In the Interest of M.K., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 17-1315
Filed February 21, 2018
IN THE INTEREST OF M.K.,
Minor Child,
J.D., Mother,
Petitioner-Appellee,
T.K., Father,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
A father appeals the termination of his parental rights to his child.
AFFIRMED.
Susan R. Stockdale, Windsor Heights, for appellant.
Elizabeth A. Kellner-Nelson of Kellner-Nelson Law Firm, P.C., West Des
Moines, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
2
VAITHESWARAN, Judge.
A father of an eight-year-old child appeals an order granting the mother’s
petition to terminate his parental rights. He contends the record lacks clear and
convincing evidence to support the grounds for termination cited by the district
court.
I. Background Facts and Proceedings
The father and mother are the unmarried parents of a child, born in 2009.
Following the child’s birth, the district court established the father’s paternity and
prescribed an “almost 50/50” joint physical care schedule under which the mother
cared for the child from Sunday through Thursday and the father took over from
Thursday through Saturday. The court also ordered the father to pay child support.
The mother moved from Lee County to Polk County in late 2012. In light of
the move, the care schedule was changed to afford the mother primary physical
care of the child, and the father visitation on the third weekend of every month and
for half the summer. The father’s child support obligation was increased.
The father exercised visitation for more than three and a half years. In the
fall of 2016, his in-person contacts with the child became sporadic. The September
and October visits were cut short due to arguments between the father and
paternal grandmother of the child. The father missed his November visit, and he
only spent two hours with his son in December.
The following month, the mother petitioned to terminate the father’s parental
rights. Following an evidentiary hearing eight months later, the district court
3
granted the petition pursuant to two statutory grounds: Iowa Code sections
600A.8(3)(b) (2017) (abandonment) and 600A.8(4) (failure to pay child support).
The father appealed.
II. Abandonment – Section 600A.8(3)(b)
“To abandon a minor child”
means that a parent . . . rejects the duties imposed by the parent-
child relationship, guardianship, or custodianship, 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). A parent is deemed to have abandoned a child who is
six months or older
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.
Id. § 600A.8(3)(b).
The father contends the record lacks clear and convincing evidence to
support a finding of abandonment. He essentially concedes he failed to pay child
support for a year and was $7000 in arrears. See id. He focuses on his “significant
contact with [the child] since his birth,” his “phone contact” with the child, and
4
“several text” inquiries to the mother about the child’s welfare. See id.
§ 600A.8(3)(b)(1), (2).
Our de novo review of the record reveals the following facts. The father had
a right to see the child every third weekend of the month. After the termination
petition was filed, he did not take advantage of this right. Although he stated he
lacked financial resources to travel to Des Moines every month, the mother had
previously assumed the responsibility of transporting the child to Lee County for
visits and, assuming she was unwilling to continue this practice, the paternal
grandmother testified she was willing and able to transport the father to Des
Moines.
We recognize the father’s circumstances took a significant turn for the
worse in the year preceding the termination hearing. He lost his jobs and housing
and ran into criminal trouble in Illinois and Iowa. Most significantly, he was
diagnosed with schizophrenia, and we hesitate to terminate parental rights of a
parent who has been unable to fulfill his parental responsibilities due to health
issues. However, efforts were made to aid the father through a mental commitment
and hospitalization, and the father was prescribed medicines to alleviate his
symptoms. Unfortunately the father refused to take the prescribed medicine for a
significant period of time, at least over one year.
These adverse circumstances did not prevent the father from maintaining
regular telephone contact with his child. The father phoned his son no more than
seven times over the eight month period, with three to four of the calls coming in
the month preceding the termination hearing. See In re G.A., 826 N.W.2d 125,
130 (Iowa Ct. App. 2012) (noting the father “did not affirmatively attempt regular
5
communication with the child”). He messaged the mother about the child’s welfare
but failed to pursue the prescribed visitation schedule, despite the grandmother’s
offer of transportation assistance. Id. (noting father’s “sporadic text messages to
the mother” were “insufficient to meet the regular communication requirement”).
It is true the mother turned down the grandmother’s request for a visit shortly
before the termination hearing. However, with that exception, there is scant if any
indication the mother denied the father access to his child. While she did not offer
to bring the child to Lee County as she had in preceding years, she had no statutory
obligation to facilitate visits. See Iowa Code § 600A.8(3)(c) (“[T]he court shall not
require a showing of diligent efforts by [the mother] to encourage the [father] to
perform the acts specified in paragraphs ‘a’ or ‘b’ [of section 600A.8(3)].”).
We conclude the mother proved the father abandoned the child within the
meaning of section 600A.8(3). In light of our conclusion, we need not address the
second ground for termination cited by the district court.
III. Best Interests
We turn to whether termination was in the child’s best interests. See In re
R.K.B., 572 N.W.2d 600, 602 (Iowa 1998). The father had extreme anger issues
that prompted the grandmother to curtail two visits in 2016. Although he did not
physically harm his son, he recognized his outbursts were detrimental to the child.
In the months after the shortened visits, the father did nothing to address these
anger issues. By reducing his contacts with the child, he also weakened the bond
between them. We conclude termination was in the child’s best interests.
AFFIRMED.