                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-1936
                                  Filed June 7, 2017


IN THE INTEREST OF M.K.R.,
Minor Child,

K.R., Mother,
       Petitioner-Appellant,

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


      Appeal from the Iowa District Court for Des Moines County, Jennifer S.

Bailey, District Associate Judge.



      The mother appeals the district court’s order denying her petition under

Iowa Code section 600A.8(3) (2016) to terminate the father’s parental rights to

their minor child and the court’s admission of an affidavit during the trial.

AFFIRMED.



      Diana L. Miller and Sarah S. James of Whitfield & Eddy, P.L.C., Mt.

Pleasant, for appellant mother.

      B.Y., pro se appellee father.

      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
                                         2


POTTERFIELD, Judge.

        The mother appeals the district court’s ruling denying her request to

terminate the father’s parental rights of M.R. on the basis (1) statutory grounds to

establish termination were met, and (2) termination is in M.R.’s best interests.

The mother initiated this action under Iowa Code section 600A.8(3) (2016) in

April 2016. The mother also claimed the district court erred in admitting the

affidavit of her paramour. Although the statutory grounds for termination were

met, termination is not in the best interests of M.R.      The district court also

properly admitted the affidavit. We affirm.

I. Background Facts and Proceedings.

        The parties to this private-termination action are the natural mother and

father of M.R., born in 2009.       The parties were never married, and they

separated in 2008 before M.R.’s birth. M.R. has resided with the mother since

birth and currently lives with the mother and her paramour, Samuel. M.R. knows

Samuel as her father. Both the mother and father have other children unrelated

to this action.

        Sometime in 2008, both the mother and the father were charged with theft.

According to testimony, both parties received a deferred judgment. However, the

father testified he was incarcerated for seven days for contempt related to failing

to pay restitution for the theft. The record does not show any additional criminal

activity.

        The father has never had meaningful contact with M.R., nor has he

provided any economic contributions. Despite the father’s limited contact with

M.R., he has attempted to communicate with the mother and her family about
                                          3


M.R. since the child’s birth. On or around the mother’s due date for M.R., the

father testified he called the mother to inquire about the pregnancy, but the

mother told the father M.R. was not yet born even though the father could hear a

baby crying in the background. Between 2010 and 2011, the father sent multiple

letters to the mother’s family requesting to meet M.R.; the letters were returned

with the inscription, “Do not send mail here.” The father testified he sent the

letters to the mother’s family because he did not know her location. In 2013, the

father initiated communications with the mother through Facebook about

establishing a relationship with M.R.      In 2014, the father again attempted to

communicate with the mother through Facebook asking the mother to let M.R.

meet her paternal grandfather, as his health was fading.           He made multiple

requests in 2014 and another request between 2015 and the trial date to see

M.R. The mother’s testimony indicates that she saw the messages. However,

all of the messages went unanswered. The father even attempted to contact

Samuel in 2015 through Facebook.

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

rights, pursuant to Iowa Code section 600A.8(3).          At trial, the father offered

Samuel’s affidavit from a custody proceeding between Samuel and the mother

regarding their minor child. The relevant part of the affidavit states:

       [M.R.] doesn’t know her own father and he has not been allowed
       into her life. It is my understating that he has made attempts to be
       involved in her life, but [the mother] won’t allow him to do it. I fear
       that she is now doing that with me to alienate me from my
       daughter’s life.

The district court initially denied the father’s request to admit the affidavit, noting

the father could call Samuel as a witness during his case-in-chief to elicit the
                                            4


information stated in the affidavit—at that time, Samuel was present in the

courtroom. By the time the father attempted to call Samuel as a witness, he was

unable to locate him.1 The district court admitted the affidavit over the mother’s

objections for “what value may be evinced from the actual paragraph on page 3

[listed above]. The rest of the document will be admitted to simply show who

signed it and under what circumstances.”

