                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1343
                               Filed March 8, 2017


IN THE INTEREST OF R.T.,
Minor Child,

K.T., Grandmother,
       Petitioner-Appellee,

R.N., Mother,
       Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Pottawattamie County, Craig M.

Dreismeier, District Associate Judge.



       A mother appeals the termination of her parental rights under Iowa Code

chapter 600A (2016). REVERSED AND REMANDED.



       J. Joseph Narmi, Council Bluffs, for appellant mother.

       Stephen C. Ebke of Ebke Law Office, Council Bluffs, for appellee

grandmother.

       David J. McCann of Law Offices of David J. McCann, Council Bluffs,

guardian ad litem for minor child.



       Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.

       A mother, Rachel, appeals the juvenile court’s order terminating her

parental rights to her eight-year-old daughter, R.T., who has been under the legal

guardianship of her paternal grandmother, Kris, since 2011. Rachel argues she

did not abandon R.T. within the meaning of Iowa Code section 600A.8(3)(b)

(2016) and termination of her parental rights would not be in R.T.’s best interests.

After our independent review of the record,1 we find Kris failed to prove the

statutory grounds for abandonment. Accordingly, we reverse the order of the

juvenile court.

       I.     Facts and Prior Proceedings

       Rachel and John are the unmarried parents of R.T., who was born in

August 2008. When their daughter was born, Rachel and John were living with

John’s parents, Kris and Larry. In 2009, the police found drug paraphernalia in

the bedroom occupied by Rachel and John, spurring their entry into substance-

abuse treatment. R.T. remained with her grandparents. R.T. returned to her

parents’ care a few months later, but in 2011, Rachel and John both relapsed.

       In December 2011, Rachel and John consented to placing R.T. in a legal

guardianship with Kris and Larry. All agreed the guardianship would last until

R.T. was eighteen years old, unless Rachel and John were able to provide a safe

living environment for R.T. before then. In the ensuing years, Kris and Larry



1
  We review chapter 600A termination proceedings de novo. See In re R.K.B., 572
N.W.2d 600, 601 (Iowa 1998). We are not bound by the fact-findings of the juvenile
court, but we do give them weight, particularly when considering witness credibility. See
id. The child’s best interests are “paramount” in our analysis, but we also give “due
consideration” to the parents’ interests. See Iowa Code § 600A.1.
                                           3


retained physical care of R.T. The grandparents considered “letting [R.T.] go

back” to her mother’s care in 2014 when Rachel was sober and appeared to be

turning her life around; R.T. spent alternating weekends in her mother’s care

during a period of about four months.

       Rachel and John’s second daughter was born in 2014. In 2015, Rachel’s

relationship with John ended. In October 2015, Larry, who was a father figure to

Rachel, died. As “things started falling apart,” Rachel relapsed. As a result,

Rachel and John placed their second daughter in a guardianship with her

maternal grandparents.2

       During this time frame, Kris started placing restrictions on Rachel’s

visitation with R.T., requiring Rachel to schedule visits ahead of time, arrive

sober, and refrain from asking Kris for money at the visits. 3 After Kris began to

suspect Rachel was stealing from her, she stopped allowing visits in her home.

Rachel became less reliable, often failing to attend scheduled visits or showing

up late. Rachel’s contact with R.T. decreased to two or three times each month,

according to Kris’s testimony.

       On March 1, 2016, Kris filed a petition to terminate Rachel’s parental

rights.4    One     month    later,   Rachel   was    arrested    for   possession    of

methamphetamine and marijuana.             Rachel pleaded guilty and received a

deferred judgment before the July 7, 2016 termination hearing.


2
  Rachel and John’s younger daughter, now two years old, was not a subject of the
termination proceeding.
3
  Kris imposed the visitation restrictions informally. She did not report her concerns to
the court in the guardianship proceeding.
4
  Kris also petitioned to terminate her son John’s parental rights. Before the hearing,
John consented to the termination of his parental rights in accordance with Iowa Code
section 600A.8(5). He is not a party to this appeal.
                                          4


       At the hearing, Rachel resisted the termination petition, testifying to the

strong bond between her and R.T. and her aspirations to resume custody of R.T.

in the future. Rachel acknowledged she could not presently care for R.T. on her

own and requested the guardianship continue. Kris countered with concerns

related to Rachel’s substance abuse. The guardian ad litem (GAL) did not make

a recommendation regarding termination at the hearing, but in a written report to

the court, he asked the court to “hold Petitioner to strict proof of the requirements

of Chapter 600A of the Iowa Code in order to protect the best interests of [R.T.]

and for such other relief as is just an[d] equitable in the circumstances.”5

       Following the hearing, the court terminated Rachel’s parental rights under

Iowa Code section 600A.8(3)(b). Rachel appeals the juvenile court’s order.

