In the Interest of E.S. and R.S., Minor Children, H.S., Mother, C.S., Father, M.Z.

IN THE COURT OF APPEALS OF IOWA
No. 16-0066
Filed December 21, 2016
IN THE INTEREST OF E.S. and R.S.,
Minor children,
H.S., Mother,
Respondent-Appellant,
C.S., Father,
M.Z.,
Petitioners-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Jane F. Spande,
District Associate Judge.
A mother appeals from the termination of her parental rights. REVERSED
AND REMANDED.
Scott A. Shoemaker of Shoemaker Law Office, Cedar Rapids, for
appellant mother.
Frank J. Nidey of Nidey Erdahl Tindal & Fisher, PLC, Cedar Rapids, for
appellees.
Kara L. Bullerman of Allen, Vernon, & Hoskins, Cedar Rapids, attorney
and guardian ad litem for minor children.
Heard by Danilson, C.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.
This is an appeal from an order terminating Heather’s parental rights in
her children, E.S. and R.S. The termination action was filed by the children’s
father, Clayton, and the father’s fiancée, Maggie. The district court terminated
the mother’s parental rights pursuant to Iowa Code section 600A.8(3)(b) (2015).
By way of background, Clayton and Heather were divorced on December
2, 2009, after a marriage of approximately two-and-a-half years. Clayton was
awarded physical care of E.S. and R.S. with Heather awarded visitation. The
decree did not require Heather to pay child support in contemplation of the
transportation expenses she would incur for visitation—at the time, she lived in
Indiana and he lived in Iowa. In 2012, the parties entered into a stipulated
modification. Heather had returned to Iowa. The parties agreed Heather should
have visitation with the children every other weekend. The modification decree
also established Heather’s child support obligation at $600 per month.
On June 15, 2015, Clayton and Maggie filed their petition to terminate
Heather’s parental rights. They alleged Heather abandoned the children, as
defined by Iowa Code section 600A.8(3)(b). That section provides:
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.
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(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.
Iowa Code § 600A.8(3)(b). The district court found the petitioners had proved
abandonment and terminated Heather’s parental rights in her children.
Our review of termination-of-parental-rights proceedings is de novo. In re
C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). 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. The petitioners must prove their case by clear and convincing
evidence. See Iowa Code § 600A.8. Clear and convincing evidence is more
than a preponderance of the evidence and less than evidence beyond a
reasonable doubt. See In re L.G., 532 N.W.2d 478, 481 (Iowa Ct. App. 1995). It
is the highest evidentiary burden in civil cases. It means there must be no
serious or substantial doubt about the correctness of a particular conclusion
drawn from the evidence. See id. This significant burden is imposed to minimize
the risk of an erroneous deprivation of a parent’s fundamental liberty interest in
raising her children. See Santosky v. Kramer, 44 U.S. 745, 759 (1982). We
therefore cannot rubber stamp what has come before; it is our task to ensure the
petitioning parties have come forth with the quantum and quality of evidence
necessary to prove each of the elements of their case. See id. at 769 (“We hold
that such a standard [requiring clear and convincing evidence] adequately
conveys to the factfinder the level of subjective certainty about [the] factual
conclusions necessary to satisfy due process.”).
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The parties’ testimony regarding the relevant facts differs greatly—to the
point of being irreconcilable. Clayton and Maggie testified Heather has had only
sporadic contact with the children. Clayton produced a journal documenting
Heather’s visits and communication with the children. Clayton and Maggie also
produced phone records showing only a few calls from Heather’s phone to their
phone. Clayton’s records show Heather’s contact fell beneath the statutory
minimum. Moreover, Clayton and Maggie claim what contact Heather did have
with the children was traumatic. She would call to cancel visits at the last minute.
She showed up to their school and extracurricular activities unexpectedly and
agitated them. Clayton and Maggie believe Heather has abandoned the children
and termination is in the children’s best interests.
Heather claims she has had frequent contact with the children. Heather,
too, kept records of visits. Heather’s records show more frequent contact than
Clayton’s records. She also produced photographs evidencing visits, including
visits not documented in Clayton’s journal. In addition to in-person
communication, Heather testified she spoke to the children more frequently than
the phone records indicate. Heather contacted the children from friends’ phones.
She also spoke with them online through a former paramour’s video-gaming
system. Heather contends she attended several parent-teacher conferences and
remained in contact with the children’s teachers by email.
To the extent she did not exercise visitation as often as the modification
decree provides, Heather contends the petitioners prevented more visitation and
communication. She testified Maggie blocked her phone number and Clayton
and Maggie turned off their answering machine at night to limit her contact. She
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argues Clayton prevented additional visitation because of his concern regarding
her mental health. Finally, Heather contends Clayton moved without providing
her his new home address and she was unable to contact the children until she
learned of the address when served with notice of this proceeding. Clayton and
Maggie vehemently deny this fact, testifying Heather had actual knowledge of
their new address because Heather showed up at the new house several days
after Clayton and Maggie moved in.
