In the Interest of A v. and C v. Minor Children, B.R.H., Mother, E.J v. Father

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0480 Filed November 9, 2016

IN THE INTEREST OF A.V. and C.V., Minor Children,

B.R.H., Mother, Petitioner-Appellant,

E.J.V., Father, Respondent-Appellee. ________________________________________________________________

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

District Associate Judge.

A mother appeals the juvenile court’s dismissal of her petition to terminate

the father’s parental rights to their two children. AFFIRMED.

Dorothy L.C. Dakin of Kruse & Dakin, L.L.P., Boone, for appellant mother.

Larry W. Johnson of Walters & Johnson, Iowa Falls, for appellee father.

Megan Rosenberg of Cady & Rosenberg, P.L.C., Hampton, guardian ad

litem for minor children.

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

TABOR, Judge.

A mother appeals the dismissal of her petition to terminate the father’s

parental rights to their two children, nine-year-old A.V. and six-year-old C.V.,

under Iowa Code chapter 600A (2015). The mother contends termination is

warranted because (1) the father abandoned their children within the meaning of

section 600A.8(3)(b) and (2) the mother did not prevent the father from having

contact with the children. She also argues termination is in the children’s best

interests. Because the father made more than marginal efforts to reestablish

contact with his children and was denied the opportunity to be heard on the

issue, we conclude the mother has failed to prove abandonment under

chapter 600A. Accordingly, we affirm.

I. Facts and Prior Proceedings

A.V. and C.V. were born while the mother and father were married. The

parents separated in 2012, and in June 2013, their divorce decree awarded

physical care to the mother and visitation to the father. In exercising his

visitation, the father saw A.V. and C.V. every other weekend. The relationship

between the mother and father was antagonistic after their separation, and

interactions between them at visitation exchanges regularly escalated into heated

arguments and threats in the presence of the children. Outside of these

encounters, the father persisted in intimidating and insulting the mother through

voicemails and text messages. In July 2013, the mother reported the

communications from the father to the police, and a warrant for the father’s arrest

on the charge of third-degree harassment was issued. 3

On December 23, before the father was arrested on the harassment

charge, the mother obtained a temporary civil protective order against the father

under Iowa Code chapter 236. A provision in the order prevented the father from

having any contact with the children and provided that visitation would be

addressed at an upcoming hearing on the protective order. The mother allowed

the father a final visit with the children on December 25. In early January,

authorities served the father with the temporary protective order and arrested him

on the harassment charge. After a hearing under chapter 236 that the father

failed to attend,1 the court issued a final protective order. The order included this

provision: “Respondent will not be granted visitation until he requests it and a

hearing is then held. The respondent shall not otherwise contact these children

and shall not contact the protected party about visitation except as provided in

this order.” Shortly thereafter, the father was convicted of third-degree

harassment, and the court entered a criminal no-contact order prohibiting contact

with the mother until 2019.2

In the next year and a half, the father petitioned the court that issued the

protective order four times to reestablish visitation with the children. The district

court dismissed the father’s request without hearing each time. The father first

filed a motion with the court in March 2014, two months after the court issued the

final protective order, requesting “the protective order be enlarged/modified to

reflect the visitation schedule in the decree of dissolution.” The court set a

hearing in the matter but then canceled it, stating the matter involved

1 The father claimed he did not come to the hearing because he believed it had been continued to allow him time to obtain counsel. 2 The criminal no-contact order did not address the father’s contact with the children. 4

“enforcement of visitation” under the decree of dissolution, which was issued in a

different county. The court ordered “any future enforcement of visitation”

applications to be filed in the dissolution matter, “the more appropriate place and

venue to decide issues involving visitation and custody.” In response to each of

the father’s subsequent requests to modify the protective order, the mother

resisted, citing the district court’s prior dismissals of the father’s requests.3

In December 2014, the mother moved to extend the civil protective order.

