IN THE COURT OF APPEALS OF IOWA

No. 16-1936

Filed June 7, 2017

IN THE INTEREST OF M.K.R.,

Minor Child,

K.R., Mother,

Petitioner-Appellant,

B.Y., Father,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, Jennifer S. 

Bailey, District Associate Judge.

The mother appeals the district court’s order denying her petition under 

Iowa Code section 600A.8(3) (2016) to terminate the father’s parental rights to 

their minor child and the court’s admission of an affidavit during the trial. 

AFFIRMED.

Diana L. Miller and Sarah S. James of Whitfield & Eddy, P.L.C., Mt. 

Pleasant, for appellant mother.

B.Y., pro se appellee father. 

Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

The mother appeals the district court’s ruling denying her request to 

terminate the father’s parental rights of M.R. on the basis (1) statutory grounds to 

establish termination were met, and (2) termination is in M.R.’s best interests. 

The mother initiated this action under Iowa Code section 600A.8(3) (2016) in 

April 2016. The mother also claimed the district court erred in admitting the 

affidavit of her paramour. Although the statutory grounds for termination were 

met, termination is not in the best interests of M.R. The district court also 

properly admitted the affidavit. We affirm.

I. Background Facts and Proceedings. 

The parties to this private-termination action are the natural mother and 

father of M.R., born in 2009. The parties were never married, and they 

separated in 2008 before M.R.’s birth. M.R. has resided with the mother since 

birth and currently lives with the mother and her paramour, Samuel. M.R. knows 

Samuel as her father. Both the mother and father have other children unrelated 

to this action. 

Sometime in 2008, both the mother and the father were charged with theft. 

According to testimony, both parties received a deferred judgment. However, the 

father testified he was incarcerated for seven days for contempt related to failing 

to pay restitution for the theft. The record does not show any additional criminal 

activity.

The father has never had meaningful contact with M.R., nor has he 

provided any economic contributions. Despite the father’s limited contact with 

M.R., he has attempted to communicate with the mother and her family about 
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M.R. since the child’s birth. On or around the mother’s due date for M.R., the 

father testified he called the mother to inquire about the pregnancy, but the 

mother told the father M.R. was not yet born even though the father could hear a 

baby crying in the background. Between 2010 and 2011, the father sent multiple 

letters to the mother’s family requesting to meet M.R.; the letters were returned

with the inscription, “Do not send mail here.” The father testified he sent the 

letters to the mother’s family because he did not know her location. In 2013, the 

father initiated communications with the mother through Facebook about 

establishing a relationship with M.R. In 2014, the father again attempted to 

communicate with the mother through Facebook asking the mother to let M.R. 

meet her paternal grandfather, as his health was fading. He made multiple 

requests in 2014 and another request between 2015 and the trial date to see 

M.R. The mother’s testimony indicates that she saw the messages. However, 

all of the messages went unanswered. The father even attempted to contact 

Samuel in 2015 through Facebook. 

In April 2016, the mother filed a petition to terminate the father’s parental 

rights, pursuant to Iowa Code section 600A.8(3). At trial, the father offered 

Samuel’s affidavit from a custody proceeding between Samuel and the mother

regarding their minor child. The relevant part of the affidavit states:

[M.R.] doesn’t know her own father and he has not been allowed 

into her life. It is my understating that he has made attempts to be 

involved in her life, but [the mother] won’t allow him to do it. I fear 

that she is now doing that with me to alienate me from my 

daughter’s life.

The district court initially denied the father’s request to admit the affidavit, noting 

the father could call Samuel as a witness during his case-in-chief to elicit the 
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information stated in the affidavit—at that time, Samuel was present in the 

courtroom. By the time the father attempted to call Samuel as a witness, he was 

unable to locate him.1 The district court admitted the affidavit over the mother’s 

objections for “what value may be evinced from the actual paragraph on page 3 

[listed above]. The rest of the document will be admitted to simply show who 

signed it and under what circumstances.”

