In the Interest of A.D., Minor Child, J.W., Mother

IN THE COURT OF APPEALS OF IOWA

No. 15-0469
Filed March 9, 2016

IN THE INTEREST OF A.D.,
Minor Child,

J.W., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Fayette County, Alan D. Allbee,

Associate Juvenile Judge.

A mother appeals from the order terminating her parental rights.

AFFIRMED.

Cory R. Gonzales of Law Firm of Cory R. Gonzales P.L.L.C., Strawberry

Point, for appellant mother.

Anthony J. Gericke of Gericke Law Office, Postville, for appellant father.

Thomas D. Katsumes, Elgin, guardian ad litem for minor child.

Considered by Vogel, P.J., Potterfield, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MAHAN, Senior Judge.

A mother appeals from the order terminating her parental rights to her

three-year-old child pursuant to Iowa Code chapter 600A (2013), claiming there

was not clear and convincing evidence she abandoned the child and termination

was not in the child’s best interests. We affirm the decision of the juvenile court

terminating the mother’s parental rights.

I. Background Facts and Proceedings

The mother and father are the parents of A.D., who was born in August

2012. For the first six months of A.D.’s life, the child lived with and was cared for

by the mother and father in Wisconsin. In February 2013, the father went to jail,1

and the mother and child had no place to live. The mother asked a friend to take

the child, unannounced, to Josette’s (the child’s maternal grandmother) house.

Josette was unable to care for the child so she contacted Timothy, the child’s

maternal grandfather. Timothy and his wife, Salenia, who live in Iowa, agreed to

care for the child on a temporary basis until the mother could get on her feet.

The following day, the mother went to Josette’s house. Josette told the

mother she was unable to keep the child but that Timothy and Salenia could.

Josette, a nurse, had obtained a “Voluntary Placement Agreement” from an

individual in the local human services office. The agreement, which was signed

by the mother, provided:

Child’s Full Name: [child’s name] DOB: XX-XX-12
I am the parent with legal custody of the above-named child, and
voluntarily agree to place the child with [Timothy2], my father

1
The father was released from jail in June 2013.
2
Sometime after the mother signed the voluntary placement agreement but before it was
delivered to Timothy and Salenia, Salenia’s name was written underneath Timothy’s.
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who resides at [Timothy’s address in Iowa].
I am allowing my father to have physical custody and control of my
child, exercise and perform all decision-making responsibilities for
my child which include the following: all medical care (routine and
extraordinary), dental care, educational care, and any other care
that my child may need.
Parent Signature: [mother’s signature] Date: 3-07-13
Parent Name Printed: [mother’s name]
Parent Address: [mother’s address in Wisconsin]
Parent Phone Number: XXX-XXX-XXXX

The next day, Josette and Salenia met in La Crosse, Wisconsin—the

halfway point between them—to exchange the child.3 The child had minimal

supplies—a “handful” of diapers, a bottle, and a “half can of formula.” Because

Timothy and Salenia’s three children were older—ages eighteen, eleven, and

seven—Salenia made arrangements to borrow or purchase the supplies needed

to care for a six-month-old baby. The child was not up-to-date on immunizations

and, according to Salenia, was “[n]ot where she should have been”

developmentally.

In April 2013, the mother came to Iowa to visit a cousin. Salenia brought

the child for a visit at the cousin’s house. Salenia allowed the mother to come

home with her and the child. The mother stayed overnight, and Timothy and

Salenia encouraged her to stay and indicated they would assist her in obtaining

employment and housing so the child could be returned to her care. While there,

the mother had some interaction with the child but “[s]lept a lot.” The mother

asked if a male friend could stay with her at Timothy and Salenia’s house.

Salenia “didn’t feel comfortable with that,” so the mother decided to go to a motel

Salenia denied writing her name; the juvenile court surmised Josette may have added
Salenia’s name.
3
Timothy, an over-the-road truck driver, was working that weekend.
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to stay with the friend. The mother said she would be back the next day; instead,

she returned to Wisconsin with the friend.

In May 2013, Timothy and Salenia filed a petition for appointment of

guardian (voluntary), after medical professionals questioned their ability to

consent to medical services for the child. In June 2013, following a hearing, the

district court entered an order naming Timothy and Salenia as the child’s

guardians. Although the parents were aware of the guardianship proceeding,

they did not inquire about the status of the guardianship or seek to have it

terminated.4

In June 2013, the father’s mother, Patricia, contacted Timothy and Salenia

and asked them to come to Chicago and take the mother back with them.

Timothy and Salenia agreed and were en route to Chicago when the mother

called and told them she was having second thoughts. The next day the mother

confirmed she and the father had reconciled and she was staying in Chicago.

