In the Interest of Z.M., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 18-0545
Filed March 6, 2019
IN THE INTEREST OF Z.M.,
Minor Child,
S.M., Custodian,
Petitioner-Appellee,
vs.
C.M.-G., Mother,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
The biological mother appeals the juvenile court’s termination of her
parental rights in a private termination action. AFFIRMED.
Chira L. Corwin of Corwin Law Firm, Des Moines, for appellant mother.
Shayla L. McCormally of McCormally & Cosgrove, P.L.L.C., Des Moines,
for appellee custodian.
Lori Bullock of Newkirk Zwagerman, P.L.C., Des Moines, guardian ad litem
for minor child.
Heard by Potterfield, P.J., and Tabor and McDonald, JJ.
2
POTTERFIELD, Presiding Judge.
C.M.-G., appeals the juvenile court’s termination of her parental rights to
her biological child, Z.M., in a private termination action. The juvenile court
terminated C.M.-G.’s parental rights pursuant to Iowa Code section 600A.8(1)
(2017), which allows the court to terminate when the parent signed a release of
custody and the release has not been revoked.1 C.M.-G maintains she revoked
her release of custody within the ninety-six hours contemplated by the statute. See
Iowa Code § 600A.4(4) (“[A] parent who has signed a release of custody . . . may,
at any time prior to the entry of an order terminating parental rights, request the
juvenile court . . . to order the revocation of any release of custody previously
executed by either parent. If such request is by a signing parent, and is within
ninety-six hours of the time such parent signed a release of custody, the juvenile
court shall order the release revoked.”). Alternatively, she maintains the juvenile
court should have allowed her to revoke the release after the ninety-six hours
elapsed because she established good cause for the revocation. She contends
she demonstrated good cause because (1) the release was obtained by fraud,
coercion, or misrepresentation of law or fact and (2) she did not understand the
release at the time she signed it.2 Finally, C.M.-G argues the court should not have
1
The child’s legal father signed a release of custody. He did not revoke the release or
contest the termination, and he does not appeal the juvenile court’s ruling terminating his
parental rights. The biological father of the child was never identified, despite diligent
inquiry. His rights were also terminated, and he does not appeal.
2
C.M.-G also argues the court should not have terminated her parental rights because
she did not abandon her child. We acknowledge the juvenile court did not specifically
state it terminated C.M.-G.’s parental rights pursuant to section 600A.8(1) (release of
custody) rather than 600A.8(3) (abandonment), but the custodian never alleged the
mother abandoned the child and the court did not make the necessary findings to
terminate for reasons of abandonment. See Iowa Code § 600A.8(3)(b)(1)–(3)
(considering to terminate based upon whether the parent has maintained substantial and
3
granted the petition to terminate her parental rights because it is not in Z.M.’s best
interests.
I. Background Facts and Proceedings.
C.M.-G is the biological mother of Z.M. She is also the biological mother of
three other children, who remain in her care. When C.M.-G. first learned she was
pregnant with Z.M.—in the fall of 2016—C.M.-G reached out to D.M. and his wife,
E.M., indicating she would need help with the child after the birth. D.M. is C.M.-
G’s adoptive brother, but the two characterize their relationship as one more typical
of an uncle and a niece due to the difference in their ages.
According to D.M., at the time C.M.-G. first indicated she would need help
after the baby was born, he indicated a willingness to help her like he does with
her other three children—often caring for them on weekends or helping to provide
for their financial needs. Otherwise, D.M. made it clear to C.M.-G. that he and
E.M. were not interested in caring for the child in their home for an extended period
of time unless they were allowed to adopt the child.
D.M. and C.M.-G did not speak of adoption again until after C.M.-G. gave
birth in June 2017. C.M.-G. called D.M. and E.M. from the hospital and again
asked for their help. Then, after she and Z.M. were discharged, she called D.M.
and asked him to pick up Z.M. to take the child to his home. D.M. and E.M. took
the child, and they have continued to care for her since that time.
continuous or repeated contact with the child as evidenced by contributing to the child
financially, having regular communication or contact with the child or person caring for the
child, or living with the child). As we understand the ruling, the court terminated the C.M.-
G.’s rights based on what it determined was a valid release of custody that was not
properly revoked within the first ninety-six hours and for which there was not good cause
to revoke thereafter. See id. §§ 600A.4(4), .8(1). Thus, we do not consider her argument
pursuant to section 600A.8(3) further.
4
On July 18, E.M., D.M., C.M.-G, and C.M.-G.’s husband went to the law
office of Shayla McCormally—E.M. and D.M.’s lawyer—in order for C.M.-G. and
C.M.-G’s husband to sign releases of custody. C.M.-G was told that McCormally
was not her attorney. The four were at the office approximately two hours before
C.M.-G. signed the release of custody. The release provides in part, in bold and
capital letters:
I have been informed that as a person signing the release of
custody I may petition the juvenile court in Polk County, Iowa within
96 hours after signing this release of custody, in which case the
juvenile court must order this release revoked. I have also been
informed that after 96 hours the juvenile court may order the release
revoked only upon clear and convincing evidence that good cause
exists for such revocation. I have been informed that good cause for
revocation includes but is not limited to a showing that this release
of custody was obtained by fraud, coercion or misrepresentation of
law or fact which was material to its execution.
