IN THE COURT OF APPEALS OF IOWA
No. 15-0176 Filed October 14, 2015
IN THE INTEREST OF W.N., Minor Child,
T.N., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Lucas County, Martha Mertz,
Judge.
A mother appeals the district court’s order dismissing her petition to
terminate the father’s parental rights. AFFIRMED.
Jenna K. Lain of The Law Office of Jenna K. Lain, P.L.L.C., Corydon, for
appellant.
Bryan J. Tingle, Des Moines, for appellee.
Dawn M. Bowman, attorney and guardian ad litem for minor child.
Considered by Doyle, P.J., and Mullins and Bower, JJ. 2
MULLINS, Judge.
A mother appeals the district court’s order dismissing her petition to
terminate the father’s parental rights under Iowa Code section 600A.8(3) (2013).
She claims she proved the statutory grounds for abandonment by clear and
convincing evidence and the district court erred in considering the father’s
subjective intent. She further asserts that termination of the father’s parental
rights was in the child’s best interests. We affirm.
I. Background Facts and Proceedings
The parties have one child together, W.N., born in May 2013. Although
paternity of the child had not been established at the time of the termination
hearing in December 2014, the parties agreed that Ray is the biological father of
W.N. Ray is the father of one other child from a prior marriage, C.S., with whom
he has visitation every other weekend and additional parenting time during the
summer.
Ray and the mother, Tamara, briefly dated and lived together, ending their
relationship shortly after finding out Tamara was pregnant with W.N. Ray did not
maintain contact with Tamara while she was pregnant and was not present for
W.N.’s birth. Ray first met W.N. when he was three days old. Since birth, W.N.
has been in his mother’s sole physical care.
Shortly after W.N.’s birth in May 2013, the State filed a child-in-need-of-
assistance petition unrelated to this action.1 During the CINA case from May until
1 At W.N.’s birth, his umbilical cord blood tested positive for cocaine. Following the positive cord blood test, Tamara completed drug screenings, which came back negative. After a contested adjudicatory hearing on July 29, 2013, the juvenile court dismissed the 3
August 2013, Ray had regular visits with W.N. in a supervised setting
approximately once a week for twenty minutes. Ray did not have visits with W.N.
in September or October 2013, and it is unclear whether he saw W.N. during
November or December 2013, but he did not have any scheduled visits with him
in those two months. Ray admitted he resisted many of Tamara’s visitation
proposals, but denied he intended to abandon W.N. Throughout this time,
Tamara actively fostered relationships between W.N. and Ray’s family, including
his mother and father who were both divorced and remarried, and Ray’s other
son, C.S. Ray last saw W.N. in July 2014 when Tamara took W.N. to see Ray
and his family during a camping trip.
On September 12, 2014, Ray filed an action to establish paternity of W.N.
On September 19, 2014, Tamara responded with a petition to terminate Ray’s
parental rights with respect to W.N., only sixteen months after W.N.’s birth. She
alleged Ray abandoned W.N. within the meaning of Iowa Code section
600A.8(3)(b). On October 2, 2014, the parties participated in a mediation
regarding temporary matters in Ray’s paternity action that resulted in a mediation
agreement. The mediation agreement required both Tamara and Ray to
complete a drug test and Ray to complete a substance abuse evaluation,
following which Ray would have weekly, thirty-minute visits with W.N. supervised
by Tamara’s fiancé and a Parents as Teachers professional on alternating
weeks. Ray completed the requirements within a week but failed to provide proof
CINA case on August 30, 2013. 4
of completion and did not exercise visits with W.N. between the time of the
mediation in October and the hearing in December 2014.
The district court combined the termination-of-parental-rights hearing and
hearing on temporary matters, which were held on December 9 and 10, 2014. At
the hearing, the guardian ad litem (GAL) recommended that Ray’s parental rights
as to W.N. be terminated. She testified that she had significant concerns
regarding his ability to parent W.N. because of his marijuana usage. She also
noted Ray’s lack of follow-through with the mediation agreement, his failure to
participate in visits with W.N. in the weeks leading up to the trial, and his lack of
financial support for W.N.
