                       IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2152
                               Filed August 2, 2017


IN THE INTEREST OF Q.G. and W.G.,
Minor Children,

A.P., Mother
       Petitioner-Appellee,

B.G., Father,
       Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Hancock County, Karen Kaufman

Salic, District Associate Judge.



       A father appeals from the juvenile court’s order terminating his parental

rights in a private termination action. AFFIRMED.



       Grant C. Gangestad of Gourley, Rehkemper, & Lindholm, P.L.C., West

Des Moines, for appellant.

       Dani L. Eisentrager of Eisentrager Law, Eagle Grove, for appellee.

       Lynn Collins Seaba of Malloy Law Firm L.L.P., Goldfield, guardian ad litem

for the minor child.



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

         A father appeals from the juvenile court’s order terminating his parental

rights under Iowa Code chapter 600A (2016). He does not contest the statutory

grounds for termination were proven by clear and convincing evidence but

instead argues (1) termination of his rights was not in the children’s best interests

and (2) the juvenile court abused its discretion in admitting certain evidence.

Upon our de novo review, we affirm.

         I.       Background Facts and Proceedings

         The parties were married in 2009. They have two children together: Q.G.,

born in January 2011, and W.G, born in December 2013. Immediately following

Q.G.’s birth, both parents stayed home and cared for their child. After a few

months, the mother returned to work, but the father stayed home and continued

to provide care for the child. Eventually, the father returned to seasonal work for

a few months in October 2011.

         In November 2011, when Q.G. was only ten months old, the father started

using methamphetamine. He later testified he began to distance himself from

Q.G. and spend as little time at home and around the mother as possible. The

father        continued   to   regularly   use       drugs—including   methamphetamine,

prescription pills, and marijuana—over the next few years and even after W.G.

was born.        The father testified he received the drugs from his friend without

charge and also admitted he sold drugs for the friend.

         The father worked seasonally in 2012 and 2013 and only worked for a

very brief period in 2014. Despite the father’s limited employment during this

time, the children attended daycare so the father could use drugs during the day.
                                        3


The father also admitted he wanted the children to attend daycare so that the

mother would be required to pick the children up after work and return home

rather than stay at work. The mother testified the father did not perform any

childcare duties after 2011 because he was not around the family in the

evenings. Instead, she was responsible for preparing meals for the family, doing

the laundry, and bathing the children and putting them to bed when she got home

from work.

       In late December 2014, the father was arrested for incidents occurring on

two separate occasions that month, including one incident in which both children

witnessed the father attempting to strangle the mother and another incident that

involved the father breaking a light bulb, pushing the mother to the ground while

she was holding one-year-old W.G., and then proceeding to choke her. The

mother reported these events to the local sheriff’s office, which documented her

injuries.    The   mother   also   contacted   the   local   police,   who   found

methamphetamine and weapons in the parties’ home when they searched it.

The father pled guilty to two counts of domestic abuse assault (strangulation),

one count of child endangerment, and one count of possession of a controlled

substance (methamphetamine) as a result of these incidents. The father also

pled guilty to the federal criminal charge of unlawful user of a controlled

substance in possession of a firearm stemming from the same incidents. The

state district court sentenced the father to a total of seven years in prison, and
                                             4


the federal district court sentenced him to forty-two months in federal prison, to

be served concurrent with the state sentences.1

       In January 2015, the mother filed a petition for dissolution of their

marriage. The court entered a decree dissolving the parties’ marriage in May

2016, awarding the mother sole legal custody and physical care of the parties’

children pursuant to the parties’ stipulation.2 At that time, the father was not

allowed to have contact with the children due to his incarceration for crimes

committed against them.        Thus, the decree further provided any visitation or

contact between the father and his children must be supervised and scheduled at

the mother’s discretion, and was contingent upon the father’s involvement in and

completion of any programs required by the Iowa Department of Corrections

(DOC). Additionally, the decree ordered the father to pay $50 per month to the

mother in child support.

