IN THE COURT OF APPEALS OF IOWA
No. 22-0027 Filed August 3, 2022
IN THE INTEREST OF K.B., Minor Child,
T.F., Mother, Petitioner-Appellant,
M.B., Father, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Stephanie Forker
Parry, District Associate Judge.
A mother appeals from an order dismissing her petition to terminate the
parental rights of her child’s father. REVERSED AND REMANDED.
John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant.
M.B., Moville, self-represented appellee.
Jessica R. Noll of Deck Law P.L.C., Sioux City, attorney and guardian ad
litem for minor child.
Considered by May, P.J., and Greer and Chicchelly, JJ. 2
MAY, Presiding Judge.
In this private termination action, the mother claimed the father abandoned
their child, K.B., within the meaning of Iowa Code section 600A.8(3)(b) (2021).
However, the district court found the mother failed to prove statutory abandonment.
The mother appeals, claiming there is clear and convincing evidence of
abandonment. We agree, reverse the district court, and remand for the court to
complete a best-interest determination.
I. Background Facts & Proceedings
K.B. was born in 2006. In 2020, the parents stipulated to a modification of
the physical-care provisions of their dissolution decree.1 The modified decree
placed physical care of K.B. with the mother and granted the father visitation. The
modified decree also eliminated any child support obligation for either parent. It
also included a “Special Considerations for Adolescents” provision, which required
both parents to “honestly and fairly consider their teenager’s wishes on time with
a parent.”
About a year after the modification, the mother filed a petition to terminate
the father’s parental rights. At trial, the mother testified that the father never took
advantage of his visitation rights and he had no visits with K.B. in the year since
the modification. She also introduced text messages between the father and K.B.
in which the father told K.B. that he was “no longer a part of this family and no one
in this family cares about your activities nor will anyone from this family ever attend
another one of your activities.” Text messages also show the father warned K.B.,
1It is not clear from the record when the parents divorced, although we know they previously modified their dissolution decree in 2012. 3
“You have been told not to contact me or [the father’s wife] for any reason. The
next time you do I will be filing charges against you.” And he went so far as to text
K.B. that he wanted K.B. to change his last name. “I don’t want anything to do with
you or your crazy ass mom ever again,” the father explained.
The father presented a different version of events. The father testified that
he had attempted to schedule visits with K.B. but had been rebuffed by K.B. Both
parties agreed that K.B. was entitled to decide how much—if any—time to spend
with his father. The father also claimed he had attended several of K.B.’s sporting
events without contacting K.B. With respect to the text messages, the father
posited the mother altered the messages and removed important context that
could explain the messages.
The district court rejected the father’s contention that the text messages
were modified. But the court found that, because K.B. “appears to have been given
all of the discretion to determine visitation with his father,” K.B.’s “desire not to have
contact should not be held against [the father].” Accordingly, the district court
found insufficient evidence to warrant termination and dismissed the mother’s
petition. The mother appeals.
II. Standard of Review
“We review private termination proceedings de novo.” In re G.A., 826
N.W.2d 125, 127 (Iowa Ct. App. 2012). “We give deference to the factual findings
of the [district] court, especially those relating to witness credibility, but we are not
bound by those determinations.” Id. 4
III. Discussion
We consider whether the mother established a statutory ground for
termination by clear and convincing evidence. See In re T.S., No. 15-0443, 2015
WL 5311413, at *1 (Iowa Ct. App. Sept. 10, 2015) (“In a private termination
proceeding, the petitioner[] must establish by clear and convincing evidence the
statutory ground . . . authorizing the termination of parental rights.”). The mother
alleges termination is justified because the father abandoned K.B.2 Under section
600A.8(3)(b),
[A] parent is deemed to have abandoned the child 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.