         In the guardian ad litem’s (GAL) report to the court, the GAL requested “to

reserve recommendation until she has heard the information which comes before

the court in the form of testimony and admitted evidence.” The GAL made its

oral recommendation to the court during the trial. She stated:

                 This minor child is well into growing. She is in second grade
         now. She has been without [the father], and he has made no
         attempts to provide support for her. I find that very concerning. It
         starts to make me question as to whether or not—other than on the
         rare occasions he’d make contact by Facebook—if she was a
         priority. He tells me that she was, but it doesn’t appear to be that
         way.
                 And so for those reasons, Your Honor, I don’t know that I
         would find it to be in the child’s best interest to suddenly develop
         and extend on to allow for him to go further and not establishing
         custody. He’s not done anything at this point that shows that he’s
         going to. And I think at this point [M.R.] receives everything from
         her mother and [Samuel], and I don’t think it’s in her best interest to
         allow for this to continue. And I don’t see anything that shows that
         it’s not in her best interest to have his rights terminated.

The GAL further stated she has “absolutely no concerns for [M.R.’s] care” under

the mother and Samuel, and “[M.R.] did not appear to have any interest in

meeting [the father].”

         On October 24, the court denied the mother’s petition to terminate the

father’s parental rights. The mother appeals.

1
    Samuel was not under subpoena, nor was he noticed as a witness during discovery.
                                                  5


II. Standard of Review.

          We conduct a de novo review of termination proceedings under chapter

600A. See In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). We defer to

the factual findings of the district court, especially witness-credibility findings, but

we are not bound by them. See In re G.A., 826 N.W.2d 125, 127 (Iowa Ct. App.

2012). The termination findings must be based on clear and convincing proof.

Iowa Code § 600A.8.

III. Discussion.

          The mother argues the father abandoned the child under Iowa Code

section 600A.8(3). She also argues termination is in M.R.’s best interests and

the district court erred in admitting Samuel’s affidavit.2

          a. Termination of Parental Rights.

          In a private termination-of-parental-rights proceeding, the petitioner must

establish by clear and convincing evidence that a statutory ground for termination

exists. See Iowa Code § 600A.8; In re B.L.A., 357 N.W.2d 20, 22 (Iowa 1984). If

a ground is proved, the petitioner must also establish termination is in the child’s

best interests. See In re A.H.B., 791 N.W.2d 687, 690 (Iowa 2010). Although

the interests of the parents must be given due consideration, our primary concern

is the child’s best interests. See Iowa Code § 600A.1 (“The best interest of the

child subject to the proceedings of this chapter shall be the paramount

consideration in interpreting this chapter.”); A.H.B., 791 N.W.2d at 690–91.

Thus, we conduct a two-step analysis in our review. First, we determine whether



2
    The father did not file a brief in this appeal.
                                           6


the statutory requirements are established.            Second, we review whether

termination is in the best interests of the child.

       1. Statutory Requirements. The district court held the father did not

abandon the child under section 600A.8(3) because “[c]lear and convincing

evidence has not been presented to [the district court] that constitutes grounds

for the termination of the parental rights of [the father] to the child in interest.”3

The mother argues the father’s failure to provide any support, emotionally or

financially, to M.R. satisfies the requirements under section 600A.8(3).

       Abandonment of a minor child is one of the grounds authorizing the

termination of parental rights under Iowa Code chapter 600A. See Iowa Code

§ 600A.8(3). The relevant code section provides that a parent of a child six

months old or older will be deemed to have not abandoned the child if that 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
3
  We note a paragraph in the district court’s decision states, “In addition to the
determination that the statutory grounds for termination have been met, the Court must
determine that the termination would benefit the children” (emphasis added), which
could lead to the conclusion that the court found the statutory grounds for termination
were satisfied under section 600A.8(3). However, we believe this statement is in error
because the order ultimately “denied [the mother’s request] upon the grounds set forth in
Iowa Code section 600A.8(3).” Regardless, this discrepancy does not affect our de novo
review of the issue.
                                         7


       parental rights hearing and during that period openly holding
       himself or herself out to be the parent of the child.

