Opinion
No. 2-109 / 01-1099.
Filed April 24, 2002.
Appeal from the Iowa District Court for Dubuque County, JANE M. MYLREA, Associate Juvenile Judge.
The mother appeals from a district court order denying her petition to terminate the father's parental rights. AFFIRMED.
Monica Ackley, Dubuque, for appellant-mother.
Robert Murphy, Dubuque, for appellee-father.
Thomas Straka, Dubuque, guardian ad litem for minor child.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
A mother petitioned to terminate the parental rights of her former husband to their only child. The district court denied the petition. We affirm.
I. Background Facts and Proceedings
Dan and Dana married and had one child, Austin. They divorced within two and a half years. The decree provided that Dana would have physical care of Austin, subject to reasonable and liberal visitation by Dan. Dan exercised visitation sporadically. Eventually, he moved to Las Vegas and applied to modify the visitation schedule in light of the move. The district court granted the application. Again, Dan exercised visitation sporadically, but maintained this was in part because Dana interfered with his visitation rights. He sought to have Dana held in contempt. The district court granted the contempt application based on "her willful and complete refusal of visitation" in violation of an earlier court order.
Dana filed a petition to terminate Dan's parental rights. She alleged Dan had abandoned Austin. The district court denied the petition and this appeal followed. On appeal, Dana contends (1) there was clear and convincing evidence to establish abandonment and (2) termination was in Austin's best interests. Our review of these issues is de novo. Iowa R. App. P. 6.4.
II. Abandonment
Iowa Code chapter 600A provides statutory authority for a parent to seek termination of another parent's rights. Iowa Code § 600A.5(1)(a) (1999). Abandonment is one of the listed grounds for termination. Iowa Code § 600A.8(3). To establish abandonment it must be shown that the parent has rejected the duties imposed by the parent-child relationship. Iowa Code § 600A.2(18). Evidence of abandonment may include the parent's failure to provide for the support of the child, while being able to do so, or failure to communicate with the child. Id.
Dana contends both these abandonment factors are present here. She points out that Dan is thousands of dollars in arrears in his child support payments and has maintained minimal contact with Austin over the years. While we agree Dan has failed to satisfy his support obligations, we disagree that he has not maintained contact with his son. Although he did not fully avail himself of his visitation rights, he persuasively testified that this was in large part because Dana impeded his efforts. For example, he stated that he attempted to see Austin for seventeen or eighteen Sundays as ordered by the court, but Dana prevented him from doing so, even going to the extent of having her present husband physically threaten him. Dan also testified that he maintained regular communication with Austin by phone and mail despite significant periods of time when he exercised no visitation. We are not convinced, therefore, that his omissions amounted to a rejection of his parental responsibilities.
We reach this conclusion notwithstanding the guardian ad litem's opinion to the contrary. His opinion was based in part on rebuttal testimony from Dan's uncle who supervised visits between Dan and Austin. The substance of the uncle's testimony was that Dan cut visits short and spent little time interacting with his son during visits. While we agree Dan did not make the most of his contacts with his son, the record does not reflect an intent to abandon him. See In re A.B., 554 N.W.2d 291, 293 (Iowa Ct.App. 1996). When Dan moved to Las Vegas, he filed an application to modify visitation. When he was denied visitation, he applied to have Dana held in contempt. When he was away from Iowa, he phoned Austin and sent him cards, gifts, and letters. When he returned to Iowa, he attempted to exercise visitation. In short, he did make efforts to maintain the parent-child relationship.
III. Best Interests
Dana next contends termination of Dan's parental rights is in Austin's best interests. In re T.Q., 519 N.W.2d 105, 106 (Iowa Ct.App. 1994) (stating child's best interests are "paramount consideration" in chapter 600A proceedings). We disagree. While Dana maintains Austin does not want anything to do with his father, this opinion, even if true, is entitled to little weight, in light of Austin's young age and Dana's efforts to disrupt the relationship. As for Dan's fitness to parent, Dan conceded he suffers from a gambling addiction and bipolar disorder, but testified that he is undergoing treatment for both. Given his sincere, albeit inconsistent, efforts to maintain contact with his son, we agree with the district court that it is not in Austin's best interests to terminate this parental relationship.
AFFIRMED.