       In August 2016, the mother filed a petition to terminate the father’s

parental rights pursuant to Iowa Code chapter 600A. Following a hearing on the

mother’s petition in November, the juvenile court terminated the father’s parental

rights pursuant to Iowa Code section 600A.8(3) and (9). The court concluded

termination was in the children’s best interests because the father had not

expressed an interest in his children even though he was living in the same

1
  In his brief on appeal, the father states he was paroled in February 2017. Following his
release on parole from state custody, the father was transferred to federal custody to
serve the remainder of his federal sentence, including a period of time in a halfway
house. The father’s tentative discharge date is March 2018, although the father hopes
to be released sooner. At the termination hearing, the father testified he had secured
employment following his release from federal custody and planned to live with his
parents until he could find his own housing.
2
  The parties stipulated to this arrangement and the court approved the stipulation in its
decree. However, the father did not sign the stipulation until July due to his incarceration
and the stipulation was not filed with the court until August.
                                           5


house as them, “ha[d] not demonstrated a genuine effort to maintain

communication with the children,” and “ha[d] not demonstrated the establishment

and maintenance of a place of important in the children’s lives.” The court noted

the father did not share close bonds with the children because he had been

absent all of W.G.’s life and for most of Q.G.’s life due to his drug use,

incarceration, or personal decision to stay away from his children. The court

acknowledged the father had made progress in prison and taken positive steps

but found these actions were “tarnished significantly by his persistent and

unwavering anger at [the mother], the continued blame of her for all of his

problems and his complete inability to let any of her past mistakes be forgotten,

forgiven or unpunished.” The court found the father had not taken responsibility

for his actions and continued to “pose[] a significant risk to the children and will

be unable to ‘co-parent’ as he asserts.”

       The court also recognized the father’s network of support from friends and

family, and in particular his parents, whom the court noted had been a good

support system for the family prior to the father’s arrest and clearly loved the

children.   However, the court determined the witnesses who testified on the

father’s behalf had a limited view of his drug abuse, physical violence, and care

of his children that was based on the father’s inaccurate and incomplete

reporting. The court expressed its desire for the mother to repair her relationship

with the grandparents and allow them to be a part of the children’s lives but

ultimately found the relationship between the children and their paternal

extended family did not preclude termination of the father’s parental rights.

       The father appeals.
                                         6


       II.    Scope and Standard of Review

       “We review private termination proceedings de novo.” 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 we are not

bound by them. Iowa R. App P. 6.904(3)(g). Our primary consideration is the

best interests of the child. See Iowa Code § 600A.1; see also In re R.K.B., 572

N.W.2d 600, 601 (Iowa 1998).

       We review evidentiary rulings for an abuse of discretion.               See

Gamerdinger v. Schaefer, 603 N.W.2d 590, 594 (Iowa 1999).

       III.   Analysis

              A.     Best Interests

       In a private termination action under chapter 600A, a court may terminate

a parent’s parental rights when the petitioning party has shown by clear and

convincing evidence that the statutory grounds for termination exist. See Iowa

Code §§ 600A.3, .5, .8; In re R.K.B., 572 N.W.2d at 601. In this case, the father

does not dispute the statutory grounds for termination have been proven by clear

and convincing evidence pursuant to Iowa Code section 600A.8(9), which states

the court may terminate when “[t]he parent has been imprisoned for a crime

against the child [or] the child’s sibling.” Thus, we need not address this issue

and our inquiry turns to whether termination is in the children’s best interests.

See In re J.L.W., 523 N.W.2d 622, 625 (Iowa Ct. App. 1994).

       The father contends termination of his parental rights is not in the

children’s best interests. He complains there has not been a substantial change

in circumstances justifying a modification of his parental rights since the parties’
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marriage was dissolved and the juvenile court should not have relied on facts

and circumstances that were within the district court’s contemplation at the time it

entered the decree.3      He further claims he has financially contributed to the

support of his children, demonstrated a continued interest in them, and

demonstrated an effort to maintain communication with them.                    The father

contends he shares a bond with Q.G. and, although he lacks a relationship with

W.G. due to the child’s young age when the father was arrested, he can repair

his bonds with his children. The father also asserts termination is not in the

children’s best interests because he loves his children and termination would

detrimentally impact the children’s bonds with his parents and extended family.

       The children’s best interests “require[] that each biological parent

affirmatively assume the duties encompassed by the role of being a parent.”

