In the Interest of A.O. and K.O., Minor Children

• Court: Court of Appeals of Iowa
• Decided: August 19, 2020
• Docket: 20-0099
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0099 Filed August 19, 2020

IN THE INTEREST OF A.O. and K.O., Minor Children,

A.M., Mother, Petitioner-Appellee,

G.O., Father, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Plymouth County, Daniel P.

Vakulskas, District Associate Judge.

A father appeals the termination of his parental rights. AFFIRMED.

Jennifer Bennett Finn of Pelzer Law Firm, LLC, Estherville, for appellant

father.

Kelsey Bauerly Langel of Bauerly & Langel, P.L.C., Le Mars, for appellee

mother.

Theresa Rachel of Fankhauser, Farrens & Rachel, PLC, Sioux City,

attorney and guardian ad litem for minor children.

Considered by Bower, C.J., and May and Ahlers, JJ. 2

BOWER, Chief Judge.

A father appeals the juvenile court’s termination of his parental rights in a

private termination action. We find clear and convincing evidence supports the

grounds for termination, termination is in the children’s best interests, the father

did not establish his counsel provided ineffective assistance, and his due process

rights were not violated. We affirm.

I. Background Facts & Proceedings

A.M., mother, and G.O., father, are the parents of two children born in 2013

and 2014. The parents never married but were together from approximately 2009

until 2015.

After separating, the parties’ relationship was tumultuous. In November

2015, the father obtained a temporary protective order against the mother, which

the court cancelled when the father failed to prove the allegations. In March 2016,

the mother was awarded physical care of the children, and the father was ordered

to pay child support.1

The mother has had physical care of the children for most of their lives. She

and the children live with the mother’s long-term partner, who contributes to their

financial support and treats the children as his own. The couple is engaged, and

the partner seeks to adopt the children. The children refer to him as “daddy.”

The father has a long history of substance abuse. He has been arrested

and incarcerated multiple times since the custody order, accruing assorted theft,

driving, drug, and weapons offenses. In January 2017, the father pleaded guilty

1 In the custody decree, the court noted concerns with the father’s incarcerations, lack of stability, and association with people with significant criminal histories. 3

to harassing the mother, resulting in the extension of a no-contact order for five

years.2 He was incarcerated from 2017 until August 2018. The mother claims he

did not send any letters or try to call the children during that time, but the father’s

sister states he called his mother’s house to talk with the children often. After his

release in 2018, the father relapsed on drugs and, in May 2019, he was arrested

and incarcerated again. The father was incarcerated at the time of the termination

hearing, expecting to be paroled and discharged in 2020. Neither the father nor

his family notified the mother when he went to jail in 2017 or 2019, despite the

effect on his ability to visit his children.

The father made minimal, infrequent payments of child support. As of

March 2019, the father was over $10,000 delinquent on child support. During his

most recent employment between August 2018 and April 2019, the father failed to

make regular child support payments. He explained, “I would just get so mad that

[the mother] wasn’t letting me see [the children], and I guess that was my reasoning

that I would use, I’m not going to pay you if you’re not going to let me see my kids.”

The father’s parents made two payments toward the father’s child support

obligations in October and November 2019.

The father did not regularly see the children. While incarcerated, he would

call family members when the children were with them. In August 2018, after the

father was released from prison, the mother and father agreed the father could

have visits supervised by his mother. The children visited the father’s family

regularly, including out-of-state trips to extended-family gatherings. The father was

2 The mother testified she was not notified of the extension. 4

only present at a few of the visits, with his absences increasing after his most

recent relapse.3 When the paternal grandmother cared for the children for a week

in early 2019, the father did not visit them.

The father testified, “[The mother] allowed my parents, but she told my

parents that if I was to show up that they wouldn’t be allowed to see [the children],

so my mom told me I couldn’t come see them anymore.” He further testified the

mother would not respond to any communications from him regarding visiting the

children. In May, the mother told the father’s family she did not want the father

around the children, cut off their visits with the children, and stopped answering

text messages.

In June, the mother filed a petition to terminate the father’s parental rights,

alleging the father had abandoned the children and failed to financially support

them. After the filing, the father attempted to contact the children through text

messages, phone calls, and letters from jail, but the mother did not answer any

calls or text messages from him.

A two-day hearing was held in October and November. The mother and

her partner testified, as did the father and several of his family members. The court

asked both parents to submit written closing arguments and the guardian ad litem

(GAL) to submit a position statement.