After a hearing, the court extended the order for another year. Again, the father

failed to attend the hearing. Less than a week later, the father sent a text

message to the mother to ask where he could pick up the children for visitation,

and he was arrested for violating the criminal no-contact order. On June 25,

2015, just two days after the court’s dismissal of the father’s fourth application to

modify the protective order, the mother filed a petition to terminate the father’s

parental rights.

The juvenile court held the termination hearing on February 10 and 11,

2016.4 The majority of the mother’s evidence concerned the father’s violent and

verbally-abusive tendencies during their marriage and in the months after the

divorce and the welfare of the children during visitation with the father. The

father contested many of the mother’s allegations. He emphasized the mother’s

combative behavior and his own attempts to reinstate visitation with his children

3 After the district court’s first dismissal, in March 2014, the mother proposed a modified visitation schedule to the father. At the termination hearing, the parties disputed the details of the proposed arrangement. They did not reach an agreement on visitation, and the father continued to pursue the matter through the courts. 4 The father did not appear at the start of the termination hearing, but he arrived around midday on the 10th. 5

through the court system. The juvenile court expressed skepticism concerning

the credibility of both parents, noting: “The court is particularly struck by the fact

that the [mother] and [father’s] testimony is completely opposed. Both parties

were quite willing to maximize the failings of the other party while simultaneously

minimizing their own actions or omissions.” The court continued:

Despite the volume of testimony offered by the [mother] it merely boiled down to the fact that the [father] is, to say the least, a poor father and an even worse co-parent to the children during the parent’s marriage and after it was dissolved. It did little if any to support the core of the [mother’s] case which, despite alleging all statutory grounds for termination, was really focused on a contention that the [father] has abandoned the children.

In an oral statement, the guardian ad litem (GAL) recommended termination,

reasoning the father abandoned the children by failing to make more of an effort

to have the protective order modified to allow contact with the children. The GAL

also believed termination would be in the children’s best interests.

The juvenile court dismissed the mother’s petition to terminate the father’s

parental rights. In its detailed order, the court recounted at length the father’s

unsuccessful attempts to modify the civil protective order, describing the father

as “caught in a procedural morass for which he has no effective relief or

procedural rights or real opportunities.” Moreover, the court faulted the mother

for her motions to dismiss the father’s requests to modify the order. The court

found the mother “engaged in a degree of misdirection calculated solely to her

benefit” by referring the court to its previous dismissals of the father’s requests

rather than acknowledging the language of the original protective order. Due to

this behavior, the court found the mother had “actively engaged in a course of 6

conduct over a protracted period of time to deny [the father] contact and

visitation,” which prevented a finding of abandonment.

The court acknowledged it could not address whether termination was in

the children’s best interests because the mother had not established statutory

grounds for termination. But despite this acknowledgement, the court cautioned

that nothing in its ruling “should be read or interpreted to justify, excuse, minimize

or reduce” the father’s responsibility for his dangerous behavior toward the

children and their mother. The court opined the father “should not be around

these children without visitation being fully supervised.”

The mother now appeals.

II. Standard of Review and Statutory Burden

We review termination-of-parental rights proceedings under chapter 600A

de novo. See In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). Although

we are not bound by the juvenile court’s findings of fact, we do give them weight,

particularly when considering the credibility of witnesses. See id.

The parent seeking termination has the burden to prove with clear and

convincing evidence that the other parent has abandoned the children. See Iowa

Code § 600A.8(3); see also In re G.A., 826 N.W.2d 125, 128–29 (Iowa Ct. App.

2012). The petitioning parent also has the burden of proving the termination is in

the best interests of the children. In re R.K.B., 572 N.W.2d 600, 602 (Iowa

1998). The best interests of the children are “paramount,” but we also give “due

consideration” to the interests of the parents. See Iowa Code § 600A.1. 7

III. Analysis

The Iowa Code defines abandonment of a child as a parent’s rejection of

“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 the support of the child or to communicate with the

child.” Id. § 600A.2(19). To avoid a finding of abandonment, the parent of a child

who is six months or older must maintain “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,” and—if the parent

has not lived with the child in the year before the termination hearing—by

(1) visiting the child at least once a month when physically and financially able

and when not prevented by the child’s custodian or (2) when physically or

financially unable to visit or when prevented by the child’s custodian, regularly

communicating with the child or their custodian. Id. § 600A.8(3)(b).

