                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1325
                                Filed June 10, 2015

STEVEN M. VOKAL,
     Petitioner-Appellee,

vs.

NICOLE FRIESS SCHILLING,
     Respondent-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Greene County, Thomas J. Bice,

Judge.



       Nicole Schilling appeals the district court’s decree disestablishing the

paternity of the deceased legal father and establishing the paternity of the

biological father to the minor child. REVERSED.



       Vicki R. Copeland of Wilcox, Polking, Gerken, Schwarzkopf, Copeland &

Williams, P.C., Jefferson, for appellant.

       Sara E. Dewein of Cunningham & Kelso, P.L.C., Urbandale, for appellee.



       Heard by Tabor, P.J., and Bower and McDonald, JJ.
                                        2



BOWER, J.

      Nicole Schilling appeals the district court’s decree disestablishing the

paternity of the deceased legal father, Chris Schilling, and establishing the

paternity of the biological father, Steven Vokal, to the minor child E.S.; and

ordering visitation for Steven.   Nicole claims the district court failed by not

considering her motion to terminate Steven’s parental rights on its merits, by

disestablishing Chris’s parental rights and establishing Steven’s parental rights,

and by not considering the best interests of E.S. in ordering visitation. Nicole

also asks for appellate attorney fees. We find Steven did not assume “a serious

and timely expression of a meaningful desire to establish” parental responsibility

of E.S. and has thus waived his parental rights to E.S. We reverse the district

court’s decree.

I.    BACKGROUND FACTS AND PROCEEDINGS

      In the spring of 2003, Steven Vokal and Nicole Schilling met while they

were both performing as cast members in a musical production in Omaha,

Nebraska. A physical relationship began in April and ended in May. During this

time, Nicole was married to Chris Schilling, though their relationship was

estranged. In the months following her relationship with Steven, Nicole began to

experience symptoms she assumed evidenced a relapse of cancer from which

she had previously suffered. Nicole later found out she was actually pregnant.

      At trial Steven and Nicole offered differing accounts of their conversations

concerning the parentage of the child, E.S. Nicole testified Steven called her to

see how a doctor’s appointment had gone, and to see if she would return to
                                        3



Omaha for another singing engagement. She responded, “I told him then that,

um, good and bad. Good, I don’t have cancer; bad news, I’m pregnant.” Steven

asked if the child was his and Nicole stated, “I don’t know. I hope not.” Nicole

denies she ever considered or told Steven she was going to terminate the

pregnancy. Prior to the birth, Nicole testified her last encounter with Steven was

at the end of the summer of 2003. She told him she “did not want to see him;

and that was that.” Nicole further testified Steven contacted her after she gave

birth, but Nicole “asked him not to contact me and he didn’t contact me again.”

Finally, she testified she was certain Steven knew there was a possibility E.S.

was his child.

       Steven offered a different version of his conversations with Nicole. Steven

testified he asked Nicole if the child was his and she responded the doctors told

her “it was best for her to have a D and C so the pregnancy was terminated; and

she stated she didn’t know if the child was mine or Chris’s.” Based on what

Nicole told Steven, he assumed she had terminated the pregnancy in the early

summer of 2003. In the spring of 2004, Steven testified he heard through mutual

friends Nicole had given birth. Steven called Nicole to inquire about the infant.

Nicole told him she had given birth in February 2004, “she stated once again,

that, uh, that the pregnancy had been terminated and she had allowed herself to

become pregnant the following month.” Steven stated Nicole asked him to stop

contacting her as she had decided to stay with Chris.

       Nicole and Chris resolved their marital issues and began living together

again. Chris accepted E.S. as his own child. When confronted with the fact E.S.
                                          4



might not be his child Chris replied “we are not going to talk about this again.”

E.S. has never been told there was a possibility Chris was not her biological

father.

          In 2009, Chris was diagnosed with cancer.        He underwent multiple

surgeries and chemotherapy treatments. After a long battle with cancer, Chris

passed away in August 2011.

