                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0149
                               Filed June 21, 2017


IN THE INTEREST OF M.J.W.,
Minor Child,

C.W., Father,
      Appellant,

B.G., Mother,
      Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Washington County, Crystal S.

Cronk, District Associate Judge.



       A father appeals an order terminating his parental rights pursuant to Iowa

Code chapter 600A (2016). AFFIRMED.



       Michael S. Fisher of Fisher Law Office, Oskaloosa, for appellant father.

       Katherine E.M. Lujan of Lloyd, McConnell, Davis & Lujan, L.L.P.,

Washington, for appellee mother.

       Kathryn J. Salazar of Lamping, Schlegel & Salazar, L.L.P., Washington,

guardian ad litem for minor child.



       Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.

       This is an appeal in a private action to terminate parental rights filed

pursuant to Iowa Code chapter 600A (2016).            The district court terminated

Christopher’s parental rights in his child M.J.W. pursuant to Iowa Code section

600A.8(3)(b) (abandonment) and 600A.8(4) (failure to provide financial support).

Christopher timely filed this appeal.

                                        I.

       This court reviews de novo termination-of-parental-rights proceedings.

See In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). “Although our review

is de novo, we do afford the decision of the district court deference for policy

reasons.” State v. Snow, No. 15-0929, 2016 WL 4801353, at *1 (Iowa Ct. App.

Sept. 14, 2016). It is the petitioner’s burden to prove each element of the case

by clear and convincing evidence. See Iowa Code § 600A.8.

                                        II.

       Brandi, the mother and petitioner, and Christopher met and began a

romantic relationship in 2003. In 2004, Brandi gave birth to their child M.J.W.

Although Brandi was apprehensive of marrying Christopher due to his past use of

controlled substances, they married in April 2005.

       Their relationship quickly deteriorated.      Brandi discovered Christopher

using methamphetamine in the marital home in the immediate vicinity of M.J.W.

Brandi took M.J.W. and moved out of the marital home the following day. The

parties divorced in 2006. The parties were granted joint legal custody, Brandi

was awarded physical care, and Christopher was awarded regular visitation to be
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supervised by his mother. Christopher was ordered to pay $337.85 per month in

child support.

       From 2006 to 2008 Christopher maintained regular visitation with M.J.W.

In 2008, Brandi moved to Illinois with her new paramour, Fred, to help care for

Fred’s ill father. Christopher continued to exercise visitation with M.J.W. every

other weekend. In late 2008, Christopher left a voicemail message threatening

Brandi, Fred, and M.J.W.     Brandi obtained a protective order; however, the

parties resumed visitation in 2009. In 2011, Christopher’s visitation with M.J.W.

became erratic. M.J.W. last saw Christopher in January 2013. During the visit,

M.J.W. called Brandi and requested to come home because Christopher was not

present and when he was present he was sleeping. Christopher being absent or

sleeping during visitations occurred frequently during this time period, and

M.J.W. spent much of her visitations with Christopher’s mother.

       Christopher was jailed in February 2013. After being released in March he

called Brandi and assured her he would work harder at being a good father. He

also spoke with M.J.W. The parties agree this is the last time Christopher spoke

with M.J.W. Christopher was subsequently incarcerated from May 2013 until

December 2014 when he was paroled.          During his period of incarceration,

Christopher made no attempt to contact Brandi or M.J.W. by mail or telephone,

claiming he did not know the address or Brandi’s phone number despite the fact

Brandi’s phone number has remained the same since 2008.            According to

Christopher, he asked his mother for Brandi’s phone number, but she refused to

share it.
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       In 2014, Brandi and M.J.W. moved from Illinois to Iowa. Brandi forwarded

all mail from her Illinois address to her new home for one year, ensuring she and

M.J.W. would receive any mail from Christopher. She received no mail from

Christopher.    Because Brandi was unaware of Christopher’s location, she

informed Christopher’s mother of the move and her new address.

       Upon his release from prison in late 2014, Christopher began work as a

contractor. Christopher’s child support obligation had been reduced to $30 per

month as a result of his incarceration. He began paying child support again at

the rate of $30 per month plus $6-8 per month in past due support. At the time of

trial, Christopher was more than $18,000 behind in his child support obligation.