To some extent, Heather’s contention the petitioners prevented visitation
is evidenced by a “contract” between the parties. The June 2014 “contract” sets
forth Clayton’s expectations for visitation. The penalties for failure to comply with
Clayton’s expectations were draconian: “If you are more than ten minutes late,
your visit is canceled.” “No cancelations or visits are done.” “If any of these
issues occur your visits will be canceled for six months. Then we will try again. If
it occurs again you will not have your visits.” Clayton testified he wanted these
conditions to protect the children, who would become upset if and when Heather
cancelled visitation. Despite his expressed good intentions, the contract does
support Heather’s contention Clayton was limiting visitation.
Clayton and Heather’s respective accounts of what actually occurred are
each suspect. Although purportedly made contemporaneously with visitations,
the parties’ respective journals do not appear to be accurate. Clayton’s journal
fails to document certain visitations known to have occurred because Heather
had photographs of the same. Heather’s records sometimes fail to note a
visitation where Clayton’s journal documents visitation. The telephone records
Clayton and Maggie produced omit phone calls both parties recorded elsewhere.
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The phone records also do not document any contact made over the internet
through the children’s gaming system. The parties’ respective ability to recall
events independent of the journals is also suspect. After Clayton and Heather
divorced, Clayton suffered a significant brain injury, which he concedes impairs
his memory. In turn, after the parties’ dissolution, Heather suffered from major
depressive order, which may have interfered with her ability to accurately record
or recollect events.
Having surveyed the record, we directly consider whether the petitioners
proved their case by clear and convincing evidence. “[T]he threshold element of
‘substantial and continuous or repeated contact’ is economic contributions.” In re
K.W., No. 14-2115, 2015 WL 6508910, at *3 (Iowa Ct. App. Oct. 28, 2015); see
also In re W.W., 826 N.W.2d 706, 710 (Iowa Ct. App. 2012) (discussing
“predicate language of section 600A.8(3)(b)”). Support of the child in a
reasonable amount is not limited to court-ordered support. See W.W., 826
N.W.2d at 710 (noting a parent’s failure to make court-ordered payments is the
subject of section 600A.8(4)).
For a fairly long period of time after Clayton and Heather divorced,
Heather provided little, if any, financial support for the children. Until the time of
the modification decree in 2012, Heather was not required to pay child support
because it was contemplated Heather would have travel expenses to visit the
children. Heather failed to make child support payments in 2012 and 2013;
however, the record reflects Heather did not have the means to provide support
for the children. See Iowa Code 600A.8(3)(b). Heather was not effectively
treating her mental-health condition and lacked stable employment. Once she
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commenced treatment and obtained steady employment, she commenced
financial support of the children. Since 2014, Heather has paid $20,232.50 in
child support, keeping current on her current obligation and making up a
significant portion of her arrearage. Under the circumstances, we conclude
Heather has provided financial support in a reasonable amount.
The petitioners must also prove Heather has not maintained substantial
contact with the children. As discussed above, Heather’s calendars,
photographs, and testimony show she maintained contact with the children. To
the extent she failed to exercise visitation, she was unable to do so because of
her ongoing mental-health conditions and financial instability. See In re
Winstoniya D., 997 N.Y.S.2d 716, 717–718 (N.Y. App. Div. 2014) (considering
mother’s struggles with substance-abuse and mental-health treatment in
determining whether she was “physically and financially able” to care for
children). There is also evidence to suggest Clayton and Maggie interfered with
Heather’s ability to contact the children, including limiting her ability to contact
them by telephone and bargaining for a contract that sought to limit her contact
with them. Indeed, Clayton testified he unilaterally disallowed contact between
Heather and the children once he filed his petition to terminate her rights. While
Clayton may have been motivated by good intentions toward the children, he
cannot unilaterally cancel the mother’s visitation with the children. See In re
A.E., No. 01-1099, 2002 WL 663758, at *1 (Iowa Ct. App. Apr. 24, 2002)
(affirming denial of termination petition where custodial parent had prevented
contact).
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Ultimately, Clayton and Maggie have the burden of proving their case by
clear and convincing evidence. See Iowa Code § 600A.8. This is a significant
burden—the highest burden in civil cases. We impose this burden on the
petitioners to prevent an erroneous and irreparable deprivation of a parent’s right
to raise his or her children. We note Heather is close to coming current on her
child-support obligation. Moreover, she has taken steps to overcome her prior
impediments: she has ended an abusive relationship, remained employed, and
has begun managing her mental illness. We trust resolution of this case will
encourage both sides to foster a relationship between Heather and the children.
It is now incumbent on Heather to take advantage of this opportunity.
REVERSED AND REMANDED.