In the Interest of J.G., Minor Child

• Court: Court of Appeals of Iowa
• Decided: June 29, 2022
• Docket: 21-1836
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-1836 Filed June 29, 2022

IN THE INTEREST OF J.G., Minor Child,

E.A., Mother, Petitioner-Appellee,

M.C., Father, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Marshall County, Paul G. Crawford,

District Associate Judge.

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

Christopher A. Clausen of Clausen Law Office, Ames, for appellant.

Norma J. Meade of Moore, McKibben, Goodman & Lorenz, LLP,

Marshalltown, for appellee.

Considered by Vaitheswaran, P.J., Tabor, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022). 2

TABOR, Judge.

Manuel, the father of eleven-year-old J.G., appeals the termination of his

parental rights under Iowa Code chapter 600A (2021). For most of J.G.’s life,

Manuel provided no financial help and had no contact with his son. Manuel blames

J.G.’s mother, Eliana, for “putting up roadblocks” between him and their child. At

the termination hearing, Manuel testified, “I would love to pay child support and get

to know my son.” But his subjective desire has not manifested in the assumption

of parental duties. Like the district court, we find Eliana presented clear and

convincing evidence that Manuel abandoned the child, and termination of Manuel’s

parental rights is in J.G.’s best interests.1

I. Facts and Prior Proceedings

Manuel and Eliana welcomed their son, J.G., in October 2010. At first they

lived with Manuel’s family but soon moved into their own home in Newton. Eliana

testified that Manuel was unemployed and struggled with drug and alcohol abuse.

But Manuel denied substance-abuse problems. Eliana also testified that Manuel

physically abused her while she was pregnant with J.G.

The couple separated in August 2011 after a fight at their home. Eliana

recalled that Manuel assaulted and strangled her and tried to take J.G. away. She

called the police but did not pursue criminal charges. Manuel denies being

1 We review termination decisions under chapter 600A de novo. In re B.H.A., 938 N.W.2d 227, 232 (Iowa 2020). We give weight to the district court’s findings of fact, but they do not bind us. Id. We accord special deference to that court’s credibility determinations. Id. When interpreting chapter 600A, we give parents’ rights due consideration. Iowa Code § 600A.1. But our paramount concern is the child’s best interests. Id. 3

physically aggressive toward Eliana. He moved out of their home, but Eliana told

Manuel he could see J.G. as long as he was not using drugs.

For a few months after he moved out, Manuel exercised visitation with J.G.,

taking the child for a few hours once a week or sometimes for the weekend. But

problems arose with those visits. J.G. would often come home crying and feeling

sick. And often, Manuel would drop off J.G. at his mother’s home and leave, rather

than spend time with the child. The paternal grandmother once asked Eliana why

she let Manuel take J.G. when he was “not the one taking care of him.”

Meanwhile, Eliana started dating Moises. They married in 2012. They lived

in Newton and had two more children, J.G.’s half-siblings. Eliana had steady

employment. She worked as a financial representative for a medical provider for

around ten years. Then, for about one year before trial, she worked for the Iowa

Department of Transportation.

After moving out, Manuel communicated with Eliana by calling her at work.

Then one day, Manuel was upset and drove to Eliana’s home unannounced,

demanding to take J.G., who was then about eighteen months old. But Manuel

had no car seat for the toddler, and Eliana knew he did not have a driver’s license.

Manuel tried to pull J.G. from Eliana’s arms, hurting him, and Moises called the

police. The police charged Manuel with driving while barred. That incident was

the last time Manuel saw J.G.

After his arrest, Manuel contacted Eliana less often. When he did call her

work, he would say that “he just wanted to see his son.” Eliana told him,

[Y]ou can see him, but we are going to do this the right way because, you know, you just want to show up whenever you want. . . . [W]e 4

are going to set up child support. You know, the court is going to decide when you can see him and when he is going to be with me.

According to Eliana, when she brought up child support, Manuel would get upset.

He said, “there is no need for that” and he never sought a custody order.

