                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1041
                              Filed March 7, 2018


IN THE INTEREST OF M.E.,
Minor Child,

L.E., Father,
       Petitioner-Appellee,

J.P., Mother,
       Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Paul G. Crawford,

District Associate Judge.



      A mother appeals the juvenile court’s order terminating her parental rights

under Iowa Code chapter 600A. AFFIRMED.



      Jennie L. Wilson-Moore of Wilson Law Firm, Conrad, for appellant mother.

      Melissa A. Nine of Nine Law Office, Marshalltown, for appellee father.



      Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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TABOR, Judge.

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

rights to her now seven-year-old son, M.E. The court granted the petition filed by

M.E.’s father, Luke, who alleged Jill abandoned their son within the meaning of

Iowa Code section 600A.8(3)(b) (2015). The court found Jill’s use of illicit drugs

and criminal conduct rendered her unavailable as a parent to M.E. Jill now argues

the court was mistaken in finding she did not maintain “substantial and continuous

or repeated contact” with M.E.           She blames Luke’s actions, not her own

incarceration or addiction, for her infrequent interactions with their son. After

reviewing the record independently,1 we find clear and convincing evidence

supporting the juvenile court’s decision to terminate Jill’s parental rights.

    I. Facts and Prior Proceedings

       Jill and Luke dated but never married. Jill gave birth to M.E. in October

2010. Jill first informed Luke he might be the father in January 2011 while Luke

was deployed to Afghanistan. On leave the next month, Luke took a paternity test

confirming he was M.E.’s father. Jill was M.E.’s primary caregiver until he was

about one year old. Luke and Jill jointly cared for M.E. briefly in late 2011, but by

January 2012, Luke took over the child-rearing responsibilities.




1
  Our review of chapter 600A termination-of-parental-rights proceedings is de novo. See
In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). “We give deference to the factual findings
of the juvenile court, especially those relating to witness credibility, but we are not bound
by those determinations.” In re G.A., 826 N.W.2d 125, 127 (Iowa Ct. App. 2012). We give
“due consideration” to the interests of the parents, but the child’s best interests are
“paramount” in our analysis. See Iowa Code § 600A.1.
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       Jill admits to having a “bad addiction” to opiates and heroin. Luke started

caring for M.E. on his own following an incident in which Luke and Jill’s father

requested police assistance to prevent Jill from taking M.E. They reported Jill had

been living with another drug addict with a lengthy criminal history. Later in 2012,

Jill had several arrests for possession of controlled substances and spent time in

jail. She also entered inpatient-substance-abuse treatment, but did not complete

the program. She had little contact with Luke and M.E. during that year. In 2013,

Jill attended a court-ordered, dual-diagnosis treatment program but did not

successfully complete the after-care sessions. Luke did not hear from Jill for long

stretches during 2013. In October 2013, the district court held a custody hearing,

but Jill did not appear. The district court issued an order placing M.E. in Luke’s

physical care and granting Jill supervised visitation. The decree specified Jill was

not allowed unsupervised visits until she could provide hair follicle tests that were

negative for all illegal and non-prescribed drugs for a period of six months. The

decree did not require Jill to pay child support.

       In 2014, Jill had additional legal troubles, including flight from an arrest

warrant in March. She incurred a new drug-possession charge in April. She left a

drug rehabilitation program after just four days and ended up serving a prison term

at the Iowa Correctional Institute for Women in Mitchellville. She was released in

November 2014. On January 24, 2015, Luke and his wife, Lauren, allowed Jill to

have a supervised visit with M.E. Luke and Lauren did not know Jill had tested

positive for opiates and methamphetamine four days earlier. Because of the

violation, a warrant issued for Jill’s arrest on January 28. She evaded arrest until

September 2015. Luke testified Jill did not contact him and M.E. while she was
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“on the run.” In October 2015, Jill was sentenced to serve an indeterminate two-

year prison term. That same month, Luke filed a petition asking to terminate Jill’s

parental relationship with M.E.

