In the Interest of M.M. and A.G., Minor Children

IN THE COURT OF APPEALS OF IOWA
No. 22-0425
Filed December 21, 2022
IN THE INTEREST OF M.M. and A.G.,
Minor Children,
J.L., Mother,
Petitioner-Appellee,
C.M., Father,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Worth County, Adam D. Sauer,
District Associate Judge.
A father appeals the Iowa Code chapter 600A (2022) termination of his
parental rights to two children. AFFIRMED.
Richard N. Tompkins Jr., Mason City, for appellant.
Sarah A. Reindl of Reindl Law Firm P.L.C., Mason City, for appellee.
Barbara Jo Westphal, Belmond, attorney and guardian ad litem for minor
children.
Considered by Bower, C.J., Tabor, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
2
TABOR, Judge.
A father, Christopher, appeals the juvenile court’s order terminating his
parental rights to his two sons. First, Christopher argues their mother, Joy, did not
present clear and convincing evidence that he abandoned them within the meaning
of Iowa Code sections 600A.2(20) and 600A.8(3)(b) (2022). Second, he contends
termination was not in the boys’ best interests. Third, he faults the juvenile court
for not holding Joy “accountable” under parenting guidelines issued by the state of
South Dakota, where she used to live with the children.
Like the juvenile court, we find Joy met her burden of proof on both
abandonment and best interests. As for the South Dakota parenting guidelines,
they were not binding on the juvenile court. After our independent assessment of
the record, we affirm the termination order.1
I. Facts and Prior Proceedings
Christopher and Joy have two children in common, M.M. born in October
2015 and A.G. born in November 2016. The parents were never married to each
other. But they briefly lived together, starting when M.M. was six months old and
ending when he was ten months old. Aside from those four months, Christopher
has not lived with the children.
1 Our review is de novo. In re G.A., 826 N.W.2d 125, 127 (Iowa Ct. App. 2012).
We defer to the juvenile court’s factual findings, particularly those on witness
credibility, but those findings do not bind us. In re R.K.B., 572 N.W.2d 600, 601
(Iowa 1998). Our primary concern is the best interests of the children, though we
give “due consideration” to the interests of the parents. Iowa Code § 600A.1; G.A.,
826 N.W.2d at 127.
3
According to a timeline compiled by Joy, she and Christopher broke up in
September 2016, two months before A.G. was born.2 The next month, she
obtained a South Dakota protection order that prohibited Christopher from having
contact with her until October 2017.3 In February 2017, she moved to Minnesota.
A year later, she moved to Iowa.
Christopher stayed in South Dakota. He did not pay child support from
November 2017 until March 2019.4 Christopher was arrested for drug offenses in
December 2018 and again in August 2019. He received a suspended sentence
for possession of methamphetamine in September 2019. As for contact with the
children, his last in-person visit with A.G. was in December 2018, and the last in-
person visit with M.M. was in January 2019. He last video-chatted with the boys
in July 2019.
Joy petitioned to terminate Christopher’s rights in November 2021. The
court held a hearing in February 2022. Both parents testified, as did Joy’s new
husband. After hearing the evidence, the court granted Joy’s petition under
section 600A.8(3)(b).5 Christopher now appeals.
II. Analysis
Iowa Code chapter 600A governs petitions filed by one parent to terminate
the rights of the other parent, so-called “private” terminations. In re B.H.A., 938
N.W.2d 227, 232 (2020). The petitioner, Joy, has a two-pronged burden. See id.2 At the termination hearing, Christopher did not contest the timeline.
3 While the protection order was in place, Joy arranged for Christopher to have
visitation with the boys through his mother.
4 As of February 2022, Christopher owed over $16,000 in back child support.
5 The court found Joy did not prove the child-support ground for termination at Iowa
Code section 600A.8(4).
4
First, she must prove by clear and convincing evidence that Christopher
abandoned M.M. and A.G. See Iowa Code § 600A.8(3)(b). Second, Joy must
show termination is in the children’s best interests. See id. § 600A.1; B.H.A., 938
N.W.2d at 232. Christopher challenges both prongs.
Abandonment. Addressing the first prong, the juvenile court decided that
Joy proved that Christopher abandoned their sons. “To abandon a minor child”
means the parent “rejects the duties imposed by the parent-child relationship, . . .
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(20). When, as here, the children are older than six months, the
legislature considers a parent to have abandoned them
unless the parent maintains substantial and continuous or repeated
contact with the child[ren] as demonstrated by contribution toward
support of the child[ren] of a reasonable amount, according to the
parent’s means, and as demonstrated by any of the following:
(1) Visiting the child[ren] 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[ren].
(2) Regular communication with the child[ren] or with the
person having the care or custody of the child[ren], when physically
and financially unable to visit the child[ren] or when prevented from
visiting the child by the person having lawful custody of the child[ren].
(3) Openly living with the child[ren] 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[ren].
Id. § 600A.8(3)(b).
