In the Interest of B.J., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 22-0281
Filed August 31, 2022

IN THE INTEREST OF B.J.,
Minor Child

J.J., Mother,
Petitioner-Appellee,

C.S., Father,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Wapello County, William S. Owens,

Associate Juvenile Judge.

A father appeals the termination of his parental rights. AFFIRMED.

Jonathan Willier, Centerville, for appellant father.

Heather M. Simplot of Harrison, Moreland, Webber & Simplot, P.C.,

Ottumwa, for appellee mother.

Lynnette M. Lindgren of Faulkner, Broeman & Lindgren, Oskaloosa,

attorney and guardian ad litem for minor child.

Considered by Bower, C.J., and Schumacher and Ahlers, JJ.
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AHLERS, Judge.

This is an appeal from the termination of a biological father’s1 parental rights

to his nine-year-old child. Termination was ordered after the mother filed a petition

based on abandonment pursuant to Iowa Code section 600A.8(3)(b) (2021).

I. Factual and Procedural Background.

Shortly after the mother became pregnant, she informed the father he might

be the child’s biological father. However, at the child’s birth, a different man was

named on the birth certificate as the child’s legal father. Despite this, the father

insisted he was the child’s father and declared so publicly. Even though he

believed himself to be the biological father, the father did not take any meaningful

steps to develop a relationship with or support the child. He also took no steps to

disestablish the legal father’s paternity and establish his own. Six months after the

child’s birth, the father went to prison, where he remained at the time of the

termination hearing.

In 2020, the legal father’s paternity was disestablished. The father took

action soon thereafter to establish his own paternity. Even after his paternity was

established, he did not make any meaningful attempt to contact the mother or the

child.

As the father took steps to establish his paternity, the mother filed a petition

to terminate his rights on the basis of abandonment under Iowa Code

chapter 600A. The mother has been in a relationship with her now-husband for

several years, and the step-father wants to adopt the child. The child testified at

1 We will refer to the biological father simply as “the father.”
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the termination hearing that she wants to be adopted by her step-father and has

never interacted with the father.

The juvenile court terminated the father’s rights, finding the statutory

grounds for abandonment had been met and that termination would be in the

child’s best interests. The father appeals. He contends his rights should not be

terminated because the mother failed to prove abandonment, as she interfered

with his ability to form a relationship with the child.

II. Standard of Review.

“Private termination proceedings under chapter 600A are reviewed de novo.

Although we are not bound by them, we give weight to the trial court’s findings of

fact, especially when considering credibility of witnesses.” In re B.H.A., 938

N.W.2d 227, 232 (Iowa 2020) (internal quotation marks and citations omitted). We

give a parent’s rights due consideration, but our paramount concern is the child’s

best interests. Iowa Code § 600A.1.

III. Termination Based on Abandonment.

Private termination proceedings under Iowa Code chapter 600A follow a

two-step process. B.H.A., 938 N.W.2d at 232. First, a ground for termination must

be established by clear and convincing evidence. Id. Second, it must be

established by clear and convincing evidence that termination is in the child’s best

interests. Id. Here, the father only challenges the first step, so we limit our decision

to that step.

The district court found the mother proved by clear and convincing evidence

that the father abandoned the child. When, as here, the child is six months of age

or older at the time of the termination hearing,
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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.
(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.

Iowa Code § 600A.8(3)(b). A parent’s subjective intent, “unsupported by evidence

of acts specified in [section 600A.8(3)(b)] manifesting such intent,” does not

preclude a finding of abandonment. Id. § 600A.8(3)(c).

The father does not challenge the juvenile court’s finding that he failed to

support the child according to his means. With this concession, we could end our

analysis here. “A parent is deemed to have abandoned their child unless they both

make reasonable financial contributions and maintain monthly contact, so the

[petitioning parent] only need[s] to prove the [respondent parent] failed at one of

the two prongs to show” abandonment. In re J.B., No. 21-1420, 2022 WL 951053,

at *6 (Iowa Ct. App. Mar. 30, 2022) (emphasis added). So, by admitting he failed

on one of the two necessary elements of a continuing parent-child relationship, the

father concedes he abandoned the child within the meaning of

section 600A.8(3)(b). See In re K.B., No. 22-0027, 2022 WL 3065365, at *2 (Iowa

Ct. App. Aug. 3, 2022) (concluding a mother established abandonment when she
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presented evidence that the father made no financial contributions when it was

within his means to provide something); J.B., 2022 WL 951053, at *6.

Nonetheless we continue on to address the second element as well. The

father does not challenge the findings that he failed to visit the child at least

monthly, see Iowa Code § 600A.8(3)(b)(1), failed to regularly communicate with

the child or the mother, see id. § 600A.8(3)(b)(2), or failed to openly live with the

child for a period of six months in the one-year period immediately before the

termination hearing, see id. § 600A.8(3)(b)(3). Instead, he focuses on the final

clause in section 600A.8(3)(b)(1) and (2)—contending the mother prevented him

from having regular visits or communications with the child.

The evidence does not support the father’s argument. We first note that the

father’s incarceration does not excuse his failure to maintain the necessary contact

to avoid termination of his rights. See In re X.Z, No. 16-0765, 2016 WL 6637765,

at *2 (Iowa Ct. App. Nov. 9, 2016). We also note that the mother has no obligation

to encourage contact between the father and the child. See Iowa Code

§ 600A.8(3)(c) (“[T]he court shall not require a showing of diligent efforts by any

person to encourage the parent to perform the acts specified in [section

600A.(8)(3)(b)].”). The father has the obligation to make the effort to maintain the

necessary contact. See id. (“The subjective intent of the parent, whether

expressed or otherwise, unsupported by evidence of acts specified in [section

600A.8(3)(b)] manifesting such intent, does not preclude a determination that the

parent has abandoned the child.”); see also In re T.K., No. 16-0029, 2016 WL

4384869, at *2 (Iowa Ct. App. Aug. 17, 2016) (noting “the father’s actions did not

reflect a meaningful effort to be involved in [the child’s] life”). No meaningful effort
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was made here. The evidence establishes that the father made very minimal

attempts at contacting the child. In fact, the father admits he “kind of gave up” in

the period between the child’s birth and when the former legal father’s paternity

was disestablished several months before the termination hearing—a period of

roughly nine years. This “giving up” is made apparent by the fact that the father

has only seen the child twice, the first being unintentional and the second being by

video on the first day of the termination hearing. As far as other communication,

the father sent two letters to the mother, and an attempted later contact with the

child came from the father’s sister, not the father. We find no evidence supporting

the father’s claim that the mother prevented him from maintaining required contact

with the child. The father’s minimal efforts fall squarely within the statutory

definition of what it means “to abandon a minor child.” See Iowa Code

§ 600A.2(20) (defining the phrase to mean “that a parent . . . rejects the duties

imposed by the parent-child relationship . . . , which may be evinced by the person,

while being able to do so, . . . making only a marginal effort . . . to communicate

with the child”).

IV. Conclusion.

We find clear and convincing evidence that the father abandoned the child

within the meaning of Iowa Code section 600A.8(3)(b). Accordingly, we affirm the

decision of the juvenile court terminating the father’s parental rights to this child.

AFFIRMED.