       Jill was released from prison in December 2015. M.E. told Luke that he saw

Jill when visiting his maternal grandparents around Christmas. A few weeks later,

in January 2016, Jill gave birth to a second child; Luke was not the father, and Jill

had not told him about the pregnancy. The baby tested positive for heroin at birth.

Jill made two unsuccessful attempts at inpatient drug treatment in the spring of

2016. Jill returned to the Iowa Correctional Institute for Women in the fall of 2016.

In November, Jill called Luke from prison and asked for telephone contact with

M.E. They arranged for her to phone M.E. every Wednesday night, but Jill only

called two or three times.

       The juvenile court held a two-day hearing on Luke’s petition in January

2017. Jill was still incarcerated at the time of the hearing. The court issued its

order terminating Jill’s parental relationship with M.E. in June 2017. She now

appeals that order.

   II. Legal Analysis

       A. Abandonment

       In his petition to terminate Jill’s parental relationship with M.E., Luke alleged

abandonment. “To abandon a minor child” means that a parent “rejects the duties

imposed by the parent-child relationship.” Iowa Code § 600A.2(19). That rejection

“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. To establish that Jill abandoned M.E., Luke must
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show she failed to maintain “substantial and continuous or repeated contact” with

M.E. “as demonstrated by contribution toward support of the child of a reasonable

amount,” according to her means, and—because Jill did not live with M.E. in the

year before the hearing—that she did not (1) visit with M.E. at least once a month

when physically and financially able and when not prevented by Luke or (2) have

regular communication with M.E. when physically and financially unable to visit or

when visits were prevented by Luke. See id. § 600A.8(3)(b).

       Jill argues her attempts to contact M.E. through Luke were “not rewarded

with visits.” Because of the animosity between her and Luke, Jill contends she

contacted M.E. by telephone when he was visiting her parents.

       Given her years of misplaced priorities, we find little merit in Jill’s effort to

blame Luke for her absence from M.E.’s life. She must take personal responsibility

for her illicit drug use and criminal acts, “and cannot use such acts as a justification

for [her] lack of relationship with the child.” See G.A., 826 N.W.2d at 129. The

record shows that since 2012 Jill has failed to offer financial support for M.E. in a

reasonable amount according to her means and has fallen short of maintaining

steady or meaningful communication with her son.

       Jill further contends abandonment is not necessarily a consequence of

incarceration and argues she attempted to maintain telephone contact with M.E.

But a parent cannot use incarceration as a justification for their lack of a

relationship with the child. In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993). During her

2016 incarceration, she arranged to call M.E. regularly but did not do so. Jill also

failed to maintain substantial contact of any kind while she was “on the run” or not
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in jail. Her failure to maintain steady and meaningful communication with M.E. has

been a feature of most of M.E.’s life.

       Further, the juvenile court disbelieved Jill’s testimony that she had repeated

telephone calls with M.E. when the child was visiting Jill’s parents. Alternatively,

the court opined even if Jill’s testimony was true, “literally, ‘phoning it in’” did not

“meet the vision of being a parent.” We share the juvenile court’s assessment that

Luke presented clear and convincing evidence of abandonment.

       B. Best Interests

       Although Jill does not directly raise a best interests argument on appeal,

she does contend she has a bond with M.E. When deciding if termination under

chapter 600A is in the child’s best interest, we borrow the analytical framework

described in Iowa Code section 232.116(2) and (3). In re P.L., 778 N.W.2d 33, 37

(Iowa 2010) (prioritizing the child’s safety and physical, mental, and emotional

health). Despite M.E.’s connection to Jill, her criminal history and unaddressed

substance abuse issues hinder her prospects for being a reliable parent. See G.A.,

826 N.W.2d at 131.        Jill has not demonstrated the “fulfillment of financial

obligations, . . . continued interest in the child, . . . genuine effort to maintain

communication with the child, and . . . establishment and maintenance of a place

of importance in the child’s life” required to establish termination is not in M.E.’s

best interests. Iowa Code § 600A.1. On the other hand, Luke’s wife Lauren has

stepped into a mothering role and is willing to adopt M.E. We find Luke has

established by clear and convincing evidence that terminating Jill’s parental rights

would serve M.E.’s best interests.

       AFFIRMED.
