In the Interest of L.M., Minor Child, J.S., Father

IN THE COURT OF APPEALS OF IOWA

No. 15-1473
Filed March 9, 2016

IN THE INTEREST OF L.M.,
Minor Child,

J.S., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Karen Kaufman

Salic, District Associate Judge.

A father appeals the juvenile court’s termination of his parental rights in a

private termination action. AFFIRMED.

William P. Baresel of Prichard Law Office, P.C., Charles City, for

appellant.

Jesse M. Marzen of Marzen Law Office, P.L.L.C., Waverly, for the

appellee mother.

Richard N. Tompkins, Jr. of Tompkins Law Office, Mason City, guardian

ad litem for minor child.

Considered by Tabor, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

A father appeals the juvenile court’s termination of his parental rights in

this private termination action. We find there is clear and convincing evidence in

the record to show the father abandoned the child within the meaning of Iowa

Code section 600A.8(3) (2015) and find termination of the father’s rights is in the

child’s best interests. We affirm the decision of the juvenile court.

I. Background Facts & Proceedings

J.S. and A.M. are the parents of L.M., who was born in 2005. The parties

were never married. On August 15, 2008, the parties entered into a stipulation

placing the child in the physical care of the mother, A.M. J.S. had little, if any,

prior contact with L.M. The parties agreed after a gradual period of introduction,

J.S. would have liberal visitation with the child. The paternity decree also

required J.S. to make child support payments of $330 per month.

At some point, J.S. married Kerry. Visitation was coordinated between

A.M. and Kerry, and J.S. and Kerry had regular visitation with the child while they

lived in Iowa. When J.S. and Kerry moved to South Dakota, then Oklahoma,

visitation decreased due to the distance between the parties. During a weekend

visitation in April 2013, J.S. told L.M. he and Kerry were getting divorced.

J.S. had visitation with L.M. in Oklahoma for two weeks in July 2013. A.M.

testified J.S. called her toward the end of his visitation and told her he was going

to keep L.M. for a longer period of time. J.S.’s father and stepmother drove to

Oklahoma to pick up the child and found he had a large second-degree burn on

his leg, which he received while in the care of a babysitter.
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Due to A.M.’s concerns about the child’s safety, she filed a petition to

modify the paternity decree. J.S. did not respond to the petition and was found to

be in default. The court modified the decree on November 20, 2013, to provide

J.S. would have visitation for four hours each month supervised by Holly Janssen

or another person designated by A.M. until J.S. completed “suitable parenting

classes,” at which time regular visitation would begin again. J.S. never contacted

Janssen to schedule supervised visits.

J.S. had no contact with L.M. until September 2014, when Kerry brought

L.M. to the wedding of J.S.’s brother, knowing J.S. would also be present. J.S.

and L.M. spent time together during the day. By the evening, however, J.S.

became intoxicated and, in the presence of L.M., began yelling insults about

Kerry and her recently deceased father. This was upsetting to L.M., who

continues to maintain a close relationship with Kerry. Kerry, despite the fact she

is not a relative of L.M., has continued to have a relationship with him and

exercises regular visitation.

J.S. completed a four-hour class, Children Cope with Divorce, on

September 27, 2014. He contacted A.M. twice in November 2014 seeking

visitation, but she stated his visits needed to be supervised and they were unable

to complete arrangements. J.S. dropped in unannounced at A.M.’s home on

Christmas in 2014. He had a short, five-minute visit with L.M. and gave him a

present.

In early 2015, J.S. sent A.M. a letter stating he had completed parenting

classes and wanted to resume regular visitation beginning in April. A.M.
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responded through her attorney, stating visitation would remain supervised until

J.S. provided proof he had completed parenting classes. J.S. has had no further

visitation with L.M.

On May 8, 2015, A.M. filed a petition for termination of J.S.’s parental

rights on the ground of abandonment, pursuant to section 600A.8(3). The

juvenile court appointed a guardian ad litem (GAL), who submitted a report

recommending termination of J.S.’s parental rights. At the termination hearing,

J.S. testified he wanted to continue to have a relationship with L.M., but A.M.

never responded to his telephone calls or texts, preventing him from setting up

visitation. Evidence was presented to show J.S. was currently $3737 in arrears

on his child support obligation.

