In the Interest of O.M. and N.M., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 24-0596
Filed March 5, 2025

IN THE INTEREST OF O.M. and N.M.,
Minor Children,

K.M.,
Petitioner-Appellee,

A.J.,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Butler County, Peter B. Newell,

Judge.

A father appeals the order terminating his parental rights to his minor

children. AFFIRMED.

Mark A. Milder, Denver, (until withdrawal) and Elizabeth Wayne,

Parkersburg, for appellant.

Jesse Marzen of Marzen Law Office, P.L.L.C., Waverly, for appellee.

Nellie D. O’Mara of O’Mara & Sprecher, Mason City, attorney and guardian

ad litem for minor children.

Considered by Tabor, C.J., and Ahlers and Sandy, JJ.
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AHLERS, Judge.

A mother and father were unmarried but living together when they had two

children—one born in January 2020 and the other born in December 2020. In

August 2021, the father was arrested for domestic-abuse assault against the

mother. He was convicted, and a no-contact order was issued prohibiting the

father from contacting the mother for five years.

In 2023, contending the father had no contact or communication with the

children and had not provided financial assistance of any kind since his arrest, the

mother petitioned to terminate the father’s parental rights based on abandonment

under Iowa Code section 600A.8(3)(b) (2023). After a trial, the juvenile court

determined the mother proved statutory abandonment and found terminating the

father’s parental rights to be in the children’s best interests. The court granted the

petition and terminated the father’s rights. The father appeals.

I. Standard of Review

We review termination orders under chapter 600A de novo. In re B.H.A.,

938 N.W.2d 227, 232 (Iowa 2020). We give weight to the juvenile court’s fact

findings, particularly as to witness credibility, but we are not bound by them. Id.

II. Analysis

The mother claims abandonment under section 600A.8(3)(b), which states:

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.
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(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.

Abandonment occurs when a parent rejects “the duties imposed by the parent-

child relationship.” Iowa Code § 600A.2(20).

A. Applicability of section 600A.8(3)(b)

We start by addressing a gateway issue raised by the father. The father

contends he has no parental rights to terminate because he is not listed as the

father on either child’s birth certificate and his paternity has not been established

by administrative or court order. Therefore, he contends he is only a putative

father. See id. § 600A.2(17) (defining putative father as “a man alleged to be or

who claims to be the biological father of a child born to a woman to whom the man

is not married at the time of birth of the child”). And since the abandonment statute

at issue—section 600A.8(3)(b)—only applies to a parent and not a putative parent,

the father contends the statute does not apply to him.

We reject the father’s argument. While it is true the father is not named the

children’s birth certificates, neither is any other man. And, while it is also true that

his paternity has not been established through administrative or court proceedings,

the definition of “parent” in the statute imposes no such requirement. Section

600A.2(15) defines “parent” simply as “a father or mother of a child, whether by

birth or adoption.” The record here raises no doubt as to the father’s paternity.

The mother, the father, and family members of both testified that he is the father
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to both children. No evidence to the contrary was presented. Given this record,

section 600A.8(3)(b) applies to the father.

B. Abandonment

We turn to the substance of the father’s claims on appeal. To terminate the

father’s rights under chapter 600A, the mother was required to prove two elements

by clear and convincing evidence: (1) statutory abandonment and (2) termination

is in the children’s best interests. See B.H.A., 938 N.W.2d at 232. The juvenile

court found the mother proved both elements. The father challenges both.

1. Statutory Ground

Abandonment under section 600A.8(3)(b) has financial-support and contact

requirements. In re G.D., No. 20-0984, 2021 WL 2126174, at *3 (Iowa Ct. App.

May 26, 2021). We have colloquially referred to these as “cash” and “contact”

requirements. Id. To establish abandonment, the petitioning parent must prove

the other parent’s failure to meet either the cash or contact requirement—it is not

necessary for the petitioning parent to prove both. Id. While the juvenile court

found the mother proved the father’s failure to meet both requirements, we choose

to focus on the contact requirement.

To establish the father’s failure to meet the contact requirement, the mother

had to prove: (1) the father failed to visit the children at least monthly when

physically and financially able to do so and when not prevented from doing so by

the mother; (2) the father failed to regularly communicate with the children or with

the mother when physically and financially unable to visit the child or when

prevented from visiting the child by the mother; and (3) the father failed to openly

live with the children for a period of six months within the one-year period
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immediately preceding the termination-of-parental-rights hearing and during that

period openly held himself out to be the parent of the children. See Iowa Code

§ 600.8(3)(b)(1)–(3).

Following our de novo review, we find clear and convincing evidence that

the father failed to meet all three of the contact requirements of

section 600A.8(3)(b)(1) through (3). There is no persuasive evidence that the

mother prevented visits by or communication from the father. And it is undisputed

that the father did not visit the children at all or live in the same household with

them during the two-and-one-half-year period ending with the termination hearing,

satisfying the mother’s proof requirements under section 600A.8(3)(b)(1) and (3).

