In the Interest of G.H. and R.H., Minor Children

IN THE COURT OF APPEALS OF IOWA
No. 19-0915
Filed September 2, 2020
IN THE INTEREST OF G.H. and R.H.,
Minor Children,
N.H., Mother,
Petitioner-Appellee,
J.H., Father,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Adams County, Dustria A. Relph,
Judge.
A father appeals the termination of his parental rights under Iowa Code
chapter 600A (2019). AFFIRMED.
Joel E. Fenton of Law Offices of Joel E. Fenton, PLC (until withdrawal), Des
Moines, and Amanda M. Demichelis of Demichelis Law Firm, Chariton, for
appellant father.
David L. Jungmann of David L. Jungmann P.C., Greenfield, for appellee
mother.
Kara L. McClure of Bergkamp, Hemphill & McClure, P.C., Adel, attorney
and guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
2
TABOR, Judge.
A father appeals the termination of his parental rights to two children under
Iowa Code chapter 600A (2019). He argues the mother’s evidence was
“inconsistent and inconclusive.” To the contrary, we find clear and convincing
evidence in the record to support termination of the father’s parental rights.
I. Facts and Prior Proceedings
Natalia and Jeffrey started dating in high school. Soon after graduation,
Natalia moved into an apartment with Jeffrey in Creston. She pursued a nursing
degree at Southwestern Community College. The couple continued to live
together as Natalia started working as a nurse.
Jeffrey took a different path. According to Natalia, he started using
marijuana and hanging out with the wrong crowd. Their relationship deteriorated
to a point where Natalia considered ending it. But she stayed after G.H. was born
in September 2011. In the same time frame, Jeffrey suffered setbacks. He
received a conviction for second-offense operating while intoxicated. And Natalia
noticed Jeffrey experienced mood swings that became more apparent and
unpredictable. He would engage in verbal and physical disputes with Natalia. His
feeble employment history worsened as his employers routinely let him go.
Because Jeffrey could not keep a job, Natalia, by default, became the sole
breadwinner for the family.
Because of pressure from Natalia’s family, the couple married at the
courthouse in September 2013. Their second child, R.H., was born in February
2014.
3
Unable to afford daycare, Natalia left the children in Jeffrey’s care while she
was at work during the day. But he neglected his duties. Upon her return from
work, Natalia would catch Jeffrey sleeping. The children were “filthy” with
unchanged diapers. Natalia testified that she suspected Jeffrey was doing drugs
while the children were in his care. She once saw a baggie containing a “crystally
substance” on the kitchen floor. Another time, while Jeffrey slept on the couch a
“meth pipe rolled out of his pocket.” In the fall of 2015 Natalia confronted Jeffrey
and he confessed to using methamphetamine for the past five years.
Natalia also testified that based on her training as a nurse, she identified
behaviors that supported her belief that Jeffrey had mental-health issues. Jeffrey
would sometimes be “extremely energetic and sometimes euphoric” while other
times he would be “extremely depressed and agitated.” She repeatedly urged him
to seek professional help, but he refused. According to Natalia, Jeffrey was
physically abusive towards her at least three times. She recalled one instance
when Jeffrey punched her in the face because she reprimanded him for using
profanity toward their baby.
Their relationship ended following an altercation in 2015. Natalia recalled
Jeffrey pinning her on the bed and encouraging his bulldog to attack her in front of
the children. The parties divorced in 2016. The court granted Jeffrey and Natalia
joint legal custody and granted Natalia physical care of the children. But the court
limited Jeffrey’s visitation until he could provide a clean and safe home with a bed
for each child. Upon that occurrence Jeffrey’s parenting time would have
increased to alternating weekends from Thursday through Sunday. The court also
ordered Jeffrey to pay child support of $197 per month.
4
In the months following the divorce, the children stayed at Jeffrey’s place
on alternating weekends despite the limitations on visitation. But he would rarely
see the children during the week because he did not have a car to drop them at
school. And the situation only got more complicated as time went on. “Jeffrey
continued to spiral downward following the divorce,” according to a report from the
guardian ad litem. He missed several months of visitation in 2017 because he was
incarcerated. Jeffrey insisted that he still called from prison every Sunday to talk
with his children. He also claimed that Natalia would sometimes ignore his calls.