In the guardian ad litem’s (GAL) report to the court, the GAL requested “to 

reserve recommendation until she has heard the information which comes before 

the court in the form of testimony and admitted evidence.” The GAL made its

oral recommendation to the court during the trial. She stated: 

This minor child is well into growing. She is in second grade 

now. She has been without [the father], and he has made no 

attempts to provide support for her. I find that very concerning. It 

starts to make me question as to whether or not—other than on the 

rare occasions he’d make contact by Facebook—if she was a 

priority. He tells me that she was, but it doesn’t appear to be that 

way. 

And so for those reasons, Your Honor, I don’t know that I 

would find it to be in the child’s best interest to suddenly develop 

and extend on to allow for him to go further and not establishing 

custody. He’s not done anything at this point that shows that he’s 

going to. And I think at this point [M.R.] receives everything from 

her mother and [Samuel], and I don’t think it’s in her best interest to 

allow for this to continue. And I don’t see anything that shows that 

it’s not in her best interest to have his rights terminated.

The GAL further stated she has “absolutely no concerns for [M.R.’s] care” under 

the mother and Samuel, and “[M.R.] did not appear to have any interest in 

meeting [the father].” 

On October 24, the court denied the mother’s petition to terminate the 

father’s parental rights. The mother appeals. 

 

1 Samuel was not under subpoena, nor was he noticed as a witness during discovery. 
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II. Standard of Review. 

We conduct a de novo review of termination proceedings under chapter 

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

the factual findings of the district court, especially witness-credibility findings, but 

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

2012). The termination findings must be based on clear and convincing proof. 

Iowa Code § 600A.8.

III. Discussion. 

The mother argues the father abandoned the child under Iowa Code 

section 600A.8(3). She also argues termination is in M.R.’s best interests and 

the district court erred in admitting Samuel’s affidavit.

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a. Termination of Parental Rights.

In a private termination-of-parental-rights proceeding, the petitioner must 

establish by clear and convincing evidence that a statutory ground for termination 

exists. See Iowa Code § 600A.8; In re B.L.A., 357 N.W.2d 20, 22 (Iowa 1984). If 

a ground is proved, the petitioner must also establish termination is in the child’s 

best interests. See In re A.H.B., 791 N.W.2d 687, 690 (Iowa 2010). Although 

the interests of the parents must be given due consideration, our primary concern 

is the child’s best interests. See Iowa Code § 600A.1 (“The best interest of the 

child subject to the proceedings of this chapter shall be the paramount 

consideration in interpreting this chapter.”); A.H.B., 791 N.W.2d at 690–91. 

Thus, we conduct a two-step analysis in our review. First, we determine whether 

 

2 The father did not file a brief in this appeal. 
6

the statutory requirements are established. Second, we review whether 

termination is in the best interests of the child.

1. Statutory Requirements. The district court held the father did not 

abandon the child under section 600A.8(3) because “[c]lear and convincing 

evidence has not been presented to [the district court] that constitutes grounds 

for the termination of the parental rights of [the father] to the child in interest.”3 

The mother argues the father’s failure to provide any support, emotionally or 

financially, to M.R. satisfies the requirements under section 600A.8(3). 

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). The relevant code section provides that a parent of a child six 

months old or older will be deemed to have not abandoned the child if that 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 

 

3 We note a paragraph in the district court’s decision states, “In addition to the 

determination that the statutory grounds for termination have been met, the Court must 

determine that the termination would benefit the children” (emphasis added), which 

could lead to the conclusion that the court found the statutory grounds for termination 

were satisfied under section 600A.8(3). However, we believe this statement is in error 

because the order ultimately “denied [the mother’s request] upon the grounds set forth in

Iowa Code section 600A.8(3).” Regardless, this discrepancy does not affect our de novo 

review of the issue. 
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parental rights hearing and during that period openly holding 

himself or herself out to be the parent of the child.

Id. (emphasis added). The petitioner need not establish the father’s subjective 

intent to abandon the child. See id. § 600A.8(3)(c); G.A., 826 N.W.2d at 130 

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

abandonment); see also 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”). Nor is 

the petitioner required to show they or anyone else made diligent efforts to 

encourage the father to perform the acts specified in section 600A.8(3)(b). See

Iowa Code § 600A.8(3)(c). Rather, abandonment is determined by a parent’s 

actions or lack thereof. See In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct. App. 