Likewise, the evidence establishes the father made no effort to contact the

children. He did not phone or write them, and he sent no cards or gifts. On the

few occasions he reached out to his children’s maternal grandmother, he didn’t

ask about the children or request to communicate with them. This satisfies the

mother’s proof requirement under section 600A.8(3)(b)(2).

The father doesn’t meaningfully challenge the juvenile court’s finding that

he failed to meet the contact requirements of section 600A.8(3)(b)(1) through (3).

Instead, he seeks to excuse his lack of contact. He contends his regular

incarceration for various offenses and the no-contact order preventing his

communication with the mother during the two-and-one-half-year period leading to

the termination hearing prevented him from visiting or communicating with the

children. We reject both arguments.

As to his incarceration, our cases are clear that a parent cannot use

incarceration as justification for failing to maintain a parent-child relationship. See
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B.H.A., 938 N.W.2d at 234. This is especially true when incarceration stems from

a parent preferring a lifestyle that leads to incarceration at the expense of a

relationship with the parent’s children. See id. That is what we have here. The

father has been incarcerated for a variety of controlled-substance and domestic-

violence crimes. Even after the father was released from jail or prison, he

continued to choose drugs and domestic violence over a relationship with his

children. His resulting incarceration does not preclude a finding of abandonment.

As to the no-contact order, we view this hurdle much like we view

incarceration—it is one of the father’s own making. We also note that the no-

contact order prohibited the father from contacting the mother, not his children.

We recognize that the no-contact order prohibited contacting the mother through

third parties, which posed a challenge as to how to communicate with the young

children in the mother’s care. But the father made no effort to overcome this

challenge. For example, he made no effort to modify the no-contact order to permit

communication with the mother about the children. There is no evidence he spoke

with prison officials, his probation officer, or his parole officer about ways to

communicate with the children within the confines of the no-contact order. While

it is speculative whether such efforts would have succeeded, the father’s failure to

explore them speaks volumes as to his priorities—priorities that clearly did not

involve his children. We decline to excuse the father’s failure to meet the

communication requirements of section 600A.8(3)(b)(2) because of the no-contact

order. The order was put in place because of the father’s own poor choices. And

we need not decide whether efforts to modify a no-contact order or trying

unsuccessfully to communicate with the children within the confines of such an
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order would be enough to defeat a finding of abandonment because the father

made no such efforts here.

We agree with the juvenile court that the mother proved statutory grounds

for abandonment under section 600A.8(3)(b). We reject the father’s challenge to

the statutory grounds and turn our attention to his best-interests challenge.

2. Best Interests of the Children

In determining the best interests of a child, we examine whether a parent

has actively assumed responsibilities of parenthood by considering factors such

as the fulfillment of financial obligations, continued interest in the child, genuine

efforts to maintain communication with the child, and the establishment and

maintenance of a place of importance in the child’s life. Iowa Code § 600A.1(2).

We also draw from the statutory best-interest framework outlined in Iowa Code

chapter 232, which directs the court to “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.” Id. § 232.116(2); see In re A.H.B., 791 N.W.2d 687, 690–91 (Iowa 2010)

(finding it useful to apply the best-interest framework of section 232.116(2) and (3)

to the best-interest analysis under chapter 600A).

While the father speculates that he may develop a positive relationship with

the children in the future, there is no persuasive evidence in the record that

terminating his parental rights would be contrary to the children’s best interests.

See A.H.B, 791 N.W.2d at 691 (“We cannot deprive a child of permanency after

the petitioner has proved a ground for termination by hoping someday a parent will

learn to be a parent and be able to provide a stable home for the child.” (cleaned
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up)). In fact, the evidence clearly and convincingly establishes that termination is

in the children’s best interests. The father has no presence in the children’s lives,

and he had not seen them for two and one-half years at the time of the termination

hearing. During that time, the father was in and out of correctional facilities due to

multiple charges related to drug possession and domestic violence, and he was

incarcerated awaiting parole revocation proceedings at the time of the termination

hearing.

The father’s final argument is that termination is not in the children’s best

interests because the mother has no plans to replace him with another father figure

who can provide financial, emotional, and other support. This line of reasoning is

unconvincing. The mother has already proven herself to be the only parent who

consistently cares for and provides for the children’s needs, and she has shown

the ability to do so on her own. Additionally, she has support from her parents,

both of whom can serve as supplemental parental figures for the children as they

grow up. She also has seven siblings in the area willing to support her and the

children. Following our de novo review, we agree with the juvenile court’s finding

that terminating the father’s rights is in the best interests of the children.

III. Conclusion

As the juvenile court correctly determined the father abandoned the child

pursuant to section 600A.8(3)(b) and termination is in the children’s best interests,

we affirm the decision to terminate the father’s parental rights.

AFFIRMED.