At J.G.’s second birthday party, Manuel showed up drunk. Eliana and her

family turned him away before he had a chance to see J.G., who was busy playing

with his cousins and enjoying his birthday cake. Eliana recalled telling Manuel:

[Y]ou know what, we are not going to argue over this. This is not a good time. When you are feeling better, we will talk about you seeing [J.G.], but I want things done the right way. We have to go through the court. There has to be a set up time because you can’t just take him whenever you want.

After that confrontation, Manuel’s calls to her work dwindled. He would

phone every two to three months, and then a year would go by. When Manuel did

check in, he would inquire about J.G.’s well-being but did not ask to see him. He

last called three or four years before the termination trial. As for material support,

Eliana testified that Manuel brought J.G. diapers and toys once around 2011 but

never provided any other financial support, gifts, cards, or letters.

Manuel testified he stopped calling Eliana at work because she threatened

to tell the police that he was harassing her. He did not have her cellphone number

and believed he “had no way of communicating with her for [their] son.” When

asked why he did not pursue a custody order, Manuel referred to his

undocumented immigration status. He testified that he could not go to court

without facing scrutiny: “Where do you work? What do you do? And without having

a Social Security, I mean, what [are] they going to do? I didn’t know what was

going to happen to me.” 5

Manuel confirmed that he last offered support for J.G. when he was around

two years old. He claimed that he stopped because Eliana “would tell me, no, I

don’t need help. He already has a father.” Manuel recalled leaving supplies on

her doorstep and driving by later to find they were still outside. Manuel also

confirmed not seeing J.G. since he was eighteen months old. What’s more, he

never sent J.G. cards or presents for his birthday or holidays. When asked why,

he responded “[a] card? Where was I going to mail it to? So no,” and “[w]here

was I going to take the birthday present to? I don’t know her address. I don’t know

where she moved to.” Manuel testified he was reluctant to inject himself into J.G.’s

life because of the time Moises called the police. Manuel was worried that picking

up criminal charges could trigger his deportation. But the father admitted that

because of the lack of contact, J.G. does not know him.

When Eliana’s termination action came to trial, Manuel was in jail on

charges of indecent contact with a minor. Because of those charges, he faced

removal proceedings. His criminal record also included convictions for driving

while barred, serious misdemeanor assault, and fifth-degree theft. Manuel testified

that before his latest arrest he was self-employed doing landscaping, construction,

and roofing. And before that, he worked at JBS meatpacking. As for his

immigration status, Manuel testified that he came from Mexico to Marshalltown

when he was six years old. He contacted an immigration attorney two or three

years before the termination trial when immigration and customs enforcement

intervened after he was stopped for driving while barred.

In September 2021, Eliana petitioned to terminate Manuel’s parental rights

to J.G. She testified that Moises wants to adopt J.G., who considers Moises to be 6

his father. After trial, the court found that Manuel abandoned the child under Iowa

Code section 600A.8(3). And the court determined that termination was in J.G.’s

best interests. Manuel appeals the finding of abandonment. Eliana waived her

opportunity to participate in the appeal.

II. Analysis

Terminations under chapter 600A involve two steps. B.H.A., 938 N.W.2d

at 232. First, the petitioner must prove a ground for termination by clear and

convincing evidence. Iowa Code § 600A.8. Second, the petitioner must show

termination is in the child’s best interests. See id. § 600A.1; B.H.A., 938 N.W.2d

at 232.

A. Abandonment

Addressing the first step, the district court decided that Eliana proved by

clear and convincing evidence that Manuel abandoned J.G. Under chapter 600A,

“[t]o abandon a minor child” means the parent “rejects the duties imposed by the

parent-child relationship, . . . 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). A parent is “deemed to

have abandoned [a] child” who is six months or older at the termination hearing

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 7

financially unable to visit the child or when prevented from visiting the child by the person having lawful custody of the child.[2]

Id. § 600A.8(3)(b). A parent’s subjective intent “unsupported by evidence of

acts . . . manifesting such intent” does not prevent a finding of abandonment. Id.

§ 600A.8(3)(c).

