IN THE COURT OF APPEALS OF IOWA

No. 14-1374

Filed April 22, 2015

IN THE INTEREST OF K.M.,

Minor Child,

M.M., 

Petitioner-Appellee,

F.D., 

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Lee (South) County, Gary R. 

Noneman, District Associate Judge.

Following a private termination action, the father appeals the district 

court’s termination of his parental rights. AFFIRMED.

Curtis Dial of Law Office of Curtis Dial, Keokuk, for appellant.

Bruce C. McDonald of McDonald Law Office, Keokuk, for appellee.

Considered by Vogel, P.J., and Doyle and McDonald, JJ.
2

VOGEL, P.J.

Following a private termination action, the father appeals the district 

court’s termination of his parental rights to his daughter, K.M. He claims the 

court erred in concluding the mother proved by clear and convincing evidence his 

rights should be terminated pursuant to Iowa Code section 600A.8(3) (2013), 

asserting he did not abandon K.M., but rather was prevented from having contact 

with her due to the mother’s actions. He further argues termination is not in 

K.M.’s best interest. We conclude the father abandoned the child prior to any 

protective actions by the mother as well as due to his own periods of 

incarceration. Furthermore, given his extremely violent disposition towards the 

mother, as well as the lack of a parent-child bond, termination is in K.M.’s best 

interest. Consequently, we affirm the district court’s order terminating the father’s 

parental rights.

I. Factual and Procedural Background

The father and mother began a relationship in 2008, when the mother was 

sixteen and the father was twenty-two. K.M. was born in October 2010. The 

father’s physical abuse of the mother began shortly before she discovered she 

was pregnant and escalated after she revealed the pregnancy to the father. In 

one instance, five months into the pregnancy, the father punched the mother in 

her stomach then, while he was on top of her, stated: “Do you want me to kill you 

now or later.” The mother was injured from the assault but no harm was done to 

the fetus. The mother obtained a no-contact order against the father, which he 

violated when he went to the hospital, intoxicated, while the mother was in labor. 
3

He was then incarcerated from October 2010 until May 2011 for a parole 

violation from a prior criminal conviction.

The father has a significant criminal history, with six felony convictions—

including theft, burglary, obstruction of justice, and delivery of a controlled 

substance (cocaine)—as well as several misdemeanors, including operating 

while intoxicated. He also has a long history of alcohol and drug abuse.1 From 

December 2008 until October 2009 he was incarcerated on his delivery-ofcocaine conviction. As of the May 2014 termination hearing, the father had been 

incarcerated for a total of thirteen months during the course of K.M.’s life, during 

which he had no contact with her. Also at the time of the termination hearing, he 

remained on probation following the 2008 conviction for delivery of cocaine, a 

condition of which was that he not consume alcohol.

The mother and father attempted a reconciliation between May 2011—

following his release from prison—and February 2012, though they did not live 

together. The mother and child were living at the mother’s apartment, the same 

residence at which they were living at the time of the termination hearing. The 

father did not have his own place and was residing with different family members. 

During this time, the mother would occasionally leave K.M. in the father’s care 

 

1The father admitted in his testimony that he was drinking alcohol at the party in which 

he struck a female friend in the head with a beer bottle. Additionally, according to the 

GAL’s report to the court:

[The mother] also did testify about concerns regarding [the father’s] 

drinking and stated he drank frequently when the parties were together 

and had used illegal drugs in front of her while she was pregnant. [The 

father] did testify to previously using drugs, but stated he doesn’t feel he 

ever had a drug problem.

The father’s brother also testified the father has an unresolved alcohol abuse problem, 

as well as anger management issues, which leads in part to his involvement in criminal 

activities.
4

while she worked, but only for a few hours at a time. K.M.’s maternal 

grandmother provided the majority of child care.

During this brief attempt at reconciliation, the father resumed his abuse of 

the mother. The mother testified some of this abuse occurred in K.M.’s 

presence, which caused the child to be “traumatized, scared, [and] bawling.” 

Additionally, in February 2012, the father threw an iPod and hit the mother in the 

head, severely injuring her face and eye. The last incident prompted the end of 

the reconciliation, and the father has not seen K.M. since February 2012. The 

mother also obtained a no-contact order against the father, though the father 

offered no testimony regarding how it prevented him from fulfilling any parental 

responsibilities towards K.M. Furthermore, he was incarcerated again from June 

2012 until December 27, 2012.

2 At all times K.M. has remained in the mother’s 

care and is, according to the guardian ad litem (GAL), thriving. K.M. does not 

express any interest in the whereabouts of her father, and the mother stated she 

does not believe K.M. would recognize him.

