In the Interest of A.A., Minor Child ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1371
Filed February 8, 2023
IN THE INTEREST OF A.A.,
Minor Child,
A.C., Father,
Petitioner-Appellant,
C.A., Mother,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Washington County,
Daniel Kitchen, District Associate Judge.
The father of A.A. appeals from an order denying his petition to terminate
the parental rights of A.A.’s mother. AFFIRMED.
Sara Strain Linder of Bray & Klockau, P.L.C., Iowa City, for appellant father.
Daniel M. Northfield, Urbandale, for appellee mother.
Katie E. Lujan of Washington Law Office, LLP, Washington, attorney and
guardian ad litem for minor child.
Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
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CHICCHELLY, Judge.
The father of A.A. appeals the juvenile court’s denial of his petition to
terminate the parental rights of A.A.’s mother under Iowa Code
chapter 600A (2022). He claims there is clear and convincing evidence of
statutory abandonment and termination is in the child’s best interests. Finding
neither of the asserted grounds for abandonment satisfied, we affirm the denial of
his petition.
I. Background Facts and Proceedings.
A.A. was born in 2011. His parents’ relationship ended in approximately
2014. He is the only child they share, although the mother has an older child from
a prior relationship. In November 2016, the court entered a decree establishing
paternity, granting the parties joint legal custody, granting the father (A.C.) physical
care subject to visitation with the mother (C.A.), and ordering the mother to pay
$104 in monthly child support. She paid six-months’ worth of child support
between 2016 and 2017. She did not make any further payments until March 2022,
when she paid one years’ worth of support. She also paid two months’ worth of
support on the day of the hearing, after which she still owed over $4000.
At the time the custody decree was entered, the mother resided in Austin,
Texas. Given the distance between the parties, the decree affords visitation to the
mother in the form of six uninterrupted weeks during the summer, as well as
alternating holiday time during spring break, Thanksgiving, and Christmas. The
decree also stipulates that the mother can have reasonable visitation on
weeknights and weekends when she is in the vicinity of where the child is living
and provides two weeks of advanced notice. Finally, the decree specifies that
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each parent may have reasonable phone contact when the child is with the other
parent, which is to mean at least one phone or video call of ten minutes or more
per week.
The mother moved to Denver, Colorado in early 2017 and gave birth to
another child that year. In Colorado, she was self-employed less than full time.
Variously, she ran a CBD apothecary, worked on a hemp farm, and worked as a
belly dance instructor and performer. She also worked full-time for the summer of
2019 as a dance choreographer for kids’ camps in Colorado. She testified that her
income in 2018 and 2019 was in the $10–17,000 range and that she was
consistently behind on rent and receiving warnings about legal actions and
possible eviction. She was also without a vehicle after her then-boyfriend’s car
was repossessed in 2018. In 2020, matters worsened with the COVID-19
pandemic. She became sick with the virus in March and coughed so hard as to
damage her rib cartilage and cause ribs to continue slipping out of place. She was
in significant pain for eight months and unable to work given the pandemic closures
and her physical state. She was eventually evicted after the moratorium was lifted.
By June 2021, the mother moved in with her parents in Iowa, where she
continues to reside near Des Moines. She indicated a willingness and desire to
take on a greater role in A.A.’s life now that she lives closer and can borrow her
parents’ vehicle. Since August 2021, she has been working as a freelance grant
writer and part-time executive assistant, enabling her to make the recent support
payments.
As for the mother’s contact with A.A. while she resided out of state, the
father presented a log at trial purporting to list all of her visitations and video calls
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with the child since 2015. The mother’s video calls rarely rose to the frequency of
once per week. However, the mother pointed out that the log did not include all
other communications, such as texts and emails. She also consistently sent
birthday and Christmas presents, as well as other small gifts and cards. The log
generally reflects regular visitation between mother and child consistent with the
custody decree until 2019, when the mother missed her allotted summer visitation.
No explanation was given by either party in this regard. Contact was limited to
video calling during 2020 and early 2021 but increased again later in 2021 after
the mother moved back to Iowa. In December 2021, the mother texted the father
that she wanted visitation with A.A. one weekend per month. She also testified to
this point as follows:
Both in that September visit and at the Christmas visit when I saw
[the father], I asked about having [A.A.] at least one weekend a
month and was hoping to work with him on getting more time with
[A.A.] because I’m local, because I have a car, because I can, and
because I would really love to see my son more.
She explained that the father’s response to this request was negative. In March
2022, A.A. spent several days with his mother for spring break. They had arranged
for visitation again at Easter but postponed because A.A. wanted to be close to his
father when he was unexpectedly hospitalized.
A.A.’s father resides in Riverside, Iowa, where he is self-employed, works
from home, and homeschools A.A. He married J.P. in June 2020, but she currently
resides in Iowa City due to her job. The pair report to be pursuing a joint housing
arrangement. J.P. has two children from a prior relationship. Typically, A.A. and
his father go to Iowa City on Thursdays to stay with J.P. and attend extracurricular
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activities, and J.P. stays with them on the weekends while her children are with
their father.
In January 2022, the father filed a petition to terminate the mother’s parental
rights with the intent that J.P. would adopt A.A. if successful. A.A. was not present
at the termination hearing, but his guardian ad litem (GAL) testified as to his
position. She shared that A.A. indicated a desire to have his mother’s rights
terminated but also did not seem to fully understand the meaning of this action.
The GAL filed a report after the hearing with her recommendation to not terminate
the mother’s rights. The court ultimately entered an order denying the father’s
petition in April. The father filed a timely appeal.
