In the Interest of B.B.E., Minor Child, Kenneth P. Nelson

IN THE COURT OF APPEALS OF IOWA

No. 15-0930
Filed February 10, 2016

IN THE INTEREST OF B.B.E.,
Minor Child,

KENNETH P. NELSON,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Daniel L.

Block, Associate Juvenile Judge.

The guardian and custodian of the minor child and the guardian ad litem

and attorney of the minor child appeal from an order dismissing the mother’s

application to terminate the mother and father’s parental rights to the minor child

pursuant to Iowa Code chapter 600A (2015). REVERSED AND REMANDED.

Kenneth P. Nelson of Nelson Law Firm, P.L.L.C., Waterloo, guardian and

custodian of B.B.E.

Jennifer L. Chase of Ball, Kirk & Holm, P.C., Waterloo, guardian ad litem

and attorney for B.B.E.

Considered by Danilson, P.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

This case arises out of the mother’s efforts to terminate her rights and the

biological father’s rights in their son for the purpose of facilitating adoption of the

child. At the termination hearing, the mother testified that it was in her son’s best

interest “to stay with the adoptive parents where he’s got a future and a life

ahead of him that neither of us [the biological parents] would be able to give him.”

The district court concluded the grounds for termination of the father’s rights had

not been proved. The mother’s request for and consent to the termination of her

parental rights was contingent upon termination of the father’s parental rights.

Accordingly, the district court dismissed the mother’s petition to terminate

parental rights. The child’s guardian and custodian and guardian ad litem timely

filed this appeal. The father has not filed any brief in this appeal.

In the spring of 2014, the mother and father had a “fling.” The mother

testified “[t]here was no dating involved . . . We maybe saw each other a couple

of times and that was it. Nothing, nothing relationship-wise.” After the fling, the

mother found out she was pregnant, and she notified the father. The father

attended the mother’s first prenatal appointment. After that appointment, via text

messages exchanged on July 1, 2014, the mother and father communicated

regarding the mother’s second prenatal appointment and the future of the child.

The mother stated she did not want the father to attend the second appointment

because his presence made her uncomfortable. The text messages show the

mother already had communicated to the father that she wanted to place the

child for adoption and that the father had communicated his disagreement.
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During this text message exchange, the mother asked the father to “[q]uit

speaking to me.” The father replied, “Guess when you grow up txt me if not then

I guess my lawyer will just get ahold of u in 8 months.” The mother responded,

“Yeah good luck with that.” The father responded, “Ok atleast [sic] take care of

urself and my kid as ling [sic] as u have it.” The mother and the father had no

further communication after that date. At approximately the same time, the father

was in the process of reconciling and moving back in with his on-again, off-again,

live-in girlfriend, who, the father learned, was also pregnant with the father’s

child.

The child at issue, B.B.E., was born in January 2015. The child was

released from the hospital to the custody of his prospective adoptive parents,

who live in Maryland. In January 2015, the mother filed a petition to terminate

her parental rights and the father’s parental rights for the purpose of facilitating

the child’s adoption. The child’s guardian and custodian joined as a co-

petitioner. The petitioners contended the father had abandoned the child

pursuant to Iowa Code section 600A.8(3) and (4). The district court concluded

the petitioners failed to prove the father abandoned the child. Specifically, the

district court concluded the mother diligently attempted to alienate the father from

the child by disallowing the father’s presence at medical appointments and

ceasing communication with the father. The district court concluded the mother

“has unilaterally decided that the child would be placed for adoption.” Our review

is de novo. See In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998).
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In a private termination proceeding, the petitioners must establish by clear

and convincing evidence the statutory ground or grounds authorizing the

termination of parental rights. See Iowa Code § 600A.8; R.K.B., 572 N.W.2d at

601-02. If the statutory ground or grounds are proved, the petitioners must also

prove termination of parental rights is in the best interests of the child. See Iowa

Code § 600A.8; R.K.B., 572 N.W.2d at 602. While the best interests of the child

is the primary concern of the termination proceeding, the interests of the parents

shall be given due consideration. See Iowa Code § 600A.1; R.K.B., 572 N.W.2d

at 602.

Abandonment of a minor child is one of the grounds authorizing the

termination of parental rights under Iowa Code chapter 600A. See Iowa Code

§ 600A.8(3). Chapter 600A defines abandonment of a minor child as “reject[ing]

the duties imposed by the parent-child relationship . . ., 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). Specifically, as was the case here:

If the child is less than six months of age when the termination
hearing is held, a parent is deemed to have abandoned the child
unless the parent does all of the following:

(a) Demonstrates a willingness to assume custody of the
child rather than merely objecting to the termination of parental
rights.
(b) Takes prompt action to establish a parental relationship
with the child.
(c) Demonstrates, through actions, a commitment to the
child.
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Iowa Code § 600A.8(3)(a)(1) (emphasis added). In making the determination of

whether the petitioners have proved abandonment, the court may also consider

any or all of the following:

(a) The fitness and ability of the parent in personally assuming
custody of the child, including a personal and financial commitment
which is timely demonstrated.
(b) Whether efforts made by the parent in personally assuming
custody of the child are substantial enough to evince a settled
purpose to personally assume all parental duties.
(c) With regard to a putative father, whether the putative father
publicly acknowledged paternity or held himself out to be the father
of the child during the six continuing months immediately prior to
the termination proceeding.
(d) With regard to a putative father, whether the putative father paid
a fair and reasonable sum, in accordance with the putative father's
means, for medical, hospital, and nursing expenses incurred in
connection with the mother's pregnancy or with the birth of the
child, or whether the putative father demonstrated emotional
support as evidenced by the putative father's conduct toward the
mother.
(e) Any measures taken by the parent to establish legal
responsibility for the child.
(f) Any other factors evincing a commitment to the child.

Iowa Code § 600A.8(3)(a)(2).

On de novo review, in light of the statutory factors, we conclude the

petitioners proved by clear and convincing evidence the father abandoned the

child within the meaning of the Code. During the period of the pregnancy, the

father took no action to demonstrate his commitment to the child. The father

attended a single medical appointment with the mother and then had no further

communication with her. Although the father had gainful employment at Polaris

Industries and medical insurance, he did not provide any financial assistance to

the mother or child. Although the father was aware the mother wanted to put the
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child up for adoption, he did not obtain counsel or take any other action to protect

his rights in the child.

After the child’s birth, the father took no action demonstrating any interest

in establishing a relationship with the child or assuming custody of the child. He

did not register with the Iowa Paternity Registry. At trial, the father did not know

the date of the child’s birth although he was made aware of the child’s birth

through one of the mother’s friends. He did not file an action for custody of the

child. He did not make a request for visitation with the child. He has not asked

for any photos or videos of the child. He admitted he has never even “inquired

as to the child’s well-being.” The father admitted, when he was interviewed by

the child’s guardian ad litem, he never asked about “how the child was doing” or

asked about the child’s health. The father never requested any information about

the prospective adoptive parents. He did not know who they are, where they

lived, what they did for a living, and how they cared for the child. When asked

what action he took after learning of the birth of the child, the father testified he

tried texting the mother but the text did not go through. “When opportunities for

association with a child are few, they become more precious, and the spurning of

them more egregious. If few opportunities for association are available, spurning

all of them will suffice for a showing of abandonment.” In re M.M.S., 502 N.W.2d

4, 7 (Iowa 1993).

The district court concluded termination was not warranted under these

circumstances because the mother precluded the father from taking action by

changing her phone number and blocking the father from her Facebook account.
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We disagree. The mother testified credibly that her phone number was changed

because she failed to cause her new service provider to port her old phone

number. The mother explained she denied the father and the father’s pregnant,

live-in girlfriend access to the mother’s Facebook account because of negative

comments being posted about the mother. Regardless, with respect to the

father’s actions, firing text messages and Facebook messages into the electronic

ether with the knowledge that the messages are not being received is insufficient

to demonstrate “a willingness to assume custody of the child,” “prompt action to

establish a parental relationship with the child,” or “a commitment to the child.”

Iowa Code § 600A.8(3)(a)(1); see In re G.B., No. 14-1691, 2015 WL 4493354, at

*5 (Iowa Ct. App. Jul. 22, 2015) (explaining a few phone calls and Facebook

messages are not enough); In re K.M., No. 14–1374, 2015 WL 1849508, at *6

(Iowa Ct. App. Apr. 22, 2015) (“A few sporadic text messages over the period of

a few months . . . do not rise to any sort of meaningful contact that may fend off a

claim of abandonment, particularly given the father did not attempt any other type

of communication—or offer financial or emotional support—to K.M.”); In re G.A.,

826 N.W.2d 125, 130 (Iowa Ct. App. 2012) (affirming termination order where the

father communicated with the mother via “sporadic text messages” over the

course of several months and made no attempts to follow up); In re D.S.P., No.

09–1188, 2010 WL 445690, at *3 (Iowa Ct. App. Feb. 10, 2010) (holding the

father abandoned his daughter when he “largely gave up” on communication

after his first attempts were unsuccessful). As we explained in a similar case:

“The best interest of a child requires that each biological parent
affirmatively assume the duties encompassed by the role of being a
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parent.” Iowa Code § 600A.1. As set forth above, S.B. has made
no affirmative effort to contact or communicate with J.N. or make
any inquiry as to his well-being since the child's birth. The juvenile
court stated that “while it is clear that [S.B.] has not asked for
information about the child, it is equally clear that [K.N .] has not
voluntarily provided any.” First, we do not wholly agree with this
finding. . . . Second, the court's comment seems to suggest that
following J.N.'s birth K.N. had some greater burden than S.B. to
assure that S.B. had information regarding the child or to force
contact between the two. We cannot agree. S.B. is an adult and
once aware of J.N. he bore equal responsibility for affirmatively
assuming the duties encompassed in the role of parenting.
Accordingly, due to S.B.'s complete lack of any affirmative action to
assume the duties encompassed in parenting we believe it is in
J.N.'s best interest that S.B.'s parental rights be terminated.