The father occasionally contacted the mother when he was not 

incarcerated, primarily through a few text messages and social media. The 

father testified that, a week after the no-contact order expired in April 2013, he 

texted the mother that he would like to see K.M. He stated he sent eight to ten 

text messages between this time and the May 2014 termination hearing 

requesting contact, but that the mother never responded. The mother agreed 

she never responded but stated he only sent four to six messages.

 

2 The no-contact orders were not made part of the record on appeal. 
5

Further testimony from various witnesses indicated the father left

messages on social media berating and denigrating the mother, but at times 

professing his love for her. The district court observed that: “This behavior is 

alternately intimidating and manipulative and clearly indicates a high level of 

vindictiveness and immaturity on the part of the respondent toward [the mother]. 

This theme of vindictiveness and immaturity also continued with the respondent 

‘flipping off’ [a] witness recently.”

At various times between May 2011 and February 2012, the father also 

made threats to kill the mother and her family if he was denied contact with K.M. 

The mother believed these threats to be credible. Thus, as the mother testified, 

she avoided communication from the father in order to assure her and K.M.’s 

safety. She stated she was afraid the physical abuse would continue, and that 

she was deeply concerned she would be placing K.M. in physical danger were 

she to allow contact with the father. This fear was supported by another incident

that occurred in April 2014. A mutual friend attempted to intervene between the 

father and his current paramour at a party, when he was becoming physically 

abusive towards his girlfriend. In response, the father struck the friend in the 

head with a beer bottle, breaking the bottle and causing injury to her. 

The father filed a petition seeking a custody determination in April 2013. 

The father’s contemporaneous request for temporary visitation, supervised or 

otherwise, was denied. The mother petitioned the court for termination of the 

father’s parental rights on May 15, 2013. A GAL was appointed for K.M. In the 

GAL’s report to the court, termination was recommended. A hearing was held on 

May 13 and May 30, 2014, and on July 31, 2014, and the district court entered 
6

an order terminating the father’s parental rights pursuant to Iowa Code section 

600A.3(b). It further awarded sole custody to the mother. The father appeals.

II. Scope of Review

We review termination proceedings de novo. In re S.R., 600 N.W.2d 63, 

64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear 

and convincing evidence. Id. Our primary concern is the child’s best interest. Id.

III. Abandonment

Pursuant to Iowa Code section 600A.2(15), abandonment:

[M]eans to permanently relinquish or surrender, without reference 

to any particular person, the parental rights, duties, or privileges 

inherent in the parent-child relationship. The term includes 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.

Our case law further clarifies that abandonment is “a giving up of parental rights 

and responsibilities accompanied by an intent to forego them.” In re D.M., 516 

N.W.2d 888, 891 (Iowa 1994) (quoting In re Burney, 259 N.W.2d 322, 324 (Iowa 

1977)).

As an initial matter, we agree with the father’s contention that his interest 

in parenting his daughter is a fundamental right that is of the utmost importance. 

See Troxel v. Granville, 530 U.S. 57, 65 (2000). Bad behavior, without more, is 

not a sufficient ground on which to terminate parental rights. See id. However,

when the statutory factors necessitating termination of parental rights are 

satisfied, this right can be overridden. See In re K.M., 653 N.W.2d 602, 608–09 

(Iowa 2002) (noting: “Focusing on the best interests of the child once the 

statutory prerequisites for termination [are met]” does not violate due process).
7

That is the situation in this case. We must determine whether the district court 

was correct in finding the actions and inactions of the father since the birth of 

K.M. satisfy the statutory meaning of abandonment under Iowa Code section 

600A.8(3)(b), notwithstanding his fundamental right to parent his daughter. See

K.M., 653 N.W.2d at 608–09.

Pursuant to Iowa Code section 600A.8(3)(b)(1)–(3), the court may 

terminate parental rights when:

The parent has abandoned the child. For the purposes of 

this subsection, a parent is deemed to have abandoned a child as 

follows:

. . . .

b. 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:

(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.

At the heart of the father’s nearly non-existent relationship with K.M. is his 

own significant record of criminal activity, drug and alcohol use, anger 

management issues, and domestic abuse. Even during the parties’ brief 

reconciliation period, the mother stated there were several incidents of abuse. 

Specifically, one occurrence in December 2011 happened in the following 

manner:
8

One time I was dropping [K.M.] off because I had to go to work, and 

we had gotten into an argument, and he got really angry at me, and 

he had me down on the kitchen floor choking me. And [K.M.] had 

crawled over near us, and he just took me and slammed me up 

against the couch, was twisting my arm. [K.M.] came over there, 

crawled over there, and he just kept on trying to take me away from 

[K.M.]. And he would choke me, yell in my face, scream at me, pull 

my hair.