C.M.-G. called McCormally a number of times on the day before the ninety-six-
hour window expired. At least once, she told McCormally she did not want to go
through with the release of custody and ultimately the adoption. However, either
later in the same call or in another call to the attorney, C.M.-G reported that she
had changed her mind again and wanted to leave the release intact. In response
to her calls, McCormally reminded C.M.-G. she was not her attorney, advised her
to contact an attorney, and told her that if she wanted to revoke the release of
custody, she needed to contact the juvenile court in writing before the ninety-six
hours expired. As a result of McCormally’s advice, C.M.-G. reached out and spoke
to an attorney at Iowa Legal Aid that same day.
C.M.-G. did not file a revocation of her release or otherwise contact the
juvenile court during the ninety-six-hour window.
5
On August 18, McCormally filed a petition to terminate the parental rights of
C.M.-G to Z.M. The termination petition was originally set for an uncontested
hearing on November 1, 2017. However, at that hearing, C.M.-G. asked for an
attorney to be appointed to assist her with contesting the petition. An attorney was
appointed, and the hearing was rescheduled.
At a contested hearing on February 14 and 15, the court took up the issues
of whether C.M.-G. had properly requested a revocation of the release of custody
within the first ninety-six hours after signing it, whether there was otherwise good
cause for the court to allow the revocation of the release, and whether the
termination petition should ultimately be granted.
At the hearing, C.M.-G. testified she has learning disabilities related to
reading comprehension and that she was taking prescribed hydrocodone at the
time she signed the release of custody; she maintained both affected her ability to
understand the release at the time she signed it. Additionally, she testified she is
afraid of D.M. and felt forced both to sign the release and then to not revoke the
release during the allotted ninety-six hours.
The juvenile court filed a written ruling on March 5, 2018. The court
determined C.M.-G did not revoke her release of custody during the first ninety-six
hours. Additionally, because C.M.-G. had “the mental capacity to understand the
release of custody and what steps she needed to take in order to revoke that
release” and “[t]here was no evidence of coercion in this case,” the court concluded
there was not good cause to revoke C.M.-G’s release of custody. Based on those
conclusions and a determination it is in Z.M.’s best interests, the court terminated
C.M.-G.’s parental rights to Z.M. pursuant to section 600A.8(1).
6
C.M.-G. appeals.
II. Standard of Review.
We review termination proceedings under chapter 600A de novo. In re
C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). “We accord weight to the factual
findings of the juvenile court, especially those regarding witness credibility, but we
are not bound by them.” Id. As always, in cases involving the termination of
parental rights the paramount concern is the best interests of the child. See Iowa
Code § 600A.1.
III. Discussion.
A. Revocation.
1. Initial Ninety-Six Hours. C.M.-G challenges the juvenile court’s
conclusion she did not revoke her release of custody during the first ninety-six
hours after she signed it. She argues, in direct contravention of case law, that her
phone call to McCormally expressing her desire to revoke the release was
sufficient to effectuate the revocation. C.M.-G has the burden of proving her
revocation by a preponderance of the evidence. See In re C.K., 315 N.W.2d 37,
42 (Iowa 1982).
In C.K., the biological parents argued they had properly revoked their
release of custody because they called an attorney who was involved in the matter
and indicated their desire to do so. 315 N.W.2d at 39–40. Our supreme court
disagreed, stating:
[T]he statute clearly requires the revocation request to be made to
the court. The language is clear, and we cannot amend or modify it
by construction to mean something else. . . . We do not believe . . .
that requirements for filing in juvenile court, or any court, may be
7
satisfied by filing with attorneys simply because they are more
accessible. The resulting chaos of such a system is evident.
Id. at 42.
Additionally, C.M.-G argues the messages that she and D.M exchanged
during the statutorily prescribed ninety-six-hour window establish there were times
during the allotted trimeframe when she wished to revoke her consent. But
revocation is not a question of intent; it requires specific action by the signing
parent. See Iowa Code § 600A.4(4). And, as stated above, expressing the
decision to revoke consent to anyone other than the juvenile court is not sufficient.
2. Good Cause for Revocation. Alternatively, C.M.-G. argues the court
should have allowed her to revoke her release of custody once she expressed the
desire in November 2017 because there was good cause for the revocation. See
id. (“[T]he juvenile court shall order the release [of custody] revoked only upon
clear and convincing evidence that good cause exists for revocation. Good cause
for revocation includes but is not limited to a showing that the release was obtained
by fraud, coercion, or misrepresentation of law or fact which was material to its
execution.”).
In a heading in her appellate brief, C.M.-G argues her release of custody
was obtained by fraud, coercion, or a misrepresentation of law or fact. But much
of the section is devoted to describing medical issues C.M.-G claims to have faced
at Z.M.’s birth that she believes impacted her ability to make an informed decision
regarding the release. She cites no authority and makes no explicit argument tying
the medical issues to the legal issues of fraud, coercion, or misrepresentation of
fact or law. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support
8
of an issue may be deemed waiver of that issue.”). Moreover, C.M.-G did not sign
the release of custody until six weeks after she gave birth to Z.M. We do not
consider this further.
