In the Interest of H.P., M.P., and M.P., Minor Children ( 2018 )

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.