In the Interest of S.G., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 22-0404
Filed September 21, 2022
IN THE INTEREST OF S.G.
Minor Child,
A.K., Mother,
Petitioner-Appellee,
M.G., Father,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Monona County, Mark Cord III,
District Associate Judge.
A father appeals the termination of his parental rights under Iowa Code
section 600A.8 (2021). AFFIRMED.
Jessica R. Noll of Deck Law P.L.C., Sioux City, for appellant.
Sabrina Sayler of Crary, Huff, Ringgenberg, Hartnett & Storm, P.C., Dakota
Dunes, South Dakota, for appellee.
Michele Lewon, Sioux City, attorney and guardian ad litem for minor child.
Considered by Bower, C.J., and Tabor and Chicchelly, JJ.
2
CHICCHELLY, Judge.
A father appeals the termination of his parental rights to his six-year-old
child under Iowa Code section 600A.8 (2021). He challenges the sufficiency of the
evidence showing the grounds for termination. He also contends termination is
not in the child’s best interests. Following our de novo review, see In re B.H.A.,
938 N.W.2d 227, 232 (Iowa 2020), we affirm.
The child’s mother and father divorced in 2018. They agreed they would
share joint legal custody and the mother would have physical care of the child.
They also agreed that the father would have weekly visitation from Thursday to
Sunday and pay $428 per month in child support. The district court approved their
agreement and incorporated the provisions into the decree dissolving their
marriage.
After the divorce, the father failed to exercise all his visitation. The mother
described his behavior as “hostile,” “paranoid,” and “very aggressive.” He also
talked about suicide and voluntarily terminating his parental rights. Based on his
drug use before the marriage, the mother suspected that the father was using
methamphetamine. Just three months after the court entered the dissolution
decree, the mother moved to modify child custody. She asked the court to require
that the father take a drug test before each visit and for all visits to be supervised
until the father showed he no longer used drugs.
After the mother began modification proceedings, the father showed
threatening behavior toward her. Within one month, the mother petitioned for relief
from domestic abuse. The district court issued a protective order prohibiting the
father from contacting the mother, but his behavior escalated. Just days after the
3
final protective order issued, the father violated it by calling and texting the mother
at least seventy-nine times over two days before breaking into her home and
attacking her with a baseball bat and knife. His actions led to a jury finding him
guilty of five crimes, including first-degree burglary. The district court sentenced
the father to a thirty-year prison sentence with a five-year mandatory minimum
sentence. The Iowa Department of Corrections lists a tentative discharge date in
2032.
Twenty months into the father’s prison sentence, the mother petitioned to
terminate his parental rights under Iowa Code section 600A.8. The mother had
remarried and stated that her husband wants to adopt the child. Following a
hearing, the district court found the mother proved the grounds for terminating the
father’s parental rights under section 600A.8(3), (8), and (9). It also found
termination is in the child’s best interest and granted the mother’s petition.
We begin with the father’s claim of insufficient evidence supporting the
grounds for termination. He challenges all three grounds found by the district
court. We may affirm if the record supports termination on any one of these
grounds. See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012).
Iowa Code section 600A.8(3) allows the court to terminate parental rights if
a parent has abandoned a child. “To abandon a minor child” means to “reject[] 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(20). The statute considers a parent to have abandoned a child six
4
months of age or older “unless the parent maintains substantial and continuous or
repeated contact with the child.” Id. § 600A.8(3)(b).
The father challenges the finding that he abandoned the child. To prevent
a finding of abandonment, a parent must provide “contribution toward support of
the child of a reasonable amount, according to the parent’s means.” Id.
§ 600A.8(3)(b). The parent must also show “substantial and continuous or
repeated contact” by at least one 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.
The father contends the mother failed to show he abandoned the child
because she prevented his attempts at regular communication. He cites the
protective order, which limited him to six hours of supervised weekly visitation with
the child and otherwise prohibited him from contacting the mother or child. Less
than one week after the court entered the final protective order, it ordered the father
to have no contact with the mother for five years due to his criminal actions.
