In the Interest of S.L.A., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 17-0859
Filed March 7, 2018

IN THE INTEREST OF S.A.,
Minor Child,

S.F., Mother,
Petitioner-Appellant,

W.A., Father,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

A mother appeals the district court’s denial of her petition to terminate the

parental rights of the father. AFFIRMED.

Andrea M. Flanagan of Flanagan Law Group, PLLC, Des Moines, for

appellant mother.

W.A., Grimes, pro se appellee father.

Jessica A. Millage of Millage Law Firm. P.C., Des Moines, guardian ad litem

for minor child.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2

POTTERFIELD, Judge.

The mother appeals the denial of her petition to terminate the father’s

parental rights as to their daughter, S.A. The mother sought termination of parental

rights pursuant to Iowa Code section 600A.8(3)(b)(1) and (2) and section

600A.8(4) (2016).

I. Background Facts and Proceedings.

The parties met in 2005 and began a romantic relationship; they have never

married. S.A. was born in 2011 and is the only child from the relationship. The

parties moved to Iowa with their daughter in 2014 and have remained here since.

In August 2014, the father was arrested for domestic violence against the

mother. He was charged with first-offense domestic abuse assault, pled guilty,

and was convicted. The court entered a no-contact order between the parents,

set to expire January 2016.

In October 2014, the mother petitioned to establish custody, visitation, and

support for S.A. In November, the father was charged with operating while

intoxicated (OWI). He pled guilty, and the court sentenced him to serve the

minimum jail term, suspending the balance, and requiring probation.

The mother and father entered a stipulation and agreement on temporary

matters, providing for the father to visit the child in gradually lengthening periods

of time. In March 2015, the mother filed an application to modify the no-contact

order and the court granted permission for the mother and father to communicate

electronically regarding S.A. and to exchange S.A. for visitation in a public place.

From March 2015 to September 2015, the father participated in graduated

visitation, progressing to overnight visits with S.A.
3

The father was arrested in September 2015 and charged with domestic

abuse assault, second offense.1 The father’s probation was revoked in September

2015, when he pled guilty to domestic abuse assault, second offense. For both

the OWI and domestic abuse assault, the court sentenced the father to two years

of incarceration. The father was incarcerated and then transferred to a residential

correctional facility, where he was granted work release.

The mother dismissed without prejudice her application for custody,

visitation, and support in September 2015. September 2015 was the last visitation

between the father and S.A. The mother has become engaged, and her fiancé is

involved in S.A.’s life.

In May 2016, the mother petitioned the court to modify the existing no-

contact order to prohibit all contact between herself and the father again and to

add the child’s name as a protected party. In August, the father filed a petition for

custody, visitation, and support. Trial in that case has been stayed until further

order of the court. In November, the mother filed the instant petition for termination

of the father’s parental rights. A hearing was held in March 2017, and in May the

mother’s petition was denied. The mother appeals. The father does not participate

in the appeal.

II. Standard of Review.

“Termination proceedings are reviewed de novo.” In re R.K.B., 572 N.W.2d

600, 601 (Iowa 1998). “Although we are not bound by them, we give weight to the

trial court’s findings of fact, especially when considering credibility of witnesses.”

1
The complaining witness of that assault is not a party in this case.
4

Id. “The primary interest in termination proceedings is the best interests of the

child.” Id. The mother has the burden of proving by clear and convincing evidence

grounds for termination exist. Iowa Code § 600A.8. “Once the court has found a

statutory ground for termination under a chapter 600A termination, the court must

further determine whether the termination is in the best interest of the child.” In re

A.H.B., 791 N.W.2d 687, 690 (Iowa 2010).

III. Analysis.

The mother claims she proved by clear and convincing evidence the father

has abandoned S.A. pursuant to Iowa Code section 600A.8(3)(b)(1) and (2):

For the purposes of this subsection, a parent is deemed to
have abandoned a child as follows:
....
b. 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.

The mother also claims grounds for termination exist under section

600A.8(4): “A parent has been ordered to contribute to the support of the child or

financially aid in the child’s birth and has failed to do so without good cause.”

