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In re J.O.

Court of Appeal of Iowa

November 6, 2013

IN THE INTEREST OF J.O. JR., Minor Child, J.O. SR., Father, Petitioner, C.L., Mother, Appellant.

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.

A mother appeals from the order terminating her parental rights.

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant-mother.

Katherine Sargent, Des Moines, for appellee-father.

Penny Reimer, West Des Moines, guardian ad litem for minor child.

Considered by Doyle, P.J., and Tabor and Bower, JJ.

BOWER, J.

A mother appeals from the order terminating her parental rights. She contends the court erred in determining she abandoned her child and in finding termination was in the child's best interests. We affirm.

The child was born in 2006 to unmarried parents, who both were on parole. Within a month, the father's parole was revoked and he was incarcerated until June 2008. In June 2007 the mother filed a petition to establish custody and visitation. In August 2008 the mother was given temporary physical care of the child; the father was given temporary visitation and ordered to pay monthly child support of $500. In October 2008 the mother's parole was revoked and she was incarcerated until May 2009. The mother's former stepmother was appointed temporary and later permanent guardian of the child. The guardianship proceeding was consolidated with the custody proceeding. In May 2009 the father's visitation was increased. In August the mother had a positive drug test during visitation. In September the decree concerning custody, visitation, and support provided the parents with joint legal custody, placed the child in the father's physical care, ordered the mother to pay monthly child support of $170, and established visitation for the mother coordinated with her stay at the House of Mercy for substance abuse treatment.

The mother left treatment before the first scheduled visit. She was arrested for possession of methamphetamine in December and later entered a guilty plea to the charge. During late 2009 and early 2010, the mother spent time, off and on, at the father's home. In April 2010 the department of human services issued a founded child abuse report for denial of critical care with both the mother and father as perpetrators because the father allowed the mother to care for the child while the father was at work, even though the mother was to have only supervised visitation. During the summer of 2010 the mother inconsistently exercised supervised visitation. After missing an appointment with her probation officer, the mother went to Kansas. She was arrested in October for violating her probation and spent about a month in jail. After her release, she continued to spend some time at the father's house. She last saw the child in May 2011. In August she was arrested for burglary. In October she entered a guilty plea and was sentenced to up to ten years in prison.

While in prison the mother wrote some letters to the child and sent some of them to the attorneys involved in the court proceedings. Also, for the first time, the mother paid child support because it was withheld from her prison wages. By the time of the termination trial in November 2012, the mother had paid about $112 of an outstanding support debt in excess of $6600. The mother participated in various programs in prison to address her criminal behavior, substance abuse, and parenting skills. In March 2012 the mother filed an application to modify the 2009 decree concerning custody, visitation, and support. In May the father, who had married, filed a petition to terminate the mother's parental rights, alleging abandonment and failure to pay court-ordered child support without good cause. See Iowa Code § 600A.8(3)-(4) (2011).

The petition was heard in November 2012. The court found the mother abandoned the child, describing the lack of contact the mother had with the child, as set forth above. The court noted the mother "loves the child, but she has not followed through with the opportunities to be involved in the child's life. This evinces an intent to abandon the child." The court further found the mother failed to pay child support without good cause, noting the mother had "paid zero child support" until it was withheld from her prison wages, even though she told a presentence investigator she earned $10, 000 in 2010. The court concluded termination was in the child's best interests. The mother appeals.

We review termination proceedings under chapter 600A de novo. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). We give weight to the findings of the court, especially those regarding witness credibility, but we are not bound by them. Id. The paramount concern in termination proceedings is the best interest of the child. Iowa Code § 600A.1.

Statutory Grounds. The mother contends the court erred in determining she abandoned the child. She asserts she maintained contact with the child until the father prevented it, she provided financial support within her means, and her subjective intent was not ...


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