                        IN THE COURT OF APPEALS OF IOWA

                                      No. 16-0968
                               Filed November 23, 2016


IN THE INTEREST OF B.R.,
Minor child,

N.R., Father,
       Petitioner-Appellant,

L.P., Mother,
       Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Franklin County, Peter B. Newell,

District Associate Judge.



       A father appeals the district court’s denial of his petition to terminate the

mother’s parental rights. REVERSED.



       Megan R. Rosenberg of Cady & Rosenberg Law Firm, P.L.C., Hampton,

for appellant father.

       Barbara J. Westphal, Belmond, for appellee mother.



       Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

       In this appeal, we must determine whether the evidence supports

terminating a mother’s parental rights pursuant to Iowa Code chapter 600A

(2015). The juvenile court found the father failed to meet his burden of proving

by clear and convincing evidence that the mother abandoned the child. On our

de novo review, we find the evidence shows abandonment; accordingly, we

reverse.

       I. Background Facts and Proceedings.

       The mother and father of B.R., born in 2007, have never been married.

Although the mother consistently denied the father’s paternity, the father

obtained DNA testing that determined he was B.R.’s father. In April 2008, the

father obtained an order for custody and visitation, which granted him visitation

with B.R. on alternating weekends and one night per week. In 2010, the father

received additional visitation with B.R. during the summer months.

       The father provided more care for B.R. than was set forth in the April 2008

order. The father agreed to begin visits early or to care for B.R. additional days

at the mother’s request. On one occasion, the father cared for B.R. for three

weeks due to concerns about the mother’s mental health.              After becoming

increasingly concerned about the mother’s mental health, substance abuse

addiction, and ability to care for B.R., the father asked the mother to grant him

physical care of the child. The mother acquiesced in January 2012 with the

agreement that the father would continue paying her $200 per month.1 The


1
  This amount represents a portion of the money the father paid the mother in child
support. The father agreed that he would continue to pay the mother his amount and the
                                          3


stipulated decree provided the father physical care of B.R. with the mother

receiving visitation on alternating weekends.

       Shortly after the transfer of custody, the father’s concerns about the

mother’s ability to care for B.R. proved justified. Drugs, drug paraphernalia, and

loaded guns were discovered during an April 2012 search of home the mother

shared with her boyfriend, and the couple’s nine-month-old child—B.R.’s half-

sibling—tested positive for methamphetamine.          The State removed the half-

sibling from the home and adjudicated the child to be a child in need of

assistance, which eventually led to termination of the mother’s parental rights to

that child in March 2013.

       As a result of the April 2012 search, the Iowa Department of Human

Services (DHS) found the mother denied B.R. critical care by using drugs during

visits, and it enacted a safety plan prohibiting the mother from having

unsupervised visits with B.R.      The father and his wife of five years, B.R.’s

stepmother, signed the safety plan, agreeing to supervise the mother’s visits.

Although they offered her three-hour visits on alternating weekends, the mother

exercised very little of that visitation, attending only eleven visits in 2012, nine in

2013, twelve in 2014, and seven in 2015. She skipped visits in some months in

2012, had a six-month gap of no visits between 2013 and 2014, failed to visit

B.R. for four months in 2014, and went six months without visiting B.R. in 2015.

Often, the mother failed to provide notice she would not be attending the

scheduled visits.



mother would not be required to pay child support even though B.R. was in the father’s
care.
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       When the mother did attend visits with B.R., the visits did not last longer

than one hour. Over time, B.R. became increasingly resistant to attending visits

and refused to interact with the mother during them. The mother would become

angry during visits because of B.R.’s apparent disinterest, and she would yell at

the father and call him names. On one occasion, the father had to call law

enforcement to intervene.

       The mother was arrested three times in 2015 and was incarcerated in

October 2015 as the result of a probation violation.       She served part of her

sentence in jail and the remainder at a residential facility. During that period, she

began writing B.R. a letter each week.

       The father filed a petition to terminate the mother’s parental rights in

February 2016. The guardian ad litem appointed to represent B.R.’s interests

recommended the court terminate the mother’s parental rights. The termination

hearing was held in April 2016, two weeks after the mother was discharged from

probation. The mother visited B.R. two days before the hearing.