Christopher does not claim that he maintained substantial or continuous
contact with M.M. and A.G. But he contends the juvenile court should have denied
Joy’s petition because she thwarted his efforts to keep in touch with the children.
5
As examples of obstruction, Christopher notes that Joy “blocked him on Facebook”
and “did not give him their address in Iowa.”
The record does not support Christopher’s contention. Joy did not prevent
him from visiting or having regular communication with the children. He was able
to contact them through a Facebook account he set up for M.M., by phone, or
through text. And Joy testified that she kept Christopher informed of their location
each time she moved. The only time that she declined to provide the children’s
address is when Joy was living at her sister’s residence in Minnesota and the
protection order was in place. Steps taken by Joy to limit her own contact with
Christopher did not contribute to Christopher’s failure to visit with his children or
otherwise communicate with them for more than two years. See G.A., 826 N.W.2d
at 130. Like the juvenile court, we find Joy proved the abandonment ground for
termination.
Best Interests. To measure best interests, we use this statutory definition:
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. We also appropriate the framework from chapter 232 for
terminations involving the Iowa Department of Health and Human Services.
B.H.A., 938 N.W.2d at 232. That framework directs us to give “primary
consideration” to the children’s safety and the best placement to further their long-
term nurturing and growth. Id. (citing Iowa Code section 232.116(2)). We also
6
consider the children’s emotional and psychological health, and the closeness of
the parent-child bond. Id. (citing Iowa Code section 232.116(3)(c)).
In contending termination of his rights was not in the boys’ best interests,
Christopher notes that he had “been keeping up with his child support for the last
two years.” He also points to his contact with M.M. on Facebook. Reflecting on
his efforts at self-improvement, Christopher asserts he has “turned his life around
by being a successful graduate of Drug Court in South Dakota and continuing with
an AA aftercare program.”
We appreciate the strides that Christopher has made in addressing his drug
dependency. But he has scarcely embraced “the duties encompassed by the role
of being a parent.” True, he has recently met his child support obligations. But he
has not made a sincere effort to contact the children or to create and maintain a
place of importance in their lives. The record does not show an ongoing bond
between Christopher and his sons. As their guardian ad litem (GAL) observed:
“They have no connection to him. They do not know him.” The interests of M.M.
and A.G. will be best served by the termination of Christopher’s parental rights.
See In re B.L.A., 357 N.W.2d 20, 23 (Iowa 1984).
South Dakota Parenting Guidelines. As his last argument, Christopher
criticizes the juvenile court for “ignoring the mandates of South Dakota law
requiring the mother to keep the father in the lives of his children.” He relies on a
ten-page exhibit entitled “South Dakota Parenting Guidelines” offered into
evidence at the termination hearing. See S.D. Codified Laws § 25–4A (Appendix
7
A) (2022).6 Under cross examination by Christopher’s counsel, Joy acknowledged
being advised to follow those guidelines in the child support order entered in South
Dakota. Counsel then read extensively from the guidelines on issues such as
fostering communication with the other parent and asked if Joy had followed them.
Joy replied that she believed she did. In closing argument, Christopher’s counsel
argued that the guidelines “lay it on both parties” to ensure the children have
“frequent and meaningful contact with both parents.” See id. (Introduction). The
GAL responded,
I understand his argument that the South Dakota Guidelines put
requirements on both parents. However, that is not a Court Order
that the mother was required to follow. And beyond that, I think it’s
very clear that the father has not followed that guideline. He’s taken
no steps to notify the mother or the children specifically of ongoing
changes in his life.
Like the GAL, we do not believe that Joy had a duty to follow these guidelines.
Neither at trial nor on appeal does Christopher analyze a choice-of-law question.
His introduction of the guidelines as an exhibit was insufficient to prove they were
enforceable in this situation.7 “Under these circumstances, we must apply Iowa
6 Under South Dakota domestic relations law, these guidelines apply to “all custody
situations,” including divorces with minor children and paternity actions. See S.D.
Codified Laws § 25–4A APP A Guidelines (Scope of Application). But they do not
apply to “situations where the court reasonably believes the children’s physical
health or safety is in danger or the children’s emotional development could be
significantly impaired. Id. These situations may include family violence, substance
abuse or a “long interruption of contact between parent and children.” Id.7 Further, for the guidelines to be enforceable, the parents must be “unable to
agree on a parenting plan.” S.D. Codified Laws § 25–4A APP A Guidelines
(Enforcement). The guidelines are not intended to prevent an agreed-upon
parenting schedule that is reasonable and in the child’s best interests. Id.Christopher fails to show that he and Joy were unable to agree on a parenting
plan. Thus, even if the guidelines applied to the Iowa proceedings, they would not
be enforceable.
8
law to resolve the dispute before us.” Pennsylvania Life Ins. Co. v. Simoni, 641
N.W.2d 807, 811 (Iowa 2002). Under Iowa law, termination was proper.
AFFIRMED.