In the Interest of K.C., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 18-1022
Filed December 5, 2018
IN THE INTEREST OF K.C.,
Minor Child,
B.L., Mother,
Petitioner-Appellant,
T.L., Father,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Delaware County, Linnea M.N. Nicol,
District Associate Judge.
A mother appeals the district court’s decision denying her petition seeking
to terminate the father’s parental rights. AFFIRMED.
Justin Vorwald of Ehrhardt, Gnagy, McCorkindale, & Vorwald, Elkader, for
appellant.
Cory R. Gonzales of Law Firm of Cory R. Gonzales, PLLC, Strawberry
Point, for appellee.
Kimberly S. Lange of Kimberly S. Lange Law Office, Edgewood, guardian
ad litem for minor child.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.
A mother appeals the district court’s decision denying her petition seeking
to terminate the father’s parental rights. We find the court properly determined the
mother did not meet her burden to show by clear and convincing evidence the
father had abandoned the child. Due to our finding on this issue, we do not
consider whether termination was in the child’s best interests. We affirm the district
court’s decision.
I. Background Facts & Proceedings
B.L., mother, and T.L., father, are the parents of a child, K.C., born in 2007.
The parents, who were both then teenagers, lived together for a short period of
time before the child was born, but they never married. During their relationship
the parents used illegal drugs. B.L.’s mother told B.L. she could no longer have
contact with her siblings if she continued her relationship with T.L. B.L. broke off
her relationship with T.L. and moved home with her parents. T.L. testified he felt
B.L. did not want to be seen with him after that. The father’s sister testified B.L.’s
family did not like the father’s family.
The father had four visits with the child while K.C. was an infant, which the
father requested. The mother stopped all visitation between the father and child
in March 2008 because she believed he was using illegal drugs. There has been
no subsequent visitation.
In November 2007, through the Child Support Recovery Unit, the father was
ordered to pay child support of $184 per month. In April 2012, the father’s child
support obligation was reduced to ten dollars per month. The father consistently
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made child support payments, although he did not always pay the full amount due
every month.
The father was a passenger in a vehicle involved in a serious car accident
in 2008. The father suffered a head injury and was placed in a medically-induced
coma for more than a week. He stated it took him a “couple years to recover.”
T.L.’s father testified T.L. still has some problems with short-term memory loss.
On March 1, 2011, the father was placed on probation due to charges of conspiring
to manufacture methamphetamine and possession of ephedrine as a precursor.
On October 3, 2011, the father pled guilty to a charge of manufacturing
methamphetamine and was sentenced to a term of imprisonment not to exceed
twenty-five years. He testified he was released from prison in May 2013 and was
on parole at the time of the termination trial.
Since the mother cut off the father’s contact with the child in March 2008,
the father stated he made between fifteen to twenty attempts to contact the mother
to have visits with the child. He sent two letters to the mother, which she stated
she received but made no response.1 The father attempted to contact the mother
through Facebook, and again she made no response. When T.L.’s mother
attempted to contact B.L. through Facebook, B.L. sent her some pictures but did
not provide her with any information. T.L.’s sister saw B.L. at a convenience store
and stated B.L. told her “she was going to do everything she could to keep [K.C.]
away from [T.L.]” The sister also tried to arrange contact with the child through a
coworker, who was a friend of the mother’s, but the mother refused. T.L., his
1
The letters were sent to “General Delivery” at the town where B.L. was living, as T.L.
did not know B.L.’s address.
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mother, his father, and his sister all testified they did not know B.L.’s address,
telephone number, or any other way to contact her, except through Facebook; for
a period of time B.L. blocked all of T.L.’s family on Facebook.
The mother testified she never told the father her address or telephone
number. She stated she lived in five different towns since the child’s birth. The
mother stated the father could have tried to contact her through her parents, who
lived at the same address and had the same telephone number for many years.
The father testified he tried to call B.L’s parents one time and did not get through
to them. He stated he did not try again because he believed B.L.’s parents would
not talk to him.
The mother married Bl.L. in September 2016. On December 5, 2017, she
filed a petition to terminate the father’s parental rights on the ground of
abandonment under Iowa Code section 600A.8(3)(b) (2017). She pointed out the
father has not had contact with the child since March 2008. The mother and her
husband stated they wanted the husband to be able to adopt K.C.
At the termination hearing, the father testified he turned his life around when
he got out of prison in 2013. He currently had a job and was living with his parents.
The father had physical care of a younger child from a different relationship. He
also has visitation with an older child. The father stated he wanted to have contact
with K.C. and wanted his other children to have contact with the child. The father
testified he was “a little behind on my back child support,” but stated he hoped to
catch up by applying his tax refund. He stated he did not have the financial
resources to take legal action so he could have contact with the child. The father’s
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parents and sister testified they wanted to be able to have a relationship with the
child.