We conclude the mother established statutory grounds for abandonment
under section 600A.8(3)(b). First, we note the father has not contributed a
reasonable amount of financial support, according to his means. See Iowa Code
§ 600A.8(b)(3). Although the father was not required to make any child support
payments under the modified dissolution decree, section 600A.8(3)(b) still requires
him to provide support within his means. See In re W.W., 826 N.W.2d 706, 710
2 The father did not file an appellate brief. 5
(Iowa Ct. App. 2012) (finding abandonment when the mother did not provide any
financial support to the children even though she was not obligated to pay child
support). The mother testified the father did not provide K.B. with presents for
Christmas, his birthday, or other occasions in the time that she had physical care
of K.B. Because we conclude the father has made no contributions when it was
within his means to provide some,3 the mother has established the father
abandoned K.B.
Second, we note that the father has not visited K.B. at least monthly nor
had regular communication with him or the mother when physically and financially
able to do so. Certainly, “total desertion is not required for a showing of
abandonment.” In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993). Yet the father has
washed his hands of K.B. in nearly every respect. He has never exercised his
visitation rights under the modified decree. He “hasn’t been involved at all” in
K.B.’s education—the father has never requested information from K.B.’s
teachers, nor has he sought out K.B.’s extracurricular schedules. He asked K.B.
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IN THE COURT OF APPEALS OF IOWA
No. 22-0027 Filed August 3, 2022
IN THE INTEREST OF K.B., Minor Child,
T.F., Mother, Petitioner-Appellant,
M.B., Father, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Stephanie Forker
Parry, District Associate Judge.
A mother appeals from an order dismissing her petition to terminate the
parental rights of her child’s father. REVERSED AND REMANDED.
John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant.
M.B., Moville, self-represented appellee.
Jessica R. Noll of Deck Law P.L.C., Sioux City, attorney and guardian ad
litem for minor child.
Considered by May, P.J., and Greer and Chicchelly, JJ. 2
MAY, Presiding Judge.
In this private termination action, the mother claimed the father abandoned
their child, K.B., within the meaning of Iowa Code section 600A.8(3)(b) (2021).
However, the district court found the mother failed to prove statutory abandonment.
The mother appeals, claiming there is clear and convincing evidence of
abandonment. We agree, reverse the district court, and remand for the court to
complete a best-interest determination.
I. Background Facts & Proceedings
K.B. was born in 2006. In 2020, the parents stipulated to a modification of
the physical-care provisions of their dissolution decree.1 The modified decree
placed physical care of K.B. with the mother and granted the father visitation. The
modified decree also eliminated any child support obligation for either parent. It
also included a “Special Considerations for Adolescents” provision, which required
both parents to “honestly and fairly consider their teenager’s wishes on time with
a parent.”
About a year after the modification, the mother filed a petition to terminate
the father’s parental rights. At trial, the mother testified that the father never took
advantage of his visitation rights and he had no visits with K.B. in the year since
the modification. She also introduced text messages between the father and K.B.
in which the father told K.B. that he was “no longer a part of this family and no one
in this family cares about your activities nor will anyone from this family ever attend
another one of your activities.” Text messages also show the father warned K.B.,
1It is not clear from the record when the parents divorced, although we know they previously modified their dissolution decree in 2012. 3
“You have been told not to contact me or [the father’s wife] for any reason. The
next time you do I will be filing charges against you.” And he went so far as to text
K.B. that he wanted K.B. to change his last name. “I don’t want anything to do with
you or your crazy ass mom ever again,” the father explained.
The father presented a different version of events. The father testified that
he had attempted to schedule visits with K.B. but had been rebuffed by K.B. Both
parties agreed that K.B. was entitled to decide how much—if any—time to spend
with his father. The father also claimed he had attended several of K.B.’s sporting
events without contacting K.B. With respect to the text messages, the father
posited the mother altered the messages and removed important context that
could explain the messages.
The district court rejected the father’s contention that the text messages
were modified. But the court found that, because K.B. “appears to have been given
all of the discretion to determine visitation with his father,” K.B.’s “desire not to have
contact should not be held against [the father].” Accordingly, the district court
found insufficient evidence to warrant termination and dismissed the mother’s
petition. The mother appeals.