The second incident to which the mother testified was when the father threw an 

iPod at her eye in February 2012. To support her testimony, the mother offered

into evidence photographs of her face, which depicted significant bruising around 

her eye as well as broken blood vessels and a laceration on her cheekbone. 

Further testimony indicated the father has no compunction about assaulting 

women with whom he is not intimately involved, as demonstrated when he broke 

a beer bottle over a friend’s head. Other parties also testified to his anger 

management issues, significant criminal history, and alcohol abuse problem.

3

The father has never sought counseling for any of his problems. The father 

denied all allegations of abuse. The district court, in sorting out the testimony, 

came “to the firm, clear, and convincing conclusion that the testimony of the 

[mother] and her witnesses is not only more truthful and accurate, but that 

substantial portions of the testimony of the [father] are at best fanciful, if not 

outright perjurious.”

It was also clear to the district court, and to us from this record, that the 

father’s own abusive conduct towards the mother prompted the mother to take

protective measures by seeking no-contact orders. Therefore, his own actions 

led to periods of his “abandonment” of K.M. within the meaning of paragraph

 

3

 The testimony at the hearing established the father has also assaulted his mother and 

his grandmother—who, at some point, acquired a no-contact order against him.
9

(3)(b)(1). Moreover, with regard to the first prong set forth in section 

600A.8(3)(b), all parties concede the father has not made anything more than 

token contributions to the financial or physical support of K.M., despite the fact he 

was steadily employed from July 2011 to the time of the termination hearing. 

This scant support consisted of purchasing a few diapers and food during the 

parties’ brief attempt at reconciliation, from May 2011 to February 2012.4Lack of 

 

4 The mother testified the father rarely provided the necessities for K.M. while she was in 

his care, evidenced by the following exchange at the termination hearing:

Q: So was this during—was this the job that you were working that 

[the father] would have been providing some type of care for [K.M.]? A: 

Not necessarily. Like every once in a while, I’d ask him to buy diapers, 

baby food.

Q: So she would have still been sleeping in a crib at that time? A: 

Yes.

Q: And she’d still require a lot of early infant-type things, such as a 

car seat, high chair, all those types of equipment for a baby; correct? A: 

Yes.

Q: Okay. So did he have that type of equipment at his home to 

provide for her, to take care of her? A: I had brought stuff over for [K.M.], 

so yes.

Q: Okay. So what types of things would you bring over? A: She 

had an ExerSaucer. I don’t think we ever had a highchair, just toys. He 

had a crib. That was probably it. 

Q: Did he have supplies like formula, diapers, clothes, those types 

of things for her? A: I always provided it.

Q: Did he ever give you money to purchase those things? A: 

Once in a blue moon.

Q: And how often is once in a blue moon? A: Probably once a 

month.

Q: And how much would he typically give you? A: He wouldn’t 

necessarily give me money. He would go out and buy, like, a sack full of 

baby foods and package of diapers.

Q: And about how long would that package of diapers or sack of 

food last [K.M.]? A: Probably about two weeks.

Q: And did he do this consistently from May 2011 through 

February of 2012? A: No.

Q: So how often during that time frame would you say? How 

many times? A: I don’t know, a handful.

. . . .

Q: Who bought the things for [K.M.] to prepare for her birth, like 

the crib, her clothes, and all the things that you would need to prepare for 

a child’s birth? A: Both his and my family.

Q: Did [the father] provide anything? A: Nope.
10

financial support is clear evidence of abandonment. See Iowa Code 

§ 600A.8(3)(b); see also In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998).

As far as contact is concerned, the father concedes he has not seen K.M.

since 2012, and, as the district court noted: “[The father] failed to make any real 

attempt to be involved in his daughter’s life until he filed his petition for custody.” 

The father does argue, in part, that the no-contact order and his incarceration 

prevented him from establishing a relationship. However, it was necessary for 

the father to make efforts to maintain contact with K.M.—even with the nocontact order in place—rather than completely relinquish all parental rights and 

duties. See In re D.J.R., 454 N.W.2d 838, 842 (Iowa 1990) (finding the father 

abandoned the child because he should have made efforts to contact him, 

despite the existence of the no-contact order). Moreover, it is well established 

that incarceration does not excuse the father’s nearly complete lack of contact 

with K.M. See In re C.A.V., 787 N.W.2d 96, 101–02 (Iowa Ct. App. 2010) 

(holding incarceration was no justification for the father’s lack of contact with the 

child).

