IN THE COURT OF APPEALS OF IOWA
No. 16-1879
Filed August 2, 2017
IN THE INTEREST OF K.B.,
Minor Child,
A.L., Mother,
Petitioner-Appellant,
K.B., Father,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Stephen A. Owen,
District Associate Judge.
A mother appeals the dismissal of her petition to terminate the parental
rights of a child’s father under Iowa Code chapter 600A (2016). AFFIRMED.
Dorothy L. Dakin of Kruse & Dakin, L.L.P., Boone, for appellant mother.
Andrea M. Flanagan of Sporer & Flanagan, P.L.L.C., Des Moines, for
appellee father.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
VAITHESWARAN, Presiding Judge.
A mother appeals the dismissal of her petition to terminate the parental
rights of a child’s father.
I. Background Facts and Proceedings
Kelly Beaman and Ashley Lindstrom married in 2006 and divorced in
2008. They are the parents of a child born in 2005. Under the dissolution
decree, Lindstrom received sole legal custody and physical care of the child.
The decree stated, Beaman “shall be awarded reasonable visitation as the
parties may agree” and “[i]f the parties are unable to agree, visitation shall be”
pursuant to a prescribed schedule.1 Beaman was ordered to pay $200 per
month in child support beginning July 1, 2008, and furnish health insurance for
the child “provided it [was] available through his employment at a reasonable
cost.”
Following entry of the decree, Beaman exercised overnight, unsupervised
visitation with the child. During one of the visits, hot cocoa spilled on the child’s
pelvic area and burned her. The child was diagnosed with second-degree burns
and the matter was referred to the department of human services for
investigation. According to Lindstrom, the department issued a “founded” child
abuse report against Beaman for failure to provide “proper care” but declined to
place him on the child abuse registry.
Beaman’s visits with the child ended for several years. Beaman blamed
Lindstrom, testifying she said he would “never see” the child again. Lindstrom, in
1
The schedule granted Beaman visitation “every other weekend . . . from Friday at 3:00
p.m. until the following Sunday at 5:00 p.m.,” and two weeks out of the summer, “one
week in June and one week in July.”
3
contrast, stated Beaman “wanted supervised” visitation, but “he never followed
through with it.” Lindstrom did not seek a modification of the dissolution decree’s
visitation provisions, and Beaman made no immediate effort to enforce his rights
under the decree.
In 2014, Beaman’s soon-to-be wife contacted Lindstrom about
recommencing visits. Lindstrom denied the request. She also rejected
Beaman’s subsequent offer to have the child added to his family’s health
insurance policy.
In early 2016, Beaman’s wife again asked Lindstrom if they could see the
child. Lindstrom again denied the request. Beaman sought to resolve the issue
informally, through counsel. Lindstrom responded with a termination petition,
alleging Beaman abandoned the child. When Beaman was unable to resolve the
matter informally, he filed an application for rule to show cause.2
Following a termination hearing, the district court denied Lindstrom’s
petition. Lindstrom appealed.
II. Abandonment
Lindstrom’s termination petition was filed pursuant to Iowa Code chapter
600A (2016), which provides the following definition of abandonment:
“To abandon a minor child” means that 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.
2
It should be noted that, although Lindstrom filed her termination petition prior to the
filing of Beaman’s application for rule to show cause, service of the petition did not occur
until well after Beaman filed his application.
4
Iowa Code § 600A.2(19). The statute further lists abandonment as a ground for
termination. See id. § 600A.8(3). For a child six months of age or older at the
time of the termination hearing,
[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.
Id. § 600A.8(3)(b). Lindstrom argues Beaman (A) “failed to contribute support for
[the child] in a reasonable amount according to his means,” (B) “did not visit [the
child] monthly while able” and “she did not prevent him from doing so over a
period of seven years,” and (C) “did not maintain regular communication with her
or [with the child].” On our de novo review, we disagree with these assertions.
A. Support
To prove abandonment, Lindstrom was required to establish Beaman
failed to maintain “substantial and continuous or repeated contact with the child
as demonstrated by contribution toward support of the child of a reasonable
amount, according to [his] means.” Id. The district court found Beaman paid
$12,467.58 of his support obligation of “slightly less than $20,000” and “overpaid”
5
from 2013 forward. The court determined he “maintained repeated contact with
the child through payment of a reasonable amount of support for the child.” The
court noted Beaman was “also supporting the child reasonably by providing
health insurance,” notwithstanding Lindstrom’s efforts “to excuse him from doing
so.” The court concluded Lindstrom “ha[d] not established clearly and
convincingly that [Beaman] has abandoned the child by failing to maintain
substantial and continuous or repeated contact with the child as demonstrated by
contribution toward support of the child.”