       Upon his release from prison, Christopher made one attempt to contact

Brandi via Facebook, but Brandi did not respond.         Christopher testified he

obtained Brandi’s phone number from his mother or brother and made repeated

calls to Brandi without any response. Brandi testified she never received any

calls from Christopher.

       Christopher was arrested in March 2016 on new charges and for violating

his parole.    He was found guilty of the new charges and incarcerated.            He

testified he will discharge his sentence in 2022, although he claims to be parole

eligible in 2017.

                                        III.

                                        A.

       Christopher challenges the sufficiency of the evidence he abandoned

M.J.W. The Code provides a minor child is abandoned when:
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      [A] parent, punitive 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.

Iowa Code § 600A.2(19). More specifically, because M.J.W. was older than six

months at the time of the termination hearing, section 600A.3(8)(b) provides:

      If the child is six months of age or older when the termination
      hearing is held, 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.

The statute does not require proof of the subjective intent to abandon the child.

See Iowa Code § 600A.8(3)(c). Instead, the petition may establish objective

intent by showing the respondent failed to partake in “affirmative parenting to the

extent it is practical and feasible in the circumstances.” In re Goettsche, 311

N.W.2d 104, 106 (Iowa 1981).

      There is clear and convincing evidence Christopher failed to have

substantial and continuous contact with the child within the meaning of the

statute. He has not had any visitation with the child since January 2013 and has
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had no communication with the child since the spring of 2013.           There is no

evidence Christopher was physically or financially unable to have communication

with the child.

         Christopher’s incarceration does not excuse his lack of contact and

communication with M.J.W.        Christopher was incarcerated from May 2013

through December 2014 and again in March 2016 through the time of trial. He

never attempted to arrange visitation with the child while incarcerated.

Christopher admitted he had money in his prison account but did not attempt to

make a phone call or send a letter of M.J.W.            A parent cannot “use his

incarceration as a justification for his lack of relationship with [the child].” In re

M.M.S., 502 N.W.2d 4, 8 (Iowa 1993).

         Christopher argues Brandi prevented him from having contact with the

child.    See Iowa Code § 600A.8(3)(b).            The record does not support

Christopher’s argument. Brandi has maintained the same phone number, which

was known to Christopher, since 2008. When Brandi moved from Illinois to Iowa,

she forwarded her mail for one year. She received no mail from Christopher.

Brandi also notified Christopher’s mother of her change of address. The parties

had contrary testimony regarding Christopher’s attempts to call Brandi.

Christopher testified he left numerous unreturned voice mail messages with

Brandi after his first period of incarceration. Brandi testified she received no

messages from Christopher. The district court concluded Brandi’s testimony was

more credible on this point. We defer to the district court’s determination of

witness credibility. See In re G.A., 826 N.W.2d 125, 127 (Iowa Ct. App. 2012).

There was one occasion when Brandi admittedly did not respond to a Facebook
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message Christopher sent to Brandi. This single instance is insufficient to show

Brandi prevented Christopher from seeing M.J.W. within the meaning of the

statute. Quite simply, being a parent requires more than “firing text messages

and Facebook messages into the electronic ether” and awaiting response. In re

B.B.E., No. 15-0930, 2016 WL 541346, at *3 (Iowa Ct. App. Feb. 10, 2016).

                                              B.

         Christopher also challenges the sufficiency of the evidence he failed to

satisfy his child support obligation without good cause. A parent’s parental rights

may be terminated when the “parent has been ordered to contribute to the

support of the child . . . and has failed to do so without good cause.” Iowa Code

§ 600A.8(4). “A substantial, and not merely sporadic or insignificant, failure to

pay ordered support without good cause justifies termination of parental rights

under section 600A.8(4).”      Klobnock v. Abbott, 303 N.W.2d 149, 152 (Iowa

1981).

               If there has been a showing of a substantial failure to pay,
         the court must then consider whether that failure was without good
         cause. [In re] B.L.A., 357 N.W.2d [20,] 21 [(Iowa 1981)]. In
         considering whether there is good cause for failure to pay child
         support, the key factual issue is the parent’s ability to pay. Id. at
         22. A “parent’s intent is clearly tied to an ability to pay.” [In re]
         D.E.E., 472 N.W.2d [628,] 630 [(Iowa Ct. App. 1991)].