Manuel’s primary argument is that Eliana prevented him from visiting with

the child by demanding that he first obtain a custody order. According to Manuel,

if he pursued a custody order, “he would be asked about his immigration status

and likely be taken into custody at that time.”3 He accuses Eliana of “essentially

weaponizing” immigration law to undermine his parental relationship with J.G.

While that argument might hold sway under different circumstances, here it misses

the mark for many reasons.

First, we can affirm without reaching the question of Eliana’s interference

with Manuel’s visitation. A parent’s lack of financial support is the initial test for

abandonment. See In re K.W., No. 14-2115, 2015 WL 6508910, at *3 (Iowa Ct.

App. Oct. 28, 2015) (“Under section 600A.8(3)(b), the threshold element of

‘substantial and continuous or repeated contact’ is economic contributions.”). If

Manuel abandoned J.G. under the financial-support prong, we need not consider

2 A third option is “[o]penly living with the child for a period of six months within the one-year period immediately preceding.” Iowa Code § 600A.8(3)(b)(3). Manuel concedes that alternative does not apply. 3 Manuel acknowledges cases involving no-contact orders or incarcerated parents

where our court has held that parents must “take personal responsibility” for conduct that left them unavailable to care for the child. See, e.g., In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct. App. 1994), overruled on other grounds by In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). But he distinguishes his case by submitting it was not his conduct that led to his immigration status because he was brought to the United States as a young child. 8

whether Eliana prevented visitation or communication. Iowa Code

§ 600A.8(3)(b)(1), (2); see In re G.D., No. 20-0984, 2021 WL 2126174, at *3 (Iowa

Ct. App. May 26, 2021) (“Substantial and continuous or repeated contact with the

child is shown by: (1) financially contributing to the support of the child in a

reasonable amount according to the parent’s means (‘cash’), and (2) maintaining

sufficient contact with the child as defined in section 600A.8(3)(b)(1)–(3) (‘contact’).

For a parent to avoid being deemed to have abandoned the child, the parent must

meet both the cash and contact components of the statute.”).4

The undisputed evidence shows that Manuel did not provide financial

support for J.G. after the incident when Moises called the police. Before that, he

provided diapers and toys one time, according to Eliana. Manuel insists he brought

diapers and toys several times, but Eliana rejected the overtures. But he admits

he provided no support after J.G.’s second birthday.

Nothing in the statutory language suggests the obligation to make financial

contributions can be overcome by the custodial parent shunning that support. The

“prevented from doing so” language appears in the “visiting” paragraph of

section 600A.8(3)(b). No such caveat applies to the financial element of

abandonment. And Manuel has identified no case in which the custodial parent

declining to accept resources overrode this basic parental obligation. See B.H.A.,

938 N.W.2d at 234 (“Our courts have long held that all parents are legally obligated

4 A child support order is unnecessary to find the parent failed to provide reasonable financial support. In re W.W., 826 N.W.2d 706, 710 (Iowa Ct. App. 2012). “[T]hose types of payments are subject of a separate provision.” Id. (citing Iowa Code § 600A.8(4) (providing grounds exist for private termination of parental rights if “[a] parent has been ordered to contribute to the support of the child or financially aid in the child’s birth and has failed to do so without good cause”)). 9

to support their children. . . . [The father’s] obligation to support [the child] persists

until his parental rights are terminated.” (citations omitted)).

As the district court noted, Manuel balked at the prospect of paying child

support, telling Eliana that he saw “no need.” The district court emphasized:

“There was no evidence of [Manuel] making or even offering to make a financial

contribution towards his child’s upbringing,” other than the diapers. And the court

did not construe her one-time rebuff of a box of diapers as “rejecting support.”5

Manuel testified to “giving up” after the initial rejection of his offer. Thus, the record

shows Manuel was content to allow Eliana to raise their son by herself—though he

was employed and able to contribute to J.G.’s support. See Iowa Code §

600A.8(3)(b). Ultimately, we are unpersuaded by Manuel’s testimony that he

would have paid child support if given the chance. After minimal offers of support

in J.G.’s toddler days, Manuel ignored that parental responsibility for the next nine

years. Eliana proved he did not make reasonable contributions toward J.G.’s

support, an essential element of his duty to maintain substantial and continuous or

regular contact with the child.

