                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1879
                               Filed August 2, 2017


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

A.L., Mother,
       Petitioner-Appellant,

K.B., Father,
       Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Stephen A. Owen,

District Associate Judge.



      A mother appeals the dismissal of her petition to terminate the parental

rights of a child’s father under Iowa Code chapter 600A (2016). AFFIRMED.



      Dorothy L. Dakin of Kruse & Dakin, L.L.P., Boone, for appellant mother.

      Andrea M. Flanagan of Sporer & Flanagan, P.L.L.C., Des Moines, for

appellee father.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

         A mother appeals the dismissal of her petition to terminate the parental

rights of a child’s father.

I.       Background Facts and Proceedings

         Kelly Beaman and Ashley Lindstrom married in 2006 and divorced in

2008.     They are the parents of a child born in 2005.       Under the dissolution

decree, Lindstrom received sole legal custody and physical care of the child.

The decree stated, Beaman “shall be awarded reasonable visitation as the

parties may agree” and “[i]f the parties are unable to agree, visitation shall be”

pursuant to a prescribed schedule.1       Beaman was ordered to pay $200 per

month in child support beginning July 1, 2008, and furnish health insurance for

the child “provided it [was] available through his employment at a reasonable

cost.”

         Following entry of the decree, Beaman exercised overnight, unsupervised

visitation with the child. During one of the visits, hot cocoa spilled on the child’s

pelvic area and burned her. The child was diagnosed with second-degree burns

and the matter was referred to the department of human services for

investigation. According to Lindstrom, the department issued a “founded” child

abuse report against Beaman for failure to provide “proper care” but declined to

place him on the child abuse registry.

         Beaman’s visits with the child ended for several years. Beaman blamed

Lindstrom, testifying she said he would “never see” the child again. Lindstrom, in

1
 The schedule granted Beaman visitation “every other weekend . . . from Friday at 3:00
p.m. until the following Sunday at 5:00 p.m.,” and two weeks out of the summer, “one
week in June and one week in July.”
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contrast, stated Beaman “wanted supervised” visitation, but “he never followed

through with it.” Lindstrom did not seek a modification of the dissolution decree’s

visitation provisions, and Beaman made no immediate effort to enforce his rights

under the decree.

       In   2014,    Beaman’s      soon-to-be     wife   contacted     Lindstrom     about

recommencing visits.        Lindstrom denied the request.            She also rejected

Beaman’s subsequent offer to have the child added to his family’s health

insurance policy.

       In early 2016, Beaman’s wife again asked Lindstrom if they could see the

child. Lindstrom again denied the request. Beaman sought to resolve the issue

informally, through counsel. Lindstrom responded with a termination petition,

alleging Beaman abandoned the child. When Beaman was unable to resolve the

matter informally, he filed an application for rule to show cause.2

       Following a termination hearing, the district court denied Lindstrom’s

petition. Lindstrom appealed.

II.    Abandonment

       Lindstrom’s termination petition was filed pursuant to Iowa Code chapter

600A (2016), which provides the following definition of abandonment:

       “To abandon a minor child” means that a parent, putative father,
       custodian, or guardian rejects the duties imposed by the parent-
       child relationship, guardianship, or custodianship, 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.


2
   It should be noted that, although Lindstrom filed her termination petition prior to the
filing of Beaman’s application for rule to show cause, service of the petition did not occur
until well after Beaman filed his application.
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Iowa Code § 600A.2(19). The statute further lists abandonment as a ground for

termination. See id. § 600A.8(3). For a child six months of age or older at the

time of the termination hearing,

      [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.
             (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.

Id. § 600A.8(3)(b). Lindstrom argues Beaman (A) “failed to contribute support for

[the child] in a reasonable amount according to his means,” (B) “did not visit [the

child] monthly while able” and “she did not prevent him from doing so over a

period of seven years,” and (C) “did not maintain regular communication with her

or [with the child].” On our de novo review, we disagree with these assertions.

      A.     Support

      To prove abandonment, Lindstrom was required to establish Beaman

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

as demonstrated by contribution toward support of the child of a reasonable

amount, according to [his] means.” Id. The district court found Beaman paid

$12,467.58 of his support obligation of “slightly less than $20,000” and “overpaid”
                                         5


from 2013 forward. The court determined he “maintained repeated contact with

the child through payment of a reasonable amount of support for the child.” The

court noted Beaman was “also supporting the child reasonably by providing

health insurance,” notwithstanding Lindstrom’s efforts “to excuse him from doing

so.”   The court concluded Lindstrom “ha[d] not established clearly and

convincingly that [Beaman] has abandoned the child by failing to maintain

substantial and continuous or repeated contact with the child as demonstrated by

contribution toward support of the child.”

       The record supports the court’s findings. Beaman recognized his financial

obligation to the child and made efforts to meet that obligation. Although there

came a time when he had the means to pay off the arrearage but failed to do so,

he consistently paid extra to reduce the arrearage and stated he could “get the

money” to eliminate it. We agree with the district court that Beaman contributed

to the support of the child.

       B.     Visitation or Regular Communication

       Lindstrom was also required to prove Beaman failed to maintain

“substantial and continuous or repeated contact with the child as demonstrated

by” either (1) “[v]isiting 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” or (2) “[r]egular communication with the child or with the

person having the care or custody of the child, . . . when prevented from visiting

the child by the person having lawful custody of the child.” See id.

       The district court found Lindstrom “denied visitation on a consistent basis”

after the burn incident. The court rejected Lindstrom’s reasons for the denials.
                                           6


Lindstrom’s reliance on the advice of the child’s counselor, the court said, was

incongruous because the counselor was providing the child therapy for issues

unrelated to contact with her father. Similarly, Lindstrom’s claimed inability to

make contact with Beaman was met with skepticism. Finally, the court stated

Lindstrom’s reliance on the child’s alleged preference to have no contact with her

father was “likely the product of [Lindstrom’s] concerted and intentional effort to

alienate the child from” Beaman.

       These findings are fully supported by the record. Lindstrom did not call

the child’s therapist to testify but it became evident from her own testimony that

the child’s therapy addressed two significant traumas in the child’s life, one of

which Lindstrom chose not to disclose to Beaman. As for Lindstrom’s claimed

inability to communicate with Beaman, text messages belie this assertion. The

record is also replete with evidence of Lindstrom’s efforts to alienate the child

from her father such as the child’s statement to the guardian ad litem that her

mother gave her a “paper” listing the negative “things her father had done,”

including “episodes of domestic abuse.”

       No one, including Beaman, condoned his conduct towards Lindstrom

before the dissolution or the burn incident after the dissolution. But if Lindstrom

truly believed the child was at risk in his care, her remedy was to seek a

modification of the dissolution decree’s visitation provisions instead of unilaterally

curtailing the child’s relationship with her father.3


3
  Although this court has affirmed the denial of visitation in extreme circumstances
where a parent is granted sole custody, the dissolution decree in this case contained a
mandatory visitation provision. Cf. In re Marriage of T.A.F., No. 02-0996, 2003 WL
190783, at *2-3 (Iowa Ct. App. Jan. 29, 2003).
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         We affirm the district court’s denial of Lindstrom’s termination petition.

Having concluded Lindstrom failed to meet her statutory burden to prove

abandonment, we find it unnecessary to decide whether termination was in the

best interests of the child. See In re A.V., No. 16-0480, 2016 WL 6637666, at *5

(Iowa Ct. App. Nov. 9, 2016).

III.     Consideration of Domestic Abuse

         Iowa Code section 600A.8(3)(c) provides in relevant part:

         In making a determination regarding a putative father, the court
         may consider the conduct of the putative father toward the child’s
         mother during the pregnancy. Demonstration of a commitment to
         the child is not met by the putative father marrying the mother of the
         child after adoption of the child.

Lindstrom argues the court failed to consider Beaman’s abusive conduct toward

her while she was pregnant. We find this argument unpersuasive. First, section

600A.8(3)(c) is discretionary.      Second, the court did consider the domestic

abuse, finding Lindstrom was fearful of Beaman and Lindstrom’s “history of

surviving the abuse perpetrated on her . . . likely had a significant effect on her

perception of the danger.” The court simply did not find the history of domestic

abuse dispositive. Finally, it is worth noting that the decretal court considered the

history of domestic abuse in deciding to grant Lindstrom sole legal custody of the

child.

IV.      Appellate Attorney Fees

         Beaman requests appellate attorney fees. He has cited no statutory

authority in support of the request. Accordingly, the request is denied. See In re

L.H., No. 16-1653, 2017 WL 1278336, at *3 (Iowa Ct. App. Apr. 5, 2017); In re
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A.F., No. 16-0650, 2016 WL 6652390, at *5 (Iowa Ct. App. Nov. 9, 2016); In re

B.G.S., No. 03-1272, 2004 WL 359528, at *3 (Iowa Ct. App. Feb. 27, 2004).

      AFFIRMED.
