Full Opinion (html_with_citations)

                    IN THE COURT OF APPEALS OF IOWA

                                     No. 22-0425
                              Filed December 21, 2022


IN THE INTEREST OF M.M. and A.G.,
Minor Children,

J.L., Mother,
       Petitioner-Appellee,

C.M., Father,
       Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Worth County, Adam D. Sauer,

District Associate Judge.



       A father appeals the Iowa Code chapter 600A (2022) termination of his

parental rights to two children. AFFIRMED.



       Richard N. Tompkins Jr., Mason City, for appellant.

       Sarah A. Reindl of Reindl Law Firm P.L.C., Mason City, for appellee.

       Barbara Jo Westphal, Belmond, attorney and guardian ad litem for minor

children.



       Considered by Bower, C.J., Tabor, J., and Blane, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
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TABOR, Judge.

       A father, Christopher, appeals the juvenile court’s order terminating his

parental rights to his two sons. First, Christopher argues their mother, Joy, did not

present clear and convincing evidence that he abandoned them within the meaning

of Iowa Code sections 600A.2(20) and 600A.8(3)(b) (2022). Second, he contends

termination was not in the boys’ best interests. Third, he faults the juvenile court

for not holding Joy “accountable” under parenting guidelines issued by the state of

South Dakota, where she used to live with the children.

       Like the juvenile court, we find Joy met her burden of proof on both

abandonment and best interests. As for the South Dakota parenting guidelines,

they were not binding on the juvenile court. After our independent assessment of

the record, we affirm the termination order.1

       I.     Facts and Prior Proceedings

       Christopher and Joy have two children in common, M.M. born in October

2015 and A.G. born in November 2016. The parents were never married to each

other. But they briefly lived together, starting when M.M. was six months old and

ending when he was ten months old. Aside from those four months, Christopher

has not lived with the children.




1 Our review is de novo. In re G.A.,
826 N.W.2d 125, 127
 (Iowa Ct. App. 2012).
We defer to the juvenile court’s factual findings, particularly those on witness
credibility, but those findings do not bind us. In re R.K.B.,
572 N.W.2d 600, 601
(Iowa 1998). Our primary concern is the best interests of the children, though we
give “due consideration” to the interests of the parents. Iowa Code § 600A.1; G.A.,
826 N.W.2d at 127
.
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      According to a timeline compiled by Joy, she and Christopher broke up in

September 2016, two months before A.G. was born.2            The next month, she

obtained a South Dakota protection order that prohibited Christopher from having

contact with her until October 2017.3 In February 2017, she moved to Minnesota.

A year later, she moved to Iowa.

      Christopher stayed in South Dakota. He did not pay child support from

November 2017 until March 2019.4 Christopher was arrested for drug offenses in

December 2018 and again in August 2019. He received a suspended sentence

for possession of methamphetamine in September 2019. As for contact with the

children, his last in-person visit with A.G. was in December 2018, and the last in-

person visit with M.M. was in January 2019. He last video-chatted with the boys

in July 2019.

      Joy petitioned to terminate Christopher’s rights in November 2021. The

court held a hearing in February 2022. Both parents testified, as did Joy’s new

husband.    After hearing the evidence, the court granted Joy’s petition under

section 600A.8(3)(b).5 Christopher now appeals.

      II.       Analysis

      Iowa Code chapter 600A governs petitions filed by one parent to terminate

the rights of the other parent, so-called “private” terminations. In re B.H.A.,
938 N.W.2d 227
, 232 (2020). The petitioner, Joy, has a two-pronged burden. See
id.


2 At the termination hearing, Christopher did not contest the timeline.
3 While the protection order was in place, Joy arranged for Christopher to have
visitation with the boys through his mother.
4 As of February 2022, Christopher owed over $16,000 in back child support.
5 The court found Joy did not prove the child-support ground for termination at Iowa

Code section 600A.8(4).
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First, she must prove by clear and convincing evidence that Christopher

abandoned M.M. and A.G. See Iowa Code § 600A.8(3)(b). Second, Joy must

show termination is in the children’s best interests. See id. § 600A.1; B.H.A., 938

N.W.2d at 232. Christopher challenges both prongs.

       Abandonment. Addressing the first prong, the juvenile court decided that

Joy proved that Christopher abandoned their sons. “To abandon a minor child”

means the parent “rejects the duties imposed by the parent-child relationship, . . .

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(20).    When, as here, the children are older than six months, the

legislature considers a parent to have abandoned them

       unless the parent maintains substantial and continuous or repeated
       contact with the child[ren] as demonstrated by contribution toward
       support of the child[ren] of a reasonable amount, according to the
       parent’s means, and as demonstrated by any of the following:
               (1) Visiting the child[ren] 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[ren].
               (2) Regular communication with the child[ren] or with the
       person having the care or custody of the child[ren], when physically
       and financially unable to visit the child[ren] or when prevented from
       visiting the child by the person having lawful custody of the child[ren].
               (3) Openly living with the child[ren] 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[ren].