Id. (emphasis added). The petitioner need not establish the father’s subjective

intent to abandon the child. See id. § 600A.8(3)(c); G.A., 826 N.W.2d at 130

(recognizing a parent’s subjective intent does not preclude a finding of

abandonment); see also In re C.J.F.M., No. 10-0166, 2010 WL 3157756, at *2

(Iowa Ct. App. Aug. 11, 2010) (recognizing the “‘intention to abandon’ is no

longer a statutory element in the definitions of Iowa Code chapter 600A”). Nor is

the petitioner required to show they or anyone else made diligent efforts to

encourage the father to perform the acts specified in section 600A.8(3)(b). See

Iowa Code § 600A.8(3)(c). Rather, abandonment is determined by a parent’s

actions or lack thereof. See In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct. App.

1994) (“Clearly, actions speak louder than words. Intent can be shown through

conduct.”).    Section 600A.2(19) defines abandonment of a minor child as

“reject[ing] 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.”

       Here, the father has not paid any financial support to M.R., and he has

only made a marginal effort to do so. While he did state through a Facebook

message, “I don’t have a problem paying child support,” he failed to set up a

custody arrangement, child-support payments, or make any other reasonable

financial contribution to M.R. Under section 600A.8(3), “the threshold element of

‘substantial and continuous or repeated contact’ is economic contributions.” In re
                                          8

K.W., No. 14-2115, 2015 WL 6508910, at *3 (Iowa Ct. App. Oct. 28, 2015); see

also In re W.W., 826 N.W.2d 706, 710 (Iowa Ct. App. 2012) (discussing

“predicate language of section 600A.8(3)(b)”). The father’s lack of any economic

contribution supports the statutory requirement the parent abandoned the child.

Compare J.L.W., 523 N.W.2d at 625 (holding father’s court-ordered ten-dollar-

per-month child-support payment was insufficient to qualify as a reasonable

contribution to the support of the child), with In re J.J., No. 08-2026, 2009 WL

1492860, at *3 (Iowa Ct. App. May 29, 2009) (holding although father’s child-

support arrearage was $12,392, father did not abandon child where he paid

approximately forty-five percent of the arrearage and continued to call and write

to the child). We note the district court found, “[The father] has been prevented

from seeing [M.R.] since the day of her birth.       He has expressed significant

interest in her welfare by staying in contact with [the mother], at least beginning

in 2013.”   Because we hold the father abandoned the child under section

600A.8(3) by not making any reasonable support contributions, we need not

address the mother’s preventative measures under the statutory analysis. These

facts, however, are relevant in our best-interests analysis, which will be

developed in more detail below.

       2. Best Interests.     Next, we consider whether the termination of the

father’s parental rights is in the child’s best interests. See J.L.W., 523 N.W.2d at

625 (“Once we determine a ground for termination under 600A.8 has been

established by clear and convincing evidence, we must next determine whether it

is in the child’s best interests to order termination of parental rights.”).      In

determining the best interests of M.R., the district court held:
                                              9


         [T]he court must look at both [M.R.’s] long-range and short-term
         interest in maintaining her biological father’s parental rights.
         Despite [the father’s] complete lack of financial support and his
         checkered criminal history, the court cannot say that it would be in
         [M.R.’s] best interests to never know her biological father, or never
         avail herself of the emotional and financial support he could, and
         can, provide her.

The mother argues the district court erred in its best-interests determination

because the father failed to affirmatively assume the duties of being a parent,

including    fulfilling   financial   obligations,   demonstrating   interest   in   M.R.,

maintaining communication with M.R., and establishing a place of importance in

the child’s life.

         In determining a child’s best interest, the child's long-range and immediate

interests are considered.         In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998).

Insight for this determination can be found from evidence of the parent’s past

performance, as it may be indicative of the quality of the future care a parent is

capable of giving. Id. Additionally, we give “due consideration” to the father’s

interests. See Iowa Code § 600A.1. We also note, “[t]here exists a parental right

to integrity of the familial relationship, unless by conduct it be forfeited.” In re

Lewis, 257 N.W.2d 505, 510 (Iowa 1977)

