IN THE COURT OF APPEALS OF IOWA
No. 14-2068 Filed August 5, 2015
IN THE INTEREST OF K.P., Minor Child,
C.W., Father, Appellant. ________________________________________________________________
Appeal from the Iowa Juvenile Court for Warren County, Kevin Parker,
Juvenile Associate Judge.
A father appeals the order terminating his parental rights under Iowa Code
chapter 600A. REVERSED.
Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.
Tara M. Elcock of Elcock Law Firm, P.L.C., Indianola, for appellee.
Cami N. Eslick, Indianola, attorney and guardian ad litem for minor child.
Considered by Tabor, P.J., McDonald, J., and Sackett, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
TABOR, P.J.
A father appeals the juvenile court’s grant of the mother’s petition to
terminate his parental rights to their two-year-old daughter, K.P. The father
contends the mother’s “categorical refusal” to allow him contact with K.P.
precludes a finding of abandonment under Iowa Code section 600A.8(3)(b)
(2013). Because the record supports the father’s contention that the mother
prevented him from exercising visitation or otherwise communicating with the
child, we reverse the order terminating his parental rights.
I. Background Facts and Proceedings
The mother, Nicole, and the father, Chad, ended their romantic
relationship shortly before Nicole learned she was pregnant in July 2011. K.P.
was born in March 2012. About one week after K.P.’s birth, Nicole allowed Chad
to see their daughter for the first time. Chad has had a total of only four visits
with K.P., all occurring during the first four months of her life. Because Chad did
not have a driver’s license, all visits were arranged by Nicole who provided
transportation. At that time Chad lived two hours away from Nicole and Nicole
was working two jobs. No custody or visitation arrangement was in place.
Five months after K.P. was born, in August 2012, Chad moved out of state
to live with his now fiancée and her two children in Virginia. Chad had difficulty
finding work there and stayed at home with the children. Chad has not provided
financial support for K.P. since her birth.
Four months after he moved to Virginia, Chad twice contacted Nicole
asking to set up a visit with K.P. during his trip back to see his family in Iowa for 3
the 2012 Christmas holiday. Nicole did not respond to his requests. Chad also
contacted Nicole by text message and telephone calls to inquire about K.P. in
February, March, May, June, July, and November of 2013. Nicole did not
respond to these requests, explaining later that she did not want Chad just
coming in and out of K.P’s life.
In April 2014, Chad filed a petition to establish paternity, child support,
legal custody, and visitation. In July 2014, before the court had a chance to
consider Chad’s petition, Nicole filed this action to terminate Chad’s parental
rights under Iowa Code chapter 600A. Following a hearing, the juvenile court
terminated Chad’s parental rights under section 600A.8(3)(b). Chad now
appeals.
II. Standard of Review and Statutory Burden
We conduct a de novo review of termination proceedings under chapter
600A. In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). We defer to the
factual findings of the juvenile court, especially findings related to witness
credibility, but we are not bound by them. In re G.A., 826 N.W.2d 125, 127 (Iowa
Ct. App. 2012). When interpreting chapter 600A, the best interest of the child
involved is “the paramount consideration.” Iowa Code § 600A.1. But we must
give due consideration to the parents’ interests. Id.
Under section 600.8(3)(b), the parent petitioning for termination has the
burden to show the other parent abandoned the child. G.A., 826 N.W.2d at 129.
The juvenile court’s termination findings must be based on clear and convincing
proof. Iowa Code § 600A.8. 4
III. Abandonment Analysis
The juvenile court found Chad abandoned K.P. under section 600A.8(3).
Chad contests that finding on appeal.
To “abandon a minor child” means:
[A] parent [or] putative father . . . 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(19).
A parent is deemed to have abandoned a child who is six months of age
or older
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). A parent’s subject intent, “whether expressed or otherwise,
unsupported by evidence of acts specified in paragraph ‘a’ or ‘b’ manifesting
such intent, does not preclude a determination that the parent has abandoned
the child.” Id. § 600A.8(3)(c). 5
Under section 600A.8(3)(b), one element of “substantial and continuous or
repeated contact” is economic contributions. Chad has not provided child
support for K.P. He has sent birthday and Christmas gifts for his daughter. The
evidence indicated Chad has had a long period of unemployment and did not
have resources to provide regular financial support. But Nicole acknowledged at
the hearing that twice Chad offered to give her money for the benefit of their
daughter. Nicole suspected the money was from Chad’s family members and
she turned it down, telling him: “I don’t want your money.” On appeal, she
asserts Chad “has not and is quite frankly unable to fulfill the financial
obligations” of being a parent. Chad filed a petition to establish paternity and his
child support obligation, but that action was cut off by Nicole’s termination
petition.