Iowa Code § 600A.1. In determining best interests, this court shall consider,

among other things, “the fulfillment of financial obligations, demonstration of


3
  The father questions the juvenile court’s “authority to effectively overturn an order of a
district court establishing the custody rights and responsibilities of [the] parties” and
asserts the mother’s petition for termination of parental rights “is essentially an
application for modification of the original decree.” Thus, he claims, the juvenile court
should only have considered what occurred in this case after the district court entered
the dissolution decree in May 2016. To that end, he contends the mother has not shown
he has done anything since entry of the decree that makes him unfit to parent his
children. He complains he was prevented from having contact with his children—first by
the DOC and then by the mother—which did not allow him to prove termination is not in
the children’s best interests. He also points to the progress he has made in prison
through completing a parenting class, attending Narcotics Anonymous meetings, and
engaging in required treatment.
         The father’s claim is wholly without support. A private action for termination of
parental rights is not the same as a modification of child custody and there is nothing in
the Iowa Code or our case law to suggest that a parent petitioning under chapter 600A
must show a substantial change in circumstances from a prior court order entered in a
chapter 598 action. The juvenile court correctly relied on evidence from before the
district court entered the dissolution decree. Moreover, even if we were to confine our
review to the facts and circumstances occurring since the decree was entered, we would
reach the same result, as discussed below.
                                         8


continued interest in the child[ren], demonstration of a genuine effort to maintain

communication with the child[ren], and demonstration of the establishment and

maintenance of a place of importance in the child[ren]’s li[ves].” Id. Additionally,

our supreme court has borrowed from section 232.116(2) and (3) to flesh out the

contours of the best-interests framework in private terminations.        See In re

A.H.B., 791 N.W.2d 687, 690–91 (Iowa 2010) (considering the child’s “physical,

mental, and emotional condition and needs,” Iowa Code § 232.116(2), and the

“closeness of the parent-child bond,” Iowa Code § 232.116(3)(c)).

       It is undisputed the father cared for Q.G. for almost the first ten months of

the child’s life. After that time, however, the father turned to drugs and was not

available to parent his children or provide for them financially. The father worked

only seasonally from late 2011 until late 2013 and barely at all in the year leading

up to his arrest. In contrast, it was the mother who provided for the family by

working, paying for childcare, and also providing care for the children and

maintaining the home when her workday was over while the father admittedly

spent as little time at home as possible. Following his arrest, the father was

incarcerated and unable to contribute to the family’s needs financially.        The

dissolution decree ordered the father to pay the minimal amount of $50 per

month in child support to the mother beginning in June 2016. The father did not

begin paying this obligation until one month prior to the termination hearing;

however, the record shows the father’s support obligations were fully paid at the

time of the hearing.

       At the termination hearing, the father admitted that prior to his arrest he

was not around the children much, despite living with them, because of his drug
                                           9


use. He acknowledged his drug use had changed his behavior and caused his

relationships with his children to suffer. The father has a history of domestic

violence toward the mother and their children, including an incident during which

the father broke a light bulb over the mother and their infant, showering them with

broken glass, and then pushing her to the ground while the infant was still in her

arms before attempting to strangle her. The father has not taken responsibility

for these actions and continues to blame the mother even though he pled guilty

to the charges stemming from this incident.

       The father has not seen his children since his arrest in December 2014,

with the exception of one visit in May 2015 arranged by the local sheriff. 4 The

father’s last telephone contact with his children was in January 2016, and even

then the contact was not meaningful because the children were both so young.

In February 2016, all contact between the father and his children ceased due to a

DOC policy that did not permit the father to have contact with the victims of his

crimes until he engaged in the recommended treatment program. The father

completed the DOC’s requirements to resume contact with his children in

October 2016. Five days prior to the termination hearing, the DOC lifted the

restriction on the father’s contact with the children, and the father immediately

requested contact. The mother denied the father’s request due to the pending

termination hearing and her belief contact was not in the children’s best interests.

The father continues to blame his lack of contact and diminished bonds with his




4
 At the termination hearing, the father agreed he did not want the children to visit him
while he was incarcerated.
                                         10


children on everyone but himself when he alone is responsible for his

predicament.

       We recognize the father’s attempts to improve his situation while

incarcerated by participating in a voluntary parenting class, consistently attending

Narcotics Anonymous meetings, and completing the DOC’s required treatment

program.    Indeed, the record shows he has been a model inmate.            But the

father’s actions after he was caught and incarcerated and therefore unable to

parent his children do not make up for the years he lived in the same house as

them and chose not to be a parent to them. We consider a “child’s long-range,

as well as immediate, interests” in making our decision.         In re R.K.B., 572

N.W.2d at 601 (citation omitted). “Insight for this determination can be gained

from evidence of the parent’s past performance, for that performance may be

indicative of the quality of the future care the parent is capable of providing.” Id.

