In the Interest of G.B. and A.B., Minor Children, B.C., K.B., Mother

IN THE COURT OF APPEALS OF IOWA

No. 14-1691
Filed July 22, 2015

IN THE INTEREST OF G.B. and A.B.,
Minor children,

B.C.,
Petitioner-Appellee.

K.B., Mother,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Poweshiek County, Rose Anne

Mefford, Judge.

The mother appeals from an order terminating her parental rights pursuant

to Iowa Code chapter 600A. AFFIRMED.

Dustin D. Hite of Heslinga, Dixon, Moore & Hite, Oskaloosa, for appellant.

Diane Crookham-Johnson of Crookham-Johnson Law Office, P.L.L.C.,

Oskaloosa, for appellee.

Terri Menninga, Pella, attorney and guardian ad litem for minor children.

Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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MCDONALD, J.

The mother appeals an order terminating her parental rights to her

children, G.B., age ten at the time of trial, and A.B., age seven at the time of trial.

The district court terminated the mother’s rights in her children pursuant to Iowa

Code section 600A.8(3) (2013), finding that there was clear and convincing

evidence the mother abandoned the children and that the termination of her

parental rights was in the children’s best interest. We affirm.

I.

The mother has not been responsible for the day-to-day care of her

children since 2007. Since that time, the children have lived with their paternal

grandparents, with the exception of a brief period of time in 2008 when the

children resided with the mother in an in-patient drug treatment facility. When the

mother was “kicked out” of the program, the children went back to live with their

grandparents. The grandparents were named legal guardians of the children in

2008 following a child in need of assistance (CINA) proceeding. The court

granted the mother visitation every other weekend and every Wednesday

afternoon.

Until 2010, the grandparents and the children lived in the hamlet of

Newburg near Grinnell, Iowa. The mother testified that for the majority of that

time she lived with the grandparents and helped care for the children. The

grandmother testified the mother lived intermittently with them during that time,

as the mother also lived in four different cities during those two years. The

record reflects that when the mother was at the grandparents’ home, she often
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slept until noon and failed to take her psychiatric medications. The mother has

been diagnosed with bipolar disorder, a condition she has suffered since her

teenage years.

In 2010, the grandparents and the children moved to Arkansas. Following

the move, the grandparents filed a request to modify the visitation rights of the

mother. In response, the mother sought to terminate the grandparents’

guardianship of G.B and A.B. The court denied the mother’s request to terminate

the guardianship. The court compared the mother’s inability to provide parental

care with the grandparents’ “excellent day-to-day care” of the children. The court

noted that the mother “has never pursued a course of regular and meaningful

contact with the boys in the past.” Also significant to the court’s decision was the

mother’s failure to sustain a stable home, her inability to remain compliant with

her prescribed psychiatric care, and her inability to protect her kids from the

perils of her own lifestyle. The court changed the mother’s visitation rights,

requiring only that the guardians “openly communicate with [the mother]

regarding the wards’ activities, growth and development, schooling, health, and

religious involvement.” The court also ordered the grandparents to

accommodate the mother’s “reasonable requests for telephonic, Internet, and/or

in-person visitation.”

While the children were living with their grandparents in Arkansas, the

financial situation of the grandparents and the mother prevented frequent visits

between the children and their mother. The children visited the mother only two

times between 2010 and 2012. On each occasion, the grandparents facilitated
 4

the visitation. The parties agree that telephone communication was also minimal

but they disagree on the reason. The mother testified that she called multiple

times per week but “their phone was messed up” and she could “barely get ahold

of them.” The grandmother testified their telephone had always worked. The

mother and the grandmother did communicate via Facebook during this time.

The record also reflects the mother had some communication via Facebook with

G.B. during this time.

In May of 2012, the grandparents moved the children back to Iowa. The

mother, who was living in Mason City at the time, immediately moved in with her

best friend in Grinnell to be closer to the children. Initially, the mother saw the

children often. Toward the end of 2012, the mother testified, the grandmother

pressed her to terminate her parental rights. The mother’s testimony is partially

corroborated by a Facebook message sent by the grandmother encouraging the

mother to “sign the papers,” so that “the children will have something after [the

Grandfather] is gone.” The grandmother testified she wanted the mother to

agree to the termination of her rights to facilitate adoption of the children, which

would entitle the children to Social Security benefits if the grandfather deceased,

which he did while this case was pending on appeal.