       II.    Did the record support a finding of abandonment?

       Rachel first contends Kris did not prove she abandoned R.T. Under Iowa

Code section 600A.2(19), a parent has abandoned a minor child when the parent

“rejects 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.” We find abandonment in cases of children older than six months

if the parent fails 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,” and if the parent has not

lived with the child in the year before the termination hearing, by (1) visits with


5
 The GAL reported speaking to Rachel but did not mention any communication with
Kris, John, or R.T.
                                           5


the child at least once a month when physically and financially able and when not

prevented by the child’s custodian or (2) regular communication with the child or

their custodian when physically and financially unable to visit or when visits are

prevented by the child’s custodian. See Iowa Code § 600A.8(3)(b).

       At the outset, Rachel advances a general position that she should not be

“punished” for making the “responsible decision” of establishing a guardianship

for R.T. Quoting In re Guardianship of Sams, 256 N.W.2d 570, 573 (Iowa 1977),

she asserts “parents should be encouraged in time of need to look for help in

caring for their children without risking loss of custody.” While we agree with the

sentiment expressed in Sams, placing R.T. in a voluntary guardianship does not

forever insulate Rachel from termination of her parental rights if Kris has proven

the relevant statutory grounds.6 See, e.g., In re G.B., No. 14-1691, 2015 WL

4493354, at *4–5 (Iowa Ct. App. July 22, 2015); In re B.B., No. 12-1161, 2013

WL 99136, at *1–2 (Iowa Ct. App. Jan. 9, 2013). Accordingly, we proceed with

our analysis under the framework of section 600A.8(3)(b).

       A. Economic Contributions

       We first consider Rachel’s economic contributions to R.T., the threshold

element of “substantial and continuous or repeated contact.” See Iowa Code

6
  Sams, which addresses an application for termination of a guardianship rather than a
termination-of-parental-rights proceeding, acknowledges in some situations termination
of parental custody could be appropriate:
       The presumption preferring parental custody is not overcome by a mere
       showing that such assistance was obtained. Nor is it overcome by
       showing that those who provided the assistance love the children and
       would provide them with a good home. These circumstances are not
       alone sufficient to overcome the preference for parental custody. No
       greater showing was made here.
256 N.W.2d at 573 (emphasis added) (citing Hurlbert v. Hines, 178 N.W.2d 354, 361–62
(Iowa 1970) (noting the “presumption of parental preference as to custody” is rebuttable
and the best interests of the child are the “primary consideration”)).
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§ 600A.8(3)(b); see also In re W.W., 826 N.W.2d 706, 710 (Iowa Ct. App. 2012).

This element requires Rachel to contribute a reasonable amount toward R.T.’s

support in accordance with her means. See Iowa Code § 600A.8(3)(b). The

amount is not limited to court-ordered support, which is the subject of a separate

provision. See W.W., 826 N.W.2d at 710; see also Iowa Code § 600A.8(4).

          Although Rachel occasionally provided R.T. with donated second-hand

clothing and other gifts, it is undisputed Rachel did not provide R.T. with

monetary support after the guardianship was established in 2011.                Rachel

contends she is willing to contribute toward R.T.’s support moving forward but did

not know she was obliged to do so to avoid termination of her parental rights.

She emphasizes Kris never asked her for money.7 Kris responds that section

600A.8(3)(b) requires Rachel to contribute to R.T.’s care whether asked to do so

or not.