II. Standard of Review
“We review private termination proceedings de novo.” In re G.A., 826
N.W.2d 125, 127 (Iowa Ct. App. 2012). “We give deference to the factual findings
of the [district] court, especially those relating to witness credibility, but we are not
bound by those determinations.” Id. 4
III. Discussion
We consider whether the mother established a statutory ground for
termination by clear and convincing evidence. See In re T.S., No. 15-0443, 2015
WL 5311413, at *1 (Iowa Ct. App. Sept. 10, 2015) (“In a private termination
proceeding, the petitioner[] must establish by clear and convincing evidence the
statutory ground . . . authorizing the termination of parental rights.”). The mother
alleges termination is justified because the father abandoned K.B.2 Under section
600A.8(3)(b),
[A] parent is deemed to have abandoned the child 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.
We conclude the mother established statutory grounds for abandonment
under section 600A.8(3)(b). First, we note the father has not contributed a
reasonable amount of financial support, according to his means. See Iowa Code
§ 600A.8(b)(3). Although the father was not required to make any child support
payments under the modified dissolution decree, section 600A.8(3)(b) still requires
him to provide support within his means. See In re W.W., 826 N.W.2d 706, 710
2 The father did not file an appellate brief. 5
(Iowa Ct. App. 2012) (finding abandonment when the mother did not provide any
financial support to the children even though she was not obligated to pay child
support). The mother testified the father did not provide K.B. with presents for
Christmas, his birthday, or other occasions in the time that she had physical care
of K.B. Because we conclude the father has made no contributions when it was
within his means to provide some,3 the mother has established the father
abandoned K.B.
Second, we note that the father has not visited K.B. at least monthly nor
had regular communication with him or the mother when physically and financially
able to do so. Certainly, “total desertion is not required for a showing of
abandonment.” In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993). Yet the father has
washed his hands of K.B. in nearly every respect. He has never exercised his
visitation rights under the modified decree. He “hasn’t been involved at all” in
K.B.’s education—the father has never requested information from K.B.’s
teachers, nor has he sought out K.B.’s extracurricular schedules. He asked K.B.
to change his last name in an attempt to further distance K.B. from him. And the
father warned K.B. to not contact him or his wife again. These actions—or lack
thereof—demonstrate the father’s abandonment of K.B. See In re Burney, 259
N.W.2d 322, 324 (Iowa 1977) (“Abandonment involves a giving up of parental
rights and responsibilities accompanied by an intent to forego them.”).
And although K.B. does not wish to see or speak with the father, that alone
cannot absolve the father from the responsibilities of parenting. See T.S., 2015
3The father’s wife testified that the father had gifts at their home for K.B. but would not give them to him until K.B. came to the home. 6
WL 5311413, at *2 (finding statutory grounds for abandonment when the father
testified he had no intent to initiate contact with the child and was instead waiting
for the child to initiate contact with him). Nor does K.B.’s refusal to engage with
the father preclude a finding of abandonment. Subparagraphs (1) and (2) of
section 600A.8(3)(b) only preclude a finding of abandonment when visits or
communication are “prevented . . . by the person having lawful custody of the
child.” K.B. does not match that description. So the father cannot avoid a finding
of abandonment simply because he has damaged his relationship with K.B. to the
point K.B. no longer wishes to have contact with him.
All things considered, the mother has sustained her burden to show
abandonment by clear and convincing evidence. The father has not maintained
“substantial and continuous or repeated contact with the child as demonstrated by
contribution toward support of the child.” Iowa Code § 600A.8(3)(b). Nor has the
father visited K.B. at least monthly; nor has he regularly communicated with K.B.
or the mother. See Id. § 600A.8(3)(b)(1)–(2). So we reverse the district court’s
ruling and conclude the mother established statutory grounds authorizing
termination.
However, “[t]he paramount concern in termination proceedings is the best
interest of the child.” In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). And
the district court did not reach the question of whether termination is in K.B.’s best 7
interest.4 So we think it is best to remand this matter for the district court to
consider the best-interest question in the first instance.
IV. Conclusion
Because the mother has proved abandonment by clear and convincing
evidence, we reverse the district court. And we remand to the district court to make
a determination as to whether termination of the father’s rights is in K.B.’s best
interest.
REVERSED AND REMANDED.
4 On appeal the mother only makes a cursory reference to K.B.’s best interest, presumably because the district court did not make a best-interest finding to appeal.