                     IN THE COURT OF APPEALS OF IOWA

                                     No. 19-0636
                              Filed November 27, 2019


IN THE INTEREST OF S.P.,
Minor Child,

T.R., Father,
       Petitioner-Appellee,

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


       Appeal from the Iowa District Court for Dubuque County, Thomas J.

Straka, Associate Juvenile Judge.



       The mother appeals the termination of her parental rights in an Iowa Code

chapter 600A (2018) private termination proceeding.          REVERSED AND

REMANDED.



       Taryn R. McCarthy of Clemens, Walters, Conlon, Runde & Hiatt, L.L.P.,

Dubuque, for appellant.

       Bridget L. Goldbeck of Hughes & Trannel, P.C., Dubuque, for appellee.

       Matthew W. Boleyn of Reynolds & Kenline, L.L.P., Dubuque, guardian ad

litem for minor child.



       Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.
                                           2


POTTERFIELD, Judge.

       The mother of twelve-year-old S.P. appeals from the termination of her

parental rights in a private action brought by the father. The mother challenges

the district court’s determinations she abandoned S.P., pursuant to Iowa Code

section 600A.8(3)(b) (2018), and that termination of her parental rights is in

S.P.’s best interests.

I. Background Facts and Proceedings.

       S.P. was born in July 2007 with THC in her system. The mother was

sixteen years old at the time. The father was twenty-one. Immediately following

S.P.’s birth, the Iowa Department of Human Services (DHS) became involved in

S.P.’s and the mother’s lives; the father was absent.

       The mother had issues with drug use off and on for a number of years,

and DHS was involved with the mother and S.P. on a voluntary basis four

different times. Then, in May 2013, S.P. was removed from the mother’s care

and placed with a maternal uncle and aunt.1

       The mother was incarcerated from November 2013 until July 2014. She

sent letters and drawings to S.P. during this time.

       The father did not have any sort of regular contact with S.P. until February

2014, after he was contacted by the Foster Care Review Board. S.P. and the

father began having short supervised visits and quickly transitioned to spending



1
  The mother also had another child, S.P.’s younger brother, with a different father. DHS
removed both S.P. and the younger brother from the mother’s care in May 2013, and the
mother’s parental rights to the younger brother were eventually terminated in a chapter
232 termination proceeding. The maternal uncle and aunt adopted S.P.’s younger
brother.
                                            3


more time together.      In summer 2014, as S.P. was turning seven, S.P. was

placed in the father’s full-time care.

        The issue of custody of S.P. moved to the district court, and the DHS case

closed. In May 2016, the district court entered an order giving the mother and

father joint legal custody of S.P., placing S.P. in the father’s physical care, and

providing the mother a minimum of two one-hour supervised visits with S.P. each

week.

        The mother, who had to pay professionals to supervise her visits with

S.P., consistently saw S.P. from November 2016 until September 2017.

        The mother scheduled a visit with S.P. in October 2017, but then the

father said it had to be rescheduled because S.P. already had plans with the

father’s family at that time.         According to the mother’s testimony, she

misunderstood and believed the father was denying her future visits with S.P.

because the mother was behind on her court-ordered child support. The mother

did not contact the father, stepmother, or the woman who had been supervising

visits from October 2017 until July 2018.

        In May 2018, the father came upon one of the stepmother’s children

sexually abusing S.P.       The father and stepmother contacted DHS, and the

perpetrator was removed from the home and placed in sex offender treatment.

        The mother made contact with the stepmother and DHS2 in July 2018 after

she learned about the incident.          A visit between the mother and S.P. was

scheduled for August, but the father cancelled it after S.P.’s therapist questioned

2
 The father testified that none of the mothers of his children have his cell phone number.
He also testified that he has blocked the mother on Facebook.
                                          4


whether a face-to-face visit should be the first type of contact following the

mother’s absence.

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

October.

       In order to assuage the therapist’s concerns about visits, the mother called

the therapist and then, at the therapist’s request, met with her three separate

times. The therapist then set up a phone call, which took place in December.

The therapist participated in the call with S.P. The therapist thought the phone

call went well, and the mother and S.P. had two face-to-face visits in the

therapist’s office in January 2019.

       The termination trial took place over two days, February 5 and 21.