          In February 2011, seven years since they last spoke, Nicole sent Steven a

“friend request” on Facebook because she was interested in seeing pictures of

his child C.H., who had been born around the same time as E.S. After becoming

Nicole’s Facebook friend, Steven saw photos of E.S. on Nicole’s Facebook page

and noticed E.S. and C.H. were similar in appearance. At trial, he testified that

when he first saw pictures of E.S. he thought “there could be possibility that she

was my child.” Steven and Nicole continued to communicate for the next six

months, and they ultimately planned a visit in October. The day before the visit,

Nicole sent Steven a message stating, “[h]ere’s the honest truth—check out the

pictures of [E.S.] in my photos and compare them to [C.H.]. Perhaps it’s just a

coincidence, one of those things, and I am seeing something that isn’t there—but

the resemblance kind of freaks me out.” In October 2011, Steven visited Nicole’s

farm and brought C.H. Steven testified the visit was “fantastic,” and C.H. and

E.S. “completely bonded;” after the first visit he was “very suspect” that E.S. was

his daughter. The day after the visit, Steven sent Nicole a message:

          Hey, I wanted to write you about Sunday. First of all thank you for
          letting [C.H] and I come up. I hope you enjoy the photos. It was
          pretty emotional to see you again and [E.S.] for the first time. It
          was good. She’s so pretty and it’s so cool that her and [C.H.] got
                                           5



       along so well. I hope they can become good friends. As far as
       myself, I’m around as much as you let me. (I promise I won’t be
       annoying). I think the important thing at this point is to take it slow.
       Anyway, I am very impressed with how you raised your kids.
       They’re so much fun. Hope you get some sleep tomorrow.

And Nicole replied:

       The kids had a lot of fun. [E.S.] did mention today when we were
       looking at the pictures, that she and [C.H.] look a lot alike. (Did
       [C.H.] say anything?) I agreed. And that was the end of it. I agree
       that there is no reason to push anything—but do know, that I am
       completely open to your involvement as it seems right. I go-
       between thinking that anything going on in [E.S.’s] life (activities,
       behavior, anything, I guess) is absolutely none of your business, to
       wondering how much information directed your way would be too
       much for you. I don't know, guess; we shall figure it out. It was
       good to see you.

       The second visit occurred in January 2012, and the parties met a few

other times in 2012. Steven often brought his daughter C.H. on the visits. The

visits went well for a time, but Nicole became uncomfortable with the

arrangement when she perceived Steven was pressing for more contact with

E.S. Nicole “cut-off” Steven’s visits with E.S. in February 2013.

       On July 30, 2014 (seventeen months after his last visit or contact with

E.S.), Steven filed a petition to judicially establish paternity, custody, visitation,

and support. Nicole filed several motions over the next few months, all of which

were denied.1 In January 2014, a genetic test confirmed Steven was the father

of E.S.   Nicole then filed a motion for termination/petition for termination of

parental rights pursuant to Iowa Code section 600B.41A(6)(a) (2013), and



1
  Nicole filed a motion to dismiss Steven’s petition and claimed he did not have standing
to pursue the action to overcome paternity. Steven resisted and claimed the Iowa
Supreme Court case Callender v. Skiles, 591 N.W.2d 182 (Iowa 1999), established his
right to bring this petition. The district court agreed and denied Nicole’s motion.
                                          6



requested the district court dismiss Steven’s petition to establish paternity.

Steven resisted Nicole’s motion. The district court denied Nicole’s petition and

found Nicole “cannot raise by motion a new cause of action for termination of

parental rights in this proceeding.”

       A trial was held on July 23, 2014, and a decree was entered on July 24.