“Under section 600A.8(3)(b), the threshold element of ‘substantial and

continuous or repeated contact’ is economic contributions.” In re K.W., No. 14-

2115, 2015 WL 6508910, at *3 (Iowa Ct. App. Oct. 28, 2015) (quoting Iowa Code
5

§ 600A.8(3)(b)). The father made a payment to the child support recovery unit in

October 2015 in the amount of $2136 and then made biweekly child support

payments beginning in March 2016 until November 2016. While the father has not

made full and consistent child support payments, he testified he had paid around

half of what he owed at the date of the trial. The district court found the father’s

support payments reasonable, considering he had been unemployed and

incarcerated for several months. The district court found, and we agree, the father

has satisfied the requirements of 600A.8(3)(b) and 600A.8(4) by maintaining

“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.” Because the father meets the threshold element of

600A.8(3)(b)–economic contributions–and 600A.8(4), we turn to subsections (1)

and (2) of Iowa Code section 600A.8(3)(b), the requirements for contact between

the parent and child.

It is clear the father maintained contact with S.A. from March to September

2015 pursuant to the parties’ stipulation. The father has not seen S.A. since

September 2015. The father testified he did not contact the mother or S.A.

between September 2015 and January 2016 when he was incarcerated.

After January 2016, the father testified to efforts he made to communicate

with the mother, including phone calls, text messages, e-mails, and using his

parents as go-betweens. The district court found the father’s testimony credible,

as he described his attempts to make contact with S.A., including an e-mail sent

in January 2016 and his petition for custody, support, and visitation filed in August

2016. The mother first denied the father made these efforts then testified she did
6

not remember whether they happened but that it was possible they did occur. The

mother has the burden of proving the father abandoned S.A. She had the burden

to prove the father failed to attempt regular contact. She failed to meet this burden.

The father’s efforts to maintain regular contact were thwarted by the mother,

who did not respond to the father’s communications. See In re P.N.B., No. 06-

1127, 2007 WL 601509, at *5 (Iowa Ct. App. Feb. 28, 2007) (holding abandonment

not proven when any attempts by the mother to contact the child would have been

thwarted by the father).

The record does not contain specific information as to whether the father’s

efforts at communication amounted to more than a few sporadic attempts or

whether he made his efforts regularly. See re J.H., No. 16-2076, 2017 WL

1735912, at *1 (Iowa Ct. App. May 3, 2017) (finding the mother’s lack of contact

with her children for thirty or ninety days sufficient to find abandonment); In re

B.B.E., No. 15-0930, 2016 WL 541346, at *3 (Iowa Ct. App. Feb. 10, 2016) (“[W]ith

respect to the father’s actions, firing text messages and Facebook messages into

the electronic ether with the knowledge that the messages are not being received

is insufficient to demonstrate ‘a willingness to assume custody of the child,’ ‘prompt

action to establish a parental relationship with the child,’ or ‘commitment to the

child.’” (quoting Iowa Code § 600A.8(3)(a)(1))); In re G.B., No. 14-1691, 2015 WL

4493354, at *5 (Iowa Ct. App. July 22, 2015) (explaining a few phone calls and

Facebook messages are not enough); In re K.M., No. 14-1374, 2015 WL 1849508,

at *6 (Iowa Ct. App. Apr. 22, 2015) (“A few sporadic text messages over the period

of a few months . . . do not rise to any sort of meaningful contact that may fend off

a claim of abandonment, particularly given the father did not attempt any other type
7

of communication—or offer financial or emotional support.”); In re G.A., 826

N.W.2d 125, 130 (Iowa Ct. App. 2012) (affirming termination order where the father

communicated with the mother via “sporadic text messages” over the course of

several months and made no attempts to follow up); In re D.S.P., No. 09-1188,

2010 WL 445690, at *3 (Iowa Ct. App. Feb. 10, 2010) (holding the father

abandoned his daughter when he “largely gave up” on communication after his

first attempts were unsuccessful). Deferring to the district court’s determination of

the father’s credibility on this issue and its finding the father repeatedly attempted

contact and sought court intervention, we agree the mother’s testimony does not

establish the father failed to make the minimum contact under 600A.8(3)(b).

The mother has the burden of proving her case by clear and convincing

evidence. See Iowa Code § 600A.8. “This is a significant burden—the highest

burden in civil cases. We impose this burden on the petitioners to prevent an

erroneous and irreparable deprivation of a parent’s right to raise his or her

children.” In re E.S., No. 16-0066, 2016 WL 7403746, at *3 (Iowa Ct. App. Dec,

21, 2016). Because the mother has not met her burden of proof to show the father

has abandoned S.A., we need not reach the issue of whether termination is in

S.A.’s best interest’s, and we affirm.

AFFIRMED.