In the Interest of A v. and C v. Minor Children, B.R.H., Mother, E.J v. Father ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0480
Filed November 9, 2016
IN THE INTEREST OF A.V. and C.V.,
Minor Children,
B.R.H., Mother,
Petitioner-Appellant,
E.J.V., Father,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Stephen A. Owen,
District Associate Judge.
A mother appeals the juvenile court’s dismissal of her petition to terminate
the father’s parental rights to their two children. AFFIRMED.
Dorothy L.C. Dakin of Kruse & Dakin, L.L.P., Boone, for appellant mother.
Larry W. Johnson of Walters & Johnson, Iowa Falls, for appellee father.
Megan Rosenberg of Cady & Rosenberg, P.L.C., Hampton, guardian ad
litem for minor children.
Heard by Vogel, P.J., and Tabor and Mullins, JJ.
2
TABOR, Judge.
A mother appeals the dismissal of her petition to terminate the father’s
parental rights to their two children, nine-year-old A.V. and six-year-old C.V.,
under Iowa Code chapter 600A (2015). The mother contends termination is
warranted because (1) the father abandoned their children within the meaning of
section 600A.8(3)(b) and (2) the mother did not prevent the father from having
contact with the children. She also argues termination is in the children’s best
interests. Because the father made more than marginal efforts to reestablish
contact with his children and was denied the opportunity to be heard on the
issue, we conclude the mother has failed to prove abandonment under
chapter 600A. Accordingly, we affirm.
I. Facts and Prior Proceedings
A.V. and C.V. were born while the mother and father were married. The
parents separated in 2012, and in June 2013, their divorce decree awarded
physical care to the mother and visitation to the father. In exercising his
visitation, the father saw A.V. and C.V. every other weekend. The relationship
between the mother and father was antagonistic after their separation, and
interactions between them at visitation exchanges regularly escalated into heated
arguments and threats in the presence of the children. Outside of these
encounters, the father persisted in intimidating and insulting the mother through
voicemails and text messages. In July 2013, the mother reported the
communications from the father to the police, and a warrant for the father’s arrest
on the charge of third-degree harassment was issued.
3
On December 23, before the father was arrested on the harassment
charge, the mother obtained a temporary civil protective order against the father
under Iowa Code chapter 236. A provision in the order prevented the father from
having any contact with the children and provided that visitation would be
addressed at an upcoming hearing on the protective order. The mother allowed
the father a final visit with the children on December 25. In early January,
authorities served the father with the temporary protective order and arrested him
on the harassment charge. After a hearing under chapter 236 that the father
failed to attend,1 the court issued a final protective order. The order included this
provision: “Respondent will not be granted visitation until he requests it and a
hearing is then held. The respondent shall not otherwise contact these children
and shall not contact the protected party about visitation except as provided in
this order.” Shortly thereafter, the father was convicted of third-degree
harassment, and the court entered a criminal no-contact order prohibiting contact
with the mother until 2019.2
In the next year and a half, the father petitioned the court that issued the
protective order four times to reestablish visitation with the children. The district
court dismissed the father’s request without hearing each time. The father first
filed a motion with the court in March 2014, two months after the court issued the
final protective order, requesting “the protective order be enlarged/modified to
reflect the visitation schedule in the decree of dissolution.” The court set a
hearing in the matter but then canceled it, stating the matter involved
1
The father claimed he did not come to the hearing because he believed it had been
continued to allow him time to obtain counsel.
2
The criminal no-contact order did not address the father’s contact with the children.
4
“enforcement of visitation” under the decree of dissolution, which was issued in a
different county. The court ordered “any future enforcement of visitation”
applications to be filed in the dissolution matter, “the more appropriate place and
venue to decide issues involving visitation and custody.” In response to each of
the father’s subsequent requests to modify the protective order, the mother
resisted, citing the district court’s prior dismissals of the father’s requests.3
In December 2014, the mother moved to extend the civil protective order.