The district court found it was in the best interest of E.S. to disestablish the

paternity of Chris and establish Steven as her father. The court rejected Nicole’s

claims that Steven had waived his right to establish paternity by failing to make a

timely expression of his desire to parent E.S., and reasoned:

       The facts as represented do not support [Nicole]’s arguments. It
       was [Nicole] who told [Steven] early on, when questioned about the
       parentage of E.S. and whether [Steven] was the father, that “. . . I
       hope not!” It was [Nicole] who, because of her marital situation,
       asked [Steven] to “leave me alone” and “don’t call.” It was
       [Nicole]’s attempt to obstruct the relationship between E.S. and
       [Steven], and not [Steven]’s “abandonment” of the child, that
       created this difficult situation. Further, it was not until, at the very
       earliest, 2011 when photos were exchanged showing E.S. that
       [Steven] developed a reasonable “suspicion” that E.S. was his
       child. This fact was not confirmed scientifically until DNA testing in
       January of 2014. Given these facts, as this Court SO FINDS, they
       do not support an argument suggesting “abandonment” on the part
       of [Steven]. Further, as the DNA testing conclusively establishes,
       [Steven] is in fact the biological father of E.S. and the Court SO
       FINDS.

Nicole now appeals from the district court’s decree.

II.    STANDARD OF REVIEW

       Generally, our review of paternity actions under chapter 600B is for errors

at law. Callender, 591 N.W.2d at 184. Additionally, we review de novo the

waiver of parental rights as it involves a constitutional right.         Huisman v.

Miedema, 644 N.W.2d 321, 324 (Iowa 2002)
                                         7



III.   ANALYSIS

       On appeal, Nicole raises three grounds on which she claims the district

court erred: It failed to consider her motion to terminate Steven’s parental rights

on its merits, it erred in disestablishing Chris’s paternity and establishing

Steven’s paternity, and the court erred in failing to consider the best interests of

E.S. Since we find the district court improperly disestablished Chris’s paternity

and established Steven’s paternity, we limit our analysis to that issue as it is

dispositive.

       Concerning the disestablishment and establishment of paternity, Nicole

claims the district court erred by failing to address the issue of Steven’s standing

as a threshold question and by finding Steven did not waive his right to challenge

paternity.

       In Callender v. Skiles, our supreme court recognized a putative father (to a

child born into a marriage) had standing to challenge the child’s paternity under

the due process clause of the Iowa Constitution. 591 N.W.2d at 192. The court

found the putative father’s “right can be lost by waiver, which may be the

threshold question to consider before addressing paternity. If the challenge is

not a serious and timely expression of a meaningful desire to establish parenting

responsibility, it may be lost.” Id.

       In this case, the district court found Steven had standing to pursue his

claim in its denial of Nicole’s motion to dismiss. The court reasoned questions

remained concerning the opposing claims about E.S.’s birth, and Steven’s

reaction when he learned about his relation to E.S. As the district court found,
                                         8



“Steven is entitled to bring this action following the holding in Callender v. Skiles

which struck down the statute elimination of putative fathers from those with

standing to file suit.”

       Concerning Nicole’s waiver claim, the district court found it failed due to

Nicole’s “attempt to obstruct the relationship between E.S” and Steven.            A

putative father avoids waiver by demonstrating “a serious and timely expression

of a meaningful desire to establish parenting responsibility.” Id. The father can

accomplish this by making an “effort to exercise his parental rights, not his efforts

to judicially enforce those rights.” Huisman, 644 N.W.2d at 325. The district

court found Steven made efforts in 2003 to determine if he was the father of

Nicole’s baby. Steven’s and Nicole’s testimonies conflict on whether Nicole told

Steven she had terminated the pregnancy. Steven spoke with Nicole after the

birth of E.S. and asked about E.S’s. physical characteristics. Steven testified

Nicole told him E.S. was Chris’s child and she had given birth in February, and

reiterated she had terminated the pregnancy that could have been caused by

Steven. Nicole testified Steven made up the termination of the pregnancy story

and that Steven had knowledge he could have been the father of the child. In its

ruling for Steven, the district court seemingly found his testimony credible. The

court found Steven developed a “reasonable suspicion” E.S. was his child after

viewing pictures on Facebook.

       However, our supreme court analyzed a similar circumstance in Huisman.