Tamara testified that she did not prevent Ray from having visits with W.N.
but instead required that his visits be supervised and that Ray be sober during
the visits. Her concern arose because Ray regularly used marijuana to self-
medicate for lingering physical pain and mental issues, including suicidal
thoughts and ideations, he suffered as a result of a motor vehicle accident in
which he was seriously injured in 2011. Ray admitted he smoked marijuana the
morning of the termination hearing.
Both parties testified to the amount of financial support Ray had provided
for W.N. From May until October 2013, Ray voluntarily provided $100 a week to
Tamara for W.N.’s support. From October until December 2013, the support
decreased until Ray made his final support payment on December 2, 2013. His
total voluntary payments to Tamara for W.N.’s support totaled $1850. Ray 5
admitted he did not contribute to W.N.’s support during 2014, though he
continued to pay child support for his other child, C.S.2
On January 15, 2015, the district court entered a ruling dismissing
Tamara’s petition and entered a temporary order in the paternity case allowing
visitation and ordering child support. In its order, the district court concluded that
Ray did not abandon W.N. within the meaning of section 600A.8. It found that
Ray did not intend to abandon W.N., rather he intended to avoid Tamara’s
control, and both parties contributed to Ray’s lack of contact with W.N. following
the dismissal of the CINA case. The court further found that termination of Ray’s
parental rights was not in W.N.’s best interests. It recognized “Ray’s ability to
provide support, his parenting abilities, and the potential detriment to W.N.[,
namely the termination of the relationship between W.N. and his extended
paternal family,] in terminating Ray’s parental rights.” This appeal followed.
II. Standard of Review
We review private termination proceedings de novo.3 In re G.A., 826
N.W.2d 125, 127 (Iowa Ct. App. 2012). We give weight to the district court’s
factual findings, especially those concerning witness credibility, but are not bound
by them. Iowa R. App P. 6.904(3)(g).
2 As the district court noted, there has never been a court order requiring Ray to contribute to W.N.’s support as there has been for C.S. 3 The father failed to file a brief. “On the failure of the appellee to file a brief, the appellant is not entitled to a reversal as a matter of right, but the court may, within its discretion, handle the matter in a manner most consonant with justice and its own convenience.” Bowen v. Kaplan, 237 N.W.2d 799
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IN THE COURT OF APPEALS OF IOWA
No. 15-0176 Filed October 14, 2015
IN THE INTEREST OF W.N., Minor Child,
T.N., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Lucas County, Martha Mertz,
Judge.
A mother appeals the district court’s order dismissing her petition to
terminate the father’s parental rights. AFFIRMED.
Jenna K. Lain of The Law Office of Jenna K. Lain, P.L.L.C., Corydon, for
appellant.
Bryan J. Tingle, Des Moines, for appellee.
Dawn M. Bowman, attorney and guardian ad litem for minor child.
Considered by Doyle, P.J., and Mullins and Bower, JJ. 2
MULLINS, Judge.
A mother appeals the district court’s order dismissing her petition to
terminate the father’s parental rights under Iowa Code section 600A.8(3) (2013).
She claims she proved the statutory grounds for abandonment by clear and
convincing evidence and the district court erred in considering the father’s
subjective intent. She further asserts that termination of the father’s parental
rights was in the child’s best interests. We affirm.
I. Background Facts and Proceedings
The parties have one child together, W.N., born in May 2013. Although
paternity of the child had not been established at the time of the termination
hearing in December 2014, the parties agreed that Ray is the biological father of
W.N. Ray is the father of one other child from a prior marriage, C.S., with whom
he has visitation every other weekend and additional parenting time during the
summer.
Ray and the mother, Tamara, briefly dated and lived together, ending their
relationship shortly after finding out Tamara was pregnant with W.N. Ray did not
maintain contact with Tamara while she was pregnant and was not present for
W.N.’s birth. Ray first met W.N. when he was three days old. Since birth, W.N.
has been in his mother’s sole physical care.