In January 2013, the mother moved to New Mexico to be with her family

and “support system.” She cited the grandmother’s strict visitation policy and her

inability to find work in Iowa as other reasons for the move. The mother still

resides in New Mexico. While in New Mexico, the mother has maintained full-

time employment as a hotel desk clerk, at the time of trial earning $8.75 per hour.
 5

Since the mother’s move to New Mexico, she has seen her sons on only two

occasions, both coincident with travel to Iowa for court proceedings. The

grandmother required the visits to be supervised because G.B. told her, “all [the

mother] does is yell at him and hit him” and because “[the mother] has nowhere

to take [the children].” The grandmother estimated the mother has talked with

the children on the telephone seven times since the move. She also testified the

mother often failed to call after promising the children she would. The mother

had been communicating with G.B. via Facebook prior to the move to New

Mexico, but since the move they only had one short exchange, which was during

April of 2013.

In May 2013, the grandparents filed a petition to terminate the mother’s

and the father’s parental rights. The father gave written consent to the

termination of his rights, and his rights are not the subject of this appeal. The

children’s guardian ad litem recommended termination of the mother’s parental

rights. The basis for her recommendation was the mother’s lack of contact with

the children, the mother’s inability to appreciate the effort exerted by the

grandparents in caring for the children, and the absence of stability in the

mother’s life. Included in the guardian ad litem’s report is an email from G.B.’s

Behavioral Health Intervention Services provider, which also recommends

termination based on the lack of involvement and the negative effect this has had

on G.B.’s behavior.

Following trial, the juvenile court found and concluded the mother had

abandoned the children. The juvenile court terminated the mother’s parental
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rights pursuant to Iowa Code section 600A.8(3). The juvenile court specifically

credited the grandparents’ testimony over the mother’s testimony where there

was conflicting testimony. The court also found and concluded that “[t]ermination

would benefit these children in that they would have permanency and stability

with adoption by the Petitioners.” The mother timely filed this appeal.

II.

Our review is de novo. See In re R.K.B., 572 N.W.2d 600, 601 (Iowa

1998). While not bound by the factual findings of the court below, we give weight

to the district court’s findings, especially regarding the credibility of witnesses.

See id.

III.

In a private termination proceeding, the petitioners must establish by clear

and convincing evidence the statutory ground or grounds authorizing the

termination of parental rights. See Iowa Code § 600A.8; R.K.B., 572 N.W.2d at

602. If the statutory grounds are proved, the petitioners must also prove that

termination of parental rights is in the best interests of the children. See Iowa

Code § 600A.8; R.K.B., 572 N.W.2d at 602. While the best interests of the

children is the primary concern of the termination proceeding, the interests of the

parents shall be given due consideration. See Iowa Code § 600A.1; R.K.B., 572

N.W.2d at 601.

Abandonment of a minor child is one of the grounds supporting the

termination of parental rights authorized by Iowa Code chapter 600A. See Iowa

Code § 600A.8(3). Chapter 600A defines abandonment of a minor child as
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“reject[ing] the duties imposed by the parent-child relationship . . . , which may be

evinced by the person, while being able to do so, making no provision or making

only a marginal effort to provide for the support of the child or to communicate

with the child.” Id. § 600A.2(19). Specifically,

If the child is six months of age or older when the termination
hearing is held, a parent is deemed to have abandoned the child
unless the parent maintains substantial and continuous or repeated
contact with the child as demonstrated by contribution toward
support of the child of a reasonable amount, according to the
parent’s means, and as demonstrated by any of the following:
(1) Visiting the child at least monthly when physically and
financially able to do so and when not prevented from doing so by
the person having lawful custody of the child.
(2) Regular communication with the child or with the person
having the care or custody of the child, when physically and
financially unable to visit the child or when prevented from visiting
the child by the person having lawful custody of the child.
(3) Openly living with the child for a period of six months
within the one-year period immediately preceding the termination of
parental rights hearing and during that period openly holding
himself or herself out to be the parent of the child.
....
c. The subjective intent of the parent, whether expressed or
otherwise, unsupported by evidence of acts specified in paragraph
“a” or “b” manifesting such intent, does not preclude a
determination that the parent has abandoned the child. In making a
determination, the court shall not require a showing of diligent
efforts by any person to encourage the parent to perform the acts
specified in paragraph “a” or “b”. In making a determination
regarding a putative father, the court may consider the conduct of
the putative father toward the child’s mother during the pregnancy.
Demonstration of a commitment to the child is not met by the
putative father marrying the mother of the child after adoption of the
child.