       In May 2016, the juvenile court entered its order denying the father’s

petition to terminate the mother’s parental rights on abandonment grounds. The

court concluded the mother had “failed to fulfill her duties” to B.R. because she

“spent years abusing controlled substances, missing [B.R.]’s birthday, committing

crimes, and being incarcerated,” failed to meet B.R.’s day-to-day needs, and had

been physically, emotionally, and financially unavailable to the child. The court

concluded that it would have been appropriate to find the mother abandoned

B.R. “at several times during their relationship.” However, it declined to find the

mother had abandoned B.R. at the time of the termination hearing because she
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“is currently involved in substance abuse and mental health treatment” and “is

making diligent efforts to communicate with” B.R. Rather, the court faulted B.R.

for being “unwilling” to have a relationship with the mother. It concluded by

stating:

          The mother has demonstrated a commitment to this child by
          continuing to make herself available for the child’s disdainful
          conduct. Despite the humiliation she must experience of being
          snubbed by a nine-year-old, she continues to make it apparent to
          this child, through her behavior, that she is available to have a
          relationship with him. It does not appear to the court that the
          mother can do anything beyond what she is currently doing.

Because it concluded the father failed to establish by clear and convincing

evidence the grounds for terminating the mother’s parental rights, the juvenile

court dismissed the father’s petition. The father appeals.

          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). The district court’s factual findings are not binding on us, but we afford

them weight, particularly with regard to witness credibility. See id.

          III. Termination of Parental Rights.

          In a private termination-of-parental-rights proceeding, the petitioner must

establish by clear and convincing evidence that a statutory ground for termination

exists.    See Iowa Code § 600A.8; In re A.H.B., 791 N.W.2d 687, 691 (Iowa

2010). If a ground is proved, the petitioner must also establish termination of

parental rights is in the child’s best interests. See A.H.B., 791 N.W.2d at 690.

Although the interests of the parents must be given due consideration, our

primary concern is the child’s best interests. See Iowa Code § 600A.1 (“The best
                                         6


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

paramount consideration in interpreting this chapter.”); A.H.B., 791 N.W.2d at

690-91.

       A. Statutory Ground For Termination.

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

termination of parental rights under Iowa Code chapter 600A. See Iowa Code

§ 600A.8(3). The petitioner need not establish the mother’s subjective intent to

abandon the child. See id. § 600A.8(3)(c); In re G.A., 826 N.W.2d 125, 130

(Iowa Ct. App. 2012) (recognizing a parent’s subjective intent does not preclude

a finding of abandonment); see also 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”). Nor is he required to show he or anyone else made diligent efforts to

encourage the mother to perform the acts specified in section 600A.8(3)(b). See

Iowa Code § 600A.8(3)(c). Rather, abandonment is determined by a parent’s

actions or lack thereof. See In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct. App.

1994) (“Clearly, actions speak louder than words. Intent can be shown through

conduct.”).    Section 600A.2(19) 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.”

       Iowa Code section 600A.8(3)(b) provides that a parent of a child six

months old or older will be deemed to have abandoned the child if that parent
                                         7


failed to maintain “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.” Iowa Code § 600A.8(3)(b). Here, the

mother has failed to provide any financial support for B.R. since custody was

transferred to the father in 2012. Although the mother was not required to pay

child support under the terms of the custody and visitation order, “section

600A.8(3)(b) is not limited to court-ordered support payments.” In re W.W., 826

N.W.2d 706, 710 (Iowa 2012); see also Iowa Code § 600A.8(4) (providing a

separate ground for terminating parental rights where a parent has been ordered

to contribute to the child’s support and has failed to do so without good cause).

The mother justifies her lack of support by claiming she asked the father what

B.R. needed and the father told her “nothing.” She did provide gifts for B.R. on

occasion, although B.R. rejected them.

      Even assuming the mother’s failure to support B.R. is insufficient to

establish abandonment, the father has provided ample evidence the mother

abandoned B.R. under the second provision of section 600A.8(3)(b).            That

provision states that a parent of a child age six months or older will be deemed to

have abandoned the child unless the parent engages in one 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.
                                              8



Iowa Code § 600A.8(3)(b).           There is no dispute that criteria set forth in

subparagraph (3) has not been met as B.R. has lived with the father since 2012.

The mother did not meet the criteria set forth in subparagraph (1) because she

failed to visit B.R. on a monthly basis during any year in which B.R. was in the

father’s custody.2 Although the father set the time and place for visits, as was

necessary given the DHS requirement that visitation be supervised, there is no

indication that he acted unreasonably in doing so. See In re G.A., 826 N.W.2d

125, 129 (Iowa Ct. App. 2012) (finding the mother did not prevent the father from

exercising visitation with the child where the mother placed reasonable

conditions on visitation in light of the father’s substance-abuse history and noting

the father made no attempt to comply with the conditions). Rather, the father

chose a time for visits based on B.R.’s schedule. If the mother was unable to

attend visits during those times, she could have stated as much. Instead, she

often cancelled visits at the last minute—or, worse, she simply failed to attend

without explanation.

