IN THE COURT OF APPEALS OF IOWA

No. 15-0930

Filed February 10, 2016

IN THE INTEREST OF B.B.E., 

Minor Child,

KENNETH P. NELSON,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Daniel L. 

Block, Associate Juvenile Judge. 

The guardian and custodian of the minor child and the guardian ad litem 

and attorney of the minor child appeal from an order dismissing the mother’s 

application to terminate the mother and father’s parental rights to the minor child 

pursuant to Iowa Code chapter 600A (2015). REVERSED AND REMANDED.

Kenneth P. Nelson of Nelson Law Firm, P.L.L.C., Waterloo, guardian and 

custodian of B.B.E.

Jennifer L. Chase of Ball, Kirk & Holm, P.C., Waterloo, guardian ad litem

and attorney for B.B.E.

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

This case arises out of the mother’s efforts to terminate her rights and the 

biological father’s rights in their son for the purpose of facilitating adoption of the 

child. At the termination hearing, the mother testified that it was in her son’s best 

interest “to stay with the adoptive parents where he’s got a future and a life 

ahead of him that neither of us [the biological parents] would be able to give him.” 

The district court concluded the grounds for termination of the father’s rights had 

not been proved. The mother’s request for and consent to the termination of her 

parental rights was contingent upon termination of the father’s parental rights. 

Accordingly, the district court dismissed the mother’s petition to terminate 

parental rights. The child’s guardian and custodian and guardian ad litem timely 

filed this appeal. The father has not filed any brief in this appeal. 

In the spring of 2014, the mother and father had a “fling.” The mother 

testified “[t]here was no dating involved . . . We maybe saw each other a couple 

of times and that was it. Nothing, nothing relationship-wise.” After the fling, the 

mother found out she was pregnant, and she notified the father. The father 

attended the mother’s first prenatal appointment. After that appointment, via text 

messages exchanged on July 1, 2014, the mother and father communicated 

regarding the mother’s second prenatal appointment and the future of the child. 

The mother stated she did not want the father to attend the second appointment 

because his presence made her uncomfortable. The text messages show the 

mother already had communicated to the father that she wanted to place the 

child for adoption and that the father had communicated his disagreement. 
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During this text message exchange, the mother asked the father to “[q]uit 

speaking to me.” The father replied, “Guess when you grow up txt me if not then 

I guess my lawyer will just get ahold of u in 8 months.” The mother responded, 

“Yeah good luck with that.” The father responded, “Ok atleast [sic] take care of 

urself and my kid as ling [sic] as u have it.” The mother and the father had no 

further communication after that date. At approximately the same time, the father 

was in the process of reconciling and moving back in with his on-again, off-again, 

live-in girlfriend, who, the father learned, was also pregnant with the father’s 

child.

The child at issue, B.B.E., was born in January 2015. The child was 

released from the hospital to the custody of his prospective adoptive parents, 

who live in Maryland. In January 2015, the mother filed a petition to terminate 

her parental rights and the father’s parental rights for the purpose of facilitating 

the child’s adoption. The child’s guardian and custodian joined as a copetitioner. The petitioners contended the father had abandoned the child 

pursuant to Iowa Code section 600A.8(3) and (4). The district court concluded 

the petitioners failed to prove the father abandoned the child. Specifically, the 

district court concluded the mother diligently attempted to alienate the father from 

the child by disallowing the father’s presence at medical appointments and 

ceasing communication with the father. The district court concluded the mother 

“has unilaterally decided that the child would be placed for adoption.” Our review 

is de novo. See In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998).
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In a private termination proceeding, the petitioners must establish by clear 

and convincing evidence the statutory ground or grounds authorizing the 

termination of parental rights. See Iowa Code § 600A.8; R.K.B., 572 N.W.2d at 

601-02. If the statutory ground or grounds are proved, the petitioners must also 

prove termination of parental rights is in the best interests of the child. See Iowa 

Code § 600A.8; R.K.B., 572 N.W.2d at 602. While the best interests of the child

is the primary concern of the termination proceeding, the interests of the parents 

shall be given due consideration. See Iowa Code § 600A.1; R.K.B., 572 N.W.2d 

at 602.

