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In re B.H.A.

Court of Appeals of Iowa

June 5, 2019

M.A., Father, Respondent-Appellee. J.R., Mother, Petitioner-Appellant,

          Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.

         A mother appeals the district court's denial of her petition to terminate the incarcerated father's parental rights.

          Judith O'Donohoe of Elwood, O'Donohoe, Braun, White, LLP, Charles City, for appellant mother.

          Danielle M. DeBower of Eggert, Erb, Kuehner & DeBower, P.L.C., Charles City, for appellee father.

          Ann M. Troge, Charles City, guardian ad litem for minor child.

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

          Tabor, Judge.

         Jordan, the mother of three-year-old B.A., appeals a juvenile court order denying her petition to terminate the parental rights of B.A.'s father, Mark, under Iowa Code chapter 600A (2017). Jordan contends the juvenile court incorrectly concluded termination of Mark's parental rights is not in B.A.'s best interests, even though Mark is incarcerated in another state and will not be released until 2024, has a long history of substance abuse, and was found to have abandoned B.A. Mark defends the order, arguing B.A. should have a chance to know his father.

         We find Jordan did not carry her burden of proving termination is in B.A.'s best interests. As the juvenile court concluded, Mark has been addressing his addiction and improving his work and parenting skills while in prison. We are not prepared to dismiss the possibility he will be a positive influence in B.A.'s life-it is in B.A.'s best interests to preserve the relationship, even if Mark cannot assume caretaking duties immediately after being released from prison.

         I. Facts and Prior Proceedings

         Both of B.A.'s parents struggled with substance-abuse issues. Mark grew up in a household where both his parents used drugs; he began abusing drugs himself at a young age. From about the age of fifteen, he drank alcohol regularly. He also admitted being a daily methamphetamine and marijuana user. Jordan also has a troubled past with substance abuse. After graduating from high school, she worked as a certified nursing assistant, but she developed an addiction to prescription pills. With the help of her parents, she entered two drug-treatment programs and was able to quit. She and Mark met at a party in 2013 and she soon began using methamphetamine with him. She quit shortly before getting pregnant with B.A. in October 2013.

         Although initially excited about becoming a father, Mark was not particularly supportive during the pregnancy: he did not assist financially with Jordan's health care though he was employed at a cleaning company and earning around $1000 per month. He attended just two prenatal appointments. Mark continued abusing drugs throughout Jordan's pregnancy. He also later confessed to distributing drugs during this period. Jordan lived in Charles City with her parents while Mark lived in Mason City. Mark does not have a valid driver's license and had to get rides from friends and family members.

         In April 2014, Jordan went into labor at twenty-eight weeks, and B.A. was born in Charles City. He was immediately transferred to the neonatal intensive care unit (NICU) at Mayo Clinic in Rochester, Minnesota. Mark traveled to Rochester with Jordan's parents. Jordan joined B.A. there after she was discharged from the Charles City hospital. B.A. was in the NICU for nine weeks. Jordan remained with him the whole time. Mark visited somewhere between two and six times. Mark testified he was unable to see his son more often because he had to work.

         When B.A. was discharged, it was with explicit instruction he not be exposed to any smoke due to his prematurity and related respiratory illnesses. He had regular home-health nurse visits to check on his breathing. Jordan returned to her parents' home with B.A. Eventually, she resumed work and found her own apartment where she now lives with B.A.

         Mark took little initiative to see B.A. after he came home from the hospital. Meetings between Mark and B.A. were arranged almost exclusively by Jordan. Jordan offered to bring B.A. to Mason City where Mark lived and invited Mark to visit him at her parents' house in Charles City. Mark visited a handful of times. The minimal visitation was at least partially attributable to Mark's lack of a driver's license. Mark also testified he continued to engage in methamphetamine distribution activities, which led to his federal felony conviction.

         Mark provided little financial assistance and attended none of B.A.'s doctor appointments. Mark was not involved in any of B.A.'s specialized medical care resulting from his prematurity. Jordan testified Mark gave her a few packages of diapers and about one hundred dollars when he got a tax refund. Mark testified to providing some support, but admitted after he paid his own expenses, it was only "little bits of money" that "might not have amounted up to a lot." He estimated he contributed about $400.

         Although Mark was aware B.A. could not be exposed to cigarette smoke, even the residue on clothing, he continued to smoke and smelled of smoke when he visited B.A. Jordan suspected he was still using marijuana. Jordan offered to bring B.A. for visits at Mark's apartment on weekends. During these visits, Mark occasionally pitched in to help in B.A.'s care, feeding and changing him and letting Jordan sleep in. This pattern of visits went on until December 2014 when Jordan and Mark broke up for good. After their breakup, Mark did attempt to have some contact with B.A. Jordan brought B.A. to Mark's apartment in Mason City for a few hours on weekends. But eventually those visits lessened and then stopped.

         Contacts were also sparse in 2015. Once in March, Jordan went to Mark's apartment only to find it reeking of cigarette smoke and occupied by a strange man. She left. Mark attended Jordan's first birthday party in April. On Father's Day, Jordan arranged for Mark to visit B.A. at her parents' house. He arrived late and appeared to be under the influence of a substance, so Jordan asked him to leave.

         Finally, in July 2015, Jordan arranged for Mark to make an early-afternoon visit. But he called to say he had fallen asleep. He wanted to come over then, but it was after 6 p.m., and Jordan had plans. Jordan testified Mark threatened to come to her apartment and kill himself on her steps. Jordan called law enforcement to check on Mark, but they released him without any further action. On another occasion, Mark threatened to crash into Jordan's car and "blow his brains out."

         July 2015 was the last time Mark saw B.A. Mark testified he kept asking Jordan to see B.A., but she would not let him. In November 2016, Jordan learned through a newspaper article that Mark had been detained on federal drug charges. Mark was sentenced at the end of 2016 to 121 months in federal prison and incarcerated in Fort Worth, Texas. He will not be released until fall 2024, when B.A. will be ten years old. Jordan testified that while he was incarcerated, Mark sent a few letters and called her a few times-in December 2015, in April 2016 for B.A.'s birthday, and in May 2016. Mark sent B.A. birthday cards in 2015 and 2016. He also sent B.A. two drawings.[1]

         Mark recalled more expansive attempts at communication, testifying he wrote letters in December 2015; February, April, July, August, September, November, and December 2016; and March and July 2017. Mark testified he sent some letters to Jordan's parents because she had been living with them, but Jordan's mother testified they received only one letter at their address, in January 2016. He also testified he had called on several occasions. Jordan said she did not accept many of his calls because she was working. He has not made financial contributions to B.A.'s care since being in prison. Jordan testified Mark did not update her with information about where he was incarcerated or how to contact him. He did not inform her whether it was possible to set up phone calls or video conversations with B.A.

         Jordan began a new romantic relationship in May 2016. She offered into evidence photographs of B.A. enjoying activities with her boyfriend, Walker. In September 2017, Jordan gave birth to B.A.'s half-brother, R.J., who is Walker's child. Jordan testified she and Walker are not married or living together and have not talked about taking those steps. Walker is a farmer and ...

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