1994) (“Clearly, actions speak louder than words. Intent can be shown through 

conduct.”). Section 600A.2(19) 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.”

Here, the father has not paid any financial support to M.R., and he has 

only made a marginal effort to do so. While he did state through a Facebook 

message, “I don’t have a problem paying child support,” he failed to set up a

custody arrangement, child-support payments, or make any other reasonable 

financial contribution to M.R. Under section 600A.8(3), “the threshold element of 

‘substantial and continuous or repeated contact’ is economic contributions.” In re 
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K.W., No. 14-2115, 2015 WL 6508910, at *3 (Iowa Ct. App. Oct. 28, 2015); see 

also In re W.W., 826 N.W.2d 706, 710 (Iowa Ct. App. 2012) (discussing 

“predicate language of section 600A.8(3)(b)”). The father’s lack of any economic 

contribution supports the statutory requirement the parent abandoned the child. 

Compare J.L.W., 523 N.W.2d at 625 (holding father’s court-ordered ten-dollarper-month child-support payment was insufficient to qualify as a reasonable 

contribution to the support of the child), with In re J.J., No. 08-2026, 2009 WL 

1492860, at *3 (Iowa Ct. App. May 29, 2009) (holding although father’s childsupport arrearage was $12,392, father did not abandon child where he paid 

approximately forty-five percent of the arrearage and continued to call and write 

to the child). We note the district court found, “[The father] has been prevented 

from seeing [M.R.] since the day of her birth. He has expressed significant 

interest in her welfare by staying in contact with [the mother], at least beginning 

in 2013.” Because we hold the father abandoned the child under section 

600A.8(3) by not making any reasonable support contributions, we need not 

address the mother’s preventative measures under the statutory analysis. These 

facts, however, are relevant in our best-interests analysis, which will be 

developed in more detail below. 

2. Best Interests. Next, we consider whether the termination of the 

father’s parental rights is in the child’s best interests. See J.L.W., 523 N.W.2d at 

625 (“Once we determine a ground for termination under 600A.8 has been 

established by clear and convincing evidence, we must next determine whether it 

is in the child’s best interests to order termination of parental rights.”). In 

determining the best interests of M.R., the district court held:
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[T]he court must look at both [M.R.’s] long-range and short-term 

interest in maintaining her biological father’s parental rights. 

Despite [the father’s] complete lack of financial support and his 

checkered criminal history, the court cannot say that it would be in 

[M.R.’s] best interests to never know her biological father, or never 

avail herself of the emotional and financial support he could, and 

can, provide her. 

The mother argues the district court erred in its best-interests determination 

because the father failed to affirmatively assume the duties of being a parent, 

including fulfilling financial obligations, demonstrating interest in M.R., 

maintaining communication with M.R., and establishing a place of importance in 

the child’s life. 

In determining a child’s best interest, the child's long-range and immediate

interests are considered. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). 

Insight for this determination can be found from evidence of the parent’s past 

performance, as it may be indicative of the quality of the future care a parent is 

capable of giving. Id. Additionally, we give “due consideration” to the father’s

interests. See Iowa Code § 600A.1. We also note, “[t]here exists a parental right 

to integrity of the familial relationship, unless by conduct it be forfeited.” In re 

Lewis, 257 N.W.2d 505, 510 (Iowa 1977)

The mother points to In re M.B.W., No. 12-2161, 2013 WL 3273170 (Iowa 

Ct. App. June 26, 2013), and In re J.K.N., No. 08-2069, 2009 WL 1677000 (Iowa 

Ct. App. June 17, 2009), to support her argument that termination is in the best 

interests of M.R. The present facts, however, are distinguishable from the above 

cases. In M.B.W., the court concluded termination was in the child’s best 

interests because the father had not addressed his mental-health or substanceabuse issues. M.B.W., 2013 WL 3273170, at *3. The appellant’s criminal history 
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in M.B.W. was more extensive than the present case. Here, the father was 

incarcerated for seven days for a contempt action related to a theft. In M.B.W., 

the court found the father’s violent tendencies, gang affiliations, and association 

with individuals having criminal backgrounds prevented the father from 

establishing a bond with his child. Id. at *2. Notably, the father in M.B.W was 

found to not have an interest in the parent-child relationship. Id. Here, the father 

has shown a repeated interest in the child’s well-being since birth, and his 

criminal history is minimal. 

