In the Interest of J.S., Minor Child ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0028
Filed July 20, 2022
IN THE INTEREST OF J.S.,
Minor Child,
T.P., Mother,
Petitioner-Appellee
J.S., Father,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, Daniel Vakulskas,
District Associate Judge.
The father appeals the termination of his parental rights in a private
termination action. AFFIRMED.
Kelsey Bauerly Langel of Bauerly & Langel, P.L.C., Le Mars, for appellee
mother.
John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant father.
Missy Clabaugh of Clabaugh & Goslinga PLC, Sioux City, guardian ad litem
for minor child.
Considered by May, P.J., and Greer and Chicchelly, JJ.
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GREER, Judge.
The district court granted the mother’s petition to terminate the father’s
parental rights to J.S., born in 2016, in a private termination action. The court
concluded the grounds for termination were satisfied under Iowa Code section
600A.8(3)(b) (abandonment) and (4) (failure to contribute) (2021). The father
appeals the termination, arguing he did not abandon J.S. and termination of his
parental rights is not in J.S.’s best interests.
I. Background Facts and Proceedings.
The mother and father divorced in May 2017, when J.S. was approximately
fourteen months old. The mother was awarded physical care of J.S., while the
father was given visits on Wednesday evenings and alternating weekends.
For the first approximately eighteen months after the parents divorced, the
father regularly exercised his visits with J.S. But then he began to miss his mid-
week visits, and the weekend visits became irregular. In June 2019, the father
visited J.S. just twice. In July, there was only one visit. And then, from late July
until December 2019, there were none. The father spent time with J.S. two
separate days in December, but, as of the October 2021 termination trial, he had
not seen him since those December visits (with the last visit being December 24,
2019). The mother continued to send the father messages, updating him about
J.S.’s medical needs, where he was being enrolled in school, and their new
address when she and J.S. moved. Other than a March 2020 request to see J.S.,1
1 The mother denied this request, responding that the family had entered self-
quarantine due to the COVID-19 pandemic and the recommendations of public
health officials. We agree with the district court’s conclusion that “[i]t was
reasonable for [the mother] to deny the visit at that time due to the massive
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the father neither responded to the mother’s messages nor sent any of his own.
In June 2021, about eighteen months after the father last had contact with J.S., the
mother filed the petition to terminate the father’s rights.
During those eighteen months, the mother began dating and married her
current husband, J.P. With the first meeting occurring when J.S. was close to four
years old, J.P. testified at the termination trial, explaining some of the activities he
and J.S. like to do and how he has taken on a parental role in J.S.’s life. J.P. would
like to adopt J.S.
J.S.’s kindergarten teacher testified at the termination trial. She praised J.S.
as “one of [her] top students,” “right on target with reading, math” and “a very good
critical thinker.” She described a time at the beginning of the school year when
J.S. chose to bring in a picture from the mother’s and J.P.’s wedding day.
According to the teacher, J.S.
said, “This is my dad, this is my mom,”and real quickly he just said,
“This isn’t my real dad. My real dad—I don’t see my real dad
anymore. He doesn’t really like kids,” and then he just quickly moved
on to his next object in his bag. It was just a matter-of-fact quick little
snippet that I saw.
The teacher also described a time when she asked the students to draw picture of
the time that they were happiest; J.S. drew a picture and said it was him and “[J.P.],
but we call him [J.P.’s nickname], he’s my dad, and we were swinging in the
backyard.” J.P. is a common subject of J.S.’s pictures; the teacher noted that J.S.
loves to talk about J.P. and “has a great admiration” for him.
uncertainty about COVID-19” and “because [the father] had not been in
communication for months at a time.”
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J.S. met with a therapist four times leading up to the termination trial—at
the suggestion of the guardian ad litem (GAL). The therapist did not schedule
additional sessions because J.S. “is doing well at home and school and doesn’t
appear to have any behavioral issues” and “[e]motionally he seems to be doing
well.” The therapist described J.S. as a “talkative and active little kid.” When
prompted to talk about the father, J.S.
talked about what he calls his first dad, referring to [the father], and
then he would talk about it if I directly asked him questions. But other
than that, he did not bring . . . him up on his own. . . . [When talking
about the father], [t]here was, I would say, little to no emotion shown.
It was kind of more of a fact of this was part of my life for a while, this
is not something that is part of my life right now. I would say he didn’t
have any emotional reaction other than a kid just talking about his
life.
When the therapist asked him to draw his family, J.S. drew himself, the mother,
and J.P. The therapist observed J.S. with J.P. for a short while; she saw J.S. talk
to J.P., tell him about his school day, and give him a hug. She testified “they
seemed to have a comfortable relationship, . . . and seemed happy and healthy,
and [J.S.] seemed very comfortable with [J.P.]”
The therapist opined that there was not potential harm to J.S. if the father’s
rights are terminated, noting that J.S. had seen his father only twice in more than
two years—both in December 2019. She testified, “I think he’s, yeah, moved on,
and this is where he’s at in life now. That was when he was young. If you ask him,
that was a long time ago, because of his whole five years of life.” In contrast, she
saw the potential for harm if the father’s rights were not terminated and he came
back into J.S.’s life, testifying:
[I]t would be confusing for [J.S.], potentially, to understand why now
this is coming back or why he is seeing him again, so just it would be
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helping him understand all of that at his age, is really tricky
sometimes, because in his mind, like I said, he’s kind of moved on
from that chapter of his life already.