The record supports the court’s findings. Beaman recognized his financial
obligation to the child and made efforts to meet that obligation. Although there
came a time when he had the means to pay off the arrearage but failed to do so,
he consistently paid extra to reduce the arrearage and stated he could “get the
money” to eliminate it. We agree with the district court that Beaman contributed
to the support of the child.
B. Visitation or Regular Communication
Lindstrom was also required to prove Beaman failed to maintain
“substantial and continuous or repeated contact with the child as demonstrated
by” either (1) “[v]isiting 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” or (2) “[r]egular communication with the child or with the
person having the care or custody of the child, . . . when prevented from visiting
the child by the person having lawful custody of the child.” See id.
The district court found Lindstrom “denied visitation on a consistent basis”
after the burn incident. The court rejected Lindstrom’s reasons for the denials.
6
Lindstrom’s reliance on the advice of the child’s counselor, the court said, was
incongruous because the counselor was providing the child therapy for issues
unrelated to contact with her father. Similarly, Lindstrom’s claimed inability to
make contact with Beaman was met with skepticism. Finally, the court stated
Lindstrom’s reliance on the child’s alleged preference to have no contact with her
father was “likely the product of [Lindstrom’s] concerted and intentional effort to
alienate the child from” Beaman.
These findings are fully supported by the record. Lindstrom did not call
the child’s therapist to testify but it became evident from her own testimony that
the child’s therapy addressed two significant traumas in the child’s life, one of
which Lindstrom chose not to disclose to Beaman. As for Lindstrom’s claimed
inability to communicate with Beaman, text messages belie this assertion. The
record is also replete with evidence of Lindstrom’s efforts to alienate the child
from her father such as the child’s statement to the guardian ad litem that her
mother gave her a “paper” listing the negative “things her father had done,”
including “episodes of domestic abuse.”
No one, including Beaman, condoned his conduct towards Lindstrom
before the dissolution or the burn incident after the dissolution. But if Lindstrom
truly believed the child was at risk in his care, her remedy was to seek a
modification of the dissolution decree’s visitation provisions instead of unilaterally
curtailing the child’s relationship with her father.3
3
Although this court has affirmed the denial of visitation in extreme circumstances
where a parent is granted sole custody, the dissolution decree in this case contained a
mandatory visitation provision. Cf. In re Marriage of T.A.F., No. 02-0996, 2003 WL
190783, at *2-3 (Iowa Ct. App. Jan. 29, 2003).
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We affirm the district court’s denial of Lindstrom’s termination petition.
Having concluded Lindstrom failed to meet her statutory burden to prove
abandonment, we find it unnecessary to decide whether termination was in the
best interests of the child. See In re A.V., No. 16-0480, 2016 WL 6637666, at *5
(Iowa Ct. App. Nov. 9, 2016).
III. Consideration of Domestic Abuse
Iowa Code section 600A.8(3)(c) provides in relevant part:
In making a determination regarding a putative father, the court
may consider the conduct of the putative father toward the child’s
mother during the pregnancy. Demonstration of a commitment to
the child is not met by the putative father marrying the mother of the
child after adoption of the child.
Lindstrom argues the court failed to consider Beaman’s abusive conduct toward
her while she was pregnant. We find this argument unpersuasive. First, section
600A.8(3)(c) is discretionary. Second, the court did consider the domestic
abuse, finding Lindstrom was fearful of Beaman and Lindstrom’s “history of
surviving the abuse perpetrated on her . . . likely had a significant effect on her
perception of the danger.” The court simply did not find the history of domestic
abuse dispositive. Finally, it is worth noting that the decretal court considered the
history of domestic abuse in deciding to grant Lindstrom sole legal custody of the
child.
IV. Appellate Attorney Fees
Beaman requests appellate attorney fees. He has cited no statutory
authority in support of the request. Accordingly, the request is denied. See In re
L.H., No. 16-1653, 2017 WL 1278336, at *3 (Iowa Ct. App. Apr. 5, 2017); In re
8
A.F., No. 16-0650, 2016 WL 6652390, at *5 (Iowa Ct. App. Nov. 9, 2016); In re
B.G.S., No. 03-1272, 2004 WL 359528, at *3 (Iowa Ct. App. Feb. 27, 2004).
AFFIRMED.