In the Interest of K.S., Minor Child, J.S., Father, M.K., Mother ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1497
Filed April 5, 2017
IN THE INTEREST OF K.S.,
Minor child,
J.S., Father,
Petitioner-Appellee
M.K., Mother,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Casey D. Jones,
District Associate Judge.
The mother appeals from the district court’s order terminating her parental
rights to her child, K.S., now age sixteen. The children’s father initiated this
action under Iowa Code section 600A.8(3)(2016) in April 2016. AFFIRMED.
Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant
mother.
Crystal L. Usher of Nazette, Marner, Nathanson & Shea L.L.P., Cedar
Rapids, for appellee father.
Kristen A. Shaffer of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids,
guardian ad litem for minor child.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.
The mother appeals from the district court’s order terminating her parental
rights to her child, K.S., age sixteen at the time of trial. The children’s father
initiated this action in August 2016.
I. Factual and Procedural Background.
K.S.’s biological mother and father were married at the time of her birth in
2000. In 2005, the parties dissolved their marriage by decree. The decree
awarded shared physical care of K.S. to the mother and father. The father
married his current wife in 2006. The stepmother has been a caregiver to K.S.
for approximately ten years.
The decree was modified multiple times, in part due to the mother’s
methamphetamine addiction and its resulting harm to K.S. In 2008, for example,
the Iowa Department of Human Services (DHS) completed a founded child
abuse report against the mother for denial of critical care. DHS determined that
although the mother was not actively using methamphetamine in the presence of
K.S., the effects of methamphetamine were still in her system while the mother
was caring for K.S., and supplies used to make methamphetamine were present
in the home. In 2009, the parties modified the custody provisions of the decree
requiring a one-year sobriety period before the mother could have unsupervised
visitation. The mother never attempted to demonstrate sobriety and the father
testified the mother has never been sober from methamphetamine for a period of
one year. In 2011, the mother successfully moved to modify the decree to
receive more traditional visitation, and the father testified that he attempted to
give her a chance at more visits.
3
In 2012, the DHS issued another founded child abuse report against the
mother based on methamphetamine use in the presence of K.S.1 In 2013, the
court entered a default decree modifying the custody provisions so that the father
had sole discretion over visitation regarding the length, time, and degree of
supervision for each visit with K.S. According to the father’s testimony, the
parties attempted visitations between the mother and K.S. at the father’s home,
but because the visits were stressful and often ended in arguments, the father
moved visits to the maternal grandparents’ home, pursuant to the decree
provisions. The parties planned a visit around Christmas in 2013 at the maternal
grandparents’ home but the mother did not attend. Apart from the occasional
text or Facebook communication referencing visitation, the mother has not
attempted to schedule any official visitations at the maternal grandparents’ home
or with any other qualified supervisor since 2013. In fact, K.S. has not seen her
mother at an official visit since 2013. The father testified the mother attempted
unannounced, unsupervised visits when the father and stepmother were not at
home, which was in violation of the most recent modification order.
The mother’s methamphetamine abuse was a factor during the
termination proceedings. In July 2016, nearly one month before the termination
trial, the mother left a voicemail for the father stating she was arrested for
possession of methamphetamine. The disposition of the possession charge, if
any, is not a part of this record.
1
Details from this incident are not apparent from the record. Only the “Notice of Child
Abuse Assessment” section of the 2012 report was included in the record. Testimony
from the father indicated the abuse was based on the mother’s arrest for
methamphetamine use in the presence of K.S. The mother was not present at the
termination hearing, but was represented by counsel.
4
The mother’s substance-abuse issues have taken an emotional and
physical toll on K.S. throughout her childhood. K.S.’s guardian ad litem (GAL)
reports that K.S. has trust and communication issues with the mother due to the
mother’s methamphetamine use. Text messages and other communications
also indicate a failing relationship between the mother and K.S. These
communications were often in violation of the most recent modification order. In
the communications, K.S. often expresses frustration and anger based on the
mother’s threats, abrasive language, inappropriate contact, and
methamphetamine use. K.S. sought treatment for depression, self-harm, and
suicidal thoughts based, in part, on K.S.’s difficulties with her mother. The child’s
therapist raised concerns over the mother’s inappropriate behavior suggesting it
is a source of K.S.’s stress and anxiety.
