                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0176
                            Filed October 14, 2015

IN THE INTEREST OF W.N.,
      Minor Child,

T.N., Mother,
       Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Lucas County, Martha Mertz,

Judge.



      A mother appeals the district court’s order dismissing her petition to

terminate the father’s parental rights. AFFIRMED.



      Jenna K. Lain of The Law Office of Jenna K. Lain, P.L.L.C., Corydon, for

appellant.

      Bryan J. Tingle, Des Moines, for appellee.

      Dawn M. Bowman, attorney and guardian ad litem for minor child.



      Considered by Doyle, P.J., and Mullins and Bower, JJ.
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MULLINS, Judge.

       A mother appeals the district court’s order dismissing her petition to

terminate the father’s parental rights under Iowa Code section 600A.8(3) (2013).

She claims she proved the statutory grounds for abandonment by clear and

convincing evidence and the district court erred in considering the father’s

subjective intent. She further asserts that termination of the father’s parental

rights was in the child’s best interests. We affirm.

I.     Background Facts and Proceedings

       The parties have one child together, W.N., born in May 2013. Although

paternity of the child had not been established at the time of the termination

hearing in December 2014, the parties agreed that Ray is the biological father of

W.N. Ray is the father of one other child from a prior marriage, C.S., with whom

he has visitation every other weekend and additional parenting time during the

summer.

       Ray and the mother, Tamara, briefly dated and lived together, ending their

relationship shortly after finding out Tamara was pregnant with W.N. Ray did not

maintain contact with Tamara while she was pregnant and was not present for

W.N.’s birth. Ray first met W.N. when he was three days old. Since birth, W.N.

has been in his mother’s sole physical care.

       Shortly after W.N.’s birth in May 2013, the State filed a child-in-need-of-

assistance petition unrelated to this action.1 During the CINA case from May until



1
   At W.N.’s birth, his umbilical cord blood tested positive for cocaine. Following the
positive cord blood test, Tamara completed drug screenings, which came back negative.
After a contested adjudicatory hearing on July 29, 2013, the juvenile court dismissed the
                                        3



August 2013, Ray had regular visits with W.N. in a supervised setting

approximately once a week for twenty minutes. Ray did not have visits with W.N.

in September or October 2013, and it is unclear whether he saw W.N. during

November or December 2013, but he did not have any scheduled visits with him

in those two months.     Ray admitted he resisted many of Tamara’s visitation

proposals, but denied he intended to abandon W.N.          Throughout this time,

Tamara actively fostered relationships between W.N. and Ray’s family, including

his mother and father who were both divorced and remarried, and Ray’s other

son, C.S. Ray last saw W.N. in July 2014 when Tamara took W.N. to see Ray

and his family during a camping trip.

      On September 12, 2014, Ray filed an action to establish paternity of W.N.

On September 19, 2014, Tamara responded with a petition to terminate Ray’s

parental rights with respect to W.N., only sixteen months after W.N.’s birth. She

alleged Ray abandoned W.N. within the meaning of Iowa Code section

600A.8(3)(b).    On October 2, 2014, the parties participated in a mediation

regarding temporary matters in Ray’s paternity action that resulted in a mediation

agreement.      The mediation agreement required both Tamara and Ray to

complete a drug test and Ray to complete a substance abuse evaluation,

following which Ray would have weekly, thirty-minute visits with W.N. supervised

by Tamara’s fiancé and a Parents as Teachers professional on alternating

weeks. Ray completed the requirements within a week but failed to provide proof




CINA case on August 30, 2013.
                                         4



of completion and did not exercise visits with W.N. between the time of the

mediation in October and the hearing in December 2014.

       The district court combined the termination-of-parental-rights hearing and

hearing on temporary matters, which were held on December 9 and 10, 2014. At

the hearing, the guardian ad litem (GAL) recommended that Ray’s parental rights

as to W.N. be terminated.       She testified that she had significant concerns

regarding his ability to parent W.N. because of his marijuana usage. She also

noted Ray’s lack of follow-through with the mediation agreement, his failure to

participate in visits with W.N. in the weeks leading up to the trial, and his lack of

financial support for W.N.

       Tamara testified that she did not prevent Ray from having visits with W.N.

but instead required that his visits be supervised and that Ray be sober during

the visits. Her concern arose because Ray regularly used marijuana to self-

medicate for lingering physical pain and mental issues, including suicidal

thoughts and ideations, he suffered as a result of a motor vehicle accident in

which he was seriously injured in 2011. Ray admitted he smoked marijuana the

morning of the termination hearing.

       Both parties testified to the amount of financial support Ray had provided

for W.N. From May until October 2013, Ray voluntarily provided $100 a week to

Tamara for W.N.’s support. From October until December 2013, the support

decreased until Ray made his final support payment on December 2, 2013. His

total voluntary payments to Tamara for W.N.’s support totaled $1850.            Ray
                                            5



admitted he did not contribute to W.N.’s support during 2014, though he

continued to pay child support for his other child, C.S.2

       On January 15, 2015, the district court entered a ruling dismissing

Tamara’s petition and entered a temporary order in the paternity case allowing

visitation and ordering child support. In its order, the district court concluded that

Ray did not abandon W.N. within the meaning of section 600A.8. It found that

Ray did not intend to abandon W.N., rather he intended to avoid Tamara’s

control, and both parties contributed to Ray’s lack of contact with W.N. following

the dismissal of the CINA case. The court further found that termination of Ray’s

parental rights was not in W.N.’s best interests. It recognized “Ray’s ability to

provide support, his parenting abilities, and the potential detriment to W.N.[,

namely the termination of the relationship between W.N. and his extended

paternal family,] in terminating Ray’s parental rights.” This appeal followed.

II.    Standard of Review

       We review private termination proceedings de novo.3              In re G.A., 826

N.W.2d 125, 127 (Iowa Ct. App. 2012). We give weight to the district court’s

factual findings, especially those concerning witness credibility, but are not bound

by them. Iowa R. App P. 6.904(3)(g).




2
   As the district court noted, there has never been a court order requiring Ray to
contribute to W.N.’s support as there has been for C.S.
3
   The father failed to file a brief. “On the failure of the appellee to file a brief, the
appellant is not entitled to a reversal as a matter of right, but the court may, within its
discretion, handle the matter in a manner most consonant with justice and its own
convenience.” Bowen v. Kaplan, 237 N.W.2d 799, 801 (Iowa 1976) (internal quotation
marks omitted). Ray’s failure to file a brief does not alter our duty to conduct a de novo
review.
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III.   Analysis

       On appeal, the mother argues that a parent’s “intention to abandon” is no

longer a statutory element of Iowa Code chapter 600A and the district court erred

in considering the father’s subjective intent in its statutory analysis.     Section

600A.2(19) defines “[t]o abandon a minor child” as when “a parent . . . rejects 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) (2013). Thus, the parental mental state now is based

on the parent’s conduct in rejecting parental duties rather than the intent to

abandon. See id. Still, chapter 600A does not prohibit a district court from ever

considering a parent’s subjective intent in making a determination of whether the

parent has abandoned his or her child, but instead prohibits a district court from

basing its decision solely on the parent’s subjective intent without considering

that parent’s acts in regards to the parent-child relationship. See id.; see also id.

§ 600A.8(3)(c).

       To terminate parental rights for abandonment under section 600A.8(3)(b),

the petitioning party must show the child is at least six months old at the time of

the termination hearing and the parent for whom termination is sought has failed

to maintain “substantial and continuous or repeated contact with the child” by

contributing to the child’s financial support in “a reasonable amount, according to

the parent’s means.” Iowa Code § 600A.8(3)(b). The petitioning parent must

also show the other parent has failed to (1) “visit[] the child at least monthly when
                                          7



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

the person having lawful custody of the child”; (2) have “regular communication

with the child or with the person having the care or custody of the child,” when

unable to visit the child; or (3) live openly with the child for six months within the

last year. Id. A parent’s subjective intent, unsupported by these acts, does not

preclude a determination the parent has abandoned the child. Id. § 600A.8(3)(c).

       Ray voluntarily provided financial support for W.N. for the first several

months of his life totaling $1850. Although Ray continued to contribute $100 per

month to the support of his older son, and thus likely could have continued to

contribute to W.N.’s support, he was not required to do so by court order. Ray

also visited W.N. regularly for the first few months of his life. And although he

only saw him a handful of times following the dismissal of the CINA case, he

visited with him in July 2014—only two months before Tamara filed her petition.

       Eventually, Ray believed it best to pursue court action to obtain a set

visitation schedule and filed a paternity action. Tamara responded with a petition

to terminate his parental rights. Although Tamara believed she was acting in her

child’s best interests by restricting visits between Ray and W.N. to occur only

when Ray was supervised, we agree with the district court that her actions

discouraged contact between Ray and W.N. and she contributed to the lack of

contact between Ray and W.N. Further, while we find it concerning that Ray did

not visit with W.N. between the time of the mediation and the termination hearing,

Ray testified that he did not believe he could visit with W.N. because he had not

received the paperwork to prove he had completed his drug test and substance
                                           8



abuse evaluation as required by the mediation agreement. Ray expressed that

he did not intend to abandon W.N., and his acts of voluntarily contributing to

W.N.’s support and visiting with him, support his intention.     Thus, upon our

review of the record, we agree with the district court and find Tamara did not

prove by clear and convincing evidence Ray abandoned W.N. Id. § 600A.8(3).

       Because we find that Tamara did not prove by clear and convincing

evidence that Ray abandoned W.N., we need not examine whether termination

of Ray’s parental rights is in W.N.’s best interests. See In re R.K.B., 572 N.W.2d

600, 602 (Iowa 1998). Accordingly, upon our de novo review, we affirm the

district court’s order dismissing her petition.

       AFFIRMED.