II. Review.
We review private termination proceedings de novo. See In re B.H.A., 938
N.W.2d 227, 232 (Iowa 2020). “Although we are not bound by them, we give
weight to the trial court’s findings of fact, especially when considering credibility of
witnesses.” Id. (citation omitted). When interpreting chapter 600A, the best
interest of the child involved is “the paramount consideration,” but we also give
“due consideration” to the interests of the child’s parents. Iowa Code § 600A .1(1).
III. Discussion.
C.A. argues termination is appropriate pursuant to Iowa Code
section 600A.8(4), which authorizes termination when “[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.” “A substantial, and not merely
sporadic or insignificant, failure to pay ordered support without good cause justifies
termination of parental rights under section 600A.8(4).” Klobnock v. Abbott, 303
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N.W.2d 149, 152 (Iowa 1981). While we agree the mother’s failure to pay has
been substantial, “[t]he burden is on the petitioner to show the parent had the ability
to pay child support.” In re R.K.B., 572 N.W.2d 600, 601–02 (Iowa 1998).
We described the meaning of “without good cause” in In re
B.L.A., 357 N.W.2d 20, 21–22 (Iowa 1984). We indicated “the key
factual issue . . . concerns the [parent’s] ability to pay the ordered
child support.” In re B.L.A., 357 N.W.2d at 22. Although it is not
necessary for the petitioner to show that the parent was willful in
failing to pay, the parent’s intent is clearly tied to an ability to pay.
Id.; see Klobnock v. Abbott, 303 N.W.2d 149, 152 (Iowa 1981) (“[T]he
legislature intended termination for nonsupport to occur where a
parent’s failure to pay manifests indifference to a child and is
therefore akin to abandonment.”).
R.K.B., 572 N.W.2d at 602.
Here, the juvenile court found that “[the mother’s] financial support for [A.A.]
has not been ideal, but that support is related to her choices leading to her general
financial position, not a willful failure to pay.” See B.L.A., 357 N.W.2d at 22 (finding
the father “deliberately set out to avoid his support obligation”). When asked at the
hearing whether the mother had good cause for failing to contribute to the child’s
support, the father responded: “I do not know that she has good cause for not
doing so.” In fact, the father previously told the mother that A.A.’s wants and needs
were taken care of and texted “don’t worry about it” when she acknowledged being
behind on child support in 2020. This was not a case where the mother passively
let the child rely on public benefits or actively opted not to pay out of animus toward
the other parent. See In re Kelley, 262 N.W.2d 781, 785 (Iowa 1978) (“[The
father’s] antipathy for [the mother] and his willingness to let the public pay for [the
child’s] support do not constitute good cause for his failure to pay any part of the
ordered support.”).
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Moreover, the father did not argue that the mother had an ability to make
more money. Nothing was offered regarding her education or prior employment
history. He reasoned that her failure to try to modify the support obligation
demonstrates she was able to pay it. However, the mother testified to her difficult
financial state, birth of another child, physical injuries, and pandemic setbacks, as
well as her ability to pay going forward. On this record, the father has not
established a failure to pay without good cause by clear and convincing evidence.
The father also argues the mother’s parental rights should be terminated for
abandonment pursuant to Iowa Code section 600A.8(3)(b). “To abandon a minor
child” means to “reject[] 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(20).
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.”
In re G.A., 826 N.W.2d 125, 129 (Iowa Ct. App. 2012). “Substantial and continuous
or repeated contact” is demonstrated by at least one 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.
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Id. § 600A.8(3)(b)(1)–(3). To prevent a finding of abandonment, a parent must
also provide “contribution toward support of the child of a reasonable amount,
according to the parent’s means.” Id. § 600A.8(3)(b). A parent’s subjective intent
is immaterial and does not preclude a finding of abandonment. See id.
§ 600A.8(3)(c).
The juvenile court found the evidence did not support finding that the mother
abandoned the child because
she routinely contacted [the father] and [A.A.], even during the dark
times of the pandemic when the community medical emergency and
her own financial insecurity made more regular visits inadvisable,
difficult, or inconvenient. While her contact was less than would have
been ideal, there was contact between mother, [father] and [A.A.]
commensurate with [the mother’s] situation.
The father argues the mother failed to make a contribution of support in a
reasonable amount, failed to visit the child regularly, and failed to communicate
regularly with the child or himself. Similar to our conclusion above, we find that the
father failed to establish the mother’s failure to contribute according to her means.
While the mother did not visit the child monthly, the record reflects that she was
not always “physically and financially able to do so” given her physical and financial
challenges in recent years. As for regular communication, A.A. and his mother
exchanged video calls, texts, and emails on an infrequent basis. There was some
doubt cast as to how comprehensive the record was when it came to her
communications with the child and his father. The juvenile court also observed
that the father was vague in hinting at disapproval of the mother’s lifestyle, financial
instability, and choice of relationships. The mother testified that her partner in
Colorado struggled with “some mental health and addiction” but that she eventually
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got him out of her life after moving back to Iowa. Like the juvenile court concluded,
these scant details do not tell us “what, if any, behavior by [the mother] may have
been harmful to [A.A.] during that time.” We certainly agree the mother’s level of
parenting has been less than ideal. However, on this record, we decline to find the
father has met his burden under section 600A.8(3)(b) by clear and convincing
evidence.
Because we agree with the juvenile court that the father failed to establish
the mother abandoned the child, we affirm the order denying his termination
petition without reaching the question of the child’s best interests. See In re Q.G.,
911 N.W.2d 761, 770 (Iowa 2018) (stating that proceedings under Iowa Code
chapter 600A are a two-step process in which the petitioner must first show the
ground for termination by clear and convincing evidence before the court considers
the child’s best interests).
AFFIRMED.