In the Interest of A.M.M., Minor Child, B.J.M., Father, J.B., Mother ( 2014 )


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  •                        IN THE COURT OF APPEALS OF IOWA
    No. 13-0627
    Filed August 13, 2014
    IN THE INTEREST OF A.M.M.,
    Minor Child,
    B.J.M., Father,
    Petitioner,
    J.B., Mother,
    Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
    Judge.
    A mother appeals the order terminating her parental rights in a private
    termination proceeding. AFFIRMED.
    Jeffery A. Wright of Carr & Wright, P.L.C., Des Moines, for appellant.
    Scott D. Fisher of Fisher Law Firm, P.L.C., West Des Moines, for appellee
    father.
    Ethan P. Anderson, Norwalk, for minor child.
    Considered by Potterfield, P.J., Tabor, J., and Eisenhauer, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
    2
    EISENHAUER, S.J.
    A mother appeals from the order terminating her parental rights.      She
    contends the evidence failed to prove she abandoned the child or that
    termination is in the best interest of the child. We conclude the district court
    properly terminated the mother’s parental rights on the ground of abandonment
    under Iowa Code section 600A.8(3)(b) (2011). We conclude termination of the
    mother’s parental rights is in the best interest of the child. We affirm.
    I. Background Facts & Proceedings.
    Bryan and Jessica are the parents of a child, born in November 2009. At
    birth, Jessica intended to allow the child to be adopted, and the child lived with
    the proposed adoptive parents until April 2010. On learning of the birth Bryan
    refused to consent to termination of his parental rights and the adoption fell
    through. The child then lived with Jessica and her two older children.
    Jessica and the children came to the attention of the Iowa Department of
    Human Services in May 2010 because the two older children, who were then
    ages four and two, repeatedly left the home without Jessica’s knowledge. All
    three children were removed from Jessica’s care on May 27, 2010. The child in
    this case was placed in the care of Bryan. The child was adjudicated to be in
    need of assistance pursuant to Iowa Code chapter 232 (2009).
    Bryan sought and obtained concurrent jurisdiction and initiated an action
    to establish paternity, custody, and physical care. The district court on May 17,
    2011, granted Bryan sole legal custody and physical care of the child. Jessica
    was granted visitation and ordered to pay child support of $110 per month. This
    3
    decision was modified on December 2, 2011, to provide Jessica would have
    supervised, non-overnight visitation with the child at Bryan’s discretion.
    The last time Jessica had contact with the child was at the child’s birthday
    party in November 2011 at Bryan’s house. She has not had contact with Bryan
    since March 2012. Furthermore, Jessica was not current in her child support
    obligation.   From December 2011 until February 2013, she paid a total of
    $128.91.
    On November 7, 2012, Bryan filed a petition seeking to terminate
    Jessica’s parental rights under sections 600A.8(3)(b), 600A.8(4), 600A.8(5), and
    600A.8(6) (2011).     A guardian ad litem (GAL) was appointed.               The GAL
    recommended termination of Jessica’s parental rights.        A termination hearing
    was held on March 20, 2013. Jessica testified she had asked for visitation with
    the child several times, but Bryan would not agree to the visitation. She stated
    she had not been able to pay child support because she did not have a job until
    shortly before the hearing.
    The district court entered an order terminating Jessica’s parental rights on
    the ground of abandonment under section 600A.8(3)(b). The court determined it
    was Jessica’s own lack of interest preventing her from having meaningful contact
    with the child. The court found it was virtually undisputed she failed to maintain
    regular communication with the child and Bryan. The court found in addition to
    lack of contact, Jessica had not financially supported the child.            The court
    determined termination of Jessica’s parental rights was in the child’s best
    interest. Jessica appeals.
    4
    II. Standard of Review.
    Our review in matters pertaining to termination of parental rights under
    Iowa Code chapter 600A is de novo. In re D.E.E., 
    472 N.W.2d 628
    , 629 (Iowa
    Ct. App. 1991). In cases in equity, we give weight to the factual findings of the
    district court, especially considering the credibility of witnesses, but are not
    bound by them. Iowa R. App P. 6.904(3)(g). In termination proceedings, our
    paramount consideration is the best interests of the child. Iowa Code § 600A.1
    III. Abandonment.
    Jessica contends the district court improperly found she had abandoned
    her child. She claims her failure to have contact with the child was due to the
    actions of Bryan. She states she repeatedly attempted to see the child and
    Bryan repeatedly prevented her from doing so.1
    Section 600A.8(3)(b) provides as follows:
    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.
    1
    Jessica also claims Bryan had not shown she had the intent to abandon her child.
    Section 600A.8(3)(c) provides, “The subjective intent of the parent, whether expressed
    or otherwise, unsupported by evidence of acts specified in paragraph ‘a’ or ‘b’
    manifesting such intent, does not preclude a determination that the parent has
    abandoned the child.” See In re W.W., 
    826 N.W.2d 706
    , 710 (Iowa Ct. App. 2012).
    Thus, a parent’s subjective intent, stating alone, will not preclude termination of the
    parent’s parental rights.
    5
    (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.
    The legislature has defined the phrase “to abandon a minor child” to mean
    a parent, putative father, custodian, or guardian rejects the duties
    imposed by the parent-child relationship, guardianship, or
    custodianship, 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.
    Iowa Code § 600A.2(19).
    “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)). Where a parent having physical care of the child has prevented the other
    parent from exercising visitation, the non-custodial parent is required to maintain
    regular communication with the child or the child’s custodian.         Iowa Code
    § 600A.8(3)(b)(2); 
    G.A., 826 N.W.2d at 130
    .
    Even if we accepted Jessica’s claim Bryan prevented her from having
    visitation with the child, Jessica did not maintain regular communication with the
    child or with Bryan. At the time of the termination hearing in March 2013, Jessica
    had not had contact with the child since November 2011 and had not had contact
    with Bryan since March 2012. We conclude Jessica made only a marginal effort,
    at best, to maintain regular communication with the child and Bryan.           We
    conclude the district court properly terminated Jessica’s parental rights on the
    ground of abandonment under section 600A.8(3)(b).
    6
    IV. Best Interests.
    Jessica claims termination of her parental rights is not in the best interest
    of the child. She asserts there is a strong bond between her and the child and it
    would be detrimental to the child to terminate her parental rights.
    As noted above, in termination proceedings under chapter 600A our
    paramount consideration is the best interest of the child. Iowa Code § 600A.1.
    Furthermore,
    The best interest of a child requires that each biological
    parent affirmatively assume the duties encompassed by the role of
    being a parent. In determining whether a parent has affirmatively
    assumed the duties of a parent, the court shall consider, but is not
    limited to consideration of, the fulfillment of financial obligations,
    demonstration of continued interest in the child, demonstration of
    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. We conclude
    termination of Jessica’s parental rights is in the best interest
    of the child. She has not fulfilled her financial obligations to the child. She had
    not contacted the child’s caretaker, Bryan, for about one year, which shows she
    does not have a continued interest in the child. Jessica had no contact with the
    child for over one year, which does not demonstrate a genuine effort to maintain
    communication with the child. In addition, there was no evidence she maintained
    a place of importance in the child’s life.      It is difficult to accept Jessica’s
    contention she has a strong bond with the child when the child only lived with her
    for about a month and has had such little contact with her since.
    7
    We determine the district court properly terminated Jessica’s parental
    rights under chapter 600A.
    AFFIRMED.
    

Document Info

Docket Number: 13-0627

Filed Date: 8/13/2014

Precedential Status: Precedential

Modified Date: 4/17/2021