Id. § 600A.8(3)(b)-(c). Contrary to the mother’s assertion, the petitioners need

not establish her subjective intent to abandon the children. See Iowa Code

§ 600A.8(3)(c); In re G.A., 826 N.W.2d 125, 128 (Iowa Ct. App. 2012)

(recognizing that a parent’s subjective intent does not preclude a finding of
 8

abandonment); In re C.J.F.M., No. 10-0166, 2010 WL 3157756, at *2 (Iowa Ct.

App. Aug. 11, 2010) (recognizing the “intention to abandon is no longer a

statutory element in the definitions of Iowa Code Chapter 600A”). On de novo

review, we conclude there is clear and convincing evidence of abandonment.

There is clear and convincing evidence the mother failed to contribute

support in a reasonable amount to the children. See Iowa Code § 600A.8(3)(b).

Prior to the termination petition being filed, the mother provided three payments

of child support totaling $250, as well as informal support of at least $290. The

mother had previously been ordered to pay $165 per month in support of the

children. At the time of trial, the mother estimated her outstanding obligation was

approximately $12,000.

The mother contends that she was financially unable to provide more than

nominal support to the children during the relevant time period and that the

statute’s language, “according to the parent’s means,” recognizes this as an

excuse for failure to provide “support of a reasonable amount.” This court has

recognized a parent’s financial inability to contribute to the support of the children

as a justification for the failure to contribute to the support of the children. See,

e.g., In re C.C.S., No 14-1010, 2015 WL 576381, at *3 (Iowa Ct. App. Feb. 11,

2015) (upholding the district court’s finding of no abandonment when the mother

failed to pay child support but was unemployed); In re J.J., No. 08-2026, 2009

WL 1492860, at *6 (Iowa Ct. App. May 29, 2009) (finding reasonable support

according to the father’s means when he had satisfied only forty-five percent of

his court-ordered obligation due to his low income). Those cases are predicated
 9

on the assumption the parent is making a good faith effort to provide support to

the children. Here, the mother, due to her own conduct and instability, failed to

provide almost any support for her children for more than five years. The Iowa

Supreme Court has described the “abnegation of court-ordered financial

responsibility to a child” as “the equivalent of abandonment.” In re Kelley, 262

N.W.2d 781, 785 (Iowa 1978).

There is clear and convincing evidence the mother has failed to visit the

children monthly. See Iowa Code § 600A.8(3)(b)(1). Since the mother moved to

New Mexico in January of 2013, she visited the children on only two occasions.

On both of the occasions, the mother’s visitation was related to this court

proceeding. While it is undisputed the mother lacked the means to visit the

children monthly while in New Mexico, “self-imposed” barriers do not excuse the

mother’s conduct. See, e.g., In re M.M.S., 502 N.W.2d 4, 7 (Iowa 1993); In re

K.B., No. 14-0849, 2015 WL 3884176, at *4 (Iowa Ct. App. Jun. 24, 2015); In re

C.J.F.M., No. 10-0166, 2010 WL 3157756, at *3 (Iowa Ct. App. Aug. 11, 2010).

In addition, we agree with the district court’s findings that the mother did

not otherwise maintain or attempt to maintain regular communication with the

children:

[The mother] testified that she routinely changed telephone
numbers or was without a telephone. [The mother] frequently sent
Facebook messages to the petitioner . . . providing a new contact
number or the fact that she did not have a contact number. [The
mother] admitted that for significant periods of time, she was
difficult to reach by telephone. During 2013 [the mother] attempted
communication with the children only two times the entire year via
[the Grandmother]. For 2014 there has been no attempted
communication via [the Grandmother]. [The mother] had direct
contact with [G.B.] via Facebook, as demonstrated in mother’s
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Exhibit B. [The mother] communicated with [G.B.] nine times in
2011, five times in 2012, two times in 2013, and has made no
contact in 2014. [The mother] was not able to demonstrate that she
has had any direct contact with [A.B.] since 2008.

