                     IN THE COURT OF APPEALS OF IOWA

                                    No. 17-2051
                                 Filed July 5, 2018


IN THE INTEREST OF A.L.,
Minor Child,

D.L., Father,
       Petitioner-Appellant,

R.G., Mother,
      Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.



       A father appeals a district court ruling denying his petition to terminate the

mother’s parental rights under Iowa Code chapter 600A (2017). AFFIRMED.




       Shayla L. McCormally of McCormally & Cosgrove, P.L.L.C., Des Moines,

for appellant.

       Daniel M. Northfield, Urbandale, for appellee.

       Lori A. Bullock of Newkirk Zwagerman, P.L.C., Des Moines, guardian ad

litem for minor child.



       Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

       A father appeals a district court ruling denying his petition to terminate the

mother’s parental rights under Iowa Code chapter 600A (2017). The father argues

the district court erred in concluding there was not clear and convincing evidence

to support termination under Iowa Code section 600A.8(3)(b) and termination is

not in the best interests of the child.

I.     Background Facts and Proceedings

       Upon our de novo review of the record, we make the following findings of

fact. The mother and father met in 2009 and began dating. Their relationship

produced the child in interest, born in February 2010. When the child was born,

the parents were about sixteen years old, both were living with the child’s maternal

grandfather, neither was attending school or working, and both were regularly

using drugs and consuming alcohol. Both parents have a history of engaging in

criminal activity. At first, both parents cared for the child, with help from the

maternal grandfather. A few months into the child’s life, however, the father moved

back in with his own father because “things just weren’t going good between” him

and the mother. After the parents discontinued their relationship, the maternal

grandfather became the primary caregiver for the child. The father continued to

have occasional visitation with the child at a minimum of once a month, sometimes

more. The mother, on the other hand, conceded in her testimony she was not

around the child very much in the first few years of the child’s life.
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       In late 2012 or early 2013, the father discontinued his drug use. The father

began a relationship with M.W.1 in 2013 and the two moved in together “right

away.” For an approximate one-and-one-half year period from about late 2012 to

early 2014, the mother was living with the child and the maternal grandparents and

assisted in caring for the child. In the spring of 2014, the mother, according to her

testimony, “ended up getting back on drugs,” after which the mother “kind of just

left,” leaving the child with the maternal grandfather, “figur[ing] he would raise her.”

Thereafter, in April 2014, the child began living with the father and M.W. on a full-

time basis. The child was four years old at this time, and the child and M.W.

connected immediately. After the child began living with the father full time, the

father and M.W., for a time, continued to have a good relationship with the maternal

grandparents and allowed them to have visitation with the child.

       In August 2014, the mother visited the father’s residence and requested

visitation with the child. According to the father’s testimony, the mother was

“strung out” on drugs. The mother asked the child if she wanted to leave with her,

but the child stated she wanted to stay with her mom, referring to M.W. The father

admitted in his testimony that he did not want the child to be around the mother.

He expressly advised the maternal grandparents over the years that if the mother

is present at their home, then he would not want the child to be there. After the

August visit, the mother “didn’t really try” to contact the father for visitation. The

mother testified to her reasoning for the lack of contact as follows:

       I also knew that my parents said if I was around [the father] would
       not let [them] have [her]. So I stayed away. I was on drugs, and I

1
  The father and M.W. were married in August 2017, approximately one month before the
termination trial.
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       felt like—I would never do drugs around my daughter, and I didn’t
       want her to be around me when I was on drugs. So I stayed away.
                I felt like if I came back and tried, he would take me to court.
       And I was in no position to be in front of a judge being like, I want my
       daughter.
                ....
                . . . . Like I said, I was on drugs, and I didn’t want her around
       that. It was my problem and I didn’t get sober, and I didn’t—and I
       didn’t come and see her.