Abandonment of a minor child is one of the grounds authorizing the 

termination of parental rights under Iowa Code chapter 600A. See Iowa Code 

§ 600A.8(3). Chapter 600A defines abandonment of a minor child as “reject[ing] 

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). Specifically, as was the case here:

If the child is less than six months of age when the termination 

hearing is held, a parent is deemed to have abandoned the child 

unless the parent does all of the following:

(a) Demonstrates a willingness to assume custody of the 

child rather than merely objecting to the termination of parental 

rights.

(b) Takes prompt action to establish a parental relationship 

with the child.

(c) Demonstrates, through actions, a commitment to the 

child.
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Iowa Code § 600A.8(3)(a)(1) (emphasis added). In making the determination of 

whether the petitioners have proved abandonment, the court may also consider 

any or all of the following:

(a) The fitness and ability of the parent in personally assuming 

custody of the child, including a personal and financial commitment 

which is timely demonstrated.

(b) Whether efforts made by the parent in personally assuming 

custody of the child are substantial enough to evince a settled 

purpose to personally assume all parental duties.

(c) With regard to a putative father, whether the putative father 

publicly acknowledged paternity or held himself out to be the father 

of the child during the six continuing months immediately prior to 

the termination proceeding.

(d) With regard to a putative father, whether the putative father paid 

a fair and reasonable sum, in accordance with the putative father's 

means, for medical, hospital, and nursing expenses incurred in 

connection with the mother's pregnancy or with the birth of the 

child, or whether the putative father demonstrated emotional 

support as evidenced by the putative father's conduct toward the 

mother.

(e) Any measures taken by the parent to establish legal 

responsibility for the child.

(f) Any other factors evincing a commitment to the child.

Iowa Code § 600A.8(3)(a)(2).

On de novo review, in light of the statutory factors, we conclude the 

petitioners proved by clear and convincing evidence the father abandoned the 

child within the meaning of the Code. During the period of the pregnancy, the 

father took no action to demonstrate his commitment to the child. The father 

attended a single medical appointment with the mother and then had no further 

communication with her. Although the father had gainful employment at Polaris 

Industries and medical insurance, he did not provide any financial assistance to 

the mother or child. Although the father was aware the mother wanted to put the 
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child up for adoption, he did not obtain counsel or take any other action to protect 

his rights in the child. 

After the child’s birth, the father took no action demonstrating any interest 

in establishing a relationship with the child or assuming custody of the child. He 

did not register with the Iowa Paternity Registry. At trial, the father did not know 

the date of the child’s birth although he was made aware of the child’s birth 

through one of the mother’s friends. He did not file an action for custody of the 

child. He did not make a request for visitation with the child. He has not asked 

for any photos or videos of the child. He admitted he has never even “inquired 

as to the child’s well-being.” The father admitted, when he was interviewed by 

the child’s guardian ad litem, he never asked about “how the child was doing” or 

asked about the child’s health. The father never requested any information about 

the prospective adoptive parents. He did not know who they are, where they 

lived, what they did for a living, and how they cared for the child. When asked 

what action he took after learning of the birth of the child, the father testified he 

tried texting the mother but the text did not go through. “When opportunities for 

association with a child are few, they become more precious, and the spurning of 

them more egregious. If few opportunities for association are available, spurning 

all of them will suffice for a showing of abandonment.” In re M.M.S., 502 N.W.2d 

4, 7 (Iowa 1993). 

