IN THE COURT OF APPEALS OF IOWA

No. 19-1912

Filed February 5, 2020

IN THE INTEREST OF M.D.,

Minor Child,

C.D., Father,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lynn Poschner, District 

Associate Judge.

The father appeals the termination of his parental rights to his child. 

AFFIRMED.

Randall L. Jackson, Des Moines, for appellant father.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant 

Attorney General, for appellee State.

Nicole Garbis Nolan of Youth Law Center, Des Moines, attorney and 

guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., Doyle, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2020).
2

POTTERFIELD, Senior Judge.

The father appeals the termination of his parental rights to M.D., born in

June 2018. The juvenile court terminated the father’s parental rights after 

determining he abandoned1 and deserted2the child. See Iowa Code 

§ 232.116(1)(b). The father challenges the statutory grounds for termination, 

arguing the Iowa Department of Human Services (DHS) failed make reasonable 

efforts to reunify the child and father. Additionally, the father maintains DHS failed 

to authorize contact between him and M.D. and that his lack of contact with M.D. 

was the result of a no-contact order, not evidence of his intent to abandon the child. 

He also maintains the court should have applied a permissive factor to save the 

parent-child relationship, as M.D. remains in the custody of her mother.3 See id. § 

232.116(3)(a). 

We review termination-of-parental-rights proceedings de novo. In re P.L., 

778 N.W.2d 33, 40 (Iowa 2010).

In challenging the statutory grounds for termination, the father maintains 

DHS failed to make reasonable efforts to reunify him with M.D. But section 

 

1

“Abandonment of a child” is statutorily defined as

the relinquishment or surrender, without reference to any particular 

person, of the parental rights, duties, or privileges inherent in the 

parent-child relationship. Proof of abandonment must include both 

the intention to abandon and the acts by which the intention is 

evidenced. The term does not require that the relinquishment or 

surrender be over any particular period of time.

Iowa Code § 232.2(1) (2019). 

2

“Desertion” is “the relinquishment or surrender for a period in excess of six 

months of the parental rights, duties, or privileges inherent in the parent-child 

relationship.” Id. § 232.2(14). “Proof of desertion need not include the intention to 

desert, but is evidenced by the lack of attempted contact with the child or by only 

incidental contact with the child.” Id. 

3 The State never sought to terminate the mother’s parental rights. 
3

232.116(1)(b) does not have a reasonable-efforts requirement. See In re B.P., No. 

19-0870, 2019 WL 4298047, at *1 (Iowa Ct. App. Sept. 11, 2019); (“We thus affirm 

the termination under section 232.116(1)(b). Under this section, reasonable efforts

to reunify the parent with the child are not required.”); In re A.D., No. 19-0389, 2019 

WL 2371928, at *1 (Iowa Ct. App. June 5, 2019) (“Insofar as the mother challenges 

whether the State made reasonable efforts to reunify her with the children, we note 

that paragraph (b) does not have a reasonable-efforts requirements.”); In re 

W.T.S., No. 08-0040, 2008 WL 509243, at * 1 (Iowa Ct. App. Feb. 27, 2008) 

(considering termination pursuant to Iowa Code section 232.116(1)(b), (e), and (h) 

and only applying the reasonable-efforts argument to paragraphs (e) and (h)); see 

also In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (recognizing the language in 

paragraphs (c), (d), (e), (g), and (k) “implicates the reasonable effort 

requirement”—language not found in (b)). Moreover, the father never requested 

services from DHS or the court until the termination hearing, when he complained 

for the first time of his lack of contact with the child. Even if reasonable efforts 

were a component of section 232.116(1)(b), we would not consider the father’s 

argument, as it is not preserved for our review. See In re L.M.W., 518 N.W.2d 804, 

807 (Iowa Ct. App. 1994) (providing the reasonableness of services cannot be 

challenged on appeal when the parent has failed to demand services prior to the 

termination hearing); see also In re C.B., No. 01-1607, 2002 WL 1072245, at *2 

(Iowa Ct. App. May 31, 2002) (affirming the termination of parental rights based on 

abandonment and refusing to consider unpreserved reasonable-efforts argument). 

The father argues that his lack of contact with the child since July 2018—

approximately fifteen days after her birth—should be viewed as the fault of DHS, 
4

not evidence he intended to abandon the child. We are not persuaded. We 

recognize the hurdles preventing contact between the father and M.D. The father 

was incarcerated for most of the pendency of proceedings and remained in prison 

at the time of the termination hearing.4 Additionally, there was a no-contact order 

between the father and the mother for part of the proceedings and the child 

remained in the care of the mother. But DHS and family safety, risk, and 

permanency services could have helped facilitate contact between the father and 

M.D. DHS did not take an active role in setting up contact between M.D. and the 

father, but the father—who was represented by counsel throughout the 

proceedings—never asked for it or for any information about M.D. According to 

the father’s testimony, he last had contact with M.D. in July 2018 and last provided 

support when he “bought her clothes and stuff like that” in November 2018. The 

termination hearing took place almost one year later—on October 15, 2019. The 

father testified he loves M.D. But “parental responsibilities include more than 

subjectively maintaining an interest in a child. The concept requires parenting to 

the extent it is practical and feasible in the circumstances.” In re D.M., 516 N.W.2d 

888, 891 (Iowa 1994) (citation omitted); see also In re A.B., 554 N.W.2d 291, 293 

(Iowa 1996) (“Abandonment is characterized as a giving up of parental rights and 

responsibilities accompanied by an intent to forego them.”). And the father’s 

incarceration cannot be used as a justification for his lack of relationship with M.D. 

See In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993). There is clear and convincing 

evidence the father abandoned and deserted M.D. 

 

4 The father testified his discharge date is in 2023. 
5

Next, the father maintains the court should apply a permissive factor to save 

his relationship with M.D. See Iowa Code § 232.116(3)(a) (providing the court 

need not terminate a parent’s rights if “[a] relative has legal custody of the child”). 

The application of the factors are permissive. P.L., 778 N.W.2d at 39. “[I]t is within 

the sound discretion of the court, based on the unique circumstances before it and 

the best interests of the child, whether to apply [a permissive factor] to save the 

parent-child relationship.” Id. at 39–40. Here, the mother supported the 

termination of the father’s parental rights because she felt the father was unsafe 

for her or M.D. to be around. In support of this statement, she testified the father 

had physically abused her almost every day for the last three years of their fouryear relationship—including during her pregnancy with M.D. She expressed her 

concern the father had yet to take accountability for or understand the impact of 

his past actions, noting he testified at the termination hearing that while he had 

been violent toward the mother in the past, it was a “couple altercations, but it 

wasn’t bad” and involved just “arguing, pushing, shoving.” In these circumstances, 

we agree that the application of a permissive factor is unwarranted.

We affirm the termination of the father’s parental rights to M.D.5

AFFIRMED.

 

5

In In re Q.G., 911 N.W.2d 761, 773–74 (Iowa 2018), our supreme court reversed 

a chapter 600A termination, concluding it was in the best interests of the children 

to have a chance at a future relationship with their incarcerated father. Here, the 

father did not raise a best-interests argument, so we do not discuss the issue. See 

In re D.P., No. 19-0741, 2019 WL 4678211, at *4 (Iowa Ct. App. Sept. 25, 2019) 

(Potterfield, J., concurring specially).