After a hearing, the court extended the order for another year. Again, the father
failed to attend the hearing. Less than a week later, the father sent a text
message to the mother to ask where he could pick up the children for visitation,
and he was arrested for violating the criminal no-contact order. On June 25,
2015, just two days after the court’s dismissal of the father’s fourth application to
modify the protective order, the mother filed a petition to terminate the father’s
parental rights.
The juvenile court held the termination hearing on February 10 and 11,
2016.4 The majority of the mother’s evidence concerned the father’s violent and
verbally-abusive tendencies during their marriage and in the months after the
divorce and the welfare of the children during visitation with the father. The
father contested many of the mother’s allegations. He emphasized the mother’s
combative behavior and his own attempts to reinstate visitation with his children
3
After the district court’s first dismissal, in March 2014, the mother proposed a modified
visitation schedule to the father. At the termination hearing, the parties disputed the
details of the proposed arrangement. They did not reach an agreement on visitation,
and the father continued to pursue the matter through the courts.
4
The father did not appear at the start of the termination hearing, but he arrived around
midday on the 10th.
5
through the court system. The juvenile court expressed skepticism concerning
the credibility of both parents, noting: “The court is particularly struck by the fact
that the [mother] and [father’s] testimony is completely opposed. Both parties
were quite willing to maximize the failings of the other party while simultaneously
minimizing their own actions or omissions.” The court continued:
Despite the volume of testimony offered by the [mother] it
merely boiled down to the fact that the [father] is, to say the least, a
poor father and an even worse co-parent to the children during the
parent’s marriage and after it was dissolved. It did little if any to
support the core of the [mother’s] case which, despite alleging all
statutory grounds for termination, was really focused on a
contention that the [father] has abandoned the children.
In an oral statement, the guardian ad litem (GAL) recommended termination,
reasoning the father abandoned the children by failing to make more of an effort
to have the protective order modified to allow contact with the children. The GAL
also believed termination would be in the children’s best interests.
The juvenile court dismissed the mother’s petition to terminate the father’s
parental rights. In its detailed order, the court recounted at length the father’s
unsuccessful attempts to modify the civil protective order, describing the father
as “caught in a procedural morass for which he has no effective relief or
procedural rights or real opportunities.” Moreover, the court faulted the mother
for her motions to dismiss the father’s requests to modify the order. The court
found the mother “engaged in a degree of misdirection calculated solely to her
benefit” by referring the court to its previous dismissals of the father’s requests
rather than acknowledging the language of the original protective order. Due to
this behavior, the court found the mother had “actively engaged in a course of
6
conduct over a protracted period of time to deny [the father] contact and
visitation,” which prevented a finding of abandonment.
The court acknowledged it could not address whether termination was in
the children’s best interests because the mother had not established statutory
grounds for termination. But despite this acknowledgement, the court cautioned
that nothing in its ruling “should be read or interpreted to justify, excuse, minimize
or reduce” the father’s responsibility for his dangerous behavior toward the
children and their mother. The court opined the father “should not be around
these children without visitation being fully supervised.”
The mother now appeals.
II. Standard of Review and Statutory Burden
We review termination-of-parental rights proceedings under chapter 600A
de novo. See In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). Although
we are not bound by the juvenile court’s findings of fact, we do give them weight,
particularly when considering the credibility of witnesses. See id.The parent seeking termination has the burden to prove with clear and
convincing evidence that the other parent has abandoned the children. See Iowa
Code § 600A.8(3); see also In re G.A., 826 N.W.2d 125, 128–29 (Iowa Ct. App.
2012). The petitioning parent also has the burden of proving the termination is in
the best interests of the children. In re R.K.B., 572 N.W.2d 600, 602 (Iowa
1998). The best interests of the children are “paramount,” but we also give “due
consideration” to the interests of the parents. See Iowa Code § 600A.1.
