Monthly Archives: June 2012

In the Interest of V.A.H.

On June 13th, 2012, the Iowa Court of Appeals  entered a ruling in the case In The Interest of V.A.H., a termination of parental rights appeal from the Iowa District Court for Lee (North) County.  Thomas, the father/appellant, had his parental rights terminated after discontinuing his relationship with his child, V.A.H., born in March of 2008.  Thomas and the mother of the child, Jennifer were never married but lived together when the child was born until April 2009.  After ending their cohabitation, Thomas rarely visited the child and when he did, it was as a result of Jennifer’s planning.  Thomas did not pay child support, however did give the child a present of five dollars on his/her second birthday.

Approximately one year ago in June of 2011, Jennifer filed a petition  to terminate Thomas’s parental rights under Iowa Code chapter 600A (2011).  She claimed Thomas had abandoned the child.  This grounds for termination is codified in Iowa Code 600A.8(3)(b):

 

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.

 

During depositions, Thomas claimed to desire a relationship with the child, but that it was impossible because he did not know where Jennifer lived and that Jennifer was not interested in allowing him visitation.  Thomas also testified however that he was aware that Jennifer worked at the same employer.

In November of 2011, the juvenile court terminating Thomas’s parental rights on the grounds of abandonment.

Termination of Parental Right’s Review by Iowa Court of Appeals

The Appeals Court of Iowa reviews termination proceedings under Iowa Code section 600A de novo.  A termination must be established by clear and convincing proof.  Once grounds for determination have been established, the court must also find that it is in the best interest of the child to proceed with the termination.

In this case, first abandonment must be shown.  The two elements  necessary to show abandonment are:

  • The giving up of parental rights and responsibilities
    • Requires affirmative parenting to the extent it is practical and feasible in the circumstances.  In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981)
    • A petitioner is not required to show total desertion in order to prove abandonment.  In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993)
  • An intent to forego these rights

Here