During his testimony, the father described some of the struggles he was
dealing with during the time he absented himself from J.S.’s life, including the loss
of a friend to suicide, a breach of trust in his relationship with his mother that
resulted in financial hardship for him, and experiencing depression. The father
suggested he was overwhelmed and had wrongly allowed his relationship with J.S.
to suffer but denied he ever meant to abandon J.S. During direct examination the
father testified as follows:
Q. Have you ever intended to abandon [J.S.]? A. Absolutely
not. I would never do that.
Q. You—you indicate that he’s in your thoughts every day?
A. Every day.
Q. So why . . . is there a disconnect between him being in your
thoughts every day and then your trying to do something to see him?
A. You know, before I wasn’t in any place to see him. Like, you know,
I did everything that [the mother] asked me to do. I would take him
places. We would always be doing fun stuff. We—You know, I
couldn’t be that person that he expected me to be. And I—I didn’t
want to let him down. And then by the time I was back to where I felt
like I could at least go slow and—and start to reestablish that
connection again, we were already in this. So I didn’t want to force
anything, because I don’t know what’s going to happen.
The father testified he was doing better, explaining he was working more
consistently, had started taking antidepressants, and was getting back into
exercising.
The GAL supported terminating the father’s parental rights. In a written
position statement, she said:
As for lack of contact, while [the father’s] testimony leaves no
doubt that he was struggling through some issues, there was no
evidence presented that would explain making no attempts via mail,
phone, or otherwise to maintain any type of relationship and further,
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[he] took no affirmative steps during that time to do anything to
address his struggles until after the [p]etition in this case was filed.
[The father] discontinued contact with J.S. in August of 2019 and
then requested to reengage in December of 2019. [He] was given
that opportunity, ha[d] two brief contacts, and then has disappeared
from J.S.’s life again. J.S. appears to have moved on in a healthy
way. To subject J.S. to the risk of having this happen again would
be detrimental to J.S.’s mental health and feelings of self-worth.
The district court granted the petition to terminate the father’s parental rights; he
appeals.
II. Standard of Review.
We review private termination proceedings de novo. In re B.H.A., 938
N.W.2d 227, 232 (Iowa 2020). While the best interests of the child is the
paramount consideration of the termination proceeding, the parent’s interest in
continuing a relationship with their child must also be given due consideration. See
Iowa Code § 600A.1.
III. Discussion.
Private termination proceedings under Iowa Code chapter 600A are a two-
step process. See B.H.A., 938 N.W.2d at 232. The petitioning parent must
establish by clear and convincing evidence the statutory ground or grounds
authorizing the termination of parental rights. Id. Then, after proving the statutory
ground or grounds, the petitioner must also prove that termination of parental rights
is in the best interest of the child. Id.
Statutory Ground. The district court concluded that the mother proved two
separate grounds for termination—that the father failed to meet his child-support
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obligation under section 600A.8(4)2 and that he abandoned J.S. under section
600A.8(3)(b).3 On appeal, the father only challenges the court’s conclusion he
abandoned J.S. Whether it was inadvertent or intentional, he does not develop an
argument challenging the district court’s determination he failed to contribute to
J.S. as ordered, so he has waived any alleged error to that ground. We only need
to find one of the two grounds established by clear and convincing evidence to
affirm the termination. See In re B.L.A., 357 N.W.2d 20, 22 (Iowa 1984). Without
further consideration, we conclude the mother proved the ground for termination
under section 600A.8(4).4
2The court may terminate under section 600A.8(4) 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.”
3 The court may terminate a parent’s rights for abandonment under section
600A.8(3)(b) when:
If the child is six months of age or older when the termination
hearing is held, 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.
4 The father was ordered to pay $274.21 per month in child support as part of the
parties’ May 2017 dissolution decree. At the time of the October 2021 termination
trial, he owed more than $5000.00 in unpaid support and had not made any
payments since he made a partial payment in January 2020.
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Best Interests. The father contests that termination of his parental rights
is in J.S.’s best interests.
The best interest of a child requires that each biological parent
affirmatively assume the duties encompassed by the role of being a
parent. In determining whether a parent has affirmatively assumed
the duties of a parent, the court shall consider, but is not limited to
consideration of, the fulfillment of financial obligations,
demonstration of continued interest in the child, demonstration of a
genuine effort to maintain communication with the child, and
demonstration of the establishment and maintenance of a place of
importance in the child’s life.
Iowa Code § 600A.1(2). In determining what is in J.S.’s best interests, we look to
the father’s past performance, “for that performance may be indicative of the
quality of the future that parent is capable of providing.” B.H.A., 938 N.W.2d at
233 (citation omitted).
We do not minimize the gravity of the issues the father was dealing with,
nor do we doubt the sincerity of his wish to resume a relationship with J.S. But,
like the district court, we conclude termination of the father’s parental rights is in
J.S.’s best interests. Whether due to his young age, because of his close
relationship with J.P., or for some other reason, J.S. is a well-adjusted kid in spite
of the father disappearing from his life. And according to the therapist, J.S. has
already moved on; the potential harm comes not from terminating the father’s
parental rights but from reopening the door to the father. We recognize the father’s
regret and his wish for a different outcome, but our focus is on what is best for
J.S.—that requires us to affirm the termination of the father’s parental rights. See
In re Q.G., 911 N.W.2d 761, 771 (Iowa 2018) (considering the child’s “physical,
mental, and emotional condition and needs” and the “closeness of the parent-child
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relationship” in determining the best interests of a child in a private termination
action (quoting Iowa Code § 232.116(2), (3))).
AFFIRMED.