In the Interest of S.S., E.S., and D.S., Minor Children, J.W., Mother

IN THE COURT OF APPEALS OF IOWA

No. 14-0119
Filed October 1, 2014

IN THE INTEREST OF

S.S., E.S., and D.S., Minor Children,

J.W., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Marshall County, Stephen A.

Owen, District Associate Judge.

A mother appeals from the order terminating her parental rights to her

three children under Iowa Code chapter 600A (2013). AFFIRMED.

Jennie L. Wilson-Moore of Wilson Law Firm, Marshalltown, for appellant.

John J. Haney and Michael Marquess of Hinshaw, Danielson & Haney,

P.C., Marshalltown, for appellee.

Kevin Michael O’Hare of Peglow, O’Hare & See, P.L.C., Marshalltown,

attorney and guardian ad litem for minor children.

Heard by Potterfield, P.J., and Tabor and Mullins, JJ.
2

MULLINS, J.

A mother appeals from the order terminating her parental rights to her

three children under Iowa Code chapter 600A (2013). She contends the father

failed to prove she abandoned her children. Because the evidence shows the

mother has failed to maintain substantial and continuous or repeated contact with

the children, we affirm.

I. Background Facts and Proceedings.

This appeal involves a mother’s parental rights to her three children, born

between the years 2002 and 2005. The mother is a drug addict with a long

history of substance abuse. She admits to using drugs while pregnant and has

convictions for possession of methamphetamine and operating while intoxicated.

The mother continues to use methamphetamine and alcohol despite having

received substance abuse treatment, and she associates with others who use

drugs and have been convicted of serious criminal offenses. She also has

untreated mental health issues and a history of romantic involvement with men

who perpetrate domestic violence.

The children at issue lived with both the mother and the father until their

relationship ended in 2006. The court granted the father physical care of the

children in a May 2006 order, and the children have remained in his care since

that time. The order also provides the mother shall receive “reasonable and

liberal visitation.” The mother was ordered to pay child support.

Although the mother initially exercised her visitation rights with the

children, her visits decreased over time until they became sporadic. She would
3

call to tell the children she was coming to pick them up and arrive hours later.

Sometimes the mother did not pick up the children for visitation at all. She also

ended visits early. The mother has not had contact with the children since at

least August 2012. She claims she called the father once in January and once in

July of 2013, but did not leave a message or provide the father with her contact

information.

The mother is also in arrears on her child support payments. She has

provided some support in each year since the divorce, but has failed to pay the

total amount of child support ordered. The mother owed over $6000 in child

support through October 2013.

Concerns about a bedbug infestation in the mother’s home and her

involvement in an abusive relationship prompted the father to seek modification

of the visitation provisions of the parties’ custody and visitation order. In June

2011, the court entered an order providing that the mother shall not permit the

children to be exposed to bedbugs or be in the presence of the mother’s

boyfriend or “any other person known to . . . be using controlled substances.”

The father offered the mother $300 to help eradicate the bedbug infestation.

In February 2013, the father—who remarried in January 2011—filed a

petition seeking to terminate the mother’s parental rights under chapter 600A.

The trial was held in December 2013. On December 30, 2013, the court entered

its order terminating the mother’s parental rights to the children. She filed a

timely notice of appeal.
4

II. Scope and Standard of Review.

We review private termination proceedings de novo. In re G.A., 826

N.W.2d 125, 127 (Iowa Ct. App. 2012). We give weight to district court’s factual

findings, especially those concerning witness credibility, but we are not bound by

them. Iowa R. App P. 6.904(3)(g).

III. Analysis.

The mother contends the court erred in terminating her parental rights

because the father failed to prove she abandoned the children as provided in

section 600A.8(3). Chapter 600A defines abandonment as rejecting the duties

imposed by the parent-child relationship, “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).

Under section 600A.8(3)(b), “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.” Substantial and

continuous or repeated contact may be shown in the following ways:

(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.
(3) Openly living with the child for a period of six months
within the one-year period immediately preceding the termination of
5

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). A parent’s subjective intent, unsupported by these

acts, does not preclude a determination the parent has abandoned the child. Id.

§ 600A.8(3)(c).

The mother has not lived with the children since her relationship with the

father ended in 2006. She admits she had not had contact with the children

between August 2012 and the December 2013 termination hearing—a period of

approximately sixteen months. The mother failed to send the children cards or

gifts for their birthdays or Christmas and admits she only attempted to contact the

father twice during that period but failed to leave a message or provide a means

by which the father could contact her. She is unable to show either monthly visits

or regular communication as allowed under section 600A.8(3)(b).

The mother argues her failure is excused because the father prevented

her from visiting or communicating with the children. The record belies her claim.

The only time the father prohibited the children from visiting the mother was

when the visits posed a risk to the children’s safety. In contradiction of her claim,

the father transported the children to Des Moines to visit the mother when she

was unable to provide transportation and offered to help with the costs of

eradicating the mother’s bedbug infestation to allow the children to visit. Most

importantly, the mother admitted her failure to see the children was her own fault:

Q. And you indicated earlier, when you were answering
questions for your attorney, that you have not had contact or seen
the children in over seventeen months; correct? A. I have not seen
them since August 6 of last year.
Q. August of 2012? A. Yeah.
6

Q. And as I understand your testimony on cross-
examination, that the reason for that is Bill’s fault; is that right? A.
It’s not Bill’s fault, no.
Q. Whose fault it is? A. It is my fault.

As the district court noted, the mother has a history of rejecting her children,

having engaged in conduct “eerily consistent” with three children from a previous

relationship.

The mother further argues she contributed to the children’s support within

her means. She claims that although she was unemployed due to illness in

2012, she paid $1411.24 of the $2400 in child support due. In 2013, she paid

$1555.59 of the $2400 due though she was only employed part-time making $50

per week at the time of trial. She argues she made these payments even though

she was unemployed due to illness or only working part-time. While the mother

has provided some financial support for the children, it has been just over half of

the meager amount of child support required of her for her three children. It

certainly does not make up for her failure to provide emotional support for, visit,

or remain in contact with the children. The evidence shows the mother has

abandoned the children.

In determining whether to terminate, our “paramount consideration” is the

children’s best interest. Iowa Code § 600A.1. We find termination is in their best

interest. The mother admitted to using alcohol two weeks before trial and

methamphetamine three weeks before trial. She admits she is not in recovery.

At the time of trial, the mother had been absent from the children’s lives for at

least sixteen months. Before that, her contact with the children had been

inconsistent.
7

Having observed the testimony of the oldest of the mother’s children from

a previous relationship, who was nineteen years of age at the time of trial, the

court found it was “abundantly clear that the outright rejection she has

experienced at the hands of [the mother] has been emotionally and

psychologically damaging to her.” The evidence shows the same is true for the

children at issue, one of whom missed two days of school due to a severe

emotional breakdown at the idea of having to visit the mother. The mother’s

choices, made at the expense of the children, and her inability to maintain a

consistent presence in their lives has deprived her of a relationship with the

children, who no longer ask about her or refer to her as their mother. The

children instead look to the father and his wife to provide for their physical and

emotional needs.

Because the father proved the grounds for termination under section

600A.8(3)(b) and termination is in the children’s best interest, we affirm.

AFFIRMED.