The juvenile court found the mother met her burden on both grounds alleged

in the termination petition. The father appeals.4

3Some of the father’s movements were limited by parole conditions. 4The mother asserts the father’s claims are not preserved because his proof brief was filed one day late. The Iowa Rules of Appellate Procedure provide an appellant time to cure default after the failure to comply with an appellate deadline. 5

II. Standard of Review

Our review in private termination proceedings is de novo. In re B.H.A., 938

N.W.2d 227, 232 (Iowa 2020). We give deference to the factual findings of the

juvenile court, especially those relating to the credibility of witnesses, but we are

not bound by the court’s findings. Iowa R. App. P. 6.904(3)(g); B.H.A., 938 N.W.2d

at 232. The grounds for termination of a parent’s rights must be established by

clear and convincing evidence. In re Q.G., 911 N.W.2d 761, 770 (Iowa 2018). Our

“paramount consideration” in private termination proceedings is the best interests

of the children, though we also consider the parents’ interests. Iowa Code

§ 600A.1 (2019); B.H.A., 938 N.W.2d at 232.

III. Analysis

A. Grounds for Termination. “Iowa Code chapter 600A provides the

exclusive means by which parental rights shall be terminated for a minor child who

is neither subject to the Iowa Indian Child Welfare Act, nor subject to termination

pursuant to chapter 232.” In re G.A., 826 N.W.2d 125, 127 (Iowa Ct. App. 2012).

One of the statutory grounds asserted by the mother is abandonment. For

purposes of chapter 600A, abandonment happens when a parent “rejects 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 for the support of the child or to communicate with the child.” Iowa

Code § 600A.2(20).

See Iowa R. App. P. 6.1202(1)(a); see also Yunek v. Cont’l Cas. Co., No. 11-1693, 2012 WL 3194113, at *3 (Iowa Ct. App. Aug. 8, 2012). 6

A parent is deemed to have abandoned a child who is at least six months

old,

unless the parent maintains 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 as demonstrated by any of the following: (1) Visiting the child at least monthly when physically and financially able to do so and when not prevented from doing so by the person having lawful custody of the child. (2) Regular communication with the child or with the person having the care or custody of the child, when physically and financially unable to visit the child or when prevented from visiting the child by the person having lawful custody of the child. (3) Openly living with the child for a period of six months within the one-year period immediately preceding the termination of parental rights hearing and during that period openly holding himself or herself out to be the parent of the child.

Id. § 600A.8(3)(b). The parent’s subjective intent “does not preclude a

determination that the parent has abandoned the child.” Id. § 600A.8(3)(c).

The second ground asserted in the petition is the father’s failure to

financially support the children. If “[a] parent has been ordered to contribute to the

support of the child . . . and has failed to do so without good cause,” it is grounds

for ordering the termination of parental rights. Id. § 600A.8(4).

The father’s challenge to the abandonment allegation is that the mother

prevented him from having regular visitation and communication with the children.

It appears the father did make minimal efforts—only when it suited him—to

maintain communication with the children facilitated by his family members.

However, regardless of whether the mother prevented the father from

exercising visitation, the father is unable to meet the predicate requirement of

“contribution toward support of the child[ren] of a reasonable amount, according to

the parent’s means.” Id. § 600A.8(3)(b); see In re W.W., 826 N.W.2d 706, 710 7

(Iowa Ct. App. 2012) (considering a termination where the parent claimed to have

been prevented from seeing the children but provided no financial support).

Moreover, his failure to contribute to their financial support is “without good cause.”

Iowa Code § 600A.8(4).

From the time of the custody order in 2016, the father did not make any

child support payments despite holding various jobs. The first recorded child

support payment happened when he was in prison in 2017 and a few dollars a

month were withheld toward his obligation. When released from prison, the father

made “a few” child support payments but did not make them regularly despite his

employment. He made only a single payment in 2019.5 He testified he chose to

not make his child support payments when employed because the mother limited

his visitation. This does not constitute “good cause” to fail to contribute to the

children’s financial support. See In re R.K.B., 572 N.W.2d 600, 602 (Iowa 1998)

(noting the key issue in a good-cause determination “concerns the father’s ability

to pay the ordered child support” (citation omitted)).

The father had a parental obligation to support his children financially but

made little effort to contribute toward their support when he was able to do so. We

find clear and convincing evidence supports both grounds for termination of the

father’s parental rights.

B. Best Interests of the Children. “The best interest of a child requires

that each biological parent affirmatively assume the duties encompassed by the

role of being a parent.” Iowa Code § 600A.1(2). Among the duties the court

5The father’s parents made two payments toward his child support arrears in October and November 2019. 8

considers are the parent’s fulfillment of financial obligations, continued interest in

the children, efforts at maintaining communication, and keeping a place of

importance in the children’s lives. Id. In determining the best interests of the

children, we also consider the framework described in Iowa Code section

232.116(2)—giving primary consideration to the child’s physical, mental, and

emotional needs and weighing the closeness of the parent–child bond. In re

A.H.B., 791 N.W.2d 687, 690–91 (Iowa 2010). We look to the child’s long-term

and immediate interests. Q.G., 911 N.W.2d at 771.

