In the Interest of X.M., Minor Child, D.M., Mother

IN THE COURT OF APPEALS OF IOWA

No. 17-0194
Filed March 22, 2017

IN THE INTEREST OF X.M.,
Minor Child,

D.M., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, David F.

Staudt, Judge.

A mother appeals the termination of her parental rights to her one-year-old

son. AFFIRMED.

Anthea T. Galbraith of Iowa Legal Aid, Waterloo, for appellant mother.

Thomas J. Miller, Attorney General, and Mary K. Wickman, Assistant

Attorney General, for appellee State.

Timothy M. Baldwin of Juvenile Public Defender’s Office, Waterloo,

guardian ad litem for minor child.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2

TABOR, Judge.

X.M. started his life as a Safe Haven baby.1 His mother, Destiny, told

medical personnel after giving birth in September 2015 that she planned to leave

the hospital without him. The juvenile court approved an emergency removal.

The next day, Destiny reasserted her rights but told the Iowa Department of

Human Services (DHS) she wanted to place her son in temporary foster care.

Three months later, in December 2015, the DHS placed X.M. with Destiny’s

parents, where he has lived throughout the child-in-need-of-assistance (CINA)

case.

On January 20, 2017, the juvenile court terminated Destiny’s parental

rights under Iowa Code section 232.116(1)(e) and (h) (2016).2 She appeals that

ruling, arguing the State did not offer clear and convincing evidence to support

the statutory grounds for termination and the juvenile court failed to explore other

permanency options under section 232.104. After an independent review of the

record, we are convinced the termination order is correct.3

We start with Destiny’s challenge to the statutory grounds. The juvenile

court cited two subsections under section 232.116(1) supporting termination of

Destiny’s parental rights. We may affirm on either one of those grounds if it is

1
Under Iowa’s Newborn Safe Haven Act, a parent may voluntarily release custody of the
newborn infant by relinquishing physical custody at a hospital, without expressing an
intent to again assume physical custody. See Iowa Code § 232.1, .2 (2015).
2
The juvenile court also terminated the parental rights of X.M.’s father, who does not
appeal.
3
Our review of termination-of-parental-rights proceedings is de novo. See In re M.W.,
876 N.W.2d 212, 219 (Iowa 2016). We are not bound by the factual findings of the
juvenile court, but we give them weight. See id. Proof must be clear and convincing. Id.
Evidence is “clear and convincing” when there are no “serious or substantial doubts as
to the correctness [of] conclusions of law drawn from the evidence.” Id. (alteration in
original) (quoting In re D.W., 791 N.W.2d 703, 706 (Iowa 2010)).
3

supported by clear and convincing evidence. See D.W., 791 N.W.2d at 707.

After reviewing the record, we conclude termination was proper under section

232.116(1)(e).

To terminate parental rights under section 232.116(1)(e), the State must

show: (1) the child has been adjudicated CINA under section 232.96, (2) the child

has been removed from the physical custody of the parent for at least six

consecutive months, and (3) there is clear and convincing evidence the parent

has not maintained significant and meaningful contact with the child during the

previous six consecutive months and has made no reasonable efforts to resume

care of the child despite being given the opportunity to do so. “Significant and

meaningful contact” means taking on the “duties encompassed by the role of

being a parent.” Iowa Code § 232.116(1)(e)(3). Those duties include financial

support, continued interest in the child, a genuine effort to complete the

responsibilities prescribed in the case permanency plan, and a genuine effort to

maintain communication with the child. Id. Overall, a parent must “establish and

maintain a place of importance in the child’s life.” Id.

Destiny does not dispute the first two elements of subsection (e) but

concentrates on the third element, claiming she has maintained significant and

meaningful contact with X.M. since his birth and has maintained a place of

importance in his life. The record belies her claim. Since X.M.’s birth, Destiny

has vacillated between wanting to give him up and wanting to act as his mother.

Destiny has another son, who was seventeen months old when X.M. was born in

September 2015. At the hospital, Destiny told the DHS worker that she “didn’t

think she could take care of two children at this time.”
4

In April 2016, Destiny had a change of heart and started participating in

visitation with X.M. The mother-son interactions went well, and the DHS

increased the length and frequency of the visits in May 2016. But in the summer

of 2016, Destiny moved to Des Moines and stopped participating in DHS

services. Destiny did not appear for a June 2016 review hearing and reportedly

had told her mother that she no longer wished to be a parent to X.M. According

to a report filed in October 2016 by the Court Appointed Special Advocate

(CASA), Destiny visited her parents about twice a month and incidentally saw

X.M. during those trips. The CASA recommended termination of Destiny’s

parental rights and adoption by the maternal grandparents.

In November 2016, the State filed a petition to terminate parental rights.

Destiny did not appear for the December 2016 termination hearing; her attorney

was present but despite “numerous attempts” had not been able to contact

Destiny. Destiny’s mother reported her daughter said she could not attend court

because she couldn’t “afford to get off of work.” The maternal grandmother also

told the court she “really [didn’t] know” if Destiny was consenting to termination of

her parental rights, but in the grandmother’s opinion, Destiny did not want to

assume care of X.M. The juvenile court heard no witnesses but admitted several

exhibits offered by the State. X.M.’s guardian ad litem believed termination was

appropriate because “both parents have sort of distanced themselves from

actually parenting him over the life of this case.”

The juvenile court aptly summarized the situation:

Destiny has voluntarily given up custody of her child. She
has agreed to her parents as placements. She has not visited the
child in any significant or meaningful way but for weekends in which
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she happened to be visiting her parents. She has performed no
affirmative duty toward parenting. She has not provided financially
for [X.M.] She has no continued interest in the child. She has
made no genuine effort to complete the responsibilities prescribed
in the case permanency plan. She has made no genuine effort to
maintain communication with the child and has no intent of having
the child reside with her in Des Moines.

On this record, it is clear Destiny did not maintain significant and

meaningful contact with X.M. from June 2016 through December 2016 and made

no reasonable efforts to assume care of X.M., despite being given the chance to

do so. See In re T.S., 868 N.W.2d 425, 436–38 (Iowa Ct. App. 2015).

We turn next to Destiny’s argument concerning “her desire for her parents

to be awarded guardianship of X.M. if he is not returned to her care.” On appeal,

she charges that the juvenile court “failed to explore this option.” The trouble is

that Destiny did not appear at the termination hearing to present this option to the

juvenile court, and she did not communicate her desire concerning a

guardianship to her attorney. Because it is raised for the first time on appeal, we

are unable to address this issue. See In re A.B., 815 N.W.2d 764, 773 (Iowa

2012) (applying error-preservation rules to termination of parental rights cases).

Destiny also cites Iowa Code section 232.116(3)(a), which permits the

court to forgo termination if the child is in the legal custody of a relative. See In

re A.M., 843 N.W.2d 100, 113 (Iowa 2014). The juvenile court decided X.M.’s

“custody by his grandparents is not [a] substantial enough reason not to

terminate Destiny’s parental rights.” The court found Destiny had no intent to

raise X.M. We agree it would be inappropriate to apply this permissive factor

given Destiny’s indifference to maintaining a relationship with X.M.

AFFIRMED.