Id. at 322. In Huisman, two individuals (Wesley and Karen) engaged in a nine-

year affair while they were married to others. Id. The affair resulted in the birth
                                          9



of a child (Mark). Id. After Mark was born, Karen told Wesley that Mark was his

son. Id. Karen’s husband eventually learned of the affair, but decided not to

investigate further and to parent Mark as his own. Id. Wesley maintained a

relationship with Mark as a “friend.” Id. Wesley gave Mark “small presents” and

visited him infrequently.   Id. at 323.   From July 1992 through March 1999,

“Wesley did not provide any support for Mark in the form of housing, clothes,

food or medical care.” Id. Karen never asked for support and Wesley did not

volunteer to make support payments.           Id.   During this same time, Wesley

provided no physical care or supervision of Mark. Id. In March 1999, Karen

began an affair with another man, moved out of the marital home, and filed for

divorce. Id. Wesley’s contact with Mark increased at this time. Id. Wesley

provided some supervision to Mark and made $200 monthly support payments.

Id. In October 1999, Karen asked Wesley to take a blood test to prove he was

the biological father. Id. This prompted Wesley to see an attorney and initiate a

paternity suit. Id. “Wesley claimed that he did not assert his parental rights

[earlier] because he thought that eventually he, Karen and Mark would be

together as a family and because Karen told him he had no legal rights regarding

Mark.” Id.

      Our supreme court found Wesley had waived his right to parent Mark, and

reasoned:

             [W]e agree with the district court that Wesley did not make
      adequate efforts to assume parental responsibility for Mark.
      Although he established a friendship with Mark, he made no
      attempt to exercise responsibility for Mark’s care or custody. Not
      until Mark was seven years old did Wesley make regular child
      support payments; prior to that time, Wesley was satisfied to give
                                         10



       Mark small gifts and trinkets. When asked at the hearing about the
       arrangement Wesley had with Karen to simply be Mark’s friend and
       not to reveal that he was Mark’s father, Wesley responded,
       “[E]ventually he was going to be my son, but at the time he was
       very young and he lived at home with Larry and Karen and Larry
       was his father, so a little . . . four, five, six-year-old boy doesn’t
       understand and so I was his friend, Wes.” (Emphasis added.)
              For more than seven years, Wesley was content to let
       another man raise a child that was possibly his own. He did so, not
       through a lack of success at asserting his parental rights, but
       because it served his own need to keep his affair with Mark’s
       mother a secret. Wesley’s actions in 1999 in paying support and in
       commencing this action were too late. The district court correctly
       found that he had waived his liberty interest in a parental
       relationship with Mark. Accordingly, Wesley has no enforceable
       right to assert in the present action and the case was properly
       dismissed.

Id. at 326

       We find the reasoning in Huisman directly applicable to the facts in our

case. Even if we give Steven the benefit of the doubt and assume he did not

have any idea E.S. could possibly be his child until he viewed pictures of her in

2011, Steven has not done anything since 2011 to “assume parental

responsibility” for E.S.   See id.   Like the father in Huisman, E.S. perceived

Steven as just a family friend—a family friend who infrequently visited and did not

provide any form of support. Additionally, Steven allowed at least seventeen

months to pass between the time Nicole terminated visits with E.S. and the filing

of the paternity suit. A biological father must “‘come forward to participate in the

rearing of his child,” if a father fails to do so he waives his liberty interest in a

parental relationship. Id. (citing Lehr v. Robertson, 463 U.S. 248, 261 (1983)).
                                        11



        We find Steven did not assume “a serious and timely expression of a

meaningful desire to establish” parental responsibility of E.S. and has thus

waived his parental rights to E.S. We reverse the district court’s decree.

IV.     APPELLATE ATTORNEY FEES

        Nicole asks for appellate attorney fees.     Iowa Code section 600B.26

allows this court to award the “prevailing party reasonable attorney fees.” Nicole

has prevailed in this appeal; therefore we award her $1000 in appellate attorney

fees.

        REVERSED.