When asked why the mother chose to stay away from the child after August 2014,

she further explained, “I believed it was the best thing . . . for her because I was

on drugs and the best thing for my parents because if I was around, they wouldn’t

be able to see her.” The mother had absolutely no contact with the father or child

from August 2014 through April 2017.

       In a number of instances in 2015 and the first half of 2016, M.W. sent text

messages to the child’s maternal grandmother, expressing her and the father’s

concern that the mother might try to come back into the child’s life. The maternal

grandmother generally indicated in her responses that there was no reason for

concern, as the mother had not been around and was clearly not interested in

being involved in the child’s life.

       The mother was arrested and jailed in August 2016 on a probation-violation

charge.    In September, after being released from jail, the mother began

participating in court-ordered substance-abuse treatment. The mother’s treatment

focused on addiction and relapse prevention, co-dependency issues, support

systems, and parenting skills. The mother’s substance-abuse counselor reported

when the mother “initially entered into treatment she was eager to reengage with

her daughter, however after talking it over . . . it was decided that she would focus

on her own recovery first before attempting to build a stronger bond with her
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daughter.” The counselor further opined the mother “has made great strides” in

attaining all of her treatment goals. The mother was successfully discharged from

her substance-abuse program in June 2017.            During her participation in the

treatment program, the mother submitted to thirty-two urine-analysis tests—she

tested negative for drugs on each. The mother has been sober since her August

2016 arrest. Since attaining sobriety, the mother has obtained her GED, gotten a

job, and regularly attends church.

          In September 2016, the mother also began paying child support to the

father.     She continued to make regular payments through the time of the

termination trial. In November 2016, the father discontinued allowing the maternal

grandparents to have visitation with the child “[b]ecause [the mother] was around.”

Specifically, the father observed a picture on social media of the mother sitting on

a couch in the maternal grandmother’s home. The maternal grandmother testified

she has not seen the child since the father observed this picture.

          In April 2017, the mother contacted the father and requested visitation with

the child. The father denied the mother’s request. The mother then filed a custody

action. Thereafter, in late May, the father filed a petition to terminate the mother’s

parental rights alleging the mother abandoned the child.

          The child continues to live with the father and M.W., both of whom are

gainfully employed and are doing a commendable job in raising this child. There

are generally no concerns about the child’s health, education, or overall well-being.

The child identifies M.W. as her mother, and the two of them have a very strong

bond. The guardian ad litem testified to her opinion that any reunification between

the mother and child would be “very traumatic for the child.” In her report, the
                                          6


guardian ad litem recommended termination of the mother’s parental rights, noting

the child “has virtually no relationship with her biological mother” and the child

indicated “she has no memory of her biological mother.”

       Following a termination trial in September 2017, the district court entered

an order denying the father’s petition, concluding the father failed to prove the

statutory grounds for termination by clear and convincing evidence and termination

was not in the child’s best interests. As noted, the father appeals.

II.    Standard of Review

       “We review termination proceedings under Iowa Code chapter 600A de

novo.” In re Q.G., 911 N.W.2d 761, 769 (Iowa 2018). We give weight to the factual

findings of the district court, especially those concerning the credibility of

witnesses, but we are not bound by them. In re C.A.V., 787 N.W.2d 96, 99 (Iowa

Ct. App. 2010). Our paramount consideration is the best interests of the child, but

we also give due consideration to the interests of the parents. Iowa Code §

600A.1.

III.   Discussion

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

process.” Q.G., 911 N.W.2d at 770; see Iowa Code §§ 600A.1, .8. “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.” Q.G., 911 N.W.2d at 770; see Iowa Code § 600A.8.

“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.” Q.G., 911 N.W.2d at 770.
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       A.     Threshold Determination

       The father petitioned for termination of the mother’s parental rights on

abandonment grounds. 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.” Section 600A.8(3)(b), which concerns children who are six months of

age or older at the time of the termination hearing, provides the following:

       [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 communications 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.

(Emphasis added.)