       S.P.’s therapist, who had been seeing her since July 2018, testified on the

first day of the trial. She testified that, although she initially began meeting with

S.P. to help her process the sexual assault, S.P. had generally used their

sessions to talk about her mother.         The therapist reported that S.P. had

expressed numerous times that she wanted to see her mother. When asked, the

therapist opined that the mother “is someone that’s very important to [S.P.] in her

life. . . . I definitely think she needs interaction with her mom. I don’t think

terminating rights would be beneficial for [S.P.]”

       The father also testified at the trial.       He had recently married the

stepmother, with whom he had been in a relationship approximately six years,

and shares one biological child with her. He otherwise has seven other children

by four other mothers. The stepmother has four other children of her own—for a

total of twelve children in the blended family. The father does not have visits with
                                           5


his oldest two children,3 and the stepmother’s oldest child is in sex offender

treatment following his sexual abuse of S.P. in the father’s home. The remaining

nine children spend at least some of their time in the father and stepmother’s

home. The father admitted that he remains $8000-$10,000 behind in his child-

support obligations.

       The father testified he decided to file the petition to terminate the mother’s

parental rights because he was tired of seeing S.P. be hurt by the mother’s lack

of consistency. Both he and the stepmother testified that if the mother’s parental

rights are terminated the stepmother would adopt S.P.           Similarly, the father

intended to adopt those of the stepmother’s biological children who did not have

another stable parent to take over their care if something happened to the

stepmother. Both the father and stepmother also testified they told S.P. that

once she became mature enough to make the decision for herself, she would still

be able to be part of her mother’s life if she wished.

       During the stepmother’s testimony, she stated that even if she and the

father severed their relationship at some point in the future, she was committed

to caring for and being a parent to S.P.

       The mother testified as well. She stated she had not consumed heroin in

six years, pain medication in three years, or marijuana in a little over one year.

The mother was living with her parents, and her brother also lived in the same



3
  The father testified he did not have “any kind of relationship” with his two oldest
children until approximately one year before the termination trial, which took place in
February 2019. As of February 2019, they would “talk on Facebook or pretty much
online-type stuff.” There had not yet been any visits with the children, who were then
sixteen and fourteen years old.
                                           6


home.    The mother was taking prescription medication for her diagnoses of

anxiety, depression, and attention deficit disorder and had been consistently on

her medication for eight or nine months. She had recently completed a month-

long course to be a mental health technician and was trying to get a job. The

mother testified her child-support obligation—set by the May 2016 custody

order—was $50 per month; she was behind in payments approximately $750, but

she had been making her payments for about a year. She emphasized she was

not pursuing a change in custody for S.P. and understood S.P. was doing well in

her father’s home; but the mother wanted to keep her rights to S.P. and work

toward increased time with the child.          She testified she had made positive

changes in her life, was getting her priorities straight, and was not on probation.

        In its written ruling, the district court found the mother had abandoned S.P.

pursuant to section 600A.8(3)(b) when she “made no effort to contact [the father],

his wife, or the child in approximately ten months”—from October 2017 to July

2018. The court noted the mother’s absence “added to the child’s emotional

trauma and anxiety” and the stepmother had “stepped into the role of a full-time

mother figure to the child” and intended to adopt S.P. if the mother’s rights were

terminated.” The court considered the therapist’s testimony indicating she did

not think termination of parental rights would be beneficial to S.P. but questioned

whether the therapist had spent enough time with S.P. to fully understand the

family’s history. Ultimately, the court concluded S.P.’s “mental and emotional

condition supports termination” of the mother’s parental rights and determined

termination is in S.P.’s best interests.

        The mother appeals.
                                          7


II. Standard of Review.

       We review chapter 600A termination proceedings de novo. In re G.A.,

826 N.W.2d 125, 127 (Iowa Ct. App. 2012).

III. Discussion.

       “Termination proceedings under Iowa Code chapter 600A are a two-step

process.” In re Q.G., 911 N.W.2d 761, 770 (Iowa 2018). “In the first step, the

petitioner seeking termination must first show by clear and convincing evidence a

threshold event has occurred that opens the door for potential termination of

parental rights.” Id. “Once that threshold showing has been made, the petitioner

next must show by clear and convincing evidence termination of parental rights is

in the best interest of the child.” Id.

