IN THE COURT OF APPEALS OF IOWA
No. 17-0835
Filed November 8, 2017
IN THE INTEREST OF C.A.,
Minor Child,
A.P., Mother,
Petitioner-Appellee
B.A., Father,
Respondent-Appellant.
______________________________________________________________
Appeal from the Iowa District Court for Delaware County, Thomas J.
Straka, Associate Juvenile Judge.
A father appeals the termination of his parental rights to his son.
AFFIRMED.
Cory R. Gonzales of Law Firm of Cory R. Gonzales P.L.L.C., Strawberry
Point, for appellant father.
Justin M. Vorwald of Ehrhardt, Gnagy, McCorkindale & Vorwald, Elkader,
for appellee mother.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.
A father’s parental rights to his son, C.A., born 2012, were terminated
under Iowa Code section 600A.8(3) (2016) after C.A.’s mother filed a petition for
termination of parental rights. The father asserts both a lack of proof he
abandoned his son and that termination is not in the child’s best interests. On
our de novo review, the mother carried her burden of proof on both issues, and
we affirm the district court’s ruling. In re R.K.B., 572 N.W.2d 600, 601 (Iowa
1998).
I. Grounds for Termination under Iowa Code section 600A.8(3).
The father claims the mother failed to prove he abandoned C.A. as
provided in Iowa Code section 600A.8(3). That section provides in relevant part:
3. The parent has abandoned the child. 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.
....
c. The subjective intent of the parent, whether expressed or
otherwise, unsupported by evidence of acts specified in paragraph
“a” or “b” manifesting such intent, does not preclude a
determination that the parent has abandoned the child. In making a
determination, the court shall not require a showing of diligent
efforts by any person to encourage the parent to perform the acts
specified in paragraph “a” or “b.”
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Iowa Code § 600A.8(3); see also In re G.A., 826 N.W.2d 125, 130 (Iowa Ct. App.
2012) (recognizing a parent’s subjective intent does not preclude a finding of
abandonment).
In July 2012, just prior to C.A.’s birth, the father was arrested on a variety
of charges, including two counts of murder in the first degree, and was
incarcerated in the county jail. In September 2013, the father entered an Alford
plea1 to unauthorized possession of an offensive weapon, third-degree burglary,
accessory after the fact, and attempted burglary in the third degree. He was
sentenced to sixteen years in prison to run consecutively to a prior sentence of
two years, for a total of eighteen years.
Because of his incarceration, the father has only seen C.A. on two
occasions; once very briefly at the father’s pretrial hearing, and one time in 2014
when the mother brought C.A. to the prison for a two-hour visit. The father, citing
In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993), acknowledges that he cannot use his
incarceration as an excuse for not being physically with C.A. or being able to
create a relationship with him. However, he maintains he has attempted to
remain relevant in C.A.’s life by periodically sending letters and emails, making
phone calls, and participating in the prison storybook program. The mother
acknowledged some attempts by the father to have contact with C.A. over the
years, but she noted the father’s efforts had dwindled to next to nothing by the
time of the termination hearing. In 2016, C.A. received only a birthday card and
a Christmas card according to the mother’s testimony. The district court found
1
North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding an express admission of guilt
is not a constitutional requisite to the imposition of a criminal penalty).
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the father had no emotional connection or any established bond with C.A. and
the mother proved the father’s attempts to have or maintain any relationship with
C.A. were too few and far between to demonstrate he had a “substantial and
continual contact” with the child. See Iowa Code § 600A.8(3)(b). We agree and
affirm this finding.
In addition, the district court found the father provided no financial support
for C.A. although he had some ability to do so. The father testified he had
employment through the prison system and was “absolutely” able to pay at least
some child support. However, he stated he had never been ordered to pay child
support and that the mother “could have easily filed and I would have been
paying.” We agree with the district court that although the father had the ability to
pay some child support, he failed to do so or take any initiative to accept his
parental obligation in this regard. See In re W.W., 826 N.W.2d 706, 711 (Iowa
Ct. App. 2012) (finding mother abandoned her children after she did not support
them financially despite no court order obligating her to make child support
payments). Because of the lack of communication, feeble attempts at
establishing a relationship with C.A., as well as providing no financial support for
the child, we agree with the district court the mother proved the father abandoned
C.A. as set forth under Iowa code section 600A.8(3).
II. Best Interests of the Child.
The father next asserts the district court utilized the standard under
chapter 232 when determining termination was in the child’s best interests rather
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than the best-interest test under chapter 600A.2 We do not find this to be the
reversible error the father claims. As our supreme court noted in In re A.H.B.,
“We have not provided a complete analytical framework to determine the best
interest of the child under Iowa Code chapter 600A, but we find the statutory best
interest framework described in Iowa Code section 232.116(2), (3) to be useful.”
791 N.W.2d 687, 690 (Iowa 2010). Therefore, we will review the findings made
by the district court as to whether termination of the father’s parental rights was in
C.A.’s best interests.
Substantively, the father asserts there is no one willing and able to take on
the role of a father figure to C.A.; hence, he asserts C.A. will become a charge
upon the state. However, the father’s assertion rings hollow when he has utterly
failed to provide such support for C.A. Although the district court was somewhat
2
Iowa Code section 232.116(2) provides, in part:
In considering whether to terminate the rights of a parent under
this section, the court shall give primary consideration to the child’s
safety, to the best placement for furthering the long-term nurturing and
growth of the child, and to the physical, mental, and emotional condition
and needs of the child. This consideration may include any of the
following:
a. Whether the parent’s ability to provide the needs of the child is
affected by the parent’s mental capacity or mental condition or the
parent’s imprisonment for a felony.
In comparison Iowa Code section 600A.1 provides:
This chapter shall be construed liberally. The best interest of the
child subject to the proceedings of this chapter shall be the paramount
consideration in interpreting this chapter. However, the interests of the
parents of this child or any natural person standing in the place of the
parents to this child shall be given due consideration in this interpretation.
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.
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skeptical of the mother’s testimony that she was able to support herself and C.A.,
the court believed “the financial aspect is only one part of the best interests
consideration.” It went on to consider additional factors. See Iowa Code
§ 232.116(2) (giving primary consideration to the child’s safety, long-term
nurturing and growth and to the physical, mental, and emotional condition and
needs of the child). In this regard, the court considered the father’s history of
“disturbing” criminal activity, drug manufacturing and use, as well as emotional
and physical abuse of the mother. The court also noted the father’s progress
while incarcerated and the father’s hopes for a better future when he is
eventually released from prison. The court concluded:
The Court simply cannot gamble with the emotional and
physical safety of a vulnerable child. As stated previously, there is
no established relationship between the child and father. It could
be several years before the child is even able to meet the father. If
the father returns to his previous ways upon release, both the child
and the mother will be in grave danger. The Court has heard the
father’s claims that he is a changed man. For his sake and the
future, the Court certainly hopes that is true. However, the Court is
simply unwilling to risk the health and safety of the child to
determine if those claims are realized. Accordingly, the Court
determines it would be in the best interest of the child to grant the
petition to terminate the father’s parental rights.
We agree and affirm the district court’s determination that termination of
the father’s parental rights is in the best interests of C.A.
AFFIRMED.
In the Interest of C.A., Minor Child, A.P., Mother, B.A., Father
Combined Opinion