          Under the circumstances of this case, we find Rachel adequately

“provide[d] for the support of the child” under section 600A.2(19) by voluntarily

placing R.T. in a guardianship with her financially stable paternal grandparents,

thereby ensuring the child’s monetary needs were met and safeguarding the

child’s wellbeing. See Iowa Code § 633.635(1)(a) (noting guardian is responsible

for “[p]roviding for the care, comfort and maintenance of the ward”). The parties

agree Rachel did not have the means to provide for R.T. at the time the

guardianship was established. And after that time, Rachel, who continued to

struggle with addiction, was only sporadically employed. See In re E.S., No. 16-


7
 In fact, Kris would purchase presents for R.T. that were intended to be from Rachel and
John, enabling the parents to appear to be providing for their daughter.
                                          7


0066, 2016 WL 7403746, at *3 (Iowa Ct. App. Dec. 21, 2016) (finding mother met

threshold requirement when she did not have the means to provide for children

for two years as a result of her failure to treat a mental-health condition and lack

of stable employment). Accordingly, we find Kris did not meet her burden of

demonstrating Rachel declined to provide financial support despite an ability to

do so.8

       B. Visitation

       We next consider whether Rachel’s regular visitation with R.T. precludes a

finding of abandonment. See Iowa Code § 600A.8(3)(b)(1). We conclude it

does. The juvenile court found Rachel’s visits with R.T. had decreased to less

than once a month, but the testimony from the termination hearing conflicts with

that finding. When asked on cross-examination how often Rachel had visited

R.T. in the six months preceding the termination hearing, Kris responded:

“Approximately two to three times a month.”

       But still, Kris urges us to find Rachel’s record of interaction with R.T to be

inadequate. She characterizes Rachel’s attempts at visitation as “at best, only a

marginal effort to maintain contact” and cites In re C.A.V., 787 N.W.2d 96, 101

(Iowa Ct. App. 2010), for the proposition that superficial visitation can

demonstrate a parent’s intent to abandon a child. We find C.A.V. distinguishable.

The finding of abandonment in C.A.V. was based upon not only the father’s
8
  We note the act of placing a child in a guardianship does not automatically relieve a
parent from providing financial support, see In re P.N., No. 14-0674, 2014 WL 4937995,
at *1–2 (Iowa Ct. App. Oct. 1, 2014) (considering father’s economic support in
abandonment analysis when the son was under a guardianship with his maternal
grandparents), but in this limited situation—in which Rachel did not have the means to
provide for R.T., no child-support order was established, and the guardians did not
request any financial assistance—Rachel’s actions did not meet the threshold element
for termination.
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feeble attempts at building a relationship in the first thirteen months of his

daughter’s life but also the nearly three years of complete absence from her life

that followed while the father was incarcerated. 787 N.W.2d at 101–02. Kris

alleges no comparable prolonged absence here, she does not explain how the

quality of Rachel’s visitation decreased, and she does not cite any other authority

in support of her claim. Accordingly, we find Kris failed to meet her burden of

proving abandonment under section 600A.8(3)(b).

       III.   Was termination in R.T.’s best interests?

       But even had we determined the requirements for abandonment were

satisfied, we would reverse the juvenile court order because Kris failed to

demonstrate termination of Rachel’s parental rights was in R.T.’s best interests.

R.T.’s best interests require that Rachel “affirmatively assume[s] the duties

encompassed by the role of being a parent.” See Iowa Code § 600A.1. We

consider “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.” See id. In addition, we consider the

physical, mental, and emotional needs of the child and the strength of the parent-

child bond. See In re A.H.B., 791 N.W.2d 687, 690–91 (Iowa 2010).

       Emphasizing Rachel’s continuing struggle with addiction and her overall

lack of financial stability, Kris contends termination of Rachel’s parental rights is

in R.T.’s best interests. But despite Rachel’s difficulties, the record demonstrates

she has maintained a place of importance in R.T.’s life. Rachel testified R.T.

called her “Mom” and was upset about the possibility of Rachel’s rights being
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terminated.    Although Kris did not testify directly about the mother-daughter

relationship, Kris’s actions—encouraging liberal visitation—and the statements in

her periodic guardianship reports—confirming Rachel has maintained significant

contact with R.T. over the years—point to a strong bond between the eight-year-

old and her mother. Moreover, by all accounts, R.T. was thriving under the

guardianship arrangement. On this record, we cannot find that termination was

in R.T.’s best interests.

       REVERSED AND REMANDED.