The juvenile court entered an order on August 18, 2015, terminating J.S.’s

parental rights. The court found the evidence supported a finding J.S. had made

very little effort to exercise his visitation rights and had abandoned L.M. in the

legal sense. The court stated, “[J.S.] has had very limited contact with [L.M.], by

his own choice and due in large part to wanting to be a parent only when and

where he feels like it. [L.M.] deserves to have a dad who doesn’t appear and

disappear on a whim.” J.S. appeals the decision terminating his parental rights.

II. Standard of Review

Our review in matters pertaining to termination of parental rights under

Iowa Code chapter 600A is de novo. In re D.E.E., 472 N.W.2d 628, 629 (Iowa

Ct. App. 1991). In cases in equity, we give weight to the factual findings of the

district court, especially considering the credibility of witnesses, but are not
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bound by them. Iowa R. App P. 6.904(3)(g). In termination proceedings, our

paramount consideration is the best interests of the child. Iowa Code § 600A.1.

III. GAL Report

J.S. claims the report of the GAL should be given little to no weight

because the GAL only received information from A.M. The GAL did not contact

J.S. and stated he believed J.S. should have contacted him. Due to the fact the

GAL did not receive information from both parties, on our de novo review we do

not consider the report. See In re Mann, 293 N.W.2d 185, 190 (Iowa 1980)

(noting the court would consider the report of a counselor “for what it is worth,

taking into account its hearsay nature”).

IV. Abandonment

J.S. claims there is not clear and convincing evidence in the record to

support a finding he abandoned L.M. within the meaning of section 600A.8(3).

He states he tried to have contact with the child but was blocked by A.M. and

finally he just gave up. He claims A.M. was not a credible witness.

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
financially unable to visit the child or when prevented from visiting
the child by the person having lawful custody of the child.
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(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 legislature has defined the phrase “to abandon a minor child” to mean

a parent, putative father, custodian, or guardian 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). “Parental responsibility demands ‘affirmative parenting

to the extent it is practicable and feasible under the circumstances.’” In re G.A.,

826 N.W.2d 125, 130 (Iowa Ct. App. 2012) (citation omitted). Where a parent

having physical care of the child has prevented the other parent from exercising

visitation, the non-custodial parent is required to maintain regular communication

with the child or the child’s custodian. Iowa Code § 600A.8(3)(b)(2); G.A., 826

N.W.2d at 130.

The evidence showed J.S. had very little or no contact with L.M. from the

time he was born in 2005 until the paternity decree was issued in August 2008.

We note J.S. did not take any action seeking visitation until A.M. requested the

payment of child support. Thereafter, J.S. exercised regular visitation for a

period of time, mostly at the initiation of Kerry. In the two years after J.S.

exercised his two-week visitation with L.M. in July 2013, J.S. has seen L.M. only

twice—once at J.S.’s brother’s wedding where J.S. became intoxicated in the

presence of L.M., and once during an unannounced drop-in visit on Christmas

2014.
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Regarding J.S.’s claims he had attempted to contact A.M. but she would

not return his calls or texts, the juvenile court, which was able to observe the

witnesses, stated it did not believe A.M. had been unresponsive to J.S. nor that

J.S. had made the attempts he claimed. The court found J.S.’s “testimony

conflicted with that of the other witnesses, and in many respects with common

sense.”

We conclude the evidence shows J.S. has not visited the child or

maintained regular communication with the child, or with A.M., who had physical

care of the child. J.S. made only a marginal effort to keep in regular

communication with the child. J.S. has not engaged in ‘affirmative parenting to

the extent it is practicable and feasible under the circumstances.’” See G.A., 826

N.W.2d at 130 (citation omitted). We agree with the juvenile court’s finding there

is clear and convincing evidence J.S. abandoned L.M. under section 600A.8(3).

V. Best Interests

J.S. claims termination of his parental rights is not in the best interest of

L.M. He states it should not be easier for a parent to terminate the parental

rights of another parent than to obtain sole legal custody of a child. This action

was brought pursuant to chapter 600A, and our review is to determine whether

termination is proper under the statutory guidelines.

Our paramount consideration in termination proceedings under chapter

600A is the best interests of the child. Iowa Code § 600A.1. The statute

provides:

The best interest of a child requires that each biological
parent affirmatively assume the duties encompassed by the role of
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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
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.

We determine termination of J.S.’s parental rights is in the best interest of

the child. J.S. has had very limited contact with L.M. since July 2013. As the

juvenile court found, the natural result of this is L.M. has no relationship with J.S.

A.M. testified she was planning to marry and her fiancé was interested in

adopting L.M.

We affirm the decision of the juvenile court.

AFFIRMED.