Opinion
No. 4-559 / 04-0372.
August 26, 2004.
Appeal from the Iowa District Court for Polk County, Michael J. Huppert, Judge.
A father appeals the district court decision refusing to terminate a mother's parental rights in a private termination action. AFFIRMED.
Christopher Coppola of Coppola, Sandre, McConville Carroll, P.C., West Des Moines, for appellant.
Chira Corwin of Marberry Law Firm, P.C., Des Moines, for appellee.
Brad Schroeder of Hartung Schroeder, Des Moines, guardian ad litem for minor child.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
I. Background Facts Proceedings
Alexander and Jacqueline are the parents of David, born in November 2001. A dissolution decree, based on the parties' stipulation, was entered on August 26, 2002. Jacqueline was not represented by counsel. Under the decree, the parties agreed to joint legal custody, with Alexander having primary physical care. Jacqueline, who was then unemployed, was ordered to pay child support of $150 per month. Jacqueline was to have visitation supervised by Alexander or either of the parties' mothers.
Both of the parties remarried. Alexander married Amy, who has a child from a previous relationship. Alexander lives in Grimes, but stated in his petition for termination of parental rights he lived in Clive. He is employed at Sears. Jacqueline married Robert and has a child with him. Also living in the household is a child of Jacqueline's from a previous relationship. The family lives in Des Moines. Her husband works for John Deere. Jacqueline had very few visits with David. She remained unemployed and did not pay child support.
In November 2003 Alexander filed a petition seeking termination of Jacqueline's parental rights, claiming she had abandoned David. Prior to the termination hearing Jacqueline obtained employment as a waitress. The district court found Jacqueline had tried to pay child support and noted there was no support in the record to show she had the ability to pay $150 per month. The court went on to find:
Unfortunately, the heavy-handed manner in which the mother's support obligation was imposed does not appear to have been an isolated incident. In addition, the father has exhibited an obstructive attitude when dealing with the mother's contact with the child. These range from his outright refusal to share basic and necessary information with the mother (such as not only his home address and phone number, but the child's social security number) to his lack of cooperation in scheduling and effectuating visits. . . . The mother has sought out additional contact with the child, and the father has done little if anything to encourage or effectuate those contacts.
(Footnote omitted.) The court concluded that termination of Jacqueline's parental rights was not in David's best interests. The court denied Alexander's request to terminate Jacqueline's parental rights.
Alexander filed a combined motion pursuant to Iowa Rule of Civil Procedure 1.904(2) and motion for new trial. The district court denied these motions, concluding there was support in the record for all the factual findings made in its ruling. The court stated its factual findings were based on its assessment of the credibility of the witnesses. Alexander appeals.
II. Standard of Review
Private termination proceedings are reviewed de novo. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). Although we are not bound by them, we give weight to the district court's findings of fact, especially when considering the credibility of witnesses. Iowa R. App. P. 6.14(6)( f).
III. Abandonment
Alexander sought termination of Jacqueline's parental rights on the ground of abandonment under Iowa Code section 600A.8(3) (2003). Section 600A.2(18) provides:
" To abandon a minor child" means that a parent . . . rejects 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.
A parent may be considered to have abandoned a child within the meaning of section 600A.8(3), "through his conduct of failing to have any contact with her whatsoever, in failing to provide any financial or emotional support to her, and in failing to express significant interest in her welfare by contacting her caretakers." In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct.App. 1994).
As noted above, we give weight to the district court's assessment of the credibility of witnesses. The district court found Jacqueline had tried to pay child support for David, but due to some problems with paperwork with the Child Support Recovery Unit, had not actually paid any support. At the time of the termination hearing, Jacqueline was employed and testified she intended to pay support. Jacqueline's financial situation had stabilized due to her marriage.
The district court also found credible Jacqueline's assertion that Alexander interfered with her ability to visit David. The parties did not have a specific visitation schedule. Alexander would not inform Jacqueline of his home address or telephone number. We note that the termination petition contains the address of Alexander's mother, not Alexander. Jacqueline was only able to communicate with Alexander through his cellular telephone. Jacqueline sought to place David under her husband's health insurance at John Deere, but Alexander refused to give her David's social security number.
On our de novo review, we agree with the district court's conclusion that Alexander failed to show Jacqueline abandoned David. It would be difficult indeed to find abandonment in light of the obstructive behaviors employed by Alexander. In our review, we do not consider matters raised by the parties in their briefs which occurred after the termination hearing. See Rasmussen v. Yentes, 522 N.W.2d 844, 846 (Iowa Ct.App. 1994) (noting we do not consider issues based on information outside the record). We also agree with the court's finding that even if abandonment had been shown, termination would not be in David's best interests.
IV. Attorney Fees
Jacqueline seeks to have Alexander pay her attorney fees for this appeal. The Iowa Supreme Court recently held that an indigent parent facing an involuntary termination of parental rights under chapter 600A may be entitled to court-appointed counsel. See In re S.A.J.B., 679 N.W.2d 645, 651 (Iowa 2004). Jacqueline has not directed us to, nor have we found, any authority providing for an opposing party to pay attorney fees under chapter 600A. We therefore deny Jacqueline's request for attorney fees.
We affirm the decision of the district court.