On this record, we do not find clear and convincing evidence that Chad
has failed to provide financial support within his means. We recognize that
section 600A.8(3)(b) is not limited to court-ordered support payments; those
types of payments are the subject of a separate provision. See In re W.W., 826
N.W.2d 706, 710 (Iowa Ct.
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IN THE COURT OF APPEALS OF IOWA
No. 14-2068 Filed August 5, 2015
IN THE INTEREST OF K.P., Minor Child,
C.W., Father, Appellant. ________________________________________________________________
Appeal from the Iowa Juvenile Court for Warren County, Kevin Parker,
Juvenile Associate Judge.
A father appeals the order terminating his parental rights under Iowa Code
chapter 600A. REVERSED.
Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.
Tara M. Elcock of Elcock Law Firm, P.L.C., Indianola, for appellee.
Cami N. Eslick, Indianola, attorney and guardian ad litem for minor child.
Considered by Tabor, P.J., McDonald, J., and Sackett, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
TABOR, P.J.
A father appeals the juvenile court’s grant of the mother’s petition to
terminate his parental rights to their two-year-old daughter, K.P. The father
contends the mother’s “categorical refusal” to allow him contact with K.P.
precludes a finding of abandonment under Iowa Code section 600A.8(3)(b)
(2013). Because the record supports the father’s contention that the mother
prevented him from exercising visitation or otherwise communicating with the
child, we reverse the order terminating his parental rights.
I. Background Facts and Proceedings
The mother, Nicole, and the father, Chad, ended their romantic
relationship shortly before Nicole learned she was pregnant in July 2011. K.P.
was born in March 2012. About one week after K.P.’s birth, Nicole allowed Chad
to see their daughter for the first time. Chad has had a total of only four visits
with K.P., all occurring during the first four months of her life. Because Chad did
not have a driver’s license, all visits were arranged by Nicole who provided
transportation. At that time Chad lived two hours away from Nicole and Nicole
was working two jobs. No custody or visitation arrangement was in place.
Five months after K.P. was born, in August 2012, Chad moved out of state
to live with his now fiancée and her two children in Virginia. Chad had difficulty
finding work there and stayed at home with the children. Chad has not provided
financial support for K.P. since her birth.
Four months after he moved to Virginia, Chad twice contacted Nicole
asking to set up a visit with K.P. during his trip back to see his family in Iowa for 3
the 2012 Christmas holiday. Nicole did not respond to his requests. Chad also
contacted Nicole by text message and telephone calls to inquire about K.P. in
February, March, May, June, July, and November of 2013. Nicole did not
respond to these requests, explaining later that she did not want Chad just
coming in and out of K.P’s life.
In April 2014, Chad filed a petition to establish paternity, child support,
legal custody, and visitation. In July 2014, before the court had a chance to
consider Chad’s petition, Nicole filed this action to terminate Chad’s parental
rights under Iowa Code chapter 600A. Following a hearing, the juvenile court
terminated Chad’s parental rights under section 600A.8(3)(b). Chad now
appeals.
II. Standard of Review and Statutory Burden
We conduct a de novo review of termination proceedings under chapter
600A. In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). We defer to the
factual findings of the juvenile court, especially findings related to witness
credibility, but we are not bound by them. In re G.A., 826 N.W.2d 125, 127 (Iowa
Ct. App. 2012). When interpreting chapter 600A, the best interest of the child
involved is “the paramount consideration.” Iowa Code § 600A.1. But we must
give due consideration to the parents’ interests. Id.
Under section 600.8(3)(b), the parent petitioning for termination has the
burden to show the other parent abandoned the child. G.A., 826 N.W.2d at 129.
The juvenile court’s termination findings must be based on clear and convincing
proof. Iowa Code § 600A.8. 4
III. Abandonment Analysis
The juvenile court found Chad abandoned K.P. under section 600A.8(3).