       The statute expressly requires the establishment of two elements by clear

and convincing evidence: (1) the parent has 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” and (2) the parent has failed to maintain sufficient contact with the child

under one of the three alternatives listed in section 600A.8(3)(b)(1)–(3). See Iowa
                                           8

Code § 600A.8(3)(b); see also In re S.A., No. 17-0859, 2018 WL 1182889, at *2

(Iowa Ct. App. Mar. 7, 2018) (noting “the threshold element of ‘substantial and

continuous or repeated contact’ is economic contributions” (quoting In re K.W., No.

14-2115, 2015 WL 6508910, at *3 (Iowa Ct. App. Oct. 28, 2015))).

       Although it is clear the mother contributed little, if any, support toward the

child until she began paying child support in September 2016, no evidence was

presented that this was unreasonable according to the mother’s means. See Iowa

Code § 600A.8(3)(b). Furthermore, the mother consistently paid child support in

the year leading up to the termination hearing.         Likewise, no evidence was

presented that the amounts the mother was paying were unreasonable according

to her means. The father failed to prove by clear and convincing evidence the first

statutory element for termination.

       We next consider the second element of section 600A.8(3)(b).               The

mother’s inconsistent participation in the child’s life that resulted from her drug use

indeed causes one pause. But the record also reveals the father was insistent

over the years that he did not want the mother to have any contact with the child.

One could conclude the father’s position was reasonable based on the mother’s

history. But, after her arrest, the mother picked herself up, dusted herself off,

participated in substance-abuse treatment, started paying child support, became

employed, and demonstrated her ability to obtain and maintain sobriety. After

working on herself, the mother sought to reengage the child in April 2017, but the

father disallowed the mother visitation.

       The mother then sought to exercise her parental rights by filing a custody

and visitation action. The father responded with a petition for the termination of
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the mother’s parental rights. Problematic are cases such as this where one parent

has a history of conduct that might have satisfied termination of parental rights, but

the other parent does not pursue termination until a time when the circumstances

supporting abandonment, although previously prevalent, have waned in light of a

parent’s recent positive conduct. A finding of abandonment is an easier conclusion

when the parent’s positive conduct occurs only in response to a termination

petition. Conversely, when the termination petition is forwarded only in response

to a parent’s positive conduct and seemingly genuine efforts to ameliorate prior

deficiencies, an allegation of abandonment is more problematic because the trial

of these issues must consider all the evidence, including recent history.

       Upon our de novo review of the record, we conclude clear and convincing

evidence does not support a finding that, at the time leading up to these

proceedings, the mother was in a state of rejection of “the duties imposed by the

parent-child relationship” or that she was “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 § 600A.2(19).

       Because the father failed to meet his burden on either of the statutory

elements, the district court’s denial of his termination petition was appropriate.



       B.     Best Interests of the Child

       We choose to continue our analysis, however, in light of the supreme court’s

recent position on the best-interests issue in termination proceedings under

chapter 600A. See generally Q.G., 911 N.W.2d at 770–74. As noted, a termination
                                          10


petitioner must show by clear and convincing evidence termination is in the best

interests of the child. Id. at 770.

       Iowa Code section 600A.1 provides a lengthy description regarding
       application of the concept of “best interest of the child” in termination
       proceedings. The provision states the best interest of the child “shall
       be the paramount consideration” in interpreting the chapter. Id. §
       600A.1. Yet, the section further provides the interests of the parents
       of the child “shall be given due consideration.” Id.
               The best interest of the child requires each parent
       “affirmatively assume the duties encompassed by the role of being a
       parent.” Id. Among other things, the court is directed to 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.” Id.
               In addition to applying the language of Iowa Code section
       600A.1, we have also borrowed from Iowa Code section 232.116(2)
       and (3) to flesh out the best-interest-of-the-child test. In re A.H.B.,
       791 N.W.2d 687, 690–91 (Iowa 2010). We consider the child’s
       “physical, mental, and emotional condition and needs” and the
       “closeness of the parent-child relationship.” Iowa Code
       § 232.116(2)–(3).

