In the Interest of K.M., Minor Child ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1066
Filed April 13, 2022
IN THE INTEREST OF K.M.,
Minor Child,
A.J., Mother,
Petitioner-Appellee,
L.M.-P., Father,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
A father appeals a juvenile court order terminating his parental rights.
AFFIRMED.
Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant.
Amanda L. Green of Takekawa & Green, PLLC, Ankeny, for appellee.
Kelly M. Ramsey of Ramsey Law PLC, West Des Moines, attorney and
guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., Chicchelly, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
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VAITHESWARAN, Presiding Judge.
A mother petitioned to terminate a father’s parental rights. The juvenile
court granted the petition. On appeal, the father contends he did not abandon the
child because the mother, “as the person having legal custody of the minor child,
took steps to prevent [him] from seeing the minor child on a monthly basis when
physically and financially able to do so and from communicating with him or with
her,” and “despite his incarceration, [he] continued to make payments towards the
financial support of the child.” He also contends termination of his parental rights
is not in the best interests of the child.
The district court terminated the father’s parental rights pursuant to Iowa
Code section 600A.8(3) and (4) (2020). Those subsections authorize termination
where:
3. The parent has abandoned the child. For the purposes of
this subsection, a parent is deemed to have abandoned a child as
follows:
....
b. 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.
....
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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.
Iowa Code § 600A.8(3)(b), (4). “In making a determination, the court shall not
require a showing of diligent efforts by any person to encourage the parent to
perform the acts specified in paragraph ‘a’ or ‘b.’” Id. § 600A.8(3)(c).
Our de novo review of the record reveals the following facts. The child was
born in 2007. He was thirteen at the time of trial and in eighth grade.
The mother left the father before the child’s first birthday. A temporary
custody order was obtained from a Kansas court, where both parents then lived.
Less than one month later, the father was arrested for robbery and he went to
prison for ten years.
The father had limited contact with the child during those years. The mother
brought the child to visit him in prison “[m]aybe once a year” until the child was
around “five or six” years old. The father wrote letters to the child, sending
“[p]robably around 40” during his incarceration. And there were “occasional”
phone calls, possibly every weekend, which the mother answered “when [she] was
available.”
In early 2018, the mother learned that the father was to be released from
prison. She “filed for sole custody” in Kansas. The incarcerated father represented
himself at the hearing. The district court granted the mother’s request for sole
custody and her request for abatement of the father’s parenting time. The court
prohibited the father “from demanding parenting time unless or until it is authorized
by this [c]ourt and a reasonable plan for reintroduction and reintegration is
developed and approved by the [c]ourt.”
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Recalling this language, the mother testified the order “required that . . .
upon release, if [the father] wanted to see [the child], he was to set up supervised
visitations through the courts.”1 Accordingly, when the father’s mother “reached
out to” her in 2018 and told her the father wanted to see his child, the mother
informed her “he needed to go through the courts and set up supervised
visitations.” The mother was unaware of any motions or applications to set up
supervised visits.
In 2019, mother and child moved to Iowa. The father was able to get in
touch with her by phone because she kept the same phone number for “[t]en,
eleven, twelve years.” She recalled “one voice mail” from the father after his
release. Although the father testified he regularly phoned the child, the mother
said she did not recall receiving any phone calls from him after that point.
The father admitted it was his “responsibility to stay in [his] son’s life” and,
he commendably recognized the importance of his role as “a father.” That said,
he did not attempt to set up supervised visits from July 2018, when he was
released from prison, until after the mother filed the termination petition.
The father was initially ordered to pay $392 per month in temporary child
support. That amount was later reduced to $177. The mother testified she
received child support “[o]ff and on through the years.” The father was later
ordered to pay an additional $53 per month for “arrears.” By May 2021, “[t]he
1 On cross-examination, counsel for the father suggested the order did not require
court intervention to reinstate visitation. Counsel cited a separate provision of the
order requiring the father “to demonstrate consistency and a commitment to the
parenting process before anything more than supervised therapeutic parenting
time” would be authorized. The previous paragraph, however, required court
authorization.
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arrears balance owed to [the mother was] $5254.87.” The father testified he
earned between $1100 and $1200 per week. He stated he “ha[d] wanted to” make
extra payments toward child support, but he did not because he “wasn’t really
allowed to see [the child].”
The district court found the father “had extremely limited contact with” the
child. The court characterized the father’s “attempts to restart his relationship after
his release from prison” as “feeble at best.” With respect to the father’s claim that
the mother impeded his contact with the child, the court found the father “had the
information necessary including phone numbers, location, and Kansas court
orders . . . that provided him the means to have contact with” the child. The court
stated the father was “essentially a complete stranger to” the child. As for payment
of child support, the court found the father fell “significantly behind” and, while
“[s]ome latitude” would be “allowed [him] due to his incarceration,” the “arrears
remain[ed] large.”
The district court’s findings are fully supported by the record. We conclude
the cited statutory grounds for termination were satisfied.
“Once the court has found a statutory ground for termination under a
chapter 600A termination, the court must further determine whether the termination
is in the best interest of the child.” In re A.H.B., 791 N.W.2d 687, 690 (Iowa 2010).
“The best interest of a child requires that each biological parent affirmatively
assume the duties encompassed by the role of being a parent.” Iowa Code
§ 600A.1(2); In re B.H.A., 938 N.W.2d 227, 234 (Iowa 2020). As noted, the father
expressed a desire to be a father to the child. We have no reason to question the
sincerity of his desire. But “subjective intent of the parent,” unless supported by
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actions manifesting that intent, “does not preclude a determination that the parent
has abandoned the child.” Iowa Code § 600A.8(3)(c). Because the father’s intent
was not accompanied by actions to reinitiate contact with the child and make
regular child support payments, we affirm the termination of the father’s parental
rights to the child.
AFFIRMED.