In the Interest of H.P., M.P., and M.P., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 18-0494
Filed August 15, 2018

IN THE INTEREST OF H.P., M.P., and M.P.,
Minor Children,

K.P., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Buena Vista County, Mary L.

McCollum Timko, Associate Juvenile Judge.

A mother appeals the termination of her parental rights to her children.

AFFIRMED.

Andrew J. Smith of Mack, Hansen, Gadd, Armstrong & Brown, PC, Storm

Lake, for appellant mother.

Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee State.

Theresa Rachel of Fankhauser Rachel, PLC, Sioux City, guardian ad litem

for minor children.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

A mother appeals the termination of her parental rights to her children. She

contends the State failed to prove the grounds for termination by clear and

convincing evidence and termination is not in the children’s best interests. She

asks for additional time to have the children returned to her care. We review these

claims de novo. See In re A.M., 843 N.W.2d 100, 110 (Iowa 2014).

The children came to the attention of the Iowa Department of Human

Services (DHS) after a July 2017 search led police to discover over one pound of

methamphetamine in the father’s home, in which the children were present. The

mother, who lives in Alaska, had not seen the children since early 2016. She has

lengthy drug-abuse and criminal histories. Initially, her whereabouts were

unknown. She contacted the DHS after the juvenile court adjudicated the children

to be in need of assistance. At the time, the mother was on parole, but she was

incarcerated shortly thereafter for violating the terms of her release. She remained

incarcerated at the time of the termination hearing.

In order to terminate parental rights, the juvenile court must first find clear

and convincing evidence supporting a ground for termination listed under Iowa

Code section 232.116(1) (2017). See In re D.W., 791 N.W.2d 703, 706 (Iowa

2010). Although the juvenile court found the State proved three grounds for

terminating the mother’s parental rights, we need only find grounds to terminate

parental rights under one of the sections cited by the juvenile court to affirm. See

In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).

The juvenile court’s order terminates the mother’s parental rights pursuant

to paragraphs (a), (i), and (l) of Iowa Code section 232.116(1). The mother argues
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there is no evidence to support termination of her parental rights under paragraph

(a) (“The parents voluntarily and intelligently consent to the termination of parental

rights and the parent-child relationship and for good cause desire the termination.”)

and notes paragraph (a) was never pled in the termination petition.

The State concedes termination is not appropriate under paragraph (a) but

argues the juvenile court’s citation to this paragraph was clerical error. We agree.

The petition seeks to terminate the mother’s parental rights under paragraph (b),

not paragraph (a), and the court’s analysis in the termination order shows it

intended to terminate under paragraph (b). Specifically, the order states:

The court does find by clear and convincing evidence that [the
mother] has abandoned her children . . . . [The mother] was
unaware of the children’s whereabouts for two years. She had not
had contact with the children or [the father] for at least two years.
[The mother] provided no financial aid to her children. She has
provided no emotional care for her children. She made one to two
calls to the [DHS] after learning of the children’s removal. Her call
came approximately five months after the children’s removal. It is
very likely that the children would not know her, especially [the
youngest two], if she walked into a room where they were playing.
Clearly, she has not worked to put herself in a place of importance
or significance in these children’s lives. The history would suggest
that the children have never been in a place of importance and
significance in [her] life either.

Accordingly, we consider whether the State proved the grounds for terminating the

mother’s parental rights under paragraph (b). See In re Z.C., No. 17-0666, 2017

WL 1735913, at *2 (Iowa Ct. App. May 3, 2017) (finding the court’s reference to

paragraph (h) was “clearly a typographical error, which is harmless given our de

novo review,” and analyzing instead whether the grounds for termination had been

proved under paragraph (f)).
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Chapter 232 defines “abandonment of a child” as “the relinquishment or

surrender . . . of the parental rights, duties, or privileges inherent in the parent-child

relationship.” Iowa Code § 232.2(1). To determine whether a parent has

abandoned a child, we consider both the parent’s conduct and state of mind. See

In re A.B., 554 N.W.2d 291, 293 (Iowa Ct. App. 1996). A parent must do more

than subjectively maintain interest in the child; affirmative parenting must be

demonstrated to the extent it is practical and feasible under the circumstances.

See id.

Clear and convincing evidence shows the mother has abandoned her

children. She has not had contact with the children since early 2016 and made

minimal effort to maintain contact. The evidence shows that even before that time,

the mother demonstrated a limited interest in her children, often leaving the older

two children in the care of others. She was arrested shortly after the birth of the

youngest child, and she has been incarcerated on and off throughout her children’s

lives. The grounds for termination under section 232.116(1)(b) have been met.

We next consider whether termination is in the children’s best interests. In

making the best-interests determination, our primary considerations are “the

child’s safety,” “the best placement for furthering the long-term nurturing and

growth of the child,” and “the physical, mental, and emotional condition and needs

of the child.” In re P.L., 778 N.W.2d 33, 37 (Iowa 2010) (quoting Iowa Code

§ 232.116(2)). The “defining elements in a child’s best interest” are the child’s

safety and “need for a permanent home.” In re J.E., 723 N.W.2d 793, 802 (Iowa

2006) (Cady, J., concurring specially).
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The evidence shows termination is in the children’s best interests. These

children are young and have not had contact with the mother in more than two

years. They have suffered as a result of parental neglect and the mother’s use of

drugs during her pregnancies. The mother was incarcerated at the time of the

termination hearing. Her expected discharge date was March 2018. She would

have five months mandatory parole following discharge. She planned to stay in

Alaska with her boyfriend after her release.

Although the mother admitted her children should not have to wait another

six months, she requests an additional six months to allow her to work toward

reunification with the children. However, children are not equipped with pause

buttons, and delaying permanency is contrary to their best interests. See A.M.,

843 N.W.2d at 112 (noting children must not be deprived permanency on the hope

that someday the parent will be able to provide a stable home); In re A.C., 415

N.W.2d 609, 614 (Iowa 1987). Once the grounds for termination have been

proved, time is of the essence. See A.C., 415 N.W.2d at 614 (“It is unnecessary

to take from the children’s future any more than is demanded by statute. Stated

otherwise, plans which extend the twelve-month period during which parents

attempt to become adequate in parenting skills should be viewed with a sense of

urgency.”); see also In re R.J., 436 N.W.2d 630, 636 (Iowa 1989) (noting that once

the time period for reunification set by the legislature has expired, “patience on

behalf of the parent can quickly translate into intolerable hardship for the children”).

The mother’s claim that she will do whatever necessary to have her children

returned to her care is contradicted by the record. The past is prologue to the

future. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (noting a parent’s past
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conduct is instructive in determining the parent’s future behavior); In re C.K., 558

N.W.2d 170, 172 (Iowa 1997) (noting a parent’s past performance may be

indicative of future behavior). Delaying termination will provide no benefit to the

children. Accordingly, we affirm the termination of the mother’s parental rights.

AFFIRMED.