Similarly, C.M.-G cites no legal authority to support her argument that D.M.
and E.M.’s offer to adopt Z.M. but not otherwise care for her constitutes coercion.
We acknowledge C.M.-G.’s feelings of helplessness when she realized she did not
have the resources or ability to care for a new baby along with her three other
young children and her adoptive brother expressed his unwillingness to become
just a temporary caregiver for Z.M. But D.M. and E.M. had no obligation to help
care for Z.M. Their refusal to assume care for the child on terms other than their
own is not coercion.3 See C.K., 315 N.W.2d at 43–44 (“[C]oercion is the equivalent
of duress, which is defined as any wrongful act of one person that compels a
manifestation of apparent assent by another to a transaction without his volition.”
(citation omitted)). As the district court stated, E.M. and D.M. “have provided love
and support, and they have been very clear about their boundaries and their
involvement.”
Next, C.M.-G argues there is good cause to revoke her release of custody
because she did not understand the release at the time she signed it. She
3 Moreover, we understand their reticence to do as C.M.-G. proposed—care for Z.M. for
the first couple years of her life and then transition her back into C.M.-G.’s home. As
former providers of foster care, E.M. and D.M. recognized the hardship involved with
caring for Z.M. for a number of years and then having their relationship disrupted. As E.M.
testified:
We had done foster care and—before and we had said that that
was not fair to the child, that that was not going to be—it was not fair to the
child for her to leave the child in our care as a newborn for an undetermined
amount of time and then to immediately come back in whenever she felt
free to just come back and take the child. So if she truly needed our help
and she wanted us to raise the child, we would be there to help her.
9
maintains her learning disabilities and her use of a prescribed medication
prevented her from comprehending the legal import of the release of custody. The
district court did not find credible C.M.-G.’s testimony that she did not understand
the release or what she was required to do to revoke the release, and we do not
either. While C.M.-G. testified she was rushed through signing the document,
E.M., D.M., and a coworker of McCormally’s who was a witness to the signing of
the release, testified C.M.-G. spent approximately two hours at the lawyer’s office
before she signed. No one noticed any effect of medication on C.M.-G., and each
person testified the release was explained to C.M.-G at length. McCormally
verbally read the entire release to C.M.-G., answered questions C.M.-G. had, and
asked C.M.-G to rephrase parts of the release back to her to check whether she
understood. Additionally, E.M. testified C.M.-G. asked about the ninety-six-hour
window, and McCormally told her the exact day and time by which she would have
to file a revocation. The fact C.M.-G. has learning disabilities, without more, is not
good cause to revoke the release of custody. See In re C.M.L., No. 06-0006, 2006
WL 1896983, at *2 (Iowa Ct. App. July 12, 2006) (“[The biological parent] asks this
court to include a parent’s low-functioning mental capacity in the list of instances
of good cause for revocation of a release of custody. We decline to do so.”).
It is apparent that in the months after signing the release, C.M.-G came to
question her decision. In her testimony, she acknowledged she was unable to
care for Z.M. at the time she signed the release in July but testified she was in a
better place to do so at the time of the termination trial in February. Regret and
changed circumstances do not meet the legal standard for good cause for
revocation. See In re Adoption of Gibson, 239 N.W.2d 540, 543 (Iowa 1976)
10
(denying biological mother’s request to revoke consent to adoption even though
she was “now better off and better able to provide the care and affection which [the
child] needs” because “her change of heart and the change of circumstances to
which she testified [were not] sufficient good cause for the revocation of her earlier
consent”).
We agree with the juvenile court that C.M.-G. has not established good
cause for revocation of her release of custody.
B. Best Interests.
C.M.-G. maintains that termination of her parental rights is not in Z.M.’s best
interests. C.M.-G argues that because she is Z.M.’s biological mother, it is in
Z.M.’s best interests to be raised by her. We are statutorily required to complete
a more structured best-interests consideration. See Iowa Code § 600A.1(2).
Pursuant to section 600A.1(2), “[t]he 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 C.M.-G has assumed the duties of a
parent, we focus on “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. Here, we agree with
the juvenile court’s best-interests analysis, in which it stated:
The evidence showed that despite her claims of wanting to parent,
[C.M.-G.] has not tried to be an active parent nor provide[d] any
support since [Z.M.’s] birth. She has not provided any financial
assistance or any material goods for [the child]. Additionally, she has
visited [Z.M.] on very few occasions, all of which have been at
[E.M.’s] urging.
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Termination of C.M.-G’s parental rights to Z.M. is in the child’s best interests.
IV. Conclusion.
C.M.-G has not met her burden to prove she revoked her release of custody
within the statutorily-prescribed window or that there was good cause to do so
afterward. Because her release of custody is not revoked and it is in the best
interests of Z.M., we affirm the termination of C.M.-G’s parental rights to the child.
AFFIRMED.