In the Interest of J v. and C.E., Minor Children ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0739
Filed December 5, 2018
IN THE INTEREST OF J.V. and C.E.,
Minor Children,
M.S., Father,
Petitioner-Appellee,
V.W., Mother
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Kevin Parker,
District Associate Judge.
A mother appeals the juvenile court order terminating her parental rights in
a private termination action. AFFIRMED.
Colin McCormack of Van Cleaf & McCormack Law Firm, LLP, Des Moines,
for appellant.
Kenneth J. Weiland Jr. of Weiland Law Firm, Des Moines, for appellee.
William E. Sales III of Sales Law Firm, P.C., Des Moines, guardian ad litem
for minor children.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.
A mother appeals the juvenile court order terminating her parental rights in
a private termination action. We find the mother abandoned the children and
termination is in the children’s best interests. We affirm the juvenile court’s
termination of the mother’s parental rights.
I. Background Facts & Proceedings
V.W. is the mother of J.V., born 2004, and C.E., born 2006. M.S. is the
father of J.V. In 2011, both children were placed with the father through child in
need of assistance (CINA) cases.1 In 2012, the court ordered joint legal custody
of J.V. and awarded sole physical care to the father, with the mother to pay child
support. By stipulation of the parties, the mother’s right to visitation was to be
determined by J.V.’s counselor and then by the father when a counselor was no
longer needed. In 2013, the CINA court appointed the father and his wife as
guardians for C.E. The court at that time noted the mother’s progress in
substance-abuse treatment and the bond between the children and mother as
reasons to not terminate the mother’s parental rights. In July 2017, the father
petitioned to terminate the mother’s rights to both children under Iowa Code
section 600A.8(3)(b) (2017).2
From 2012 through 2015, the mother did not pay any child support for J.V.
In 2016, the mother began making voluntary partial payments and the State
garnished additional amounts from her paychecks. She has significant arrearages
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The CINA cases related to the mother’s substance abuse, domestic abuse, and
significant exposure of the children to sex offenders.
2
The father also petitioned to terminate the rights of C.E.’s putative biological father, who
did not contest the termination.
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for J.V.’s child support. The mother has made no support payments for C.E. since
the CINA case.
The mother has not seen the children since February 2013. Around March
2014, the mother ceased any attempts to set up visitation with either child and has
not contacted the father or the children’s counselor since that time.3 The same
counselor treating the children throughout the CINA cases continues to see the
children periodically. At the time of the hearing, the mother had not contacted the
father to request or arrange visitation with the children in three and a half years.
The mother testified she did not contact the counselor to arrange visitations
because she “was afraid of what the outcome would be.” She claims the father’s
wife blocked her family from sharing any information about the children with her.
She testified she would love visitation with the children, but was not requesting it.
At one point, the mother and the father’s wife scheduled a time to discuss
visitation, but the mother did not attend. The father did not proactively offer
visitation to the mother. The father’s wife provided schedules of the children’s
activities to the mother, who never attended. The mother’s sister would
occasionally see the children and talk with them on the phone. The mother did not
send cards, letters, birthday or Christmas gifts, or contact the children’s schools
over that period of time. She claims to have provided some school supplies and
clothes to the children through her sister’s visits, but instructed her sister to not
allow the father to know she contributed to them. She also stated she had written
3
The counselor for both children submitted an affidavit indicating the children consider
M.S. and his wife their parents and want to be adopted, and were willing to testify about
it. Both children reported to the counselor they did not want contact with the mother, and
she had not attempted to contact the counselor for several years.
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letters to the children but did not send them in case the father did not pass them
on to the children or returned them.
The father has not moved residences since the children moved in and has
not changed his phone number. The children remained with the same counselor,
who did not change locations over the entire period until her company merged with
another just a few months prior to the hearing. The mother admitted having worked
with and visited the counselor during the CINA proceedings and having her contact
information at that time.
The juvenile court ruled the mother had abandoned the children and
termination of her parental rights is in the children’s best interests. The mother
appeals.
II. Standard of Review
We review the termination-of-parental-rights proceedings under Iowa Code
chapter 600A de novo. In re D.E.E., 472 N.W.2d 628, 629 (Iowa Ct. App. 1991).
We give weight to the court’s factual findings, particularly on the credibility of
witnesses, but are not bound by them. Iowa R. App. P. 6.904(3)(g). The best
interests of the children is our paramount concern. Iowa Code § 600A.1.
III. Abandonment
In a termination action under chapter 600A, the court is to determine
“whether the parent has affirmatively assumed the duties of a parent,” including
but not limited to demonstrating continued interest in the children, a genuine effort
to maintain communication, establishing and maintaining a place of importance in
the children’s lives, and fulfilling financial obligations. Id.
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The court deemed the mother abandoned the children and terminated her
parental rights pursuant to Iowa Code section 600A.8(3)(b). Under this section,
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
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.
Id. § 600A.8(3)(b).
The mother claims she did not abandon the children, and the father and his
wife prevented her from exercising her visitation rights and having communication
with the children. In support of this claim, the mother cites attempts she made in
the first year following the CINA permanency determination to contact the father
for visitation and discussions with his wife. The father admitted the children’s busy
schedules complicated setting times for phone calls, but also testified the mother
did not call when times were set, that she would call when the family was out. The
mother has not offered any affirmative acts by the father to prevent visitation over
the past several years. At the time of the hearing, she had not attempted to set up
a visit or phone call for years.
The evidence shows the mother made little to no attempt to maintain contact
with the children through visitation or regular communication. She wrote but did
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not send letters. She did not call the children. Items she claims to have sent the
children were attributed to other members of her family at her direction, and neither
the children nor the father knew the items were from the mother. She made no
effort to learn anything about the children’s schools or ask for updates. In more
than three years, she admitted to making no attempt to contact the father or the
counselor to request or arrange a phone call or visitation, instead waiting for the
father or counselor to reach out to her and make the arrangements. Even in the
termination proceeding, she testified she would love to have visitation with the
children but she was not requesting it.
“Parental responsibility demands ‘affirmative parenting to the extent it is
practicable and feasible under the circumstances.’” In re G.A., 826 N.W.2d 125,
130 (Iowa Ct. App. 2012) (quoting In re Goettsche, 311 N.W.2d 104, 106 (Iowa
1981)). Any reluctance to communicate with the father or counselor or an
expectation letters might not be given to the children does not alter the fact the
mother admitted to taking no action to have any contact with the children for
several years. The mother appears to be content passively awaiting
communication and visitation initiated by someone else instead of taking any
affirmative steps to maintain contact with the children. We find the mother has
abandoned the children within the meaning of section 600A.8(3)(b).
The children have lived with the father and his wife for six years. The
children told their counselor and guardian ad litem they view M.S. and his wife as
their parents and wish to be adopted. The father and his wife have provided the
children with a safe, stable home with no help from the mother. We find it is in the
children’s best interests to terminate the mother’s rights.
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We affirm the decision of the juvenile court.
AFFIRMED.