Timothy and Salenia returned home. At various times when Timothy was on

truck routes through Chicago for work he offered to pick up the mother or father

and bring them to Iowa to see the child, but they declined.

In March 2014, Timothy and Salenia enlisted the help of an attorney to

prepare consents to termination of parental rights and to adoption of child, which

4
Although notice was provided to the parents at their last known addresses, as required
by law, the parents later denied receiving notice in advance of the hearing. At trial,
however, the father acknowledged he had received notice while he was in jail. Likewise,
the mother testified the father told her he had received the guardianship notice.
On appeal, the mother challenges the guardianship on the grounds that it “was
not properly obtained.” The mother did not raise this issue before the juvenile court, and
the court did not address it. “It is a fundamental doctrine of appellate review that issues
must ordinarily be both raised and decided by the district court before we will decide
them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). This claim is
not preserved for our review.
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they sent to the mother and father. The parents refused to sign the consents;

instead, the father requested he and the mother be given more time to stabilize

their situation so they could provide care for the child. Timothy reluctantly

agreed.

Six more months passed. Aside from a few heated telephone calls from

the father to Timothy, the parents had no contact with Timothy and Salenia. The

parents did not ask about the child or request to visit the child. At one point

Timothy expressed concern to the father at the costs associated with supporting

the child; the father told Timothy “he would pay [them] back.” At no time did the

mother and father provide any financial support for the child, and they never sent

any cards or presents or other supplies.

In September 2014, Timothy and Salenia filed a petition seeking to

terminate the parents’ parental rights under Iowa Code chapter 600A. The

petition stated Timothy and Salenia were the child’s guardians and alleged the

mother and father had abandoned the child pursuant to Iowa Code section

600A.8(3)(b). The parents were appointed counsel.

In December 2014, the mother, through her attorney, filed a revocation of

voluntary placement agreement, stating the voluntary placement agreement

executed by the mother on March 7, 2013, “is hereby revoked, rescinded,

cancelled, terminated, and voided in full, effective immediately,” and stating the

mother “demands immediate return of physical custody and control of the child.”

The child remained in Timothy and Salenia’s care, as they believed they had a

valid guardianship over the child.
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A termination hearing was held on February 13, 2015. The court heard

testimony from the mother and father, who were both represented by their

respective counsels. The mother testified she had only intended for the voluntary

placement to be temporary “because [she] couldn’t take care of [A.D.] right at the

time” and she “knew [Timothy] could do it.” The mother testified she had

intended to “get [A.D.] back” someday.5 The mother testified she worked four

hours per week cleaning a dentist office; she earned $50 per week. The mother

testified she had not seen the child since April 2013, but she had contact several

times on the phone and had “tried to Skype and Facebook.” The mother testified

she was now able to care for the child and asked the court “[t]o give [the child]

back.”

The father testified he had never visited A.D. because he did not “have the

means to do it,” but that he and the mother “were working things out.” The father

testified they lived with his mother, Patricia, in her home, along with another child

of the father’s and another child of the mother and father (born in June 2014).

He stated Patricia had a debilitating illness and required constant care. The

father was unemployed. When asked how he anticipated providing support for

the child, the father testified his mother was going to leave her house to him “in

[her] will,” and stated that he and the mother would “both be working, eventually.”

The mother and father acknowledged they had not provided any financial support

for the child since her placement with Timothy and Salenia.

5
The mother also had an older child, I.S., born in 2011, who lived with the child’s father
in Wisconsin. The mother had not seen I.S. “in a year or so.” Although she was
obligated to pay $50 per month in support for I.S., the mother was substantially in
arrears.
 7

Timothy and Salenia also testified. They indicated the child was on track

developmentally and was bonded to them and their other children. The child was

up-to-date on immunizations and was integrated into the daycare she attended

on days Salenia worked. They testified they were “attached” to A.D. and would

adopt the child if they had the opportunity. They also indicated they would be

willing to allow the parents visits with A.D. if their parental rights were terminated.

The court also received several exhibits into evidence, including the report

of the guardian ad litem, which recommended termination of parental rights.

Following the hearing, the court entered an order terminating the parental rights

of the mother and father, concluding both parents had abandoned A.D. pursuant

to chapter 600A and termination was in the best interests of the child. Both

parents appealed, but only the mother’s appeal is before us.6

II. Standard of Review

We review termination proceedings brought pursuant to Iowa Code

chapter 600A de novo. See In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App.

2010). We are not bound by the district court’s factual findings, but we do afford

them weight, particularly findings regarding witness credibility. Id. Our primary

concern is the best interests of the child. Iowa Code § 600A.1 (“The best interest

of the child subject to the proceedings of this chapter shall be the paramount

consideration in interpreting this chapter.”); see also C.A.V., 787 N.W.2d at 99.

