                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-2068
                              Filed August 5, 2015

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

C.W., Father,
      Appellant.
________________________________________________________________

      Appeal from the Iowa Juvenile Court for Warren County, Kevin Parker,

Juvenile Associate Judge.



      A father appeals the order terminating his parental rights under Iowa Code

chapter 600A. REVERSED.



      Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.

      Tara M. Elcock of Elcock Law Firm, P.L.C., Indianola, for appellee.

      Cami N. Eslick, Indianola, attorney and guardian ad litem for minor child.



      Considered by Tabor, P.J., McDonald, J., and Sackett, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                          2



TABOR, P.J.

       A father appeals the juvenile court’s grant of the mother’s petition to

terminate his parental rights to their two-year-old daughter, K.P.       The father

contends the mother’s “categorical refusal” to allow him contact with K.P.

precludes a finding of abandonment under Iowa Code section 600A.8(3)(b)

(2013). Because the record supports the father’s contention that the mother

prevented him from exercising visitation or otherwise communicating with the

child, we reverse the order terminating his parental rights.

I.     Background Facts and Proceedings

       The mother, Nicole, and the father, Chad, ended their romantic

relationship shortly before Nicole learned she was pregnant in July 2011. K.P.

was born in March 2012. About one week after K.P.’s birth, Nicole allowed Chad

to see their daughter for the first time. Chad has had a total of only four visits

with K.P., all occurring during the first four months of her life. Because Chad did

not have a driver’s license, all visits were arranged by Nicole who provided

transportation. At that time Chad lived two hours away from Nicole and Nicole

was working two jobs. No custody or visitation arrangement was in place.

       Five months after K.P. was born, in August 2012, Chad moved out of state

to live with his now fiancée and her two children in Virginia. Chad had difficulty

finding work there and stayed at home with the children. Chad has not provided

financial support for K.P. since her birth.

       Four months after he moved to Virginia, Chad twice contacted Nicole

asking to set up a visit with K.P. during his trip back to see his family in Iowa for
                                         3



the 2012 Christmas holiday. Nicole did not respond to his requests. Chad also

contacted Nicole by text message and telephone calls to inquire about K.P. in

February, March, May, June, July, and November of 2013.           Nicole did not

respond to these requests, explaining later that she did not want Chad just

coming in and out of K.P’s life.

       In April 2014, Chad filed a petition to establish paternity, child support,

legal custody, and visitation. In July 2014, before the court had a chance to

consider Chad’s petition, Nicole filed this action to terminate Chad’s parental

rights under Iowa Code chapter 600A. Following a hearing, the juvenile court

terminated Chad’s parental rights under section 600A.8(3)(b).         Chad now

appeals.

II.    Standard of Review and Statutory Burden

       We conduct a de novo review of termination proceedings under chapter

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

factual findings of the juvenile court, especially findings related to witness

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

Ct. App. 2012). When interpreting chapter 600A, the best interest of the child

involved is “the paramount consideration.” Iowa Code § 600A.1. But we must

give due consideration to the parents’ interests. Id.

       Under section 600.8(3)(b), the parent petitioning for termination has the

burden to show the other parent abandoned the child. G.A., 826 N.W.2d at 129.

The juvenile court’s termination findings must be based on clear and convincing

proof. Iowa Code § 600A.8.
                                         4



III.   Abandonment Analysis

       The juvenile court found Chad abandoned K.P. under section 600A.8(3).

Chad contests that finding on appeal.

       To “abandon a minor child” means:

       [A] parent [or] putative father . . . 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).

       A parent is deemed to have abandoned a child who is six months of age

or older

       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). A parent’s subject intent, “whether expressed or otherwise,

unsupported by evidence of acts specified in paragraph ‘a’ or ‘b’ manifesting

such intent, does not preclude a determination that the parent has abandoned

the child.” Id. § 600A.8(3)(c).
                                         5



       Under section 600A.8(3)(b), one element of “substantial and continuous or

repeated contact” is economic contributions.       Chad has not provided child

support for K.P. He has sent birthday and Christmas gifts for his daughter. The

evidence indicated Chad has had a long period of unemployment and did not

have resources to provide regular financial support. But Nicole acknowledged at

the hearing that twice Chad offered to give her money for the benefit of their

daughter. Nicole suspected the money was from Chad’s family members and

she turned it down, telling him: “I don’t want your money.”        On appeal, she

asserts Chad “has not and is quite frankly unable to fulfill the financial

obligations” of being a parent. Chad filed a petition to establish paternity and his

child support obligation, but that action was cut off by Nicole’s termination

petition.

       On this record, we do not find clear and convincing evidence that Chad

has failed to provide financial support within his means.       We recognize that

section 600A.8(3)(b) is not limited to court-ordered support payments; those

types of payments are the subject of a separate provision. See In re W.W., 826

N.W.2d 706, 710 (Iowa Ct. App. 2012) (flagging Iowa Code section 600A.8(4) (“A

parent has been ordered to contribute to the support of the child or financially aid

in the child's birth and has failed to do so without good cause.”)). But in this

case, Chad was the party pursuing a court order that would have established a

child support obligation. Nicole did not offer clear proof that Chad had financial

resources and refused to provide for K.P. In fact, Nicole admitted she declined

the offers of monetary support he did make.
                                           6



       A second element of section 600A.8(3)(b) involves visitation or

communication between parent and child. Chad does not dispute his lack of

contact with K.P. Instead he argues Nicole has prevented him from exercising

visitation or other communication.         He asserts on appeal that Nicole’s

“categorical refusal to allow him any contact with K.P. precludes a determination

he abandoned” the child.

       In response, Nicole contends “Chad abandoned K.P. when he moved to

Virginia and made sporadic attempts (two to three of record) to see K.P. in over

two years’ time.” But Nicole also acknowledges in her appellee’s brief that after

his move she chose “to stop taking Chad’s calls” because it would be “unhealthy

for K.P. to have a sporadic, inconsistent dad coming in and out of her life.”

Nicole also admitted in her trial testimony that she prevented Chad from seeing

K.P.

       A parent cannot prove abandonment when his or her own actions

prevented   the   other    parent   from   contacting   the   child.   Iowa    Code

§ 600A.8(3)(b)(1) (“Visit[s] the child at least monthly . . . when not prevented from

doing so by the person having lawful custody of the child.”); see In re P.N.B., No.

06-1127, 2007 WL 601509, at *5 (Iowa Ct. App. 2007) (holding abandonment not

proven when any attempts by the mother to contact the child would have been

thwarted by the father).

       Nicole acknowledged Chad sent text messages and placed phone calls

asking to set up a visit with K.P. when he was back in Iowa to see his extended

family or to have other communication with the child.         Nicole ignored those
                                        7



messages. Nicole also refused to provide her mailing address to Chad. We are

not persuaded by Nicole’s argument that Chad’s requests to have interactions

with K.P. were too sporadic to qualify as “substantial and continuous or repeated

contact.” Given Nicole’s blanket moratorium on contact between K.P. and Chad,

Chad could have requested contact on a daily basis and Nicole would have not

honored those requests.

      After our de novo review of the record, we conclude Nicole has not met

her burden to prove by clear and convincing evidence that Chad has abandoned

K.P. as defined under section 600A.8(3)(b).        Nicole prevented any contact

between K.P. and Chad after he moved to Virginia.         Having taken unilateral

action to shut Chad out of K.P.’s life, Nicole cannot show that it was Chad who

rejected the duties imposed by the parent-child relationship.

      Finally, Nicole requests appellate attorney fees under section 600A.6B.

Because we reverse the finding of the juvenile court, we deny her fee request.

      REVERSED.