       Here, the father’s petition alleged the mother’s rights should be terminated

under a number of different grounds, but the district court only found termination

to be appropriate under section 600A.8(3)(b) (abandonment). It provides:

       For the purposes of this subsection, a parent is deemed to have
       abandoned a child as follows:
              ....
              b. 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.
              (2) Regular communication with the child or with the person
       having the care or custody of the child, when physically and
                                           8


       financially unable to visit the child or when prevented from visiting
       the child by the person having lawful custody of the child.[4]

Iowa Code § 600A.8(3).

       We agree the mother abandoned S.P. pursuant to the statutory definition.

The mother argues she did not abandon S.P. because once she learned S.P.

had been sexually assaulted, the mother reached out to S.P.’s caretakers.

Additionally, she relies on the affirmative steps she took between July 2018 and

the termination trial in February 2019 to reinitiate contact between herself and

S.P. But these actions do not undo the approximately ten months the mother

absented herself from S.P.’s life. A parent has abandoned their child unless they

maintain, at a minimum, “at least monthly” visits with the child, Iowa Code

§ 600A.8(3)(b)(1), or “regular communication” with the person caring for the child,

Id. § 600A.8(3)(b)(2). The mother’s more-recent actions cannot undo her earlier

abandonment of the child.

       They do, however, inform our decision of whether termination of the

mother’s parental rights is in S.P.’s best interests. See, e.g., In re C.H., No. 16-

0926, 2016 WL 7393956, at *2 (Iowa Ct. App. Dec. 21, 2016) (affirming district

court decision to not terminate father’s rights because, although father had

abandoned the child, termination was not in the child’s best interests due to the

father’s “sincere desire to be actively involved in the child’s life”).              We

acknowledge the father and stepmother’s desire to have the stepmother adopt

S.P. See Q.G., 911 N.W.2d at 772 (“Another factor to consider is the fact that a

4
 It is undisputed section 600A.8(3)(b)(3), which involves a parent who has lived with the
child for six months within the one-year period immediately preceding the termination
hearing, does not apply here.
                                          9


[stepparent] is willing to provide for the child[]’s needs and is willing to adopt the

child[].”) But “[f]amilies come in all shapes and sizes, and the prospect of [the

mother] having parental rights should not undermine the home that [the father

and stepmother] have provided” S.P. Id. at 774. The mother’s desire and stated

commitment to maintaining a relationship with S.P., plus S.P.’s therapist’s

opinion that S.P. “needs interaction” with the mother, convinces us that

termination of the mother’s parental rights is not in S.P.’s best interests. We do

not minimize the harm the mother caused S.P. when she removed herself from

S.P.’s life, and we appreciate that future lack of consistency on the mother’s part

could be detrimental to S.P. But S.P. and her mother have a strong foundational

relationship and S.P. can still benefit from her relationship with the mother in the

future. Cf. id. (reversing termination of father’s parental rights even though he

did not have a “meaningful bond” with the younger child and was still

incarcerated because the court was “not ready to write off [the father’s] potential

positive contributions to his” children’s lives).     We find the father’s history

instructive. The father abandoned S.P. for the first six years of her life, and now,

by all accounts, he is a stable and caring parent, who S.P. benefits from having

in her life. We believe the mother can make the same turnaround. Moreover,

while the mother cannot undo her abandonment of S.P., the fact that she re-

initiated contact on her own, before the termination petition was filed, encourages

us that she has recommitted herself to being a parent to S.P. Cf. In re C.D., No.

17-1740, 2018 WL 4923132, at *1–2 (Iowa Ct. App. Oct. 10, 2018) (finding

termination in the child’s best interests where the mother “did nothing to reinitiate
                                         10


visits after the father declined to facilitate them” for years before the father filed

the termination petition).

IV. Conclusion.

       Because termination of the mother’s parental rights is not in S.P.’s best

interests, we reverse the district court decision terminating the mother’s parental

rights and remand for dismissal of the father’s petition.

       REVERSED AND REMANDED.

       Vaitheswaran, P.J., concurs; Greer, J., dissents.
                                           11


GREER, Judge (dissenting).