       The evidence shows the mother also failed to remain in regular

communication with the child or the father, as required by subparagraph (2) of

section 600A.8(3)(b). Although the mother claims the father failed to return her

calls and messages “several times,” the evidence indicates the communication

issues were a result of the mother’s lifestyle. The mother stayed at a number of


2
  To the extent that the mother was unable to visit the child while incarcerated, we note
incarceration does not justify this failure. See In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993)
(holding a parent “cannot use . . . incarceration as a justification for [a] lack of
relationship with the child,” especially “when the incarceration results from a lifestyle that
is chosen in preference to, and at the expense of, a relationship with a child”).
                                          9


locations over the years and provided the father as many as “20 to 30” different

phone numbers. At trial, the stepmother explained why it was “impossible” for

her or the father to return the mother’s phone calls:

       If she even left a message, there was no indicator that [we were]
       allowed to call back that number.
               . . . Sometimes it would be a hotel number that we could
       actually call back. Sometimes some random person—male or
       female—would answer and [say the mother] wasn’t there and “don’t
       call this number back again.” Sometimes the number would be
       already disconnected. Sometimes when I called back, they would
       say: “We don’t know who that is; don’t call this number again.”
       There was never a set number to call her back on.

Moreover, in a deposition taken six weeks before the termination hearing, the

mother never mentioned any difficulty in communicating with the father. Instead,

she twice admitted that the father and stepmother had done everything they

could to facilitate her relationship with B.R. The mother did begin writing B.R.

letters while she was incarcerated, but this attempt at communication in the

months leading up to termination after years of absence from the B.R.’s life was

simply “too little, too late.”   See M.M.S., 502 N.W.2d at 8 (noting a parent’s

“feeble contacts” with the child “must be viewed in the light that total desertion is

not required for a showing of abandonment”). The father has met his burden of

showing by clear and convincing evidence that the mother abandoned B.R.

pursuant to section 600A.8(3)(b).

       B. Best Interests of the Child.

       Turning to the “best interests” question, the evidence clearly shows B.R.’s

best interests are served by terminating the mother’s parental rights. The mother

used drugs while B.R. was in her care and exposed B.R. to domestic abuse. The

evidence shows B.R. was “deeply” affected by the step-sibling testing positive for
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methamphetamine and talked “a lot” with a therapist about the violence

witnessed in the mother’s home. B.R. felt unsafe due to the mother’s actions

while B.R. was in her care, as well as her behavior during supervised visits.

Despite having her parental rights to one child terminated three years earlier, the

mother has yet to demonstrate she has adequately addressed her mental-health

and substance-abuse issues or that she can remain sober. She was arrested

three times in the year preceding the termination hearing, and her longest period

of sobriety was a result of her incarceration.

       In contrast, the father and stepmother have provided B.R. with a safe and

nurturing home.     B.R. has been vocal about wanting to be adopted by the

stepmother, who B.R. considers to be “mom.” The father and stepmother have

also provided visits between B.R. and B.R.’s half-sibling on at least a monthly

basis, allowing the children to continue their sibling relationship.

       B.R. is now nine years old. After five turbulent years in the mother’s care,

B.R. has been able to experience four years in a safe and stable home life with

the father and stepmother. Meanwhile, the mother has continued to demonstrate

her inability to put B.R.’s needs ahead of her own by continuing to engage in a

lifestyle marred by substance abuse, domestic violence, and criminal activity. As

a result, the mother failed to attend the majority of the visits with B.R. that were

available to her, which further communicated to B.R. her indifference toward

parenting. Although B.R.’s response to the mother on those occasions when she

did present herself for visitation is hardly surprising, the juvenile court criticized

the father and stepmother for failing to teach B.R. “compassion or understanding”

toward the mother’s feelings. Much more egregious is the mother’s failure to
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show compassion or understanding of her child’s feelings in light of her

continuous failure to fulfill her parental duties.       Rather than demonstrating

patience and understanding about B.R.’s reticence to be near her when she had

not yet proved herself as a parent, the mother reacted in frustration, displaying

anger, calling the father names, and making threats. This behavior was likely

reminiscent of what B.R. experienced while in her care, further demonstrating the

mother had made no tangible change in her lifestyle or improvement in her

parenting ability. It is not a mystery, then, that this child would vocalize a desire

for the same outcome as a step-sibling who experienced the same trauma and

was removed from the mother’s care, placed in a safe home, and adopted—

ensuring the mother could never threaten that child’s safety again. The only

difference between these half-siblings is that B.R.’s father took action to protect

B.R. before the DHS had to, which negated the need for the State to initiate child

in need of assistance proceedings under chapter 232 with regard to B.R. It is in

B.R.’s best interests to terminate the mother’s parental rights. Accordingly, we

reverse the district court’s order dismissing the father’s petition.

       REVERSED.