In September 2017, Natalia remarried. She and her new husband,
Matthew, had a child in July 2018.1
Meanwhile, Jeffrey was released from prison in October 2017 and resumed
his schedule of alternating weekend visitations. But visitation stopped in the
summer of 2018 when he moved to Marshalltown to be with his girlfriend Leigha.2
The record shows Jeffrey was also violent toward Leigha. According to a police
report from June 2018, the pair got into a pushing match and Jeffrey threatened to
spray her with WD-40 and light her on fire. That same month, Natalia learned that
Leigha’s eighteen-month-old son had died of complications from blunt-force
injuries to the abdomen in February 2018. According to an agent with the Iowa
Division of Criminal Investigation, both Leigha and Jeffrey were suspects in the
homicide.3
1 Natalia testified that Matthew gets along well with R.H. and M.H. and is prepared
to adopt them as soon as Jeffrey’s parental rights are terminated.
2 Jeffrey testified that he did not own a car, which made his travel from
Marshalltown to Creston difficult.
3 Jeffrey was caring for the toddler when he started vomiting the day before he
died. Jeffrey said the toddler had been wearing pajamas with enclosed feet that
5
After learning that authorities suspected Jeffrey in a child homicide, Natalia
moved to modify the custody order for G.H. and R.H. and asked to suspend
Jeffrey’s unsupervised visitations with the children. The district court issued an
order temporarily suspending visitation and set a hearing. During the modification
proceeding, Natalia reported receiving only $492 in child support from Jeffrey since
the divorce was final. She received that amount in 2018 through withholding from
Jeffrey’s paycheck for a job from which he was terminated.
Jeffrey did not participate in the hearing. But he did send Natalia a
threatening text message. He told her he did not “give two fucks about the court
date” and would “be there to get my kids soon anyway.” As a result, in August
2018, the court entered a default modification judgment granting Natalia sole legal
custody of their children. The court suspended Jeffrey’s unsupervised visitation
and provided for once a week supervised visitation if Jeffrey provided advance
notice to a visitation supervisor. Bypassing that opportunity, Jeffrey failed to make
arrangements to exercise his visitation rights. Jeffrey testified he was stymied after
his former father-in-law declined to be the visitation supervisor. But he
acknowledged “there was lots of people that could have done it, I guess.”
Jeffrey’s last contact with the children was in September 2018 when he
attended G.H.’s soccer game. He has not seen either child or provided any
financial support since then.
In January 2019, Natalia petitioned to terminate Jeffrey’s parental rights.
She alleged that he had not maintained meaningful and significant contact with the
were too big for him, causing him to fall a few times. At the time of the termination
hearing, the State had not filed charges in the child’s death.
6
children and had not paid his child support. Both parents testified at a hearing on
the petition in April 2019. Jeffrey acknowledged at the termination hearing that he
had a history of substance abuse and alcohol addiction. But he was doing
“nothing” in terms of treatment. He also acknowledged he was hospitalized in
November 2018 after attempting suicide but was not currently receiving mental-
health treatment. As for employment, Jeffrey confirmed that he started working for
a construction company a week earlier. But he did not report the new employment
to the Child Support Recovery Unit so that child support could be withheld from his
wages. Neither did he report his work at Lennox, the HVAC contractor, in
Marshalltown.
In its termination order, the district court ruled that Natalia proved by clear
and convincing evidence that Jeffrey had abandoned G.H. and R.H. The court
also found proof that Jeffrey had failed to contribute to the support of the children
without good cause. From those findings, the district court terminated Jeffrey’s
parental rights. He now appeals.
II. Scope and Standard of Review
We review private termination proceedings de novo. In re B.H.A., 938
N.W.2d 227, 232 (Iowa 2020). In doing so, we give weight to the district court’s
findings of fact, especially when considering witness credibility, but they do not
bind us. Id. When interpreting chapter 600A, we give parents’ rights due
consideration. Iowa Code § 600A.1. But our paramount concern is the best
interests of the children. Id.
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III. Analysis
A parent may petition to terminate the rights of the other parent. Iowa Code
§ 600A.5(1)(a). After a hearing, the court may terminate parental rights on the
grounds listed in section 600A.8. Id. § 600A.9. Here, the court found clear and
convincing evidence supported termination under section 600A.8(3) (“The parent
has abandoned the child.”) and 600A.8(4) (“A parent has been ordered to
contribute to the support of the child . . . and has failed to do so without good
cause.”). When the court terminates under both theories, we will uphold the
termination if substantial evidence supports either ground. In re B.L.A., 357
N.W.2d 20, 22 (Iowa 1984). We find ample evidence in this record to support
termination of Jeffrey’s parental rights for failure to contribute to the support of his
children without good cause under Iowa Code section 600A.8(4).