Shortly after W.N.’s birth in May 2013, the State filed a child-in-need-of-
assistance petition unrelated to this action.1 During the CINA case from May until
1 At W.N.’s birth, his umbilical cord blood tested positive for cocaine. Following the positive cord blood test, Tamara completed drug screenings, which came back negative. After a contested adjudicatory hearing on July 29, 2013, the juvenile court dismissed the 3
August 2013, Ray had regular visits with W.N. in a supervised setting
approximately once a week for twenty minutes. Ray did not have visits with W.N.
in September or October 2013, and it is unclear whether he saw W.N. during
November or December 2013, but he did not have any scheduled visits with him
in those two months. Ray admitted he resisted many of Tamara’s visitation
proposals, but denied he intended to abandon W.N. Throughout this time,
Tamara actively fostered relationships between W.N. and Ray’s family, including
his mother and father who were both divorced and remarried, and Ray’s other
son, C.S. Ray last saw W.N. in July 2014 when Tamara took W.N. to see Ray
and his family during a camping trip.
On September 12, 2014, Ray filed an action to establish paternity of W.N.
On September 19, 2014, Tamara responded with a petition to terminate Ray’s
parental rights with respect to W.N., only sixteen months after W.N.’s birth. She
alleged Ray abandoned W.N. within the meaning of Iowa Code section
600A.8(3)(b). On October 2, 2014, the parties participated in a mediation
regarding temporary matters in Ray’s paternity action that resulted in a mediation
agreement. The mediation agreement required both Tamara and Ray to
complete a drug test and Ray to complete a substance abuse evaluation,
following which Ray would have weekly, thirty-minute visits with W.N. supervised
by Tamara’s fiancé and a Parents as Teachers professional on alternating
weeks. Ray completed the requirements within a week but failed to provide proof
CINA case on August 30, 2013. 4
of completion and did not exercise visits with W.N. between the time of the
mediation in October and the hearing in December 2014.
The district court combined the termination-of-parental-rights hearing and
hearing on temporary matters, which were held on December 9 and 10, 2014. At
the hearing, the guardian ad litem (GAL) recommended that Ray’s parental rights
as to W.N. be terminated. She testified that she had significant concerns
regarding his ability to parent W.N. because of his marijuana usage. She also
noted Ray’s lack of follow-through with the mediation agreement, his failure to
participate in visits with W.N. in the weeks leading up to the trial, and his lack of
financial support for W.N.
Tamara testified that she did not prevent Ray from having visits with W.N.
but instead required that his visits be supervised and that Ray be sober during
the visits. Her concern arose because Ray regularly used marijuana to self-
medicate for lingering physical pain and mental issues, including suicidal
thoughts and ideations, he suffered as a result of a motor vehicle accident in
which he was seriously injured in 2011. Ray admitted he smoked marijuana the
morning of the termination hearing.
Both parties testified to the amount of financial support Ray had provided
for W.N. From May until October 2013, Ray voluntarily provided $100 a week to
Tamara for W.N.’s support. From October until December 2013, the support
decreased until Ray made his final support payment on December 2, 2013. His
total voluntary payments to Tamara for W.N.’s support totaled $1850. Ray 5
admitted he did not contribute to W.N.’s support during 2014, though he
continued to pay child support for his other child, C.S.2
On January 15, 2015, the district court entered a ruling dismissing
Tamara’s petition and entered a temporary order in the paternity case allowing
visitation and ordering child support. In its order, the district court concluded that
Ray did not abandon W.N. within the meaning of section 600A.8. It found that
Ray did not intend to abandon W.N., rather he intended to avoid Tamara’s
control, and both parties contributed to Ray’s lack of contact with W.N. following
the dismissal of the CINA case. The court further found that termination of Ray’s
parental rights was not in W.N.’s best interests. It recognized “Ray’s ability to
provide support, his parenting abilities, and the potential detriment to W.N.[,
namely the termination of the relationship between W.N. and his extended
paternal family,] in terminating Ray’s parental rights.” This appeal followed.