Our supreme court recently decided Q.G., a private termination case with

significant similarities to this one: the father had a drug addiction and was

incarcerated with limited contact with the children yet had a supportive extended

family, and a steady job and social structure to support his reentry after release

from prison to avoid relapse. Id. at 772–74. And, like the instant case, a father

figure was willing to provide for the children’s needs and had a bond with the

children. See id. at 772. In Q.G., the court concluded the father was actively

committed to dealing with his drug problem and should be allowed another chance

at parenting his children. Id. at 774. However, the court observed, “[A]ny future

relapse of involvement with drugs or violence may well tip the balance in any future

termination action.” Id. at 774. Here, this father faced virtually the same

circumstances as Q.G. and W.G.’s father in 2018. However, when the father was

released from incarceration in 2018 and provided another chance to parent his

children, he relapsed and failed to assume his duties as a parent. 9

Looking at the father’s history as a parent, we do not see a consistent effort

to be a part of his children’s lives and assume the role of parent.6 We agree with

the juvenile court’s characterization that although the father “clearly loves his

children,” it was his family that has “done the parenting that [the father] should have

been doing.” While a continued relationship with the father’s family would be in

the children’s best interests, we cannot say the same for the father. The father

has consistently made selfish choices in furtherance of his addiction rather than to

prioritize and provide for the children. We find termination of the father’s parental

rights to be in the children’s best interests.

C. Ineffective Assistance of Counsel. The father asserts counsel was

ineffective for failing to object to the GAL’s position statement because—based on

the absence of any reference to personal visits or interviews with the children—the

GAL did not conduct an independent investigation.7

We observe the GAL’s report does not make a statement about interviewing

the children or seeing their home. Nonetheless, when the GAL cross-examined

6 We recognize the important place the father’s family has maintained in the children’s lives and the support offered to the mother. But, as the juvenile court noted, the family’s continued contact with the children is in the mother’s discretion regardless of whether the court dismissed the petition or terminated the father’s rights. 7 We cannot find any Iowa cases addressing an ineffective-assistance-of-counsel

claim in relation to a private termination. However, in a state-prosecuted termination, our supreme court noted that, even though the proceedings were civil instead of criminal, “because due process requires counsel appointed under a statutory directive to provide effective assistance, we appl[y] the same standards adopted for counsel appointed in a criminal proceeding.” In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988). The private termination statutes also provide a directive for appointed counsel. See Iowa Code § 600A.6A. The father’s attorney was appointed pursuant to this section and was obligated to provide effective assistance. 10

the mother during the termination hearing, the GAL stated, “I think when I was

there I met with them in a room upstairs.” The father also testified he remembered

meeting with the GAL before the hearing. The court specified the GAL’s position

statement was only to address what was in the best interests of the children.

We find the father has failed to establish the GAL did not conduct an

independent investigation and we reject his claim that his attorney provided

ineffective assistance by not objecting to the GAL’s position statement.

D. Due Process Rights. The father next claims his due process rights were

violated because he was unable to participate in part of the second day of the

hearing. Our supreme court has held “juvenile courts in this state must give

incarcerated parents the opportunity to participate from the prison facility in the

entire termination hearing by telephone or other similar means of communication

that enables the parent to hear the testimony and arguments at the hearing.” In re

M.D., 921 N.W.2d 229, 236 (Iowa 2018). If that standard cannot be met, “an

alternative process that allows the parent to review a transcript of the evidence

offered at the hearing” must be provided. Id. The purpose of this alternative

process is to give the incarcerated parent a chance to review the record of

evidence prior to testifying in order to respond effectively to the evidence. Id.

The father submitted an affidavit stating he missed the last hour of testimony

on the second day of the hearing due to a prison count. 8 This hour included the

cross-examination of his mother and the mother’s rebuttal testimony. The father

had provided his own testimony earlier that day. The affidavit states he “would

8The father had to leave during a recess for a prison count, and his departure was not included in the transcript of the proceeding. 11

have benefitted as well if I were able to clarify certain points that had come up

during the trial and make a final statement.” The motion accompanying the

affidavit merely asked the court to correct the record regarding the father’s

presence, it made no due process claim or request for the court to reconsider.

The father raises this issue for the first time on appeal. See In re A.B., 815

N.W.2d 764, 773 (Iowa 2012) (“[T]he general rule that appellate arguments must

first be raised in the trial court applies to . . . termination of parental rights cases.”).

The father was present for all but one hour of the hearing, and provided his

testimony before the portion of the hearing he missed. There is no indication the

father requested a continuance when he informed the court of his need to leave.

Neither the father nor the court requested an expedited transcript of the portion of

the hearing he missed. Following the hearing, the court provided over two weeks

for counsel to provide written closing arguments when the father could have made

any additional response. Under these circumstances, we do not find a violation of

the father’s due process rights.

AFFIRMED.