7
III. Analysis
The Iowa Code defines abandonment of a child as a parent’s rejection of
“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 the support of the child or to communicate with the
child.” Id. § 600A.2(19). To avoid a finding of abandonment, the parent of a child
who is six months or older must maintain “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—if the parent
has not lived with the child in the year before the termination hearing—by
(1) visiting the child at least once a month when physically and financially able
and when not prevented by the child’s custodian or (2) when physically or
financially unable to visit or when prevented by the child’s custodian, regularly
communicating with the child or their custodian. Id. § 600A.8(3)(b).
The mother argues she established the statutory ground of abandonment
because the father “failed to demonstrate a genuine effort to be a part of the
children’s lives.”5 She argues the father’s efforts to reestablish visitation were
minimal—he did not appear for the hearing on the final protective order or the
hearing one year later to extend the protective order, he did not file motions to
reconsider or appeal the rulings declining to modify the protective order, and he
5
At the termination hearing, the mother also argued that the father failed to provide
financial support, the threshold requirement for “substantial and continuous or repeated
contact.” See Iowa Code § 600A.8(3)(b); In re K.W., No. 14-2115, 2015 WL 6508910, at
*3 (Iowa Ct. App. Oct. 28, 2015). She conceded that the father was current on child-
support payments but contended he had not made contributions to the children’s
medical bills. The juvenile court attributed the “arrears in medical support” to a problem
in communication between the parents “more so than evidence of abandonment.” The
mother does not contest the father’s economic contributions on appeal.
8
failed to respond when the mother offered visitation in March 2014 shortly after
his first attempt at modifying the protective order. She asserts the father could
have sent letters, gifts, or cards to the children through his attorney, but he failed
to do so. Further, the mother contends the father’s efforts through the court
system cannot prevent a finding of abandonment because the express terms of
section 600A.8(3)(b) require the father to communicate with either the children or
the mother. According to the mother, the father could have satisfied the “regular
communication” provision of section 600A.8(3)(b) by contacting the mother
through her attorney but not by seeking relief through the court. Finally, the
mother disputes the court’s finding she prevented the father from contacting the
children, emphasizing it was the father’s own behavior that triggered the need for
the protective order.
We agree the mother did not prevent contact with the children within the
meaning of section 600A.8(3)(b) when she obtained a civil protective order
against the father. See In re K.M., No. 14-1374, 2015 WL 1849508, at *3 (Iowa
Ct. App. Apr. 22, 2015) (noting father’s own actions led to abandonment when
his abusive conduct prompted the mother to seek no-contact orders). But finding
the mother did not prevent contact does not end the analysis. Regardless of
whether the mother prevented the contact, the father was physically unable to
visit the children because of the protective order. See Iowa Code
§ 600A.8(3)(b)(1). And while the existence of a protective order is not “an
ironclad defense” against an allegation of abandonment, the converse is also
true—the existence of a protective order does not definitively prove
abandonment. See In re D.J.R., 454 N.W.2d 838, 842 (Iowa 1990).
9
Upon our de novo review, we agree with the district court’s conclusion the
mother has failed to establish abandonment. We read section 600A.8(3)(b),
which requires regular communication with the children or their mother when the
father is physically unable to visit, in conjunction with section 600A.2(19), which
provides that the father has abandoned the children if he makes “only a marginal
effort” to provide support or to communicate with the children. See In re R.C.,
523 N.W.2d 757, 760 (Iowa Ct. App. 1994). Given the existence of the protective
order, the father’s attempts to reestablish contact with the children, and the
district court’s persistent denial of a hearing on the issue of visitation, we cannot
find the father abandoned his children. We disagree with the mother’s
characterization of the father’s attempts at reestablishing visitation as marginal
and find he took sufficient steps to prevent a finding of abandonment. 6 Although
he did not attend the initial hearing on the civil protective order, the father sought
to modify the protective order four times before the mother filed the petition to
terminate his parental rights.
