interactions young with this in ety setting, a noncustodial and establish have supervised been visits of brief dura- support system essential maintain tion, requested and he had not even sobriety, hope is little there success supervised visitations increased N.F., parenting.” progress asked the beyond super- DHS (Iowa Ct.App.1998). vised visitation as time of the termi- Thomas,

B. Six-Month Extension. Moreover, hearing. nation my consider- admitting the child cannot be care at ation of this best child’s militates interests time, present requests six-month ex- against invoking permissive exception. tension 232.116(2). time work toward reunifica- See Iowa Code § The child is 232.104(2)(b). tion. See To placed placed foster care but in the extension, an grant such the court must be home, grandparents’ maternal who have specific able enumerate factors or ex- expressed a willingness desire and pected changes behavioral that show the adopt I affirm M.S. would the termination longer need for removal will no exist parental rights. of Thomas’s Id. A end of the additional six months. BOWER, already grant-

three-month extension was VAITHESWARAN JJ. Thomas, agree I join ed with the district this dissent.

court an additional extension is not war- progress ranted here. What Thomas has made has been tentative at best and does

not indicate the need removal will six months. See In re longer exist A.AG., (Iowa Ct.App.

2005). Iowa, Plaintiff-Appellee, STATE of Impediments

C. to Termination and Best Interests. Thomas also contends v. should be terminated because STEFFENS, Connor Clar William parent-child the closeness relation- Defendant-Appellant. 232.116(3)(c). ship. 15-1980 No. statutory weighing against factors termi- permissive, mandatory. nation are Appeals Iowa. Court D.S.,

re 474-75 December Filed discretion, Ct.App.2011). The court has unique based on the circumstances of each

case and the interests of the best