       I respectfully dissent with the majority opinion. I would affirm the district

court ruling that terminated the mother’s parental rights. The behaviors of this

mother more closely align with the case facts found in our court’s decision in In re

C.D., No. 17-1710, 2018 WL 4923132 (Iowa Ct. App. Oct. 10, 2018). Like this

case, that mother stopped all visits with the child, made no efforts for any other

contact doable under her then-current financial means, and took no action to

rectify the situation. C.D., 2018 WL 4923132, at *1–2. As a result, we found

termination of parental rights in the child’s best interests, and we affirmed the

termination. Id. at *2.

       Most troubling, the record here contains no explanation for the mother’s

disappearance from S.P.’s life for over ten months.5 Yet the mother testified that

over the previous two years she was nearby, working for her brother in a

neighboring county. As an excuse for failure to remain connected, the mother

concocted the story that her failure to pay child support was the issue. Yet she

admitted no one told her that her child-support arrearage related to visitation

rights. And while the child and mother clearly love each other, abandonment

carries a heavy toll.6 Witnesses testified the missing-mother situation created

anger, anxiety, and emotional issues for the child. To extend that history is not in

the best interests of this child.


5
  At the time of the last visit in September 2017, a counselor supervised the visits and
the mother was required to institute the visitation sessions. The mother abruptly stopped
all contact with the counselor even though four dates for visitation were already
established for October and November 2017.
6
  S.P. asked the current counselor to not tell her about upcoming scheduled visits since
she “doesn’t want to be let down if mom doesn’t show up.”
                                         12


       Moreover, the record lacked proof of stability of the mother but showed

evidence of instability. Once connected with the Iowa Department of Humans

Services (DHS) in July 2018 to address the abuse situation of S.P., this mother

failed to cooperate with DHS to provide a drug test. Because of her past, drug

usage remained a serious concern.          Then, she failed to respond to text

messages or calls from the worker after the September 2018 meeting. That lack

of response corresponded with discussions about drug use and requests to test.

Finally, I cannot help but consider the ramifications to SP’s stability if something

happens to her father and custody follows to the mother. The stepmother seeks

to adopt, and stability is favored over the risks remaining with the mother’s

choices.

       I, too, give credence to the child’s counselor’s opinions related to the

termination, but she only saw the mother three times, including only two

occasions where the mother and child interacted. Likewise, after the September

meeting, the mother failed to contact the child’s counselor again until the end of

November—again with no explanation. Despite the view about termination, the

counselor cautioned, “I don’t know how long [mother] needs to show that she can

be consistent and can prove herself.” The trial court also had the advantage of

evaluating the counselor’s conviction favoring reunification and the creditability of

the mother.

       A trial court . . . “is greatly helped in making a wise decision about
       the parties by listening to them and watching them in person.” In
       contrast, appellate courts must rely on the printed record in
       evaluating the evidence. We are denied the impression created by
       the demeanor of each and every witness as the testimony is
       presented.
                                          13

In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (quoting In re

Marriage of Callahan, 214 N.W.2d 133, 136 (Iowa 1974)).

       Here, the mother failed to champion a strong justification for her lack of

effort. As an example, she testified:

       Q. From January of 2018 up until you contacted [the stepmother]
       via Facebook in about July of 2018, did you attempt to see [S.P.]?
       A. I can’t quite fully put my finger on it, but I know I wanted to.

Influenced by the mother’s demeanor and failure to address the historical

behaviors leading to the abandonment, the trial court correctly noted “the best

predictor of the future is past behavior.” See In re M.M., 483 N.W.2d 812, 814

(Iowa 1992) (“Evidence of the parent’s past performance . . . may show the

quality of future care the parent is capable of providing.”).

       The mother has not answered the uncertainty about her follow through on

visits, and S.P. remains emotionally stressed about the consistency of visits.

While S.P. loves her mother and her mother loves her, harmful behavior of

abandonment mitigates against continuing this pattern of coming and going. The

witnesses testified that S.P. is sad and cannot process why her mother was not

involved.   She is worried about whether the mother has been harmed. The

testimony suggested that insecurity may lead to issues with self-esteem, stability,

and up-and-down emotions. Based upon all of these factors, I dissent and would

affirm the trial court’s ruling on termination of mother’s parental rights.