6
The mother compares this matter to In re W.W., in which the court found a mother
subject to a Texas divorce decree—placing limitations on visitation with her children and
prohibiting contact with the father—had abandoned her children after she failed to
support her children financially, waited two years to obtain a modification of the decree,
and failed to visit her children for nearly seven years. 826 N.W.2d 706, 708, 711 (Iowa
Ct. App. 2012). The mother in W.W. contended that she had not abandoned her
children because her husband “‘prevented’ her from visiting the children by invoking the
Texas injunction and by contacting law enforcement authorities to essentially enforce its
terms.” Id. at 710. W.W. concluded that although the father “held [the mother] to the
letter of the Texas injunction,” he did not prevent the mother from visiting the children
within the meaning of section 600A.8(3)(b). See id. at 711. The instant case is readily
distinguishable from W.W. Here, the father consistently provided financial support for
the children. The father was subject to a much more restrictive court order—preventing
all contact with the children. And unlike the mother in W.W., who “took no legally-
sanctioned steps to mitigate the harsh effects of [the] injunction,” see id., the father
made multiple attempts to re-establish contact with the children over a relatively short
period of time. Further, he has not had the opportunity to be heard on the issue of
visitation. These fundamental distinctions steer us to a different result than W.W.
10
Further, it was reasonable for the father to seek relief with the court that
issued the protective order rather than the court that issued the decree of
dissolution because the father was seeking to modify the protective order, not the
dissolution decree.7 Because the district court dismissed each of the father’s
requests without a hearing, the father did not have the opportunity to be heard on
the issue of visitation. Parental rights are protected by the Due Process Clause
of the Fourteenth Amendment. See Santosky v. Kramer, 455 U.S. 745, 753–54
(1982). Finding the father abandoned his children without affording him a
hearing on whether he should have visitation would deny him due process.
Finally, the mother contends she proved abandonment by showing the
father rejected her March 2014 offer of visitation and failed to maintain regular
communication with either the children, or the mother as their custodian, through
the parents’ attorneys as allowed by the protective order. First, the parties
offered conflicting testimony about the mother’s offer of visitation after obtaining
the protective order. The father claimed he rejected the proposal because it
reduced his visitation from that ordered in the dissolution decree. We give
credence to the father’s testimony in light of his repeated motions to modify the
protective order in the months after the mother’s proposal. Moreover, we find it
reasonable for the father to seek a judicial resolution rather than pursuing
negotiations through the parties’ attorneys. Second, the record does not support
7
We agree with the juvenile court’s reasoning that the directive to the father to seek
relief with the court that had issued his dissolution decree was improper because the
father “was not asking to modify his decree but asking the district court . . . to consider
visitation granted to him previously under the decree” in another county. “His position
was not unreasonable, illogical and was in fact within the bounds of the procedure for
the case involving the [protective] order established by the district court under the very
terms of the protective order.”
11
the mother’s assertion the father should have known he could send letters or gifts
to the children through legal counsel. While the protective order contained a
provision allowing the father to communicate with the mother through counsel, it
did not address communication with the children through counsel. We are not
persuaded the father was required to send communications to the mother’s
attorney to prevent a finding of abandonment. Under the circumstances, the
father attempted to meet the “regular communications” requirement under
section 600A.8(3)(b) through his court filings, which were served on the mother
through counsel. Moreover, it was only through court action that the father could
have reestablished communication with the children.
On this record, we find the father made sufficient efforts to reestablish
visitation with his children to preclude a finding of abandonment. See In re K.M.,
2015 WL 1849508, at *3 (requiring efforts to maintain contact with the child when
no-contact order was in place); In re A.K., No. 10-0164, 2010 WL 2598252, at *2
(Iowa Ct. App. June 30, 2010) (finding abandonment when protective order
prevented contact with daughter and father did not take steps to reestablish
contact, “even after a district court judge and one of his attorneys informed him of
his options”). Because, like the juvenile court, we conclude the mother failed to
prove the father abandoned the children, we do not consider whether termination
is in the children’s best interests. See In re M.M.S., 502 N.W.2d 4, 8 (Iowa
1993). We affirm the court’s order dismissing the mother’s petition.
AFFIRMED.