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In re M.K.R.

Court of Appeals of Iowa

June 7, 2017

IN THE INTEREST OF M.K.R., Minor Child, K.R., Mother, Petitioner-Appellant, B.Y., Father, Respondent-Appellee.

         Appeal from the Iowa District Court for Des Moines County, Jennifer S. Bailey, District Associate Judge.

         The mother appeals the district court's order denying her petition under Iowa Code section 600A.8(3) (2016) to terminate the father's parental rights to their minor child and the court's admission of an affidavit during the trial. AFFIRMED.

          Diana L. Miller and Sarah S. James of Whitfield & Eddy, P.L.C., Mt. Pleasant, for appellant mother.

          B.Y., pro se appellee father.

          Considered by Danilson, C.J., and Potterfield and Bower, JJ.

          POTTERFIELD, Judge.

         The mother appeals the district court's ruling denying her request to terminate the father's parental rights of M.R. on the basis (1) statutory grounds to establish termination were met, and (2) termination is in M.R.'s best interests. The mother initiated this action under Iowa Code section 600A.8(3) (2016) in April 2016. The mother also claimed the district court erred in admitting the affidavit of her paramour. Although the statutory grounds for termination were met, termination is not in the best interests of M.R. The district court also properly admitted the affidavit. We affirm.

         I. Background Facts and Proceedings.

         The parties to this private-termination action are the natural mother and father of M.R., born in 2009. The parties were never married, and they separated in 2008 before M.R.'s birth. M.R. has resided with the mother since birth and currently lives with the mother and her paramour, Samuel. M.R. knows Samuel as her father. Both the mother and father have other children unrelated to this action.

         Sometime in 2008, both the mother and the father were charged with theft. According to testimony, both parties received a deferred judgment. However, the father testified he was incarcerated for seven days for contempt related to failing to pay restitution for the theft. The record does not show any additional criminal activity.

         The father has never had meaningful contact with M.R., nor has he provided any economic contributions. Despite the father's limited contact with M.R., he has attempted to communicate with the mother and her family about M.R. since the child's birth. On or around the mother's due date for M.R., the father testified he called the mother to inquire about the pregnancy, but the mother told the father M.R. was not yet born even though the father could hear a baby crying in the background. Between 2010 and 2011, the father sent multiple letters to the mother's family requesting to meet M.R.; the letters were returned with the inscription, "Do not send mail here." The father testified he sent the letters to the mother's family because he did not know her location. In 2013, the father initiated communications with the mother through Facebook about establishing a relationship with M.R. In 2014, the father again attempted to communicate with the mother through Facebook asking the mother to let M.R. meet her paternal grandfather, as his health was fading. He made multiple requests in 2014 and another request between 2015 and the trial date to see M.R. The mother's testimony indicates that she saw the messages. However, all of the messages went unanswered. The father even attempted to contact Samuel in 2015 through Facebook.

         In April 2016, the mother filed a petition to terminate the father's parental rights, pursuant to Iowa Code section 600A.8(3). At trial, the father offered Samuel's affidavit from a custody proceeding between Samuel and the mother regarding their minor child. The relevant part of the affidavit states:

[M.R.] doesn't know her own father and he has not been allowed into her life. It is my understating that he has made attempts to be involved in her life, but [the mother] won't allow him to do it. I fear that she is now doing that with me to alienate me from my daughter's life.

         The district court initially denied the father's request to admit the affidavit, noting the father could call Samuel as a witness during his case-in-chief to elicit the information stated in the affidavit-at that time, Samuel was present in the courtroom. By the time the father attempted to call Samuel as a witness, he was unable to locate him.[1] The district court admitted the affidavit over the mother's objections for "what value may be evinced from the actual paragraph on page 3 [listed above]. The rest of the document will be admitted to simply show who signed it and under what circumstances."

         In the guardian ad litem's (GAL) report to the court, the GAL requested "to reserve recommendation until she has heard the information which comes before the court in the form of testimony and admitted evidence." The GAL made its oral recommendation to the court during the trial. She stated:

This minor child is well into growing. She is in second grade now. She has been without [the father], and he has made no attempts to provide support for her. I find that very concerning. It starts to make me question as to whether or not-other than on the rare occasions he'd make contact by Facebook-if she was a ...

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