In the years leading up to the termination trial, the mother and father
attempted to facilitate the stepmother’s adoption of K.S. On multiple occasions,
the mother expressed consent to termination, but she would often withdraw
consent at the last minute. In 2014, the mother told the stepmother, “I’m asking
you to adopt her,” and “just mail the [consent] papers and you won’t have to deal
with me anymore,” as indicated by multiple text messages. The mother also
expressed to K.S. that she wanted the stepmother to adopt her. In fact,
paperwork to execute the termination and adoption was delivered to the mother
in 2015 at her request. However, she never followed through and the father
testified he delayed filing his termination application because of the potential the
mother would consent. At trial, the stepmother testified that she is ready, willing,
and able to adopt K.S.
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II. Standard of Review.
We conduct a de novo review of termination proceedings under chapter
600A. See In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). We defer to
the factual findings of the district court, especially witness-credibility findings, but
we are not bound by them. See In re G.A., 826 N.W.2d 125, 127 (Iowa Ct. App.
2012). In termination proceedings, the best interests of the children involved are
“the paramount consideration,” but we also give “due consideration” to the
interests of the children’s parents. See Iowa Code § 600A.1 (2016). The
termination findings must be based on clear and convincing proof. Iowa Code
§ 600A.8.
III. Discussion.
On appeal, the mother argues the statutory grounds were not satisfied
because she maintained financial support and continued contact with K.S. To
the extent the juvenile court found she did not visit with K.S., the mother argues
the father prevented her from maintaining such contact.
In a private termination-of-parental-rights proceeding, the petitioner must
establish by clear and convincing evidence that a statutory ground for termination
exists. See Iowa Code § 600A.8; In re B.L.A., 357 N.W.2d 20, 22 (Iowa 1984). If
a ground is proved, the petitioner must also establish termination of parental
rights is in the child’s best interests. See In re A.H.B., 791 N.W.2d 687, 690
(Iowa 2010). Although the interests of the parents must be given due
consideration, our primary concern is the child’s best interests. See Iowa Code §
600A.1 (“The best interest of the child subject to the proceedings of this chapter
shall be the paramount consideration in interpreting this chapter.”); A.H.B., 791
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N.W.2d at 690–91. Thus, we conduct a two-step analysis in our review. First,
we determine whether the statutory requirements are established. Second, we
review whether termination is in the best interests of the child.
1. Statutory Requirements.
Under Iowa law, abandonment of a minor child is one of the grounds
authorizing the termination of parental rights under Iowa Code chapter 600A.
See Iowa Code § 600A.8(3). The petitioner need not establish the mother’s
subjective intent to abandon the child. See id. § 600A.8(3)(c); In re G.A., 826
N.W.2d 125, 130 (Iowa Ct. App. 2012) (recognizing a parent’s subjective intent
does not preclude a finding of abandonment); see also In re C.J.F.M., No. 10-
0166, 2010 WL 3157756, at *2 (Iowa Ct. App. Aug. 11, 2010) (recognizing the
“‘intention to abandon’ is no longer a statutory element in the definitions of Iowa
Code chapter 600A”). Nor is he required to show he or anyone else made
diligent efforts to encourage the mother to perform the acts specified in section
600A.8(3)(b). See Iowa Code § 600A.8(3)(c). Rather, abandonment is
determined by a parent’s actions or lack thereof. See In re J.L.W., 523 N.W.2d
622, 624 (Iowa Ct. App. 1994) (“Clearly, actions speak louder than words. Intent
can be shown through conduct.”), overruled on other grounds by In re P.L., 778
N.W.2d 33, 39 (Iowa 2010). 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.”
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Iowa Code section 600A.8(3)(b) provides that a parent of a child six
months old or older will be deemed to have not abandoned the child if that 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.
There is no dispute the mother is current on her child-support obligation.
The record indicates she pays approximately seventy-three dollars per month,
and she receives a limited amount in social security disability. There is also no
dispute the mother did not live with the child for a period of six months within the
one-year period immediately preceding the termination hearing, or that she failed
to visit the child monthly. Therefore, the remaining issue is whether the father
prevented the mother from visiting K.S., and if so, whether the mother maintained
“[r]egular communication with [K.S.] or with the person having care or custody of
the child.” Id.
The mother argues she regularly sought visits with K.S. but the father
actively prevented her from maintaining contact with her daughter. However, the
district court found, “[The father and stepmother have] tried many times over the
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years to facilitate visitations between [the mother and K.S.],” and, “There is no
evidence that the [father and stepmother] have ever prevented [the mother] from
seeing the child unless there were concerns for [K.S.]’s safety because of [the
mother’s] abuse of methamphetamine. [The father] has actually tried many times
over the years to facilitate visitation between [the mother and K.S.].” We agree.