         The mother points to In re M.B.W., No. 12-2161, 2013 WL 3273170 (Iowa

Ct. App. June 26, 2013), and In re J.K.N., No. 08-2069, 2009 WL 1677000 (Iowa

Ct. App. June 17, 2009), to support her argument that termination is in the best

interests of M.R. The present facts, however, are distinguishable from the above

cases.      In M.B.W., the court concluded termination was in the child’s best

interests because the father had not addressed his mental-health or substance-

abuse issues. M.B.W., 2013 WL 3273170, at *3. The appellant’s criminal history
                                          10

in M.B.W. was more extensive than the present case. Here, the father was

incarcerated for seven days for a contempt action related to a theft. In M.B.W.,

the court found the father’s violent tendencies, gang affiliations, and association

with individuals having criminal backgrounds prevented the father from

establishing a bond with his child. Id. at *2. Notably, the father in M.B.W was

found to not have an interest in the parent-child relationship. Id. Here, the father

has shown a repeated interest in the child’s well-being since birth, and his

criminal history is minimal.

       Similarly, in J.K.N., the father admittedly did not have any interest in

maintaining a bond with the child. 2009 WL 1677000, at *1. He stated to the

mother that he did not want anything do with the child, and he signed a “release

of custody and consent to termination of parental rights” form. Id. Although the

district court denied termination, the only reason it did so was the speculative

benefit of future income from the father; a panel of our court reversed the district

court’s decision. Id. at *5–6. In both M.B.W and J.K.N., a panel of our court held

termination was in the child’s best interests because of the father’s lack of

involvement with the child, the harm caused by the father, and the limited benefit

in retaining the parent-child relationship. See id.; M.B.W., 2013 WL 3273170, at

*3. Furthermore, the mother in the above cases did not prevent the father from

developing a meaningful relationship with the child. The rationale in M.B.W. and

J.K.N. are not applicable to this case.

       Unlike the above cases, here the father has shown an interest in parenting

by contacting the mother since M.R.’s birth. In response, the mother, at best,

ignored his requests. Moreover, the record illustrates limited harm to M.R. in
                                          11


maintaining the parent-child relationship with the father. The criminal activity that

led to the father’s incarceration in 2010 has subsided, and the father has gained

steady employment. There is also no record of mental-health or substance-

abuse issues. Cf. In re A.P., No. 07-1966, 2008 WL 782814, at *3 (Iowa Ct. App.

Mar. 26, 2008) (“[T]he benefit of preserving the parent-child relationship between

F.H. and A.P. II is clearly outweighed by the continuing risk of harm posed by

F.H.’s unresolved substance abuse issues.”). The father should not be denied a

relationship with his biological child when he has not had a legitimate opportunity

to develop one, and the father’s conduct does not suggest the child will be

harmed in maintaining or developing such a relationship.           See Lewis, 257

N.W.2d at 510 (“There exists a parental right to integrity of the familial

relationship, unless by conduct it be forfeited.”). We agree with the district court

that termination is not in M.R.’s best interests.

       b. Evidentiary Issues.

       The mother next contends the district court erred in the admission of an

affidavit of Samuel in an unrelated child-custody proceeding.          The affidavit

suggests Samuel is worried about the custody of his children because the mother

denied M.R.’s father any chance to see his children. The mother objected to the

affidavit on grounds it was not produced in discovery, it is not relevant, and it is

not subject to cross-examination.

       In equity cases, evidence that is objected to should be admitted subject to

the objection. In re Estate of Evjen, 448 N.W.2d 23, 24 (Iowa 1989); accord 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). Evidence that is typically
                                         12


excluded under the rules of evidence in a trial at law is admissible here, 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) (citing

Harter v. State, 149 N.W.2d 827, 829 (Iowa 1967)).          Here, the district court

stated:

               [The affidavit] will be admitted.      For purposes of the
        relevancy of this proceeding, the Court will only consider, again, for
        what value it may be evinced from the actual paragraph on page
        three. The rest of the document will be admitted to simply show
        who signed it and under what circumstance.

The district court properly admitted the evidence for the limited purpose of the

statement by Samuel in paragraph three, which was probative of the mother’s

actions that prevented the father from developing a relationship with M.R.

        Although the statutory grounds for termination were met, termination is not

in the best interests of M.R. The district court also properly admitted Samuel’s

affidavit.

        AFFIRMED.
