Angela Louise Kaspar v. Anthony Joshua Biermann ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0123
Filed April 13, 2022
ANGELA LOUISE KASPAR,
Plaintiff-Appellant,
vs.
ANTHONY JOSHUA BIERMANN,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, DeDra Schroeder,
Judge.
A mother appeals a child custody decision awarding primary physical care
of her child to his father. AFFIRMED.
Judith O’Donohoe of Elwood, O’Donohoe, Braun, White, LLP, Charles City,
for appellant.
Megan Rosenberg, (until withdrawal), Hampton, and Richard S. Piscopo,
Jr. (until withdrawal) of Piscopo Law Firm, P.L.C., Mason City, for appellee.
Anthony Biermann, Mason City, self-represented appellee.
Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.
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CHICCHELLY, Judge.
Angela L. Kaspar appeals, challenging the physical care provisions of the
decree entered December 31, 2020 regarding her child, C.K. The decree awarded
primary physical care to the child’s father, Anthony J. Biermann. Angela requests
that she be awarded primary physical care, shared physical care, or increased
visitation (in descending order of preference). Having reviewed the record, we
agree with the district court’s rendition of the facts and application of law.
Accordingly, we affirm.
I. Background Facts and Proceedings.
Angela and Anthony have known each other since they were teenagers.
Angela gave birth to their child, C.K., in early 2010. At the time, Anthony was
subject to a no-contact order for domestic abuse committed against Angela. The
one-year protective order expired in November 2010. The parties dispute when
Anthony learned that he is C.K.’s father. At the latest, a paternity test conducted
in 2013 confirmed this fact.
This court acknowledges that Angela has been, at various times, C.K.’s
primary caretaker. However, her mother Cynthia stepped in as guardian for C.K.
after requesting a child-in-need-of-assistance (CINA) finding in October 2012. At
the time, Angela was dealing with her bipolar diagnosis and alcohol abuse. Angela
was convicted of public intoxication in September 2012 and August 2013. C.K.
was transitioned back to Angela’s care in September 2014. Angela and C.K.
moved to Waterloo at that time so that she could continue outpatient substance-
abuse treatment at a facility there.
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Anthony was largely absent from C.K.’s life until he was approximately eight
years old. He was not able to step up after the DNA results were revealed during
the CINA proceedings because, after pleading guilty to theft, Anthony was in jail
and then a residential facility from February 2013 to March 2014. Anthony did
receive approximately five furloughs from his stay in the treatment facility to visit
C.K. during the period from 2013 to 2014. Anthony states that Angela made it
clear that she did not want him involved with C.K. after those visits ended.
Anthony paid no child support until he was ordered to do so in 2017.
Subsequently, Anthony began to be more involved, initially video chatting with C.K.
and later meeting in person. In September 2018, Angela asked Anthony to take
C.K. into his home to protect him from her then-paramour James Clemens. Angela
acknowledged that C.K. witnessed domestic altercations between James and her
and that James abused alcohol and drugs, including methamphetamine. Angela
stated that although James was abusive, she was staying with him to protect the
pair’s daughter. Anthony’s child support payments were terminated in February
2019 because C.K. had begun residing with him.
While C.K. was living with Anthony for approximately thirteen months, it is
alleged that Anthony was a poor caretaker. He would lock himself in his room to
play videogames and ignore C.K. He was lax in ensuring proper hygiene and failed
to provide adequate food for C.K. At eight to nine years old, C.K. prepared some
of his own meals, did his own laundry, and got himself ready for school. He was
bullied at school for his poor hygiene, including foul-smelling clothes and sores on
his head. Angela visited a number of times and expressed concern over the
circumstances, but she took no immediate action to remove him from the situation.
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Nor did any of Angela’s other relatives who claim to have visited with C.K. during
this time, including Angela’s mother, grandmother, father, and brother.
Angela was hospitalized for her mental health twice in October 2019.
Angela took C.K. back into her care in approximately November 2019. Shortly
thereafter, she moved into the basement apartment of the same home where
Anthony resided to live with another man, Trenton. She and C.K. resided with
Trenton sporadically and also stayed with her mother and grandmother. C.K.
expressed concern for the fighting that occurred between Trenton and Angela to
his mental-health therapist. Trenton has a history of mental-health problems and
used methamphetamine. Angela stated that she last used methamphetamine in
December 2019. She and Trenton moved to a new home in the same town in April
2020. Trenton left the home in approximately October 2020.
Angela’s last hospital commitment for mental health ended about four
months prior to trial in August 2020. She had an operating-while-intoxicated (OWI)
conviction in 2017 but claims to only drink alcohol socially now. The AA
acquaintance who testified in support of Angela had believed she was completely
sober over the last year. She has full legal custody of her only other child after
James failed to appear for their custody hearing. Angela testified that she does
not encourage nor discourage C.K.’s contact with Anthony. However, C.K.
expressed to a DHS worker in March 2020 that he believed his mom had signed a
paper so that his father could no longer communicate with him.
A CINA proceeding was initiated in early 2020 but dismissed without further
action or removal. There were concerns over Angela’s mental health and domestic
violence by James, as well as a physical altercation between Anthony and
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Angela’s then-paramour Trenton. A safety plan was instituted that stipulated C.K.
would not be exposed to domestic violence or substance abuse and that Angela
would participate in drug testing.
Anthony has two other children with two other women. He pays no child
support but visits each liberally. He was convicted of possession of marijuana in
2015 and claims to have last used the substance about one month prior to trial.
