                        IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1653
                                Filed April 5, 2017


IN THE INTEREST OF L.H.,
Minor child,

S.M., Mother,
      Petitioner-Appellee,

J.H., Father,
       Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.



       Father appeals from an order terminating his parental rights pursuant to

Iowa Code chapter 600A (2015). AFFIRMED.




       Jacob Van Cleaf of Van Cleaf & McCormack Law Firm, LLP, Des Moines,

for appellant father.

       Ryan A. Genest of Culp, Doran & Genest, P.L.C., Des Moines, for

appellee mother.

       Jesse A. Macro Jr. of Macro & Kozlowski, L.L.P., West Des Moines,

guardian ad litem for minor child.

       Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

       This appeal arises out of a private action to terminate parental rights filed

pursuant to Iowa Code chapter 600A (2015). Sarah, the biological mother of

L.H., filed the action to terminate the parental rights of Johnathon, the biological

father of L.H. The district court granted the petition, finding and concluding the

father had abandoned the child within the meaning of Iowa Code section

600A.8(3). The father timely filed this appeal.

       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).

       The petitioner must prove each element of her case by clear and

convincing evidence. See Iowa Code § 600A.8. The code provides a minor child

is abandoned when:

        [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 L.H. 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:
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                 (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 petitioner need not establish the respondent had the subjective intent to

abandon the child. See Iowa Code § 600A.8(3)(c). Instead, the petitioner can

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);

          The father first raises a procedural issue. He claims he was not provided

sufficient notice because the petition failed to identify the specific code provision

or provisions pursuant to which the mother sought termination of his parental

rights.     The claim is without merit.    The petition is captioned “Petition for

Termination of Parental Rights.” Paragraph four of the petition states that “[t]he

parent/child relationship now existing between the above-named child and her

biological father should be terminated.” Paragraph four, subparagraphs (a) and

(b) explicitly state termination was sought on the grounds of consent and

abandonment.        The father was served with the petition.      The petition was

sufficiently clear to provide the father with notice.    See Smith v. Smith, 513

N.W.2d 728, 730 (Iowa 1994) (stating “petition must allege enough facts to give

defendant ‘fair notice’ of claim”).
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       The father’s procedural claim fails for an additional reason. He had actual

notice of the grounds upon which the mother sought to terminate his parental

rights. She sought to terminate his parental rights on the ground he abandoned

the child within the meaning of chapter 600A. On the eve of trial, the father filed

a trial brief arguing the evidence would not be sufficient to establish

abandonment within the meaning of chapter 600A. He cited and argued the

relevant code provisions.      His actual knowledge of the grounds upon which

termination was sought defeats his claim of insufficient notice. See In re R.E.,

462 N.W.2d 723, 726 (Iowa Ct. App. 1990) (holding “notice to an attorney in

respect to a matter in which he is then acting for a client is notice to the client”).

       On the merits, the father argues the mother failed to prove he abandoned

the child. We disagree. The parties began dating in February of 2012. L.H. was

born in May 2013. The parties cohabited for a period of time after L.H.’s birth.

During the time the parties cohabited, the father demonstrated little interest in the

child, preferring to play video games.         The relationship deteriorated, and the

mother asked the father to move out. L.H. was fourteen or fifteen months old at

the time. After he moved out of the parties’ residence, the father initially provided

financial support for the child and exercised some visitation with the child. By

2015, however, the father discontinued substantial and continuous contact with

the child. The record reflects he stopped making any support payments in July

2015. The record also reflects the father had only three visits with the child

during 2015 and none after July 2015. Each of the three visits was of short

duration, lasting only minutes to an hour. The mother did admit she did not

permit the father to visit with the child on one occasion when he asked in
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December 2015 due to her concern regarding the welfare of L.H. having

visitation with a virtual stranger. Like the district court, we find this single denial

of visitation does not overshadow the preceding year, a year in which the father

made little to no attempt to communicate or visit with L.H. We conclude there

was clear and convincing evidence the father abandoned the child due to the

father’s failure to visit 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.” Iowa Code § 600A.8(3)(b).

       When the statutory ground or grounds authorizing the termination of

parental rights is satisfied, the petitioner must still prove termination of parental

rights is in the best interest of the child. See Iowa Code § 600A.1; In re R.K.B.,

572 N.W.2d 600, 602 (Iowa 1998). On de novo review, we conclude termination

of the father’s parental rights is in the best interest of the child. The father has

not demonstrated any sustained interest in the child.           The child does not

recognize her father. The guardian ad litem concluded it was in L.H.’s best

interest to terminate the father’s parental rights to avoid a “yo-yo” effect based on

past performance. The father’s indifferent attitude toward the child is evidenced

by, among other things, the father’s failure to appear at the termination hearing.

The child is thriving in her present circumstances. The mother cohabits with her

fiancé, Michael. Michael has served as the child’s de facto father since the time

of the parties’ separation. Michael intends to adopt L.H. The child recognizes

Michael as her “dad or daddy.” The mother provided photographs of L.H. with

Michael partaking in bonding tasks such as pumpkin carving and assembling

puzzles together. The mother also provided photos of L.H. with her extended
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family to demonstrate her network of support. It is in the best interest of the child

to terminate the father’s parental rights.

       The father relies on In re K.W., No.14-2115, 2015 WL 6508910, at *4–5

(Iowa Ct. App. Oct. 28 2015), to support his contention that small gestures to

sustain a relationship with a child are enough to show that termination of parental

rights is not in the child’s best interests.     We disagree with the proposition,

generally, that sending a few messages per year to the child is in the best

interest of the child. Regardless, the father’s relationship with L.H. is materially

different than the parental relationship in K.W. Unlike the child in that case, L.H.

is unaware of her father. We conclude K.W. is distinguishable from the present

case and does not militate in favor of preserving the parent-child relationship in

this case.

       The mother requests appellate attorney fees. She does not identify the

statutory authority authorizing an award of appellate attorney fees in a private

termination proceeding. We deny her request for attorney fees. See In re A.F.,

No. 16-0650, 2016 WL 6652390, at *5 (Iowa Ct. App. Nov. 9, 2016) (denying

request for appellate attorney fees in private termination proceeding).

       AFFIRMED.