The district court denied the mother’s request to terminate the father’s
parental rights. The court found, “While the amount of child support that was paid
is small, the record of child support payments is that the father has paid child
support every year of this child’s life.” The court determined the father had made
an attempt to regularly meet his child support obligation. The court also found:
It is uncontested that all of the father’s attempts to contact the mother
to have visitation with the child were ignored or not responded to by
the mother. The mother in her conversation with the child’s
aunt, . . . expressed that she did not intend for [K.C.] to have contact
with [T.L.] or his family because of his prior drug use.
While the mother testified that she felt withholding contact was
justified due to [T.L.]’s prior drug use, it is significant to the Court that
the mother’s demeanor throughout her testimony from the witness
stand was looking down at the floor and fidgeting with her hands.
The mother was unable or unwilling to look the parties in the eye
during her testimony. Listening to the testimony of the mother and
observing her in court, the Court finds that she obstructed the father’s
attempts to have contact with his child. Could the father have made
more efforts? Yes. The Court concludes that no efforts made by the
father would have resulted in the mother responding to him short of
legal action, and it is clear to this Court that the father could not afford
to initiate legal action to gain visitation. The Court finds the mother
prevented the father from having contact with his child. The father
made significant child support payments. The Court does not find
that the [mother] has shown by clear and convincing evidence the
ground of abandonment.
Because the court found the mother had not proven the ground of abandonment,
the court did not address the issue of the child’s best interests. The mother
appeals the court’s decision.
II. Standard of Review
Our review in private termination proceedings is de novo. In re G.A., 826
N.W.2d 125, 127 (Iowa Ct. App. 2012). We give deference to the factual findings
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of the juvenile court, especially those relating to the credibility of witnesses, but we
are not bound by the court’s findings. In re R.K.B., 572 N.W.2d 600, 601 (Iowa
1998). The grounds for termination of a parent’s rights must be established by
clear and convincing evidence. In re C.A.V., 787 N.W.2d 96, 100 (Iowa Ct. App.
2010). Our primary concern in termination proceedings is the best interests of the
child. Iowa Code § 600A.1; G.A., 826 N.W.2d at 127.
III. Abandonment
B.L. claims the district court should have found the father abandoned the
child. She states even if she restricted the father from having visitation with the
child, he should have attempted to maintain regular communication with her and
the child. She points out the father knew where she lived in 2008. Furthermore,
she points out the father sent her two letters while he was in prison, which she
received. Additionally, he sent her a Facebook message when he was released
from prison, seeking visitation with the child, which she also received. The mother
claims the father could have contacted her parents to find out her address and
telephone number. She also claims he could have initiated legal proceedings to
obtain visitation with the child.
Section 600A.8(3)(b) provides:
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
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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.
The phrase, “[t]o abandon a minor child” has been defined as meaning a parent
“rejects 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(19).
The record shows the father contributed towards the support of the child in
a reasonable amount, according to his means. See id. § 600A.8(3)(b). The district
court found, “While the amount of child support that was paid is small, the record
of child support payments is that the father has paid child support every year of
this child’s life.” The court also found, “[E]ven though the amounts paid are small,
there is a clear history of an attempt to regularly meet his child support obligation
regarding” the child. We agree with the court’s findings on this issue. The
evidence shows the father consistently paid child support for the child, even if his
payments were sometimes not the full amount due. The father paid child support
within his means. The father testified he expected to soon be able to pay off the
full amount of his obligation.
The father did not have regular contact with the child. On our de novo
review, we concur in the district court’s conclusion the father was prevented from
having further contact by the actions of the mother. We give weight to the court’s
finding the mother was not a credible witness. We find the mother unilaterally
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decided in March 2008 the father could no longer visit the child. When the father
attempted to contact her through letters and Facebook, she ignored his requests.
T.L.’s sister testified B.L. told her “she was going to do everything she could to
keep [K.C.] away from [T.L.]” The mother also refused the sister’s attempt to
arrange contact through a third person. The mother stated she had lived in five
different towns with the child and never told the father her address or telephone
number. We agree with the district court’s finding, “[N]o efforts made by the father
would have resulted in the mother responding to him short of legal action, and it is
clear to this Court that the father could not afford to initiate legal action to gain
visitation.”
Based on the specific facts presented in this case, where the evidence
shows the mother prevented the father from having contact with the child, we find
the mother failed to present clear and convincing evidence to show the father
abandoned the minor child. Like the district court, because we have determined
there is no statutory ground for termination of the father’s rights, we do not address
the issue of whether termination would be in the child’s best interests. We affirm
the decision of the district court.
AFFIRMED.