The mother argues she established the statutory ground of abandonment

because the father “failed to demonstrate a genuine effort to be a part of the

children’s lives.”5 She argues the father’s efforts to reestablish visitation were

minimal—he did not appear for the hearing on the final protective order or the

hearing one year later to extend the protective order, he did not file motions to

reconsider or appeal the rulings declining to modify the protective order, and he 5 At the termination hearing, the mother also argued that the father failed to provide financial support, the threshold requirement for “substantial and continuous or repeated contact.” See Iowa Code § 600A.8(3)(b); In re K.W., No. 14-2115, 2015 WL 6508910, at *3 (Iowa Ct. App. Oct. 28, 2015). She conceded that the father was current on child- support payments but contended he had not made contributions to the children’s medical bills. The juvenile court attributed the “arrears in medical support” to a problem in communication between the parents “more so than evidence of abandonment.” The mother does not contest the father’s economic contributions on appeal. 8

failed to respond when the mother offered visitation in March 2014 shortly after

his first attempt at modifying the protective order. She asserts the father could

have sent letters, gifts, or cards to the children through his attorney, but he failed

to do so. Further, the mother contends the father’s efforts through the court

system cannot prevent a finding of abandonment because the express terms of

section 600A.8(3)(b) require the father to communicate with either the children or

the mother. According to the mother, the father could have satisfied the “regular

communication” provision of section 600A.8(3)(b) by contacting the mother

through her attorney but not by seeking relief through the court. Finally, the

mother disputes the court’s finding she prevented the father from contacting the

children, emphasizing it was the father’s own behavior that triggered the need for

the protective order.

We agree the mother did not prevent contact with the children within the

meaning of section 600A.8(3)(b) when she obtained a civil protective order

against the father. See In re K.M., No. 14-1374, 2015 WL 1849508, at *3 (Iowa

Ct. App. Apr. 22, 2015) (noting father’s own actions led to abandonment when

his abusive conduct prompted the mother to seek no-contact orders). But finding

the mother did not prevent contact does not end the analysis. Regardless of

whether the mother prevented the contact, the father was physically unable to

visit the children because of the protective order. See Iowa Code

§ 600A.8(3)(b)(1). And while the existence of a protective order is not “an

ironclad defense” against an allegation of abandonment, the converse is also

true—the existence of a protective order does not definitively prove

abandonment. See In re D.J.R., 454 N.W.2d 838, 842 (Iowa 1990). 9

Upon our de novo review, we agree with the district court’s conclusion the

mother has failed to establish abandonment. We read section 600A.8(3)(b),

which requires regular communication with the children or their mother when the

father is physically unable to visit, in conjunction with section 600A.2(19), which

provides that the father has abandoned the children if he makes “only a marginal

effort” to provide support or to communicate with the children. See In re R.C.,

523 N.W.2d 757, 760 (Iowa Ct. App. 1994). Given the existence of the protective

order, the father’s attempts to reestablish contact with the children, and the

district court’s persistent denial of a hearing on the issue of visitation, we cannot

find the father abandoned his children. We disagree with the mother’s

characterization of the father’s attempts at reestablishing visitation as marginal

and find he took sufficient steps to prevent a finding of abandonment. 6 Although

he did not attend the initial hearing on the civil protective order, the father sought

to modify the protective order four times before the mother filed the petition to

terminate his parental rights.