Id. at 771.

       In Q.G., the supreme court concluded a mother met the threshold

requirement for termination but failed to show by clear and convincing evidence

the best interests of the children would be advanced by termination of the father’s

parental rights. Id. at 770–74. The court noted numerous factors weighing in favor

of termination: the father’s history of depression and suicidal ideation as a youth;

his two convictions for operating while intoxicated; experimentation with and

subsequent addiction to methamphetamine which rendered the father “so

incapable of providing parenting to his children that they were placed in daycare

even though he was a stay-at-home father;” “he possessed powerful

weapons . . . and was working on assembling unlawful silencers;” he pled guilty to
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federal weapons charges and “four state criminal charges including two counts of

domestic assault involving strangulation of his spouse, one count of child

endangerment, and one count of possession of methamphetamines;” he

attempted to minimize, and declined to take any responsibility for, his actions; he

possessed “issues with anger and thoughts of revenge that are troubling;” there

was “no meaningful bond” between the father and one child and the other child

only had “some” memory of the father; there was little to no contact between the

father and children due to the father’s incarceration; and a stepfather was willing

to provide for and adopt the children. Id. at 771–73.

       On the other side of the ledger, the court noted other aspects that weighed

against termination: the father’s interest in resuming a relationship with the children

upon his release from prison, the father’s “good prison record” and the fact that he

“completed prison courses involving parenting and anger management,” the father

showed “a commitment to dealing with his drug problem,” he “recognize[d] that he

made poor decisions regarding the use of drugs and that his drug usage led to his

current predicament,” the father would be subject to parole supervision and drug

testing upon his release from prison, the father had “an extended family willing to

provide additional support for his parenting activities,” and he secured employment

to commence upon his release from prison. Id. at 773.

       Under the totality of the circumstances, the supreme court was “not ready

to write off [the father’s] potential positive contributions to his sons’ lives.” Id. at

774. The court explained:

       Families come in all shapes and sizes, and the prospect of [the
       father] having parental rights should not undermine the home that
       [the mother] and [stepfather] have provided the children. It is clear
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       [the father] loves his children and strongly desires to continue as their
       father. Although contact has been quite limited during the past few
       years due to [the father’s] incarceration, the children remain quite
       young and may benefit from years of exposure to their father upon
       his release from prison. [The father’s] loving, extended family offers
       the prospect of meaningful support for the children. Although [the
       father] has a history of serious drug problems and domestic violence,
       [he] has regularly attended Narcotics Anonymous while in prison and
       understands his past failure as a parent was drug related. Upon
       release, he plans to live with his parents in a supportive environment
       and has lined up a job in construction.

Id. Generally, due to the father’s recent, positive conduct, the supreme court was

willing to give him a second chance, but noted “that any future relapse of

involvement with drugs or violence may well tip the balance in any future

termination action.” Id.

       We find Q.G. compelling in this case, as the circumstances of the two cases

are comparable. Although the mother’s conduct prior to August 2016 is troubling,

to say the least, she accepts responsibility for that conduct and recognizes that her

drug use resulted in a disconnect between herself and the child. She has a desire

to foster a relationship with her daughter, has begun financial support of the child,

has demonstrated an ability to maintain sobriety, and has a positive support

system to help her continue to maintain that sobriety. Under the totality of the

circumstances, we, like the court in Q.G., are not ready to write off the mother’s

potential positive contributions to this child’s life. Although reentry of the mother

into the child’s life may come with some negative effects, we believe such effects

to be outweighed by the mother’s potential positive contributions to this child’s life

in the long term. We agree with the district court that the father has not proven by

clear and convincing evidence that termination of the mother’s parental rights

would be in the best interests of the child.
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IV.    Conclusion

       For all the above reasons, we affirm the district court’s order denying the

father’s petition to terminate the mother’s parental rights.

       AFFIRMED.
