In the Interest of J.R., A.R., and L.R., Minor Children

• Court: Court of Appeals of Iowa
• Decided: December 6, 2023
• Docket: 23-1127
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1127 Filed December 6, 2023

IN THE INTEREST OF J.R., A.R., and L.R., Minor Children,

S.R., Mother, Petitioner-Appellee,

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

Appeal from the Iowa District Court for Dickinson County, Shawna L.

Ditsworth, District Associate Judge.

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

Pamela Wingert of Wingert Law Office, Spirit Lake, for appellant.

Abby L. Walleck of Maahs & Walleck, Spirit Lake, for appellee.

Michael L. Sandy, Spirit Lake, attorney and guardian ad litem for minor

children.

Considered by Bower, C.J., and Buller and Langholz, JJ. 2

LANGHOLZ, Judge.

A father appeals the private termination of his parental rights to his three

children.1 The children’s mother petitioned for termination under Iowa Code

chapter 600A after his most recent incarceration—for a federal drug conviction.

The district court held that the father abandoned his children and that it was in their

best interests to terminate the parental relationship. The father now argues that

the mother failed to prove abandonment—largely because he claims she

prevented his contact with their children—and failed to show that termination is in

the best interests of the children. Because the mother proved that the father

abandoned the children as defined by Iowa Code section 600A.8(3) and that

termination of his parental rights is in the children’s best interests, we affirm.

I.

The father and mother met when she began working at a fast-food

restaurant at the age of fourteen. The father—then nineteen—was her manager.

They began a sexual relationship sometime after she turned fifteen, and about a

year later in 2016, their oldest child was born. The father had asked the mother to

have an abortion because he was worried about getting in trouble. But she

refused. And he was eventually convicted of third-degree sexual abuse for his

conduct engaging in a sexual relationship with the mother when she was fifteen

and he was five years older. See Iowa Code § 709.4(1)(b)(2)(d) (criminalizing sex

acts when the offender is “four or more years older than the other person”).

1 We avoid using the parties’ names to respect their privacy because this opinion—

unlike the district court’s order—is public. Compare Iowa Code § 600.16A (2022), with id. §§ 602.4301(2), 602.5110. 3

Around the time of that conviction, they conceived twin girls, who were born

in February 2018. He missed their birth because he was in a residential treatment

facility. But he met his daughters when they were three months old after returning

to live with the children, the mother, and the mother’s family. Almost immediately,

he was reported to the Iowa Department of Human Services2 as having used

methamphetamine and marijuana and being under the influence while caring for

the children. That incident resulted in a founded child abuse determination by the

Department.

For these first couple of years after their oldest child was born, the father

lived with the mother and their children “on and off” when he was not incarcerated.

Sometimes they lived together in the homes of the maternal grandparents or the

paternal grandmother and other times they had their own apartment. During their

time together, the father was physically abusive to the mother but not the children.

He regularly used drugs—as he later candidly acknowledged—picking drugs “over

my kids and my family.” And he had several couple-month stays serving time in

jail or the residential treatment facility.

Then, in January 2019, the father tested positive for methamphetamine.

This again resulted in a founded child abuse assessment and the filing of a child-

in-need-of-assistance petition. According to the mother, the Department told her

that it would seek removal of the children unless the father moved out of their

home. So he did.

2 The Department is now known as the Iowa Department of Health and Human

Services. 4

The children were eventually adjudicated in need of assistance. They

remained with the mother throughout the juvenile-court process, and the father

was permitted supervised visitation. But the father was often late or had to cancel

or reschedule. When the visitations did occur, the Department supervisor

observed that the mother—who was always present to help at the father’s

request—was the primary caregiver in the visit and that the father appeared tired

and more passive in his interactions. The last time the father saw the children in

person was at one of these visits sometime in 2019.

In February 2020, the father was indicted on federal charges arising out of

possessing and distributing methamphetamine near a park. He was arrested and

has been incarcerated in county jails, state prison, or federal prisons since then.

After conviction on the federal drug charges, the father was sentenced to serve

more than seven years in prison with an expected release date of December

2027—though the father believes he will be released sooner.

While the federal criminal charges were pending, the child-in-need-of-

assistance case was closed in August 2020. The juvenile court entered a bridge

order, see Iowa Code § 232.103A, that granted the mother sole legal custody and

physical care. It also authorized visitation by the father—supervised at first, and

then increasing in responsibility and frequency after satisfying various treatment

and behavioral criteria. The father has not participated in any visitation authorized

by the order.

While incarcerated, the father has not provided any financial support for his

children. The father made a handful of attempts to contact his children through

phone and video calls and in writing. These calls occurred from May 2020 to 5

February 2021, but none took place after this. During one of the father’s last calls,

he told the children that it was their mother’s fault that he could not talk to them

more and that the two of them were not in a relationship. The mother then asked

a Department worker for advice, and she was told that she did not have to make

or receive any more calls from him because they were harmful for the children.

The father sent some letters and cards to the children in 2021. But that was

the last written contact they received from him. After the mother relocated with the

children, the father did not know her address. He sent cards and letters to his

parents in hopes that they would deliver the mail to the mother. Yet they were

never delivered.

The mother petitioned for termination of the father’s parental rights in

September 2022. She sought to terminate his parental rights on the grounds of

abandonment under Iowa Code section 600A.8(3). At the bench trial in May 2023,

the children’s guardian ad litem recommended termination would be in their best

interests.