6 The mother compares this matter to In re W.W., in which the court found a mother subject to a Texas divorce decree—placing limitations on visitation with her children and prohibiting contact with the father—had abandoned her children after she failed to support her children financially, waited two years to obtain a modification of the decree, and failed to visit her children for nearly seven years. 826 N.W.2d 706, 708, 711 (Iowa Ct. App. 2012). The mother in W.W. contended that she had not abandoned her children because her husband “‘prevented’ her from visiting the children by invoking the Texas injunction and by contacting law enforcement authorities to essentially enforce its terms.” Id. at 710. W.W. concluded that although the father “held [the mother] to the letter of the Texas injunction,” he did not prevent the mother from visiting the children within the meaning of section 600A.8(3)(b). See id. at 711. The instant case is readily distinguishable from W.W. Here, the father consistently provided financial support for the children. The father was subject to a much more restrictive court order—preventing all contact with the children. And unlike the mother in W.W., who “took no legally- sanctioned steps to mitigate the harsh effects of [the] injunction,” see id., the father made multiple attempts to re-establish contact with the children over a relatively short period of time. Further, he has not had the opportunity to be heard on the issue of visitation. These fundamental distinctions steer us to a different result than W.W. 10

Further, it was reasonable for the father to seek relief with the court that

issued the protective order rather than the court that issued the decree of

dissolution because the father was seeking to modify the protective order, not the

dissolution decree.7 Because the district court dismissed each of the father’s

requests without a hearing, the father did not have the opportunity to be heard on

the issue of visitation. Parental rights are protected by the Due Process Clause

of the Fourteenth Amendment. See Santosky v. Kramer, 455 U.S. 745, 753–54

(1982). Finding the father abandoned his children without affording him a

hearing on whether he should have visitation would deny him due process.

Finally, the mother contends she proved abandonment by showing the

father rejected her March 2014 offer of visitation and failed to maintain regular

communication with either the children, or the mother as their custodian, through

the parents’ attorneys as allowed by the protective order. First, the parties

offered conflicting testimony about the mother’s offer of visitation after obtaining

the protective order. The father claimed he rejected the proposal because it

reduced his visitation from that ordered in the dissolution decree. We give

credence to the father’s testimony in light of his repeated motions to modify the

protective order in the months after the mother’s proposal. Moreover, we find it

reasonable for the father to seek a judicial resolution rather than pursuing

negotiations through the parties’ attorneys. Second, the record does not support

7 We agree with the juvenile court’s reasoning that the directive to the father to seek relief with the court that had issued his dissolution decree was improper because the father “was not asking to modify his decree but asking the district court . . . to consider visitation granted to him previously under the decree” in another county. “His position was not unreasonable, illogical and was in fact within the bounds of the procedure for the case involving the [protective] order established by the district court under the very terms of the protective order.” 11

the mother’s assertion the father should have known he could send letters or gifts

to the children through legal counsel. While the protective order contained a

provision allowing the father to communicate with the mother through counsel, it

did not address communication with the children through counsel. We are not

persuaded the father was required to send communications to the mother’s

attorney to prevent a finding of abandonment. Under the circumstances, the

father attempted to meet the “regular communications” requirement under

section 600A.8(3)(b) through his court filings, which were served on the mother

through counsel. Moreover, it was only through court action that the father could

have reestablished communication with the children.

On this record, we find the father made sufficient efforts to reestablish

visitation with his children to preclude a finding of abandonment. See In re K.M.,

2015 WL 1849508, at *3 (requiring efforts to maintain contact with the child when

no-contact order was in place); In re A.K., No. 10-0164, 2010 WL 2598252, at *2

(Iowa Ct. App. June 30, 2010) (finding abandonment when protective order

prevented contact with daughter and father did not take steps to reestablish

contact, “even after a district court judge and one of his attorneys informed him of

his options”). Because, like the juvenile court, we conclude the mother failed to

prove the father abandoned the children, we do not consider whether termination

is in the children’s best interests. See In re M.M.S., 502 N.W.2d 4, 8 (Iowa

1993). We affirm the court’s order dismissing the mother’s petition.

AFFIRMED.