K.S.’s father was granted sole legal custody and the sole discretion to
allow or refuse visits between the mother and K.S in the most recent modification
to the parties’ dissolution decree. His legal status as sole legal custodian also
allows him to refuse the mother’s requests for visits. The father testified that he
attempted to schedule visitations and the mother has failed to attend any since
2013. In 2013 and 2015, for example, the father attempted to schedule a
visitation at the maternal grandparents’ house. The mother failed to attend.2
Furthermore, the mother also had the ability to arrange visitations through other
qualified supervisors, but she failed to do so and only attempted sporadic text
and Facebook messaging with the stepmother and daughter. Notably, the
communications with the daughter were unannounced and often unwanted—the
mother used an alias to contact K.S. through Facebook after K.S. blocked her
mother’s profile. While the father acknowledged at trial the mother discussed
visitation on a few occasions, he also testified that her volatile nature, and his
experience with her methamphetamine use over the last twenty years, led him to
believe that visitations were not in the best interest of K.S. Any restrictions
placed on the mother’s visitation requests were validly based on the mother’s
2
The parties dispute the reason for the mother’s absence. The father claims it was the
mother’s methamphetamine use, while the mother claims she was sick. The district
court found it was based on the mother’s methamphetamine abuse.
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substance-abuse and mental-health issues. See G.A., 826 N.W.2d at 129
(finding the mother did not prevent the father from exercising visitation with the
child where the mother placed reasonable conditions on visitation in light of the
father’s substance-abuse history and noting the father made no attempt to
comply with the conditions). It is reasonable for the father to require supervision
and advance notice in light of the mother’s history of substance abuse. We
agree with the district court the father did not prevent the mother from visiting
K.S. under Iowa Code section 600A.8(3)(b).
2. Best Interests. Next, we consider whether the termination of the
mother’s parental rights is in the child’s best interests. See J.L.W., 523 N.W.2d
at 625 (“Once we determine a ground for termination under 600A.8 has been
established by clear and convincing evidence, we must next determine whether it
is in the child’s best interests to order termination of parental rights.”). In doing
so, we give “due consideration” to the mother’s interests. See Iowa Code §
600A.1.
The record contains multiple examples of harm the mother’s contact has
caused K.S. The GAL report, for example, concludes it is in K.S.’s best interest
to terminate the mother’s parental rights because:
1. It has been a significant period of time since the child has
had visitation with her mother.
2. The communication between the child and her mother is
detrimental to the mental health of the minor child.
3. The minor child wishes her mother would not contact her.
4. [The mother] continues to use methamphetamines. This
likely has played a role in her interactions with [K.S.].
5. [The stepmother] is willing to adopt the child if the
termination is granted.
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The child’s counselor also voiced concerns with maintaining contact with the
mother. In a letter to the court the counselor states, “[K.S.] has voiced and
processed many upsets in the relationship with her biological mother and the
stress that this relationship has caused her over the years . . . . [K.S.] has also
expressed her desire to not have any contact with [the mother] because of the
negative impact on her mood and increased stress when contact does occur.”
K.S.’s doctor also stated, “[K.S.] has expressed that she does not wish to be
engaged in a relationship any longer with her biological mother, including any
visitation or communication.”
Moreover, the communications between the mother and K.S. indicate a
toxic relationship. The district court stated,
[The mother] contacted her daughter via [F]acebook and text
messages for a three or four year period, again in violation of the
decree. [The mother] would generally use an alias to get around
[K.S.]’s attempts to block her. . . . Many of the exchanges are
extremely troubling to read and detail [K.S.]’s conflicted relationship
with her mother. While it is clear that [K.S.] loves her mother, it is
further clear that she feels confused, abandoned and mislead by
her mother’s words and actions. In some of the entries, [K.S.]
expresses that she does not want [the mother] to be her mother
any longer. [The mother] also frequently threatens in the messages
that she does not want [K.S.] as a daughter anymore. The exhibits
paint a picture of severe dysfunction in this mother-daughter
relationship.
(emphasis added). Based on the dysfunctional relationship in the past and the
daughter’s desire to cease contact with her mother, we believe continuing the
relationship would only cause more dysfunction and stress. See In re J.E., 723
N.W.2d 793, 798 (Iowa 2006) (Stating a parent’s past behavior is indicative of
their future behavior). As a result, it is not in the best interest of K.S. to continue
the relationship.
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The mother next argues that termination is not in K.S.’s best interests
because she provides financial support. The record indicates the mother pays
approximately seventy-three dollars per month. The father, however, testified
that there were periods of time without financial support. Furthermore, he stated
he can adequately support K.S. without the mother’s limited financial support.
Based on the above and after our careful review of the record, termination
of the mother’s parental rights is in the best interests of the child. Thus, we affirm
the district court’s order.
AFFIRMED.