The district court concluded termination was not warranted under these 

circumstances because the mother precluded the father from taking action by 

changing her phone number and blocking the father from her Facebook account. 
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We disagree. The mother testified credibly that her phone number was changed 

because she failed to cause her new service provider to port her old phone 

number. The mother explained she denied the father and the father’s pregnant, 

live-in girlfriend access to the mother’s Facebook account because of negative 

comments being posted about the mother. Regardless, with respect to the 

father’s actions, firing text messages and Facebook messages into the electronic 

ether with the knowledge that the messages are not being received is insufficient 

to demonstrate “a willingness to assume custody of the child,” “prompt action to 

establish a parental relationship with the child,” or “a commitment to the child.” 

Iowa Code § 600A.8(3)(a)(1); see In re G.B., No. 14-1691, 2015 WL 4493354, at 

*5 (Iowa Ct. App. Jul. 22, 2015) (explaining a few phone calls and Facebook 

messages are not enough); In re K.M., No. 14–1374, 2015 WL 1849508, at *6 

(Iowa Ct. App. Apr. 22, 2015) (“A few sporadic text messages over the period of 

a few months . . . do not rise to any sort of meaningful contact that may fend off a 

claim of abandonment, particularly given the father did not attempt any other type 

of communication—or offer financial or emotional support—to K.M.”); In re G.A., 

826 N.W.2d 125, 130 (Iowa Ct. App. 2012) (affirming termination order where the 

father communicated with the mother via “sporadic text messages” over the 

course of several months and made no attempts to follow up); In re D.S.P., No. 

09–1188, 2010 WL 445690, at *3 (Iowa Ct. App. Feb. 10, 2010) (holding the 

father abandoned his daughter when he “largely gave up” on communication 

after his first attempts were unsuccessful). As we explained in a similar case:

“The best interest of a child requires that each biological parent 

affirmatively assume the duties encompassed by the role of being a 
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parent.” Iowa Code § 600A.1. As set forth above, S.B. has made 

no affirmative effort to contact or communicate with J.N. or make 

any inquiry as to his well-being since the child's birth. The juvenile 

court stated that “while it is clear that [S.B.] has not asked for 

information about the child, it is equally clear that [K.N .] has not 

voluntarily provided any.” First, we do not wholly agree with this 

finding. . . . Second, the court's comment seems to suggest that 

following J.N.'s birth K.N. had some greater burden than S.B. to 

assure that S.B. had information regarding the child or to force 

contact between the two. We cannot agree. S.B. is an adult and 

once aware of J.N. he bore equal responsibility for affirmatively 

assuming the duties encompassed in the role of parenting. 

Accordingly, due to S.B.'s complete lack of any affirmative action to 

assume the duties encompassed in parenting we believe it is in 

J.N.'s best interest that S.B.'s parental rights be terminated.

In re J.K.N., No. 08-2069, 2009 WL 1677000, at *4 (Iowa Ct. App. Jun. 17, 2009).

The father’s effort to establish a relationship with or assume custody of the 

child is particularly lacking given several other significant facts. First, the father 

attended the first prenatal visit with the mother and should have known who and 

where the mother’s doctor was located. At trial, the father excused his follow up 

by stating he did not take any notes. Second, the father and the mother shared 

mutual friends and acquaintances, but the father made no serious effort to 

contact the mother after the July 1 text message exchange. Third, the father and 

the father’s girlfriend knew the mother worked at Menard’s, but the father did not 

try to contact the mother there. At trial, the father testified he “[c]ouldn’t see it 

viable.” Fourth, the father knew he worked the same shift with the mother’s 

mother at Polaris. Yet, he made no effort to inquire about the mother or the child. 

Finally, by the time of trial in this case, the mother also worked at Polaris with the 

father, but the father still had not made any effort to contact the mother and 

discuss the situation. Demonstrating a commitment to a child requires more than 
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pecking away at one’s phone every once in a while and then giving up when no 

response is received. “An abandoned child is no less abandoned because the 

parent can rationalize a reason for the abandonment.” M.M.S., 502 N.W.2d at 7.