6
On December 21, 2015, the Iowa Supreme Court entered an order “dismiss[ing] the
father’s appeal for his failure to comply with the appellate rules.”
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III. Discussion

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

and convincing evidence the statutory ground or grounds authorizing the

termination of parental rights. See Iowa Code § 600A.8; In re R.K.B., 572

N.W.2d 600, 601-02 (Iowa 1998). In addition, after proving the statutory ground

or grounds, the petitioner must also prove that termination of parental rights is in

the best interest of the child. See Iowa Code § 600A.1; R.K.B., 572 N.W.2d at

602. While the best interests of the child is the primary concern of the

termination proceeding, the interests of the parents must also be given due

consideration. See Iowa Code § 600A.1; R.K.B., 572 N.W.2d at 601.

The mother contends there was not clear and convincing evidence she

abandoned the child under Iowa Code section 600A.8(3)(b). Abandonment of a

minor child is one statutory ground for termination of parental rights authorized by

chapter 600A. See Iowa Code § 600A.8(3). Chapter 600A defines

abandonment of a minor child as “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). More

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.
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(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.

Id. § 600A.8(3)(b).

In other words, section 600A.8(3)(b) requires a parent not living with a

child to demonstrate a requisite level of contact with the child. See In re G.A.,

826 N.W.2d 125, 130 (Iowa Ct. App. 2012). The mother claims she was

financially unable to visit the child at least monthly, and Timothy and Salenia

stifled her efforts to communicate with the child. To support her contention, the

mother states she and the father “made multiple phone calls that went

unanswered, sent text messages to Tim, exchanged messages via Facebook,

and made attempts to use Skype.”

We acknowledge Timothy’s testimony that at one point he blocked the

mother and father’s number from his phone because he felt he could not safely

accept their barrage of heated communications during his work as an over-the-

road truck driver. Although the mother had access to Timothy and Salenia’s

home phone number, she never tried to reach them at home. In any event, the

mother’s few and sporadic attempts to communicate over a period of nearly two

years can hardly be characterized as “[r]egular communication.” See Iowa Code

§ 600A.8(3)(b). The voluntary failure of a parent to maintain regular

communication can justify termination. See In re T.B., No. 14-1984, 2016 WL

530990, at *7 (Iowa Ct. App. Feb. 10, 2016) (“Since at least October 2011,
 10

neither parent has visited T.B. or M.C., and even if we assume that their interest

in visitation was frustrated by the guardian’s actions, both the father and mother

fail to satisfy the alternative means of regular communication with either the

children or the children’s guardian.”); In re A.M.M., No. 13-0627, 2014 WL

3928877, at *2 (Iowa Ct. App. Aug. 13, 2014) (finding that a mother’s lack of

contact with child for sixteen months and lack of contact with custodial father for

twelve months prior to termination hearing was “a marginal effort, at best, to

maintain regular communication” and justified termination, even assuming that

father had prevented her from having visitation with child).

The mother claims the court failed to consider her intent to place A.D.,

temporarily, “in a better environment until she could safely be returned.” A

subjective intent by the parent to maintain the parent-child relationship

unsupported by the acts specified in section 600A.8(3)(b) will not preclude a

determination that the parent has abandoned the child. Iowa Code §

600A.8(3)(c); see also G.A., 826 N.W.2d at 130-31 (recognizing that a parent’s

subjective intent does not preclude a finding of abandonment). Moreover, a

showing of abandonment does not require total desertion; feeble contacts can

also demonstrate abandonment. In re M.M.S., 502 N.W.2d 4, 7 (Iowa 1993).

Here, there is clear and convincing evidence in the record to show the mother

has made only a marginal effort to communicate regularly with the child or the

child’s custodians, support the child, or otherwise maintain the parent-child

relationship.

The mother also contends termination of parental rights is not in the child’s

best interests.
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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.

Iowa Code § 600A.1. The record demonstrates the mother has failed to

affirmatively assume the duties encompassed by the role of being a parent.

“Parental responsibility demands affirmative parenting to the extent it is

practicable and feasible under the circumstances.” G.A., 826 N.W.2d at 130

(citation omitted). Although the mother appeared to consider reentering the

child’s life on several occasions, her whim never amounted to more than just

that. The record shows the mother has not demonstrated a continued interest in

A.D. or made a genuine effort to maintain contact with the child. She has not

established or maintained a place of importance in the child’s life. Although the

mother testified the child was “super excited” to see her at the termination

hearing in February 2015, the fact remains that by that time A.D. had not seen

the mother since April 2013, and the child viewed Timothy and Salenia’s family

as her own.

We affirm the decision of the juvenile court terminating the mother’s

parental rights pursuant to chapter 600A.

AFFIRMED.