Although the criminal no-contact order does not prevent the father from contacting
the child, he notes that the mother attempted to modify it to restrict his contact with
5
the child.1 The father argues that he “has clearly attempted to maintain a
relationship with [the child] while following court orders,” while the mother has
“intentionally taken steps to end [his] relationship with [the child].”
The father’s argument ignores that the no-contact orders result from his own
choices and actions. The father began using methamphetamine before the
divorce. His methamphetamine use caused erratic behavior, including the
inconsistent exercise of his visitation with the child, and led the mother to seek the
custody modification. The father responded by threatening the mother. Fearing
for her safety, she obtained a protective order. But the protective order did not
deter the father; he broke into the mother’s home, assaulted the mother, and tried
to abscond with the child. The father also threatened to kill himself and implied he
would also kill the child, doing so in the presence of the child and the child’s older
half-sibling. The criminal charges and resulting convictions led to a thirty-year
prison sentence and criminal no-contact order. As the guardian ad litem noted in
a report to the court, the father
does not accept any responsibility for assaulting [the mother] or
traumatizing [her children] when he broke into their house. He
accepts responsibility that breaking into the house was a bad
decision, but continues to place blame on [the mother] not allowing
him to see [the child]. He has not come to terms with the reality of
the situation at all and I believe he sees himself as a victim in this
situation.
The father’s incarceration cannot justify his lack of relationship with the
child. See B.H.A., 938 N.W.2d at 234. Although the no-contact order prevented
1The mother asked that the order be modified to prevent the father from contacting
persons residing with her and her immediate family, but she dismissed the action
one month later.
6
the father from contacting the mother, he made no effort to communicate with the
child since his arrest. See In re A.K., No. 10-0164, 2010 WL 2598252, at *1-2
(Iowa Ct. App. June 30, 2010) (affirming termination for abandonment under
section 600A.8(3)(b) because the father’s separation from the child “was of his own
making” by abusing the mother, violating a protective order, and failing to seek the
court’s permission to provide monetary support or have written or supervised
contact with the child). As the district court found, the father “is a near-stranger to
[the child] as a result of his own actions.” Clear and convincing evidence shows
the father abandoned the child as required to terminate his parental rights under
section 600A.8(3)(b).
We next turn to the question of the child’s best interests. See Iowa Code
§ 600A.1(1) (“The best interest of the child subject to the proceedings of this
chapter shall be the paramount consideration in interpreting this chapter.”). “The
best interest of a child requires that each biological parent affirmatively assume
the duties encompassed by the role of being a parent.” Id. § 600A.1(2). When
determining whether a parent has affirmatively assumed this duty, the court must
consider a parent’s “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.” Id.
The father claims termination is not in the child’s best interests. He argues
that he attempted to have a meaningful relationship with the child despite the court
orders preventing him from contacting the mother. He notes he paid most of the
7
child support he owes. The father also claims that he is working to better himself
while incarcerated.
Substantial evidence supports the finding that termination is in the child’s
best interests. The child, now six years old, has not seen or had contact with the
father since his arrest, over three years ago. There is little, if any, relationship
between them. In recent years, the child only referenced the father “a couple
times,” referring to him as “my first dad who cries all the time.” The father is
currently not set for release from prison until 2032, at which time the child will be
seventeen years old.
The record shows that the father was not fully embodying his role as a
parent even before his incarceration. In the months between the divorce and his
arrest, the father never exercised full visitation with the child under the decree.
The mother testified that the father “did have a good solid couple of months where
he did the dad stuff and was there and present” during the child’s life. But after
that period, the mother describes “this gradual decrescendo, this break down of it
got less and less and he wasn’t in the home as much and then he was gone and
then when he was home, he was asleep and then he left immediately after. It was
just a—a break down.”
The mother’s husband assumed the role of father to the child in recent
years. The guardian ad litem states that he loves the child “deeply and is willing
to accept all of the duties as father.” Terminating the father’s parental rights will
allow the mother’s husband to adopt the child and formalize their relationship.
Because doing so is in the child’s best interests, we affirm.
AFFIRMED.