Chad contests that finding on appeal.
To “abandon a minor child” means:
[A] parent [or] putative father . . . 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(19).
A parent is deemed to have abandoned a child who is six months of age
or older
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). A parent’s subject intent, “whether expressed or otherwise,
unsupported by evidence of acts specified in paragraph ‘a’ or ‘b’ manifesting
such intent, does not preclude a determination that the parent has abandoned
the child.” Id. § 600A.8(3)(c). 5
Under section 600A.8(3)(b), one element of “substantial and continuous or
repeated contact” is economic contributions. Chad has not provided child
support for K.P. He has sent birthday and Christmas gifts for his daughter. The
evidence indicated Chad has had a long period of unemployment and did not
have resources to provide regular financial support. But Nicole acknowledged at
the hearing that twice Chad offered to give her money for the benefit of their
daughter. Nicole suspected the money was from Chad’s family members and
she turned it down, telling him: “I don’t want your money.” On appeal, she
asserts Chad “has not and is quite frankly unable to fulfill the financial
obligations” of being a parent. Chad filed a petition to establish paternity and his
child support obligation, but that action was cut off by Nicole’s termination
petition.
On this record, we do not find clear and convincing evidence that Chad
has failed to provide financial support within his means. We recognize that
section 600A.8(3)(b) is not limited to court-ordered support payments; those
types of payments are the subject of a separate provision. See In re W.W., 826
N.W.2d 706, 710 (Iowa Ct. App. 2012) (flagging Iowa Code section 600A.8(4) (“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.”)). But in this
case, Chad was the party pursuing a court order that would have established a
child support obligation. Nicole did not offer clear proof that Chad had financial
resources and refused to provide for K.P. In fact, Nicole admitted she declined
the offers of monetary support he did make. 6
A second element of section 600A.8(3)(b) involves visitation or
communication between parent and child. Chad does not dispute his lack of
contact with K.P. Instead he argues Nicole has prevented him from exercising
visitation or other communication. He asserts on appeal that Nicole’s
“categorical refusal to allow him any contact with K.P. precludes a determination
he abandoned” the child.
In response, Nicole contends “Chad abandoned K.P. when he moved to
Virginia and made sporadic attempts (two to three of record) to see K.P. in over
two years’ time.” But Nicole also acknowledges in her appellee’s brief that after
his move she chose “to stop taking Chad’s calls” because it would be “unhealthy
for K.P. to have a sporadic, inconsistent dad coming in and out of her life.”
Nicole also admitted in her trial testimony that she prevented Chad from seeing
K.P.
A parent cannot prove abandonment when his or her own actions
prevented the other parent from contacting the child. Iowa Code
§ 600A.8(3)(b)(1) (“Visit[s] the child at least monthly . . . when not prevented from
doing so by the person having lawful custody of the child.”); see In re P.N.B., No.
06-1127, 2007 WL 601509, at *5 (Iowa Ct. App. 2007) (holding abandonment not
proven when any attempts by the mother to contact the child would have been
thwarted by the father).
Nicole acknowledged Chad sent text messages and placed phone calls
asking to set up a visit with K.P. when he was back in Iowa to see his extended
family or to have other communication with the child. Nicole ignored those 7
messages. Nicole also refused to provide her mailing address to Chad. We are
not persuaded by Nicole’s argument that Chad’s requests to have interactions
with K.P. were too sporadic to qualify as “substantial and continuous or repeated
contact.” Given Nicole’s blanket moratorium on contact between K.P. and Chad,
Chad could have requested contact on a daily basis and Nicole would have not
honored those requests.
After our de novo review of the record, we conclude Nicole has not met
her burden to prove by clear and convincing evidence that Chad has abandoned
K.P. as defined under section 600A.8(3)(b). Nicole prevented any contact
between K.P. and Chad after he moved to Virginia. Having taken unilateral
action to shut Chad out of K.P.’s life, Nicole cannot show that it was Chad who
rejected the duties imposed by the parent-child relationship.
Finally, Nicole requests appellate attorney fees under section 600A.6B.
Because we reverse the finding of the juvenile court, we deny her fee request.
REVERSED.