IN THE COURT OF APPEALS OF IOWA
No. 16-1653
Filed April 5, 2017
IN THE INTEREST OF L.H.,
Minor child,
S.M., Mother,
Petitioner-Appellee,
J.H., Father,
Respondent-Appellant.
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Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
Father appeals from an order terminating his parental rights pursuant to
Iowa Code chapter 600A (2015). AFFIRMED.
Jacob Van Cleaf of Van Cleaf & McCormack Law Firm, LLP, Des Moines,
for appellant father.
Ryan A. Genest of Culp, Doran & Genest, P.L.C., Des Moines, for
appellee mother.
Jesse A. Macro Jr. of Macro & Kozlowski, L.L.P., West Des Moines,
guardian ad litem for minor child.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.
This appeal arises out of a private action to terminate parental rights filed
pursuant to Iowa Code chapter 600A (2015). Sarah, the biological mother of
L.H., filed the action to terminate the parental rights of Johnathon, the biological
father of L.H. The district court granted the petition, finding and concluding the
father had abandoned the child within the meaning of Iowa Code section
600A.8(3). The father timely filed this appeal.
This court reviews de novo termination-of-parental-rights proceedings.
See In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). “Although our review
is de novo, we do afford the decision of the district court deference for policy
reasons.” State v. Snow, No. 15-0929, 2016 WL 4801353, at *1 (Iowa Ct. App.
Sept. 14, 2016).
The petitioner must prove each element of her case by clear and
convincing evidence. See Iowa Code § 600A.8. The code provides a minor child
is abandoned when:
[A] parent, punitive 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). More specifically, because L.H. was older than six
months at the time of the termination hearing, section 600A.3(8)(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:
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(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.
The petitioner need not establish the respondent had the subjective intent to
abandon the child. See Iowa Code § 600A.8(3)(c). Instead, the petitioner can
establish objective intent by showing the respondent failed to partake in
“affirmative parenting to the extent it is practical and feasible in the
circumstances.” In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981);
The father first raises a procedural issue. He claims he was not provided
sufficient notice because the petition failed to identify the specific code provision
or provisions pursuant to which the mother sought termination of his parental
rights. The claim is without merit. The petition is captioned “Petition for
Termination of Parental Rights.” Paragraph four of the petition states that “[t]he
parent/child relationship now existing between the above-named child and her
biological father should be terminated.” Paragraph four, subparagraphs (a) and
(b) explicitly state termination was sought on the grounds of consent and
abandonment. The father was served with the petition. The petition was
sufficiently clear to provide the father with notice. See Smith v. Smith, 513
N.W.2d 728, 730 (Iowa 1994) (stating “petition must allege enough facts to give
defendant ‘fair notice’ of claim”).
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The father’s procedural claim fails for an additional reason. He had actual
notice of the grounds upon which the mother sought to terminate his parental
rights. She sought to terminate his parental rights on the ground he abandoned
the child within the meaning of chapter 600A. On the eve of trial, the father filed
a trial brief arguing the evidence would not be sufficient to establish
abandonment within the meaning of chapter 600A. He cited and argued the
relevant code provisions. His actual knowledge of the grounds upon which
termination was sought defeats his claim of insufficient notice. See In re R.E.,
462 N.W.2d 723, 726 (Iowa Ct. App. 1990) (holding “notice to an attorney in
respect to a matter in which he is then acting for a client is notice to the client”).
On the merits, the father argues the mother failed to prove he abandoned
the child. We disagree. The parties began dating in February of 2012. L.H. was
born in May 2013. The parties cohabited for a period of time after L.H.’s birth.
During the time the parties cohabited, the father demonstrated little interest in the
child, preferring to play video games. The relationship deteriorated, and the
mother asked the father to move out. L.H. was fourteen or fifteen months old at
the time. After he moved out of the parties’ residence, the father initially provided
financial support for the child and exercised some visitation with the child. By
2015, however, the father discontinued substantial and continuous contact with
the child. The record reflects he stopped making any support payments in July
2015. The record also reflects the father had only three visits with the child
during 2015 and none after July 2015. Each of the three visits was of short
duration, lasting only minutes to an hour. The mother did admit she did not
permit the father to visit with the child on one occasion when he asked in
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December 2015 due to her concern regarding the welfare of L.H. having
visitation with a virtual stranger. Like the district court, we find this single denial
of visitation does not overshadow the preceding year, a year in which the father
made little to no attempt to communicate or visit with L.H. We conclude there
was clear and convincing evidence the father abandoned the child due to the
father’s failure to visit 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.” Iowa Code § 600A.8(3)(b).
When the statutory ground or grounds authorizing the termination of
parental rights is satisfied, the petitioner must still prove termination of parental
rights is in the best interest of the child. See Iowa Code § 600A.1; In re R.K.B.,
572 N.W.2d 600, 602 (Iowa 1998). On de novo review, we conclude termination
of the father’s parental rights is in the best interest of the child. The father has
not demonstrated any sustained interest in the child. The child does not
recognize her father. The guardian ad litem concluded it was in L.H.’s best
interest to terminate the father’s parental rights to avoid a “yo-yo” effect based on
past performance. The father’s indifferent attitude toward the child is evidenced
by, among other things, the father’s failure to appear at the termination hearing.
The child is thriving in her present circumstances. The mother cohabits with her
fiancé, Michael. Michael has served as the child’s de facto father since the time
of the parties’ separation. Michael intends to adopt L.H. The child recognizes
Michael as her “dad or daddy.” The mother provided photographs of L.H. with
Michael partaking in bonding tasks such as pumpkin carving and assembling
puzzles together. The mother also provided photos of L.H. with her extended
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family to demonstrate her network of support. It is in the best interest of the child
to terminate the father’s parental rights.
The father relies on In re K.W., No.14-2115, 2015 WL 6508910, at *4–5
(Iowa Ct. App. Oct. 28 2015), to support his contention that small gestures to
sustain a relationship with a child are enough to show that termination of parental
rights is not in the child’s best interests. We disagree with the proposition,
generally, that sending a few messages per year to the child is in the best
interest of the child. Regardless, the father’s relationship with L.H. is materially
different than the parental relationship in K.W. Unlike the child in that case, L.H.
is unaware of her father. We conclude K.W. is distinguishable from the present
case and does not militate in favor of preserving the parent-child relationship in
this case.
The mother requests appellate attorney fees. She does not identify the
statutory authority authorizing an award of appellate attorney fees in a private
termination proceeding. We deny her request for attorney fees. See In re A.F.,
No. 16-0650, 2016 WL 6652390, at *5 (Iowa Ct. App. Nov. 9, 2016) (denying
request for appellate attorney fees in private termination proceeding).
AFFIRMED.
In the Interest of L.H., Minor Child, S.M., Mother, J.H., Father
Combined Opinion