Second, even if Eliana could be faulted for snubbing his financial support,

her request for a custody order did not prevent Manuel from visiting or

communicating regularly with J.G. A custodial parent may set reasonable

conditions on visitation. See, e.g., In re C.H., No. 21-0064, 2022 WL 108953, at

*2 (Iowa Ct. App. Jan 12, 2022); In re G.A., 826 N.W.2d 125, 129 (Iowa Ct. App.

5 In determining whether a parent has abandoned a child, there is no obligation on the petitioning parent to ensure the other parent carries out the duties specified. See Iowa Code § 600A.8(3)(c). Eliana did not have to establish a formal support order on Manuel’s behalf. 10

2012). Eliana was concerned about Manuel’s history of domestic violence and

substance abuse. Her concerns were justified when Manuel arrived at her home

unannounced and tried to take J.G. in his car, without a child seat and while driving

unlicensed. And again when he showed up drunk at J.G.’s second birthday party.

Under these circumstances, it was reasonable for Eliana to request a formal

custody order so that a court could determine whether Manuel was a safe

caretaker and establish a fixed visitation schedule.

Third, Manuel failed to provide evidentiary support for his assertion that

seeking a custody order would have endangered his immigration status. Manuel

testified that he believed the court would ask for information on his employment

and demand a social security number. But he also acknowledged that he “didn’t

know what was going to happen” if he applied for court-ordered visitation. And

although Manuel argues his interactions with Eliana have netted him charges,

those infractions were based on his conduct. Eliana testified she could have

alerted immigration authorities about Manuel’s undocumented status any time but

did not want to cause him trouble. In short, Eliana did not leverage Manuel’s

immigration status to prevent him from visiting or communicating with J.G.

Finally, even if we presume Eliana prevented Manuel from visiting J.G,

Manuel also failed to maintain regular communication with J.G. or Eliana, which

could have avoided the abandonment finding. See Iowa Code § 600A.8(3)(b)(2).

He did not write letters to J.G., did not send gifts or cards, did not try to contact him

by telephone, and did not even consistently call Eliana for updates on his well-

being. None of those activities would have jeopardized Manuel’s immigration

status. While Manuel testified Eliana threatened him with harassment for calling 11

her work, her testimony was that she always took his calls unless she was busy.

He claimed he did not send cards or gifts because he did not know Eliana’s

address. But, at a minimum, he knew her work number and could have asked for

her address.

At bottom, clear and convincing evidence shows that Manuel failed to

maintain substantial and continuous or repeated contact with J.G.—amounting to

abandonment of his parental responsibilities.

B. Best Interests

The second step is to determine whether termination is in J.G.’s best

interests. The best interests 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). Those duties include “the fulfillment of financial obligations,

demonstration of continued interest in the child, demonstration of a genuine effort

to maintain communication with the child, and demonstration of the establishment

and maintenance of a place of importance in the child’s life.” Id. We also weigh

the child’s “physical, mental, and emotional condition and needs” and the

“closeness of the parent-child relationship.” In re Q.G., 911 N.W.2d 761, 771 (Iowa

2018) (borrowing from Iowa Code section 232.116(2)–(3) to flesh out the best-

interests test).

On appeal, Manuel does not advance a best-interests argument. So that

issue is waived. See Iowa R. App. P. 6.903(2)(g)(3). But if we were to reach it,

we would find that termination is in J.G.’s best interests. This eleven-year-old boy

was just two when he last had contact with Manuel. For those nine years, Moises 12

has been filling the role of J.G.’s father. It is in J.G.’s best interests to make that

relationship a permanent feature of his life by allowing Moises to adopt him.

In sum, we find Manuel abandoned J.G. under section 600A.8, and

termination of Manuel’s parental rights is in J.G.’s best interests.

AFFIRMED.