In a thorough, seventeen-page ruling, the district court terminated the

father’s parental rights. The court found that he abandoned the children under

section 600A.8(3) because of his lack of financial support, physical interaction, and

minimal phone and mail communications for the past four years. And the court

ruled that termination of the father’s parental rights was in the children’s best

interests. The court reasoned:

“[T]here is evidence in the record the children currently do not have a bond or relationship with [the father]. [The father] was not an active parent even prior to his incarceration. [The father] is not scheduled to be released from prison for another four and a half years. [The father] has not made an effort to affirmatively complete any duties of 6

being a parent since 2019, and only minimal effort prior to that time. As a result, [the father] has not maintained a place of importance in the children’s lives. The amount of time in which [the father] has been absent from the children’s lives is significant. The children have continued to develop and grow. The court is concerned, based upon [the father’s] history and long periods with no contact with the children, as well as [the father’s] choices of choosing his addiction over the children even after intervention of the Iowa Department of Human Services and juvenile court, this pattern would continue in the future.

The father timely appealed.

II.

We review private termination proceedings under Iowa Code chapter 600A

de novo. In re B.H.A., 938 N.W.2d 227, 232 (Iowa 2020). We make our own fact

findings but “give weight” to those of the trial court “especially when considering

credibility of witnesses.” Id. (citation omitted). Our primary concern is the best

interests of the children, but the parents’ interests “shall be given due

consideration.” Iowa Code § 600A.1(1); see also In re R.K.B., 572 N.W.2d 600,

601 (Iowa 1998). To terminate a parent’s rights under chapter 600A, the moving

party must prove a statutory ground for termination under section 600A.8 and show

that termination is in the best interests of the child—both by clear and convincing

evidence. See B.H.A., 938 N.W.2d at 232.

The district court relied on the statutory ground of abandonment under

section 600A.8(3). For a child who is at least six months old—like the three

children here—that section provides that “a parent is deemed to have abandoned

the child unless the parent maintains substantial and continuous or repeated

contact with the child.” Iowa Code § 600A.8(3)(b). That required contact must be

“demonstrated by contribution toward support of the child of a reasonable amount, 7

according to the parent’s means” and by any one of three means of contact:

(1) visiting at a minimum monthly; (2) regular communication when unable to visit;

or (3) “[o]penly living with” and “holding himself or herself out to be the parent of

the child” during a six-month period in the year before the termination hearing.

Iowa Code § 600A.8(3)(b)(1)–(3). These are two distinct components—an

economic component and a contact component—both of which must be met “to

avoid being deemed to have abandoned the child.” In re G.D., No. 20-0984, 2021

WL 2126174, at *3 (Iowa Ct. App. May 26, 2021). A parent’s subjective intent

“does not preclude a determination that the parent has abandoned the child.” Iowa

Code § 600A.8(3)(c).

Indeed, the mother has proven that the father has not satisfied either

component for maintaining the required contact. While the father attacks the

mother’s credibility and argues she blocked his efforts to communicate with the

children, his efforts were minimal as he did not take full advantage of his

opportunities to contact the children. Since he last lived with the mother and her

children in 2019, he has made no attempt to contribute toward support of the

children. And since sometime later that same year—a period of nearly four years

at the time of the trial—he has not visited monthly or had other regular

communication.

The father has been incarcerated in both state and federal prisons for most

of the children’s lives. But the father “cannot use his incarceration as a justification

for his lack of relationship with the child.” In re M.M.S., 502 N.W.2d 4, 8 (Iowa

1993). While there were some phone and video calls early in the father’s

incarceration, even then they were limited. And after the mother stopped 8

cooperating with the calls, the father did not continue efforts to request calls or

engage in other means of regular written communication. The cards he sent in

2021—the only written communication received by the children—do not satisfy that

standard. Nor do written communications he sent to his parents that were never

sent to the mother or children.

True, the father encountered some challenges in keeping in phone or

written contact. But his minimal efforts to overcome those challenges and restart

some communication for two years do not demonstrate “substantial and

continuous or repeated contact” with his children. Iowa Code § 600A.8(3)(b).

Especially so when—even before that—his contact with the children was limited.

While communication between the parties was difficult at times, it was not

impossible. This lengthy period of minimal contact rises to the level of

abandonment. See In re J.F., No. 22-1477, 2023 WL 3335328, at *1–2 (Iowa Ct.

App. May 10, 2023) (finding that the father abandoned his child after extensive

periods of incarceration and a failure to visit with or communicate with the child).

We also agree that termination of the father’s parental rights is in the best

interests of the three children. Section 600A.1 directs us to decide “whether a

parent has affirmatively assumed the duties of a parent.” Iowa Code § 600A.1(2);

see also B.H.A., 938 N.W.2d at 232. In making this decision, we consider—among

other factors—“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.” Iowa Code § 600A.1(2). We “give primary

consideration to the child’s safety” and the best placement to encourage their long- 9

term nurturing and growth. B.H.A., 938 N.W.2d at 232 (quoting Iowa Code

§ 232.116(2)). We likewise consider “the child’s emotional and psychological

health and the closeness of the parent–child bond.” Id. (internal citation omitted).

The father focuses his best-interests-of-the-child argument on his contacts

with the children along with his rehabilitation efforts, such as completing a sex

offender treatment program and attending parenting and drug abuse programs.

He also contends that the children will suffer without their father in their lives, as

he can provide them with support and care.

While his good prison record and rehabilitation efforts are positive

movements forward, the father has not embraced “the duties encompassed by the

role of being a parent.” Iowa Code § 600A.1(2). The cumulative efforts have not

made an impact on the lives of the children. The record shows very limited, if any,

ongoing parent–child bond. And given the young ages of the children, they barely

know a life with their father in it. The mother testified that the children are healthy,

performing well in school, and are succeeding in their life without the father. The

children have the emotional support of their mother and the family of the mother

with whom they reside. The interests of the children are best served by the

termination of the father’s parental rights. We thus affirm the district court’s

decision terminating the father’s parental rights to his three children.

AFFIRMED.