In re K.N.B., No. 11-1061, 2012 WL 1246524, at *3 (Iowa Ct. App. Apr. 11,

2012).

         There is clear and convincing evidence establishing this ground for

termination of Christopher’s parental rights. At the time of trial, Christopher was

more than $18,000 behind in his support obligation.
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       Christopher contends his failure to pay was for good cause. Specifically,

Christopher notes he was incarcerated for some of the time period and, upon

release, he paid $30 per month plus an additional amount for back support.

While this is true, Christopher fails to address the period between March 2010

and May 2013 when he was not incarcerated and made no support payments.

Christopher testified he was not working during this time due to stress. However,

he also conceded there were times when he could have worked but chose not to

do so. His deliberate decision to forgo work was a deliberate decision to not

support his own child. It does not amount to good cause. See id. (noting a

mother’s choice to take lower paying jobs than she could obtain showed she had

the ability to pay). We also note the contributions Christopher did make resulted

from wage garnishments and withholding tax refunds, not voluntary payments.

See id. at *4.

                                        C.

       Brandi argues Christopher’s parental rights should also be terminated

pursuant to Iowa Code section 600A.8(9) because he is imprisoned and it is

unlikely he will be released within five years. Because we have affirmed the

termination of Christopher’s parental rights on other grounds, we decline to

address the issue.

                                        D.

       We next address whether Brandi established termination of Christopher’s

parental rights is in the best interests of the child. See Iowa Code § 600A.1; In re

R.K.B., 572 N.W.2d 600, 602 (Iowa 1998).
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       Kathryn Salazar was appointed as guardian ad litem (GAL) for M.J.W. in

this proceeding.    While meeting with Salazar, M.J.W. recalled witnessing

Christopher use drugs and was able to give a detailed account of the process.

M.J.W. also said Christopher shot a gun in the home and told her if she shot a

gun he would get her a puppy. She shot the gun and Christopher got her a

puppy but later gave it away. M.J.W. confided in Salazar that she did not feel

safe while in Christopher’s care. Salazar’s report noted M.J.W.’s strong bond

with Brandi and her husband. She reported M.J.W. is a generally happy child—

her disposition only changing while discussing Christopher.       Salazar’s report

concluded termination was in M.J.W.’s best interests.

       We agree termination of Christopher’s rights is in the best interests of the

child. The child is thriving in her current environment under the care of her

mother and stepfather. Brandi has significant medical issues and, as a result, is

rightfully concerned about M.J.W.’s welfare in the event Brandi were to decease

while M.J.W. was still a minor. The stepfather seeks to adopt the child to provide

continuity and certainty in this regard. See In re M.D., No. 06-1564, 2007 WL

911902, at *4 (Iowa Ct. App. Mar. 28, 2007) (considering stepparent’s strong

bond with the child and desire to adopt the child when determining termination

was in the child’s best interest); In re C.M.H., No. 05-0930, 2005 WL 2990650, at

*2 (Iowa Ct. App. Nov. 9, 2005) (noting the importance of stability and

consistency in the child’s life when determining what is in the child’s best

interests).

       In contrast, the termination of Christopher’s parental rights would not

cause any great detriment to the child. Christopher has not had any contact with
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the child for more than four years. He has not voluntarily provided any financial

support to the child. He has involuntarily provided nominal support for the child.

The child has negative associations when thinking of her father, including his

drug use, his decision to coerce or bribe her into firing a weapon, and his taking

her pets. She does not feel safe around the father and does not trust him. See

In re S.A.B., No. 13-1718, 2014 WL 2885322, at *3 (Iowa Ct. App. June 25,

2014) (giving primary consideration to the child’s safety when determining best

interests).   In addition, Christopher has chosen a life of crime rather than

fatherhood.     There is clear and convincing evidence the termination of

Christopher’s parental rights is in the best interests of the child.

                                          IV.

       On de novo review, we conclude the mother proved by clear and

convincing evidence the statutory grounds authorizing the termination of the

father’s parental rights and the termination of the father’s parental rights is in the

best interests of the child. We affirm the judgment of the district court.

       AFFIRMED.
