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In re H.N.M.

Court of Appeals of Iowa

June 6, 2018

IN THE INTEREST OF H.N.M., Minor Child, R.L., Mother, Petitioner-Appellant, M.M., Father, Respondent-Appellee.

          Appeal from the Iowa District Court for Wright County, Paul B. Ahlers, District Associate Judge.

          A mother appeals from the juvenile court order denying her petition to terminate the father's parental rights to their child under Iowa Code chapter 600A (2017). AFFIRMED.

          Dani L. Eisentrager of Eisentrager Law, Eagle Grove, for appellant.

          Douglas E. Cook of Cook Law Office, Jewell, for appellee.

          Lynn C. Seaba of Malloy Law Firm, Goldfield, guardian ad litem for minor child.

          Heard by Vaitheswaran, P.J., and Doyle and Tabor, JJ.

          DOYLE, Judge.

         A mother appeals from the juvenile court order denying her petition to terminate the father's parental rights to their daughter under Iowa Code chapter 600A (2017). She argues there is clear and convincing evidence establishing the grounds for terminating the father's parental rights under section 600A.8(3)(b) (providing for termination of parental rights where the parent has abandoned the child) and 600A.8(4) (allowing for termination of parental rights where a parent has been ordered to contribute to the support of the child and has failed to do so without good cause). She also argues termination is in the child's best interests. Taking the lead from our supreme court's recently filed opinion, In re Q.G., ___ N.W.2d ___, 2018 WL 2071823 (Iowa 2018), we conclude the mother has not proved by a clear and convincing preponderance of the evidence that the father's parental rights should be terminated, and we therefore affirm the juvenile court's denial of the mother's petition.

         I. Background Facts and Proceedings.

         The child at issue was born in California in 2006. The record indicates the mother and father initially cooperated with regard to raising their daughter. The father was actively involved in his daughter's life until late 2007 when the mother began a relationship with the man to whom she is now married. After the new relationship began, the mother's cooperation with the father ended.

         In 2009, in violation of a court order, the mother moved to Iowa without notifying the father or obtaining a court order approving the out-of-state move. The mother enrolled the child in school under the last name of the man to whom she is now married rather than the father's last name, and told the child that her now- husband is the child's father. She took steps to hinder the father's relationship with the child. For example, she changed her phone number without notifying the father of her new phone number.

         When the father refused to voluntarily terminate his parental rights, the mother petitioned the court to terminate the father's rights under chapter 600A, alleging the father had abandoned the child and failed to provide the child support. The juvenile court denied the petition, finding the father's lack of contact with the child was "primarily, if not exclusively, the result of the conduct of the mother." Although the court acknowledged the father was "substantially behind in his child support obligation, " it determined that the father had contributed to the child's support within his means. The mother appealed the denial of her termination petition, and this court affirmed. See In re H.N.M., No. 13-0897, 2014 WL 69870, at *1 (Iowa Ct. App. Jan. 9, 2014).

         The mother filed the current termination action in May 2017. She again alleged the father had abandoned the child and failed to provide support for the child. Following a hearing, the juvenile court denied the petition, finding the mother had resumed efforts to prevent the father from having a relationship with his daughter immediately following the 2013 termination action. With regard to the mother's claim that the father had failed to provide support for the child, the court found "that no convincing evidence was presented that establishes that the father has not paid within his means." The court also concluded the mother failed to prove that it is in the best interest of the child to terminate the father's parental rights.

         The mother appeals.

          II. Scope and Standard of Review.

         We review termination proceedings under chapter 600A de novo. See In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). As in all termination proceedings, our primary concern is the child's best interests. See Iowa Code § 600A.1; R.K.B., 572 N.W.2d at 601. Though the juvenile court's fact findings are not binding, we give them weight. See R.K.B., 572 N.W.2d at 601. This is especially true with regard to credibility findings. See id. As our supreme court has explained:

There is good reason for us to pay very close attention to the trial court's assessment of the credibility of witnesses. A trial court . . . "is greatly helped in making a wise decision about the parties by listening to them and watching them in person." In contrast, appellate courts must rely on the printed record in evaluating the evidence. We are denied the impression created by the demeanor of each and every witness as the testimony is presented.

In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (citation omitted). A witness's facial expressions, vocal intonation, eye movement, gestures, posture, body language, and courtroom conduct, both on and off the stand, are not reflected in the transcript. Hidden attitudes, feelings, and opinions may be detected from this "nonverbal leakage." Thomas Sannito & Peter J. McGovern, Courtroom Psychology for Trial Lawyers 1 (1985). Thus, the trial judge is in the best position to assess witnesses' interest in the trial, their motive, candor, bias, and prejudice. We keep these principles in mind, noting the juvenile court made thorough and detailed credibility findings concerning the mother, which we discuss in greater detail below. We are cognizant of the fact that the court had no similar opportunity to size up the father as he testified via telephone.

         III. Discussion.

         In a private termination-of-parental-rights proceeding, the petitioner must establish by clear and convincing evidence that a statutory ground for termination exists. See Iowa Code § 600A.8; In re A.H.B., 791 N.W.2d 687, 690 (Iowa 2010). If a ground is proved, the petitioner must also establish termination ...


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