II. Standard of Review
We review private termination proceedings de novo.3 In re G.A., 826
N.W.2d 125, 127 (Iowa Ct. App. 2012). We give weight to the district court’s
factual findings, especially those concerning witness credibility, but are not bound
by them. Iowa R. App P. 6.904(3)(g).
2 As the district court noted, there has never been a court order requiring Ray to contribute to W.N.’s support as there has been for C.S. 3 The father failed to file a brief. “On the failure of the appellee to file a brief, the appellant is not entitled to a reversal as a matter of right, but the court may, within its discretion, handle the matter in a manner most consonant with justice and its own convenience.” Bowen v. Kaplan, 237 N.W.2d 799, 801 (Iowa 1976) (internal quotation marks omitted). Ray’s failure to file a brief does not alter our duty to conduct a de novo review. 6
III. Analysis
On appeal, the mother argues that a parent’s “intention to abandon” is no
longer a statutory element of Iowa Code chapter 600A and the district court erred
in considering the father’s subjective intent in its statutory analysis. Section
600A.2(19) defines “[t]o abandon a minor child” as 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(19) (2013). Thus, the parental mental state now is based
on the parent’s conduct in rejecting parental duties rather than the intent to
abandon. See id. Still, chapter 600A does not prohibit a district court from ever
considering a parent’s subjective intent in making a determination of whether the
parent has abandoned his or her child, but instead prohibits a district court from
basing its decision solely on the parent’s subjective intent without considering
that parent’s acts in regards to the parent-child relationship. See id.; see also id.
§ 600A.8(3)(c).
To terminate parental rights for abandonment under section 600A.8(3)(b),
the petitioning party must show the child is at least six months old at the time of
the termination hearing and the parent for whom termination is sought has failed
to maintain “substantial and continuous or repeated contact with the child” by
contributing to the child’s financial support in “a reasonable amount, according to
the parent’s means.” Iowa Code § 600A.8(3)(b). The petitioning parent must
also show the other parent has failed to (1) “visit[] the child at least monthly when 7
physically and financially able to do so and when not prevented from doing so by
the person having lawful custody of the child”; (2) have “regular communication
with the child or with the person having the care or custody of the child,” when
unable to visit the child; or (3) live openly with the child for six months within the
last year. Id. A parent’s subjective intent, unsupported by these acts, does not
preclude a determination the parent has abandoned the child. Id. § 600A.8(3)(c).
Ray voluntarily provided financial support for W.N. for the first several
months of his life totaling $1850. Although Ray continued to contribute $100 per
month to the support of his older son, and thus likely could have continued to
contribute to W.N.’s support, he was not required to do so by court order. Ray
also visited W.N. regularly for the first few months of his life. And although he
only saw him a handful of times following the dismissal of the CINA case, he
visited with him in July 2014—only two months before Tamara filed her petition.
Eventually, Ray believed it best to pursue court action to obtain a set
visitation schedule and filed a paternity action. Tamara responded with a petition
to terminate his parental rights. Although Tamara believed she was acting in her
child’s best interests by restricting visits between Ray and W.N. to occur only
when Ray was supervised, we agree with the district court that her actions
discouraged contact between Ray and W.N. and she contributed to the lack of
contact between Ray and W.N. Further, while we find it concerning that Ray did
not visit with W.N. between the time of the mediation and the termination hearing,
Ray testified that he did not believe he could visit with W.N. because he had not
received the paperwork to prove he had completed his drug test and substance 8
abuse evaluation as required by the mediation agreement. Ray expressed that
he did not intend to abandon W.N., and his acts of voluntarily contributing to
W.N.’s support and visiting with him, support his intention. Thus, upon our
review of the record, we agree with the district court and find Tamara did not
prove by clear and convincing evidence Ray abandoned W.N. Id. § 600A.8(3).
Because we find that Tamara did not prove by clear and convincing
evidence that Ray abandoned W.N., we need not examine whether termination
of Ray’s parental rights is in W.N.’s best interests. See In re R.K.B., 572 N.W.2d
600, 602 (Iowa 1998). Accordingly, upon our de novo review, we affirm the
district court’s order dismissing her petition.
AFFIRMED.