Under the divorce decree, Jeffrey had an obligation to pay $197 per month
in child support. As of March 2019, he owed back support of $7303. He paid no
support at all in 2016, 2017, or 2019. The only amount he paid was $492.08 in
2018 when he had child support withheld from his wages before he was terminated
from the position.
The district court addressed Jeffrey at the termination hearing about his
failure to contribute:
I didn’t hear any testimony that you are not physically able to work
other than the period of time you were in prison. As a matter of fact,
you did work while in prison. So you are able, but yet since your
divorce in 2016, you’ve only provided support to the children in the
amount of $492 for two children. . . . Almost four years now that
you’ve been divorced and $500 for two kids, that’s just over $100 a
year. So your support for your children has been minimal during that
time. Actually, you know, more negligible than minimal, essentially
nothing.
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Now, Jeffrey does not deny his failure to live up to his financial obligation to
his children. Instead, he claims good cause. He argues Natalia did not show he
had the reasonable ability to pay child support. Jeffrey asserts his limited means
stem “from his mental illness and resulting intermittent hospitalizations, frequent
moves to different communities, and lack of employment.”
Jeffrey’s spotty work history does not rise to the level of good cause. See
In re C.M.W., 503 N.W.2d 874, 876 (Iowa Ct. App. 1993) (rejecting excuse of
sporadic employment as good cause for failing to pay child support). The court
could glean from Natalia’s testimony that Jeffrey was capable of working
construction and other jobs but did not hold onto employment for long. The report
from the guardian ad litem chronicled Jeffrey’s work history, showing he had as
many as six different employers since the divorce. Even during his short work
stints, Jeffrey did not make any voluntary payments toward his child-support
obligation. We find no merit in his claim that lack of employment constituted good
cause for not providing financial support to his children. See id.
Next, Jeffrey blames his mental health for his financial instability. He
explains that “mental health issues could very well contribute to marginal income-
producing ability or an inability to find work, stay employed, or transition to other
forms of employment.” That explanation may be true. But it does not justify his
failure to pay any amount of child support while he was working. Equally important,
Jeffrey was not seeking mental-health treatment at the time of the trial, despite a
recent hospitalization. We are unpersuaded by his claim that his mental-health
disorders prevented him from paying child support. See In re O.B., No. 20-0304,
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2020 WL 4201689, at *3 (Iowa Ct. App. July 22, 2020) (noting father’s mental-
health and substance-abuse issues but finding no good cause for his failure to
make required child support payments).
When asked if he reported his current employment or his job at Lennox for
child support purposes, he admitted not having done so and provided no
explanation why not. Plus, Natalia testified that Jeffrey had the means to take a
trip to Colorado, yet he did not contribute toward the children’s expenses. We find
no good cause in the record for Jeffrey’s failure to provide financial support.
Having found clear and convincing proof for the statutory grounds for
termination under section 600A.8(4), we would normally turn to the best-interest
question. See In re Q.G., 911 N.W.2d 761, 770 (Iowa 2018) (discussing two-step
process for termination proceedings under chapter 600A). But Jeffrey does not
make an argument on appeal that terminating his rights was not in the children’s
best interests. Thus, we need not address that issue. See id. at 769. And even if
Jeffrey had argued that Natalia failed to prove that termination of his rights was in
the children’s best interest, we would still affirm.
For private termination proceedings, the Iowa legislature defined the
concept of “best interest of a child” as follows:
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.
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In our independent view of the record, we find clear and convincing proof
that Jeffrey failed to “affirmatively assume” the duties of being a parent. As we
determined above, he did not fulfill his financial obligations. On top of that, he did
not demonstrate a continued interest in the children’s lives. When offered the
opportunity to have supervised visitation with them, he made no effort to find
someone to supervise. Natalia testified that his relationship with the children has
been “nonexistent” since the summer of 2018. Jeffrey has made many choices
that have not allowed him to maintain a place of importance in their lives.
Plus, it is not clear that Jeffrey would be a safe caregiver for the children.
The record shows an eighteen-month-old child suffered fatal injuries while in
Jeffrey’s care. And both Natalia and his new girlfriend have reported incidents of
domestic violence. The children would benefit from maintaining their stable home
environment—without the threat of reintroducing Jeffrey’s negative influence.
We find clear and convincing evidence that Jeffrey failed to provide financial
support without good cause. And it was in the children’s best interests to terminate
his parental rights.
AFFIRMED.