In re J.K.N., No. 08-2069, 2009 WL 1677000, at *4 (Iowa Ct. App. Jun. 17, 2009).

The father’s effort to establish a relationship with or assume custody of the

child is particularly lacking given several other significant facts. First, the father

attended the first prenatal visit with the mother and should have known who and

where the mother’s doctor was located. At trial, the father excused his follow up

by stating he did not take any notes. Second, the father and the mother shared

mutual friends and acquaintances, but the father made no serious effort to

contact the mother after the July 1 text message exchange. Third, the father and

the father’s girlfriend knew the mother worked at Menard’s, but the father did not

try to contact the mother there. At trial, the father testified he “[c]ouldn’t see it

viable.” Fourth, the father knew he worked the same shift with the mother’s

mother at Polaris. Yet, he made no effort to inquire about the mother or the child.

Finally, by the time of trial in this case, the mother also worked at Polaris with the

father, but the father still had not made any effort to contact the mother and

discuss the situation. Demonstrating a commitment to a child requires more than
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pecking away at one’s phone every once in a while and then giving up when no

response is received. “An abandoned child is no less abandoned because the

parent can rationalize a reason for the abandonment.” M.M.S., 502 N.W.2d at 7.

While the father may wish to maintain a relationship with the child, he has

not taken any action manifesting such intent. “The subjective intent of the parent,

whether expressed or otherwise, unsupported by evidence of acts . . .

manifesting such intent, does not preclude a determination that the parent has

abandoned the child.” Iowa Code § 600A.8(3)(c). We conclude the father has by

all objective evidence abandoned B.B.E. See G.A., 826 N.W.2d at 128-29

(recognizing that a parent's subjective intent does not preclude a finding of

abandonment); In re C.J.F.M., No. 10–0166, 2010 WL 3157756, at *2 (Iowa Ct.

App. Aug. 11, 2010) (recognizing the “intention to abandon is no longer a

statutory element in the definitions of Iowa Code chapter 600A”).

Once the statutory requirements for termination have been met, the

petitioners must also show that the termination of parental rights is in the best

interest of the child. See R.K.B., 572 N.W.2d at 602. Chapter 600A provides:

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.

Iowa Code § 600A.1. The Iowa Supreme Court has found the statutory best

interest factors in chapter 232 termination cases relevant to chapter 600A
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termination cases. See In re A.H.B., 791 N.W.2d 687, 690 (Iowa 2010). The

child's “emotional and psychological health” is an important consideration. Id.

(citing Iowa Code § 232.116(2)). Weight is also given to the “closeness of the

parent-child bond.” Id. at 691 (citing Iowa Code § 232.116(3)(c)).

We conclude termination of the parents’ rights in B.B.E. is in the best

interest of the child. The child is thriving in the prospective adoptive parents’

care. The prospective parents have two other children—a daughter, age six, and

a son, age three. The prospective siblings sing to and play with the child. The

prospective mother does not work outside the home so she can spend more time

with the children. She worked with a lactation consultant to nurse B.B.E. and

enhance the parent-child bond. The prospective parents take the child to music

class and to the pool for water play time. The prospective parents have agreed

to send an update on the child’s status to the mother every six months until the

child is six and every year after that and to send the father the same information.

The prospective adoptive family, including the children, has bonded with the

child. It is the family the child has known since leaving the hospital.

In contrast, the biological parents could not provide similar stability or

care. The mother has not had stable employment or a stable residence for some

period of time. The mother also has had another child removed from her care by

the Department of Human Services. The father’s living arrangements have also

not been terribly stable, as he has vacated the family residence after fights with

his live-in girlfriend. The father testified he has some criminal history. He was

convicted of possession of alcohol as a minor and theft in the fifth degree. He
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pleaded guilty to criminal mischief and trespassing. In 2014, the father was

charged with felony domestic abuse assault, impeding air/blood flow causing

bodily injury. He received a deferred judgment and successfully completed

probation for that offense. The father testified at trial he continues to have

arguments with his girlfriend that cause him to leave the home overnight to calm

down. The mother also testified she intends to move to Arkansas to be closer to

some of her relatives. The biological parents will thus find themselves in a

custody dispute with only one parent having any significant time with the child

and the other parent having visitation.

“The evidence shows terminating . . . parental rights so the child can be

adopted gives primary consideration to the child's safety and is the best

placement for furthering [his] long-term nurturing and growth, as well as the

placement that will cater to the child's physical, mental, and emotional needs.” In

re S.A.B., No. 13-1718, 2014 WL 2885322, at *3 (Iowa Ct. App. June 25, 2014).

For the foregoing reasons, we reverse the judgment of the district court and

remand this matter for entry of an order terminating the biological mother and

biological father’s parental rights.

REVERSED AND REMANDED.