Similarly, in J.K.N., the father admittedly did not have any interest in 

maintaining a bond with the child. 2009 WL 1677000, at *1. He stated to the 

mother that he did not want anything do with the child, and he signed a “release 

of custody and consent to termination of parental rights” form. Id. Although the 

district court denied termination, the only reason it did so was the speculative 

benefit of future income from the father; a panel of our court reversed the district 

court’s decision. Id. at *5–6. In both M.B.W and J.K.N., a panel of our court held 

termination was in the child’s best interests because of the father’s lack of 

involvement with the child, the harm caused by the father, and the limited benefit 

in retaining the parent-child relationship. See id.; M.B.W., 2013 WL 3273170, at 

*3. Furthermore, the mother in the above cases did not prevent the father from 

developing a meaningful relationship with the child. The rationale in M.B.W. and 

J.K.N. are not applicable to this case. 

Unlike the above cases, here the father has shown an interest in parenting 

by contacting the mother since M.R.’s birth. In response, the mother, at best, 

ignored his requests. Moreover, the record illustrates limited harm to M.R. in 
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maintaining the parent-child relationship with the father. The criminal activity that 

led to the father’s incarceration in 2010 has subsided, and the father has gained 

steady employment. There is also no record of mental-health or substanceabuse issues. Cf. In re A.P., No. 07-1966, 2008 WL 782814, at *3 (Iowa Ct. App. 

Mar. 26, 2008) (“[T]he benefit of preserving the parent-child relationship between 

F.H. and A.P. II is clearly outweighed by the continuing risk of harm posed by 

F.H.’s unresolved substance abuse issues.”). The father should not be denied a 

relationship with his biological child when he has not had a legitimate opportunity 

to develop one, and the father’s conduct does not suggest the child will be 

harmed in maintaining or developing such a relationship. See Lewis, 257 

N.W.2d at 510 (“There exists a parental right to integrity of the familial 

relationship, unless by conduct it be forfeited.”). We agree with the district court 

that termination is not in M.R.’s best interests. 

b. Evidentiary Issues. 

The mother next contends the district court erred in the admission of an 

affidavit of Samuel in an unrelated child-custody proceeding. The affidavit 

suggests Samuel is worried about the custody of his children because the mother 

denied M.R.’s father any chance to see his children. The mother objected to the 

affidavit on grounds it was not produced in discovery, it is not relevant, and it is 

not subject to cross-examination. 

In equity cases, evidence that is objected to should be admitted subject to 

the objection. In re Estate of Evjen, 448 N.W.2d 23, 24 (Iowa 1989); accord In re 

E.J.R., 400 N.W.2d 531, 532–33 (Iowa 1987) (holding hearsay evidence is 

admissible in a termination-of-parental-rights hearing). Evidence that is typically 
12

excluded under the rules of evidence in a trial at law is admissible here, and the 

nature of the evidence is considered for its probative value rather than its 

admissibility. In re H.R.K., 433 N.W.2d 46, 48–49 (Iowa Ct. App. 1988) (citing 

Harter v. State, 149 N.W.2d 827, 829 (Iowa 1967)). Here, the district court 

stated: 

[The affidavit] will be admitted. For purposes of the 

relevancy of this proceeding, the Court will only consider, again, for 

what value it may be evinced from the actual paragraph on page 

three. The rest of the document will be admitted to simply show 

who signed it and under what circumstance. 

The district court properly admitted the evidence for the limited purpose of the 

statement by Samuel in paragraph three, which was probative of the mother’s

actions that prevented the father from developing a relationship with M.R. 

Although the statutory grounds for termination were met, termination is not 

in the best interests of M.R. The district court also properly admitted Samuel’s 

affidavit. 

AFFIRMED.