IN THE COURT OF APPEALS OF IOWA
No. 16-2076
Filed May 3, 2017
IN THE INTEREST OF J.H.,
Minor Child,
J.H., Father,
Petitioner-Appellee,
A.H., Mother,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Thomas J.
Straka, Associate Juvenile Judge.
A mother appeals from the termination of her parental rights. AFFIRMED.
Taryn R. Purcell of Clemens, Walters, Conlon, Runde & Hiatt, L.L.P.,
Dubuque, for appellant.
Patricia M. Reisen-Ottavi of Ottavi Law Firm, Dubuque, for appellee.
Victoria D. Noel of Mayer, Lonergan & Rolfes, Clinton, for minor child.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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DANILSON, Chief Judge.
A mother appeals from the termination of her parental rights to her child
on the petition of the child’s father alleging the mother abandoned the child
pursuant to Iowa Code section 600A.8(3)(b) (2016). The mother contends the
juvenile court erred in finding she abandoned the child, and argues termination of
her parental rights is not in the child’s best interest. We conclude there is clear
and convincing evidence the mother abandoned the child and termination is in
the child’s best interest. We therefore affirm.
I. Background Facts & Proceedings.
The child, J.H., was born in 2006 and was ten years old at the time of the
termination hearing. The mother and father were never married, and they
separated shortly after J.H. was born. Initially, the parties informally agreed J.H.
would live with the mother and the father would have visitation. However, due to
the mother’s husband’s interference in visitation, the father filed an action
seeking physical care in 2010. A decree placing physical care with the father
and providing visitation to the mother was entered on April 18, 2011.
In 2013, the department of human services (DHS) became involved with
the mother’s family because it was learned the mother’s husband was using and
dealing illegal substances in the family home, one of the children in the home
tested positive for illegal substances, and there were concerns of domestic
violence. The mother’s parental rights to her two other children were terminated
in 2015 because the mother could not protect her children by honoring a no-
contact order and staying away from her husband.
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A founded child abuse assessment was also completed with respect to
J.H. in 2013. The assessment identified the mother’s husband as the
responsible person for denial of critical care stemming from his use of illegal
substances in J.H.’s presence. J.H.’s father subsequently placed limitations on
the mother’s exercise of visitation, requiring that she not take J.H. to her home or
any place where the mother’s husband may be. The father offered visitation with
J.H. at the father’s home, at the home of the mother’s parents, and at the home
of the father’s parents. The mother testified she felt “uncomfortable” visiting J.H.
at the father’s home. Therefore, at the time of the October 28, 2016 termination
hearing, the mother had visited J.H. only twice since December 2014. The
mother had not seen J.H. at all since the fall of 2015—approximately one year
prior to the termination hearing. Although the mother was provided with J.H.’s
basketball schedule, the mother did not attend any games.
The mother also made only sporadic attempts to communicate with the
father and J.H. The father testified the mother would sometimes go thirty days
without making contact. The father further testified in the year preceding the
termination hearing, there would be gaps of as long as ninety days in
communication with the mother
“Sporadic” also describes of the mother’s effort to provide financial
support. The mother was ordered to pay the father $80 per month in child
support, but made inconsistent payments by way of automatic withholding during
periods when she was employed. Over the period of about five years between
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the 2011 decree and the 2016 termination hearing, the mother paid
approximately $4300 in child support.1
The father is remarried. J.H.’s stepmother testified at the termination
hearing she and J.H. have a good relationship. The stepmother shares in the
responsibility of parenting J.H., and has developed a bond with J.H. The
stepmother testified she would like to adopt J.H. if the mother’s parental rights
are terminated.
The guardian ad litem (GAL) provided a report to the court in which she
stated J.H. expressed great fear of the mother’s husband. J.H. also expressed
fear about the possibility of going to live with the mother if something happened
to the father. The GAL also reported that “after the interview, it was very clear
[J.H.’s] desire in this case, which is for the court to grant the termination of
parental rights for [the] mother and to be adopted by [the] stepmother.”
At the time of the termination hearing, the mother was living in a family
friend’s apartment. The mother has mental-health issues including depression,
anxiety, and ADHD, which she does not manage with medication as
recommended. The mother acknowledged her husband was abusive and her
children were afraid of him, and yet she repeatedly violated the no-contact order
and kept her husband in the children’s lives. The mother testified she is no
longer in contact with her husband, but remains married to him. The mother
reported she has a new paramour and is considering living with him in the future.
The mother testified her new paramour has prior criminal charges and has had
1
This included $642.35 in 2011, $1005.53 in 2012, $281.50 in 2013, $1602 in 2014,
$258.04 in 2015, and $518.11 in 2016.
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his parental rights to a child terminated, but she does not know what the criminal
charges are or the reasons for the termination.
As to visitation with J.H., the mother testified:
Q. What do you believe to have been the longest block of
time that you went without—between seeing or visiting with [J.H.]?
. . . . A. Probably, like, a year and a half maybe.
Q. And during that year and a half, you could have done
visits at the [father]’s home or your dad’s home or [the father]’s
mother’s home, but you felt uncomfortable. A. Correct.
The juvenile court determined the mother’s “efforts were insufficient to
maintain substantial and continuous or repeated contact” with J.H. and
termination was in J.H.’s best interest. The court entered an order terminating
the mother’s parental rights on November 23, 2016. The mother now appeals.