While the father may wish to maintain a relationship with the child, he has 

not taken any action manifesting such intent. “The subjective intent of the parent, 

whether expressed or otherwise, unsupported by evidence of acts . . . 

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

abandoned the child.” Iowa Code § 600A.8(3)(c). We conclude the father has by 

all objective evidence abandoned B.B.E. See G.A., 826 N.W.2d at 128-29

(recognizing that a parent's subjective intent does not preclude a finding of 

abandonment); In re C.J.F.M., No. 10–0166, 2010 WL 3157756, at *2 (Iowa Ct.

App. Aug. 11, 2010) (recognizing the “intention to abandon is no longer a 

statutory element in the definitions of Iowa Code chapter 600A”). 

Once the statutory requirements for termination have been met, the 

petitioners must also show that the termination of parental rights is in the best 

interest of the child. See R.K.B., 572 N.W.2d at 602. Chapter 600A provides:

The best interest of a child requires that each biological parent 

affirmatively assume the duties encompassed by the role of being a 

parent. In determining whether a parent has affirmatively assumed 

the duties of a parent, the court shall consider, but is not limited to 

consideration of, the fulfillment of financial obligations, 

demonstration of continued interest in the child, demonstration of a 

genuine effort to maintain communication with the child, and 

demonstration of the establishment and maintenance of a place of 

importance in the child's life.

Iowa Code § 600A.1. The Iowa Supreme Court has found the statutory best 

interest factors in chapter 232 termination cases relevant to chapter 600A 
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termination cases. See In re A.H.B., 791 N.W.2d 687, 690 (Iowa 2010). The 

child's “emotional and psychological health” is an important consideration. Id.

(citing Iowa Code § 232.116(2)). Weight is also given to the “closeness of the 

parent-child bond.” Id. at 691 (citing Iowa Code § 232.116(3)(c)).

We conclude termination of the parents’ rights in B.B.E. is in the best 

interest of the child. The child is thriving in the prospective adoptive parents’ 

care. The prospective parents have two other children—a daughter, age six, and 

a son, age three. The prospective siblings sing to and play with the child. The 

prospective mother does not work outside the home so she can spend more time 

with the children. She worked with a lactation consultant to nurse B.B.E. and 

enhance the parent-child bond. The prospective parents take the child to music 

class and to the pool for water play time. The prospective parents have agreed 

to send an update on the child’s status to the mother every six months until the 

child is six and every year after that and to send the father the same information. 

The prospective adoptive family, including the children, has bonded with the 

child. It is the family the child has known since leaving the hospital. 

In contrast, the biological parents could not provide similar stability or 

care. The mother has not had stable employment or a stable residence for some 

period of time. The mother also has had another child removed from her care by 

the Department of Human Services. The father’s living arrangements have also 

not been terribly stable, as he has vacated the family residence after fights with 

his live-in girlfriend. The father testified he has some criminal history. He was 

convicted of possession of alcohol as a minor and theft in the fifth degree. He 
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pleaded guilty to criminal mischief and trespassing. In 2014, the father was 

charged with felony domestic abuse assault, impeding air/blood flow causing 

bodily injury. He received a deferred judgment and successfully completed 

probation for that offense. The father testified at trial he continues to have 

arguments with his girlfriend that cause him to leave the home overnight to calm 

down. The mother also testified she intends to move to Arkansas to be closer to 

some of her relatives. The biological parents will thus find themselves in a 

custody dispute with only one parent having any significant time with the child 

and the other parent having visitation.

“The evidence shows terminating . . . parental rights so the child can be 

adopted gives primary consideration to the child's safety and is the best 

placement for furthering [his] long-term nurturing and growth, as well as the 

placement that will cater to the child's physical, mental, and emotional needs.” In 

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

For the foregoing reasons, we reverse the judgment of the district court and 

remand this matter for entry of an order terminating the biological mother and 

biological father’s parental rights.

REVERSED AND REMANDED.