Angela filed a petition to establish visitation, child support, and medical
support in January 2020. Trial was held in December 2020. Joint legal custody
was awarded with primary physical care to Anthony. Angela was ordered to make
monthly child support and medical support payments to Anthony. A visitation
schedule was set forth in the event that the parties could not come to their own
agreement. The schedule provided for Angela to have every other weekend, one
overnight period each week, alternating holidays, and four nonconsecutive weeks
of summer visitation with C.K. After the district court’s decree, Anthony filed an
application for order nunc pro tunc because Angela refused to turn the child over
to Anthony. Under Angela’s timely appeal, only the allocation of physical care is
at issue.
II. Review.
Our review of custody proceedings for a child born out of wedlock is de
novo.1 Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). We give weight to the
1 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) (citation
omitted). Anthony’s failure to file a brief does not alter our duty to conduct a de
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district court’s factual findings and credibility determinations, though we are not
bound by them. Id.; Iowa R. App. P. 6.907. “Prior cases have little precedential
value, except to provide a framework for analysis, and we must base our decision
on the particular facts and circumstances before us.” In re Marriage of Will, 489
N.W.2d 394, 397 (Iowa 1992).
III. Analysis.
The governing factor in child custody determinations is the best interests of
the child. Iowa R. App. P. 6.904(3)(o). The objective is placement in an
“environment most likely to bring the children to healthy physical, mental and social
maturity.” In re Marriage of Bartlett, 427 N.W.2d 876, 877 (Iowa Ct. App. 1988)
(citation omitted). Iowa Code section 598.41(3) (2020) sets forth a nonexclusive
list of factors for consideration, which include the suitability of each parent as a
custodian, the parents’ ability to communicate, whether the psychological and
emotional needs and development of the child will suffer from lack of contact and
attention from both parents, the previous pattern of caregiving, each parent’s
support of the other, geographic proximity, and safety. As the district court noted,
fairness to the parents is not an appropriate basis for resolution. See In re
Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Rather, a physical care
determination aims to place the child in the environment most likely to support the
child’s physical and mental health. See id.Here, neither parent has established a particularly favorable case for their
suitability as a custodian. The parents have continued to reside in relatively close
novo review. See In re W.N., No. 15–0176, 2015 WL 6087624, at *2 n.3 (Iowa Ct.
App. Oct. 14, 2015).
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proximity to one another and rely on an extensive familial network for caregiving.
Angela’s aversion for communicating with Anthony was demonstrated by her
hiding that she was taking C.K. back into her care in November 2019 by stating
she was taking him out to dinner and simply never returning him to his father’s
home. She claims to want C.K. to have a positive relationship with his father but
does not appear to have made good-faith efforts in this regard. See In re Marriage
of Will, 489 N.W.2d at 399 (finding a parent’s willingness to encourage contact with
a noncustodial parent is a significant factor in determining custody). Anthony has
allowed liberal visitation for Angela and her family members when C.K. was in his
care. He has also managed working relationships with the mothers of his other
children to establish an amenable visitation schedule without aid of the courts.
While there is not much more known about Anthony’s other partners,
Angela has not demonstrated positive relationships to C.K. at home. Her history
of choosing partners leading to domestic and substance abuse has not offered
C.K. the stable and safe home he deserves. The background of any adult with
whom a parent seeks to establish a home becomes a significant factor in a custody
dispute. See In re Marriage of Decker, 666 N.W.2d 175, 179 (Iowa Ct. App. 2003).
As the district court noted, the companion will have an impact on the children’s
lives, and the type and manner of relationship the parent has sought to establish
is an indication of the parent’s priorities. See id.Although Angela has been a primary caregiver throughout much of C.K.’s
life, the general preference for continuity does not dictate that she remain the
custodial parent. See id. at 178. “Insight for the determination of the child’s long-
range best interests can be gleaned from evidence of the parent’s past
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performance for that performance may be indicative of the quality of the future care
that parent is capable of providing.” In re A.B., 815 N.W.2d 764, 778 (Iowa 2012).
Here, the mother’s track record is not favorable. While we applaud the progress
Angela has made over the last year with several negative drug tests in connection
with employment applications and treatment, we are not inclined to place C.K.
primarily in such an inconsistent and volatile environment. Like the district court,
we are under “no illusions that this is a long-term situation.” She has battled
substance abuse, mental-health issues, and poor domestic partnerships for many
years. The district court found that she “presents as disingenuous and has a
definite lack of insight into how her alcohol abuse, substance abuse, mental health,
and poor choices in men has negatively impacted C.K.” To the contrary, Anthony
appeared “calm, straightforward, and honest,” as well as “realistic as far as his
shortcomings.”
Having reviewed the record, we agree with the district court’s disposition.
Despite Anthony’s lack of involvement throughout much of C.K.’s childhood and
needing to step up his caretaking, Angela’s substance issues and poor decision-
making support awarding primary physical care to Anthony. See In re Marriage of
Harris, 499 N.W.2d 329, 331–32 (Iowa Ct. App. 1993). Moreover, both parties
affirmed at the conclusion of trial that they were requesting “all or nothing” in that
each wanted primary, rather than shared, physical care. Because any request for
shared physical care by either party was abandoned at trial, the law did not require
the trial court to make specific findings relative to its failure to award it. At this time,
Angela also requests increased visitation, specifically every other weekend in the
summer rather than four nonconsecutive weeks. However, in light of the record
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and overall placement, we decline to alter the schedule set forth by the district
court. Accordingly, we affirm the district court’s physical care determination and
visitation schedule.
AFFIRMED.