II. Standard of Review.
We conduct a de novo review of termination proceedings under chapter
600A. In re C.A.V., 787 N.W.2d 96, 99 (Iowa 2010). “We accord weight to the
factual findings of the juvenile court, especially those regarding witness
credibility, but we are not bound by them.” Id. Our paramount consideration is
the best interest of the child. Iowa Code § 600A.1.
III. Analysis.
The mother asserts there is not clear and convincing evidence she
abandoned J.H., and contends termination is not in J.H.’s best interest.
Iowa Code section 600A.8(3)(b) provides grounds for termination when
there is clear and convincing evidence a parent has abandoned a child six
months of age or older
unless the parent maintains substantial and continuous or repeated
contact with the child as demonstrated by contribution toward
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support of the child of a reasonable amount, according to the
parent’s means, and as demonstrated by . . . [v]isiting 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 . . . [or] [r]egular 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.
To her credit, the mother did render modest child support payments
sporadically throughout the child’s life when the mother was employed and had
the means to provide support. However, the juvenile court found the mother did
not maintain substantial and continuous contact with the child within the meaning
of section 600A.8(3)(b). We agree.
Although the location of the mother’s visitation was limited to protect the
safety of the child, the mother was provided opportunities to visit with J.H. and
only did so on two occasions in 2015. By the time of the termination hearing in
October 2016, the mother had not visited J.H. in approximately one year.
The mother contends the father prevented her from participating in
visitation with J.H. However, the father did not refuse visitation. Rather, he
provided alternatives to the mother to ensure J.H.’s safety during visits. The
mother testified she objected to visiting J.H. at the father’s house because it was
uncomfortable for her. But the father offered two other locations for visitation,
and the mother never initiated any court action after the decree was entered to
enforce her visitation rights. Further, it seems likely that DHS may have
intervened if the mother exercised visitation in her home when her husband was
present.
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The mother also did not maintain continuous communication with J.H. or
the father, at times making no attempt to contact them for thirty or even ninety
days. The mother did not take advantage of the opportunities provided to her to
see her child, and certainly was not visiting with J.H. on a monthly basis or
maintaining regular communication. We therefore find the juvenile court properly
determined there were grounds for termination under Iowa Code section
600A.8(3)(b) on the basis that the mother failed to maintain “substantial and
continuous or repeated contact with the child.”
We also conclude termination of the mother’s parental rights is in J.H.’s
best interest. Iowa Code section 600A.1 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 a 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.
In evaluating J.H.’s best interest, the juvenile court stated:
[The mother] testified that she is no longer in a relationship
with [her husband], even though they remain married. The court
gives little weight to [the mother]’s testimony in this regard, given
her documented dishonesty regarding her relationship with [her
husband].
Even if she is no longer in a relationship with [her husband],
her protective capacities are still called into question. [The mother]
testified she is currently in a relationship with an individual who has
his own criminal history issues and had his parental rights
terminated, but she was unsure why. [The mother] is currently
homeless and sleeps on the couch of a family friend. The
residence appears to be a duplex in which [the mother]’s uncle was
arrested on drug charges. . . . [The mother] testified it was her
intention to move out of the apartment and either into the Maria
House or in with her new boyfriend. [The mother]’s unstable
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lifestyle, prior termination of her parental rights, and volatile
relationships remain a concern.
In evaluating the child’s best interest, “[w]e look to the child’s long-range,
as well as immediate, interests.” In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998)
(citation omitted). The mother has not demonstrated appropriate decision-
making skills with regard to her relationships. The mother did not take the
necessary steps to protect her children from her husband, resulting in the
termination of her parental rights to her other two children and DHS involvement
and a founded child-abuse report with respect to J.H. The decisions by the
mother have negatively impacted J.H., causing J.H. a great deal of fear and
uncertainty as to whether she would be protected by the mother in the future.
Additionally, the mother has not exhibited the ability to provide a safe and stable
environment for J.H. The mother did not have a suitable residence at the time of
the termination hearing and was engaging in a relationship with a new individual
with a criminal history. The mother has not demonstrated a genuine effort to
show a continued interest or maintain a place of importance in J.H.’s life.
Alternatively, the father and stepmother have provided a safe and stable
environment for J.H. The stepmother has acted as a caregiver for J.H. and
expresses a desire to adopt J.H. The father brought the petition for termination
to facilitate the stepmother’s adoption of J.H. in order to allow J.H. to feel secure
and know that she will not be placed back in a frightening environment with her
mother. We agree with the juvenile court that
[g]iven that [the stepmother] has assumed the role of full-time
parent for [J.H.], and is willing to do so on a permanent basis
through adoption, . . . termination would also be in the best interest
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of the child as it will best meet [J.H.]’s long-term nurturing and
growth, and her physical and emotional needs.
We agree that termination of the mother’s parental rights is in J.H.’s best interest.
IV. Conclusion.
We conclude there is clear and convincing evidence the mother
abandoned J.H. within the meaning of Iowa Code section 600A.8(3)(b), and
termination of the mother’s parental rights is in J.H.’s best interest. We therefore
affirm the juvenile court’s order terminating the mother’s parental rights.
AFFIRMED.
In the Interest of J.H., Minor Child, J.H., Father, A.H., Mother
Combined Opinion