Nor do we agree with the father’s contention the mother prevented him 

from maintaining contact with K.M. Our court has affirmed the termination of a 

father’s parental rights in similar circumstances, holding the father abandoned 

the child—even after making some attempts to contact her—because he did not 

take steps to assure the mother that he could adequately care for the child, 

particularly given his criminal history, violent behavior, and substance abuse 

issues. In re G.A., 826 N.W.2d 125, 129 (Iowa Ct. App. 2012). Our court 

concluded the mother did not prevent the father from having contact with the 
11

child but, rather, sought reasonable assurances that the child would be safe in 

his care, which the father did not provide. Id. at 129–30. It further held that: 

“Although we find the mother did not prevent visitation, assuming arguendo that 

the mother had prevented visitation, section 600A.8(3)(b)(2) requires the father to 

maintain regular communication with the child or the child’s custodian. He did 

not affirmatively attempt regular communication with the child.” Id. Thus, the 

court concluded the nearly nonexistent contact, combined with a complete lack of 

financial support, amounted to abandonment, despite the father’s attempt to 

procure a custody determination from a court shortly before the termination 

petition was filed. Id. at 130.

The situation here is similar, and the record demonstrates the mother did 

not prevent the father from having contact with K.M. within the meaning of 

section 600A.8(3)(b)(1). Rather, as in In re G.A., the mother was reasonably 

concerned the father could not properly care for K.M., given his extremely violent 

past and significant criminal history. The father, instead of taking steps to 

reassure the mother he could safely parent K.M., left abusive messages on 

social media. This does not rise to the level of a meaningful attempt to reinitiate 

contact with K.M., as the mother reasonably feared for K.M.’s safety if she were

left alone with the father. See id. Nor has the father made any attempt to 

address his domestic violence or other issues through counseling. Thus, as the 

GAL noted:

It is true that [the mother] stopped contact between [the father and 

his] family and [K.M.] after [the father] filed for custody, but I believe 

her concerns were valid. The history and volatility between the 

parties is very extreme and not something to be revisited for [K.M.] 

. . . . I believe [the father] knows he made mistakes and now has to 
12

do something to protect himself in this circumstance. I don’t believe 

this should occur at the expense of [K.M.’s] physical or emotional 

well-being.

While we note the mother and father had a brief reconciliation period in 

which he occasionally cared for K.M. while the mother worked, this period ended 

after several instances of the father again assaulting the mother—causing severe 

injury—occasionally in the presence of K.M. Thus, the mother continued to be 

justified in her concerns the father could not care for K.M. without also subjecting 

K.M. to harm. Additionally, as our court has noted, section 600A.8(3)(b)(2)

requires the father to maintain consistent and meaningful contact with K.M. See

id.; see also G.A., 825 N.W.2d at 129. A few sporadic text messages over the 

period of a few months, alongside disparaging social media posts, 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.

IV. Best Interests

Furthermore, it is clearly in K.M.’s best interest that the father’s rights be 

terminated. See R.K.B., 527 N.W.2d at 601 (noting the court must consider 

whether termination is in the child’s best interest). He is extremely abusive 

towards women and, as evidenced by his testimony at the hearing, refuses even

to acknowledge his violent past, let alone seek counseling. Within this context, 

the district court noted:

Basically, any woman who displeases him can reasonably expect 

to be hit, insulted, and injured. This is of grave concern to the court 

should he obtain any type of regular contact with not only [the 

mother], but also with [K.M.]. Little girls do grow up and children, 

especially teenagers, develop personalities and minds of their own. 
13

Would an act of young adolescent defiance be met with the same 

treatment that was meted out to the mother by the respondent?

Another important consideration—and as established by the record—is

that the father has no compunction about physically abusing the mother in front 

of K.M. This behavior is extremely detrimental to the child’s emotional and 

psychological well-being, and it is a clear indication the father will allow K.M. to 

be subjected to harm. See In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998) 

(noting the best-interests consideration is “designed to prevent probable harm to 

the child”). 

Another fact counseling for termination is the lack of a parent-child bond. 

The father concedes he has not seen K.M. since 2012. The record also 

demonstrates K.M. is not comfortable while in the father’s care and does not 

make any inquiries regarding her father. It is further encouraging that K.M. is 

thriving with the mother, without any involvement from the father. Given these

facts, we conclude the district court properly concluded termination of the father’s

parental rights is in K.M.’s best interest. See id. 

For these reasons, we affirm the order of the district court terminating the 

father’s parental rights to K.M.

AFFIRMED.