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In re R.S.

Court of Appeals of Iowa

October 10, 2018

IN THE INTEREST OF R.S. and L.S., Minor Children, D.P., Mother, Petitioner-Appellant, Z.S., Father, Respondent-Appellee.

          Appeal from the Iowa District Court for Sac County, Joseph B. McCarville, District Associate Judge.

         A mother appeals from the district court order denying her petition to terminate the parental rights of the father to their two children.

          Alyssa A. Kenville of Kenville Law Firm, PC, Fort Dodge, for appellant mother.

          Chira L. Corwin of Corwin Law Firm, Des Moines, for appellee father.

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.

          DANILSON, CHIEF JUDGE.

         A mother appeals from the district court order denying her petition to terminate the parental rights of the father to R.S. and L.S. Because there is clear and convincing evidence the father abandoned his children, as that term is used in Iowa Code sections 600A.2(19) and 600A.8(3)(b) (2017); because the mother did not prevent the father from visiting or communicating with the children; and because termination is in the children's best interests, we reverse the district court and remand with instructions to enter an order terminating the father's parental rights.

         I. Background Facts & Proceedings.

         Twins R.S. and L.S. were born in 2009. Their parents were never married but cohabitated at the time the children were born. The mother worked full time when the children were born, and the father was unemployed. After the children were born, the father worked odd jobs varying five to twenty hours per week. The parents disagreed about the extent the father cared for the children when they were infants, but after the mother went back to work, the children were sometimes placed in daycare. The couple separated in early 2010 when the children were roughly fifteen months old. The father moved in with his mother. R.S. and L.S's mother moved in with C.P., who later became her husband. The children do not know their biological father is related to them. They see C.P. as their father. C.P. has financially supported and raised the children since 2010.

         After the parties separated, there was no set arrangement for visitation. The father would sometimes contact the mother and attempt to set up a time to see the children. The mother has had the same telephone number since 2010, and the father has known her number since they separated. In late 2010, the mother, C.P., and the children moved roughly an hour's drive away from the father. Since 2010, the father's contacts with the children have been sporadic and minimal.

         The father testified that a few times per month in 2010, 2011, and 2012 he would request to visit the children. He testified he made these requests via calling, text message, or Facebook. The father claimed he did not have a record of the calls or texts because he no longer had the cell phones used for those contacts. The father testified the mother did not always answer his calls or respond to his messages. The father acknowledged he did not request to visit the children in 2013, 2014, 2016, or 2017. The father testified about one request to visit the children in 2015, which was granted, and another request which apparently did not work out.

         In 2010, the father saw the children two times for between forty-five minutes and an hour. The parties disagreed whether the father had contact with the children in 2011.[1] Between 2012 and 2013, the father saw the children four times; the visits ranged from twenty minutes to an hour. Neither party could recall whether the father saw the children in 2014. In August 2015, the parties had a chance meeting when both were camping at the same campground. The father saw the children for roughly fifteen minutes. The father did not visit the children in 2016 or 2017. The father has never been to the children's school, never contacted the children's teachers, never attended a parent-teacher conference, never attended a school program, and never attended the children's dance recitals.

         At some point after the parties separated, the Child Support Recovery Unit contacted the mother because the children were receiving state assistance. The father was required to pay ten dollars per month per child initially, and that obligation later rose to twelve dollars per month per child. In 2010, the father attempted to give the mother $200, but C.P. threw the money into the father's car while the two cars were next to each other at a red light and yelled "we don't need your money." In 2012, the father sent the mother $100, which was apparently accepted. The father testified he purchased birthday, Easter, and Christmas presents for the children "about every year." These gifts were sometimes sent to the children by their paternal grandmother. The mother disputed the father sent gifts but admitted she could not tell who purchased the gifts sent by the grandmother.

         After the 2015 chance meeting, the mother filed a request to adjust the child-support order. The father opposed adjusting the child support because he did "not get to see [the children] due to their mother's choices" and requested a hearing. The father also opposed adjustment of his support obligation because he was expecting another child with his current girlfriend, K.M. Neither party was represented by counsel at the resulting mediation. The mother verbally withdrew her request for an adjustment of the child-support obligation, and the father agreed with the withdrawal and did not wish to proceed with an adjustment.

         In March 2017, the father filed a petition requesting the court grant him physical care of the children. In that petition, the father asked for a temporary hearing to establish visitation. No hearing was ever set, apparently due to inaction by the father's previous attorney. In August 2017, the mother filed the petition to terminate the father's parental rights. In September 2017, the father fired his previous attorney and hired his current one.

         A hearing on the petition to terminate the father's parental rights was held in November 2017. The mother, C.P., and the guardian ad litem testified in favor of termination. The father, his girlfriend, his sister, and his mother testified against termination. The mother claimed the father had abandoned his children by failing to maintain substantial, continuous, or repeated contact.[2] The father claimed he was prevented by the mother from maintaining substantial, continuous, or repeated contact.

         The fighting issue at the hearing was whether the mother prevented the father from maintaining contact with the children. The father presented a string of undated back-and-forth messages on Facebook-purportedly from March 2015- as evidence of the mother's obstruction. Those messages read:

Father: "So are you going to let me see the girls the Saturday before Easter or not"
Mother: "Y r u being so rude."
Father: "I'm not"
Mother: "Whatever."
Father: "I just asked a question"
Mother: "Where"
Father: "Where you want to meet"
Mother: "You"
Father: "What?"
Mother: "Where do you want to?" ...

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