The decreasing contact with the children is clear and convincing evidence

supporting a finding of abandonment. See Iowa Code § 600A.8(3)(b)(2); In re

K.M., No. 14-1374, 2015 WL 1849508, at *6 (Iowa Ct. App. Apr. 22, 2015) (“A

few sporadic text messages over the period of a few months . . . do not rise to

any sort of meaningful contact that may fend off a claim of abandonment,

particularly given the father did not attempt any other type of communication—or

offer financial or emotional support—to K.M.”); In re G.A., 826 N.W.2d at 130

(affirming termination order where the father communicated with the mother via

“sporadic text messages” over the course of several months and made no

attempts to follow up when the mother imposed reasonable restrictions on

visitation); In re D.S.P., No. 09-1188, 2010 WL 445690, at *3 (Iowa Ct. App. Feb.

10, 2010) (holding the father abandoned his daughter when he “largely gave up”

on communication after his first attempts were unsuccessful).

Once the statutory requirements for termination have been met, the

petitioner must also show that the termination of parental rights is in the best

interest of the child. See R.K.B., 572 N.W.2d at 602. Chapter 600A provides:

The best interest of a child requires that each biological parent
affirmatively assume the duties encompassed by the role of being a
parent. In determining whether a parent has affirmatively assumed
the duties of a parent, the court shall consider, but is not limited to
consideration of, the fulfillment of financial obligations,
demonstration of continued interest in the child, demonstration of a
genuine effort to maintain communication with the child, and
demonstration of the establishment and maintenance of a place of
importance in the child’s life.
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Iowa Code § 600A.1. The Iowa Supreme Court has found the statutory best

interest factors in chapter 232 termination cases relevant to chapter 600A

termination cases. See In re A.H.B., 791 N.W.2d 687, 690 (Iowa 2010). The

child’s “emotional and psychological health” is an important consideration. Id.

(citing Iowa Code § 232.116(2)). Weight is also given to the “closeness of the

parent-child bond.” Id. at 691 (citing Iowa Code § 232.116(3)(c)).

Regarding the emotional and psychological health of the children, in the

2010 guardianship proceeding, the court described the grandparents’ care of the

children as “excellent.” The district court in this case described the grandparents

as “very capable” of adopting the children. There is no doubt that termination of

the mother’s rights and continued care of the children by the grandmother would

provide the children with stability and permanency. Considering the length of

time the grandparents have provided a stable home for the children—seven

years—waiting any longer to finally determine the children’s permanent

placement would appear to “‘deprive [them] of permanency after the petitioner

has proved a ground for termination . . . by hoping someday a parent will learn to

be a parent and be able to provide a stable home for the child.’” A.H.B., 791

N.W.2d at 691 (quoting In re P.L., 778 N.W.2d 33, 41 (Iowa 2010)).

The mother cites In re Burney for the proposition that “ordinarily the long-

range best interests of children are better served when they are returned to their

parents at the end of the temporary exigency.” In re Burney, 259 N.W.2d 322,

325 (Iowa 1977). In Burney, a teenage mother agreed to place her child

temporarily with a married couple as guardians. Id. at 323. The mother, with the
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support of her new husband, then sought termination of the guardianship and

custody of the child two years later but the guardians resisted. Id. The Burney

court sought to avoid discouraging parents from seeking “help with their children

in cases of hardship or necessity.” See id. at 325. This case is clearly

distinguishable. The mother in this case was not faced with a “temporary

exigency.” For seven years she has demonstrated that she cannot meet the

needs of her children:

The [M]other . . . admitted through her own testimony that she has
never spent a night with the children by herself since 2007. She
further admitted that she has not been responsible for parenting her
children without assistance from others for even a daytime visit
since 2007. Between 2008 and 2013, the mother’s residence
changed on a regular basis, varying between at least three states
and six towns.
....
[The mother] testified that she has never attended a doctor’s
appointment or public health appointment for either of the minor
children and has nothing to follow up on health issues regarding the
children.

The past performance of the mother as a parent is significant, “for that

performance may be indicative of the quality of the future care the parent is

capable of providing.” R.K.B., 572 N.W.2d at 601. These children should no

longer have to wait for stability in their lives.

IV.

For the foregoing reasons, we affirm the order terminating the mother’s

parental rights.

AFFIRMED.