(citation omitted).

       Q.G. was almost four when the father was arrested and W.G. was only

one; they are now ages six and three, respectively. The father has not been

available to parent them due to his drug use and incarceration for the majority of

their lives. W.G. has no memory of the father and whatever bond still remained

between the father and Q.G. at the time of his arrest has since been destroyed

as a consequence of the father’s actions. The mother remarried shortly before

the termination hearing. The children have known and lived with their step-father

since March 2015 and refer to him as their father. The step-father is actively

involved in the children’s lives and testified he intends to adopt the children upon

termination of the father’s parental rights. At the termination hearing, the father
                                            11


acknowledged both the mother and the step-father were good parents.

Additionally, the guardian ad litem for the children recommended termination of

the father’s parental rights was in the children’s best interests.

          We have also considered the children’s connection to their extended

paternal family but conclude these relationships do not preclude termination.

The mother testified that, prior to the father’s arrest, she had a good relationship

with the father’s parents and they had often watched the children when she was

not able. However, she testified she had not maintained a relationship with the

father’s parents because she felt “[t]hey are unhealthy for the [children.] [The

grandfather] in particular says things to them that upset them.” While we share

the juvenile court’s hope that the mother will someday resume fostering a

relationship between the children and their extended paternal family, we cannot

ignore the poor decisions the paternal grandparents have made in trying to cope

with this difficult situation and the grandparents refusal to recognize their son’s

role in all of this. The grandparents must be prepared to put the children’s safety

first.

          Upon our de novo review, we find the mother has established by clear and

convincing evidence that termination is in the children’s best interests.

Accordingly, we affirm the juvenile court’s order terminating the father’s parental

rights.

                B.     Evidentiary Issues

          The father also claims the juvenile court abused its discretion in admitting

certain evidence. Specifically, he argues the court should not have admitted

exhibits consisting of letters from the children’s social worker and pediatrician
                                           12


and an incident report from the local sheriff’s office because they contained

hearsay and were prejudicial. He further contends the court should not have

admitted an exhibit showing the father had previously consented to the

termination of his parental rights to another child in 2008 because the evidence

was irrelevant and unfairly prejudicial.

       In equity cases such as this, evidence that is typically excluded under the

rules of evidence in a trial at law is admissible and the nature of the evidence is

considered for its probative value rather than its admissibility. In re H.R.K., 433

N.W.2d 46, 48–49 (Iowa Ct. App. 1988). Evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” Iowa R. Evid. 5.401. Erroneous evidentiary rulings will

not result in reversal unless they are prejudicial. Iowa R. Evid. 5.103(a); In re

A.S., 743 N.W.2d 865, 869 (Iowa Ct. App. 2007).

       We find the juvenile court properly admitted the letters from the children’s

social worker and pediatrician and the incident report.             See Iowa Code

§§ 600A.7(1) (“The hearing on termination of parental rights shall be conducted

in accordance with the provisions of sections 232.91 to 232.96 . . . .”), (2)

(“Relevant   information,   including that contained       in   reports, studies or

examinations and testified to by interested persons, may be admitted into

evidence at the hearing and relied upon to the extent of its probative value.”); see

also id. § 232.96(6) (allowing the admission of “[a] report, study, record, or other

writing or an audiotape . . . recording made by the department of human

services, a juvenile court officer, a peace officer or a hospital . . . notwithstanding
                                         13


any objection to hearsay statements contained [with]in,” if it is relevant and not

unfairly prejudicial); In re E.J.R., 400 N.W.2d 531, 532–33 (Iowa 1987) (holding

hearsay evidence is admissible in a termination-of-parental-rights hearing).

Furthermore, the mother testified as to the contents of the letters from the

children’s providers and the events underlying the incident report at the

termination hearing without objection.    And the father testified regarding his

consent to termination of his parental rights with respect to an older child also

without objection. Thus, we find the challenged evidence was merely cumulative

and not prejudicial to the father. See Vasconez v. Mills, 651 N.W.2d 48, 57 (Iowa

2002). Accordingly, we conclude the juvenile court did not abuse its discretion in

admitting the challenged evidence.

      IV.    Conclusion

      Upon our de novo review, we find the mother has established by clear and

convincing evidence that termination of the father’s parental rights is in the

children’s best interests. We further find the juvenile court did not abuse its

discretion in admitting the challenged evidence. We affirm.

      AFFIRMED.