Id. § 600A.8(3)(b).

       Christopher does not claim that he maintained substantial or continuous

contact with M.M. and A.G. But he contends the juvenile court should have denied

Joy’s petition because she thwarted his efforts to keep in touch with the children.
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As examples of obstruction, Christopher notes that Joy “blocked him on Facebook”

and “did not give him their address in Iowa.”

       The record does not support Christopher’s contention. Joy did not prevent

him from visiting or having regular communication with the children. He was able

to contact them through a Facebook account he set up for M.M., by phone, or

through text. And Joy testified that she kept Christopher informed of their location

each time she moved. The only time that she declined to provide the children’s

address is when Joy was living at her sister’s residence in Minnesota and the

protection order was in place. Steps taken by Joy to limit her own contact with

Christopher did not contribute to Christopher’s failure to visit with his children or

otherwise communicate with them for more than two years. See G.A.,
826 N.W.2d at 130
. Like the juvenile court, we find Joy proved the abandonment ground for

termination.

       Best Interests. To measure best interests, we use this statutory definition:

       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. We also appropriate the framework from chapter 232 for

terminations involving the Iowa Department of Health and Human Services.

B.H.A., 938 N.W.2d at 232.         That framework directs us to give “primary

consideration” to the children’s safety and the best placement to further their long-

term nurturing and growth. Id. (citing Iowa Code section 232.116(2)). We also
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consider the children’s emotional and psychological health, and the closeness of

the parent-child bond. Id. (citing Iowa Code section 232.116(3)(c)).

       In contending termination of his rights was not in the boys’ best interests,

Christopher notes that he had “been keeping up with his child support for the last

two years.” He also points to his contact with M.M. on Facebook. Reflecting on

his efforts at self-improvement, Christopher asserts he has “turned his life around

by being a successful graduate of Drug Court in South Dakota and continuing with

an AA aftercare program.”

       We appreciate the strides that Christopher has made in addressing his drug

dependency. But he has scarcely embraced “the duties encompassed by the role

of being a parent.” True, he has recently met his child support obligations. But he

has not made a sincere effort to contact the children or to create and maintain a

place of importance in their lives. The record does not show an ongoing bond

between Christopher and his sons. As their guardian ad litem (GAL) observed:

“They have no connection to him. They do not know him.” The interests of M.M.

and A.G. will be best served by the termination of Christopher’s parental rights.

See In re B.L.A.,
357 N.W.2d 20, 23
 (Iowa 1984).

       South Dakota Parenting Guidelines. As his last argument, Christopher

criticizes the juvenile court for “ignoring the mandates of South Dakota law

requiring the mother to keep the father in the lives of his children.” He relies on a

ten-page exhibit entitled “South Dakota Parenting Guidelines” offered into

evidence at the termination hearing. See S.D. Codified Laws § 25–4A (Appendix
                                         7


A) (2022).6 Under cross examination by Christopher’s counsel, Joy acknowledged

being advised to follow those guidelines in the child support order entered in South

Dakota. Counsel then read extensively from the guidelines on issues such as

fostering communication with the other parent and asked if Joy had followed them.

Joy replied that she believed she did. In closing argument, Christopher’s counsel

argued that the guidelines “lay it on both parties” to ensure the children have

“frequent and meaningful contact with both parents.” See id. (Introduction). The

GAL responded,

       I understand his argument that the South Dakota Guidelines put
       requirements on both parents. However, that is not a Court Order
       that the mother was required to follow. And beyond that, I think it’s
       very clear that the father has not followed that guideline. He’s taken
       no steps to notify the mother or the children specifically of ongoing
       changes in his life.

Like the GAL, we do not believe that Joy had a duty to follow these guidelines.

Neither at trial nor on appeal does Christopher analyze a choice-of-law question.

His introduction of the guidelines as an exhibit was insufficient to prove they were

enforceable in this situation.7 “Under these circumstances, we must apply Iowa



6 Under South Dakota domestic relations law, these guidelines apply to “all custody
situations,” including divorces with minor children and paternity actions. See S.D.
Codified Laws § 25–4A APP A Guidelines (Scope of Application). But they do not
apply to “situations where the court reasonably believes the children’s physical
health or safety is in danger or the children’s emotional development could be
significantly impaired. Id. These situations may include family violence, substance
abuse or a “long interruption of contact between parent and children.” Id.
7 Further, for the guidelines to be enforceable, the parents must be “unable to

agree on a parenting plan.” S.D. Codified Laws § 25–4A APP A Guidelines
(Enforcement). The guidelines are not intended to prevent an agreed-upon
parenting schedule that is reasonable and in the child’s best interests. Id.
Christopher fails to show that he and Joy were unable to agree on a parenting
plan. Thus, even if the guidelines applied to the Iowa proceedings, they would not
be enforceable.
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law to resolve the dispute before us.” Pennsylvania Life Ins. Co. v. Simoni,
641 N.W.2d 807, 811
 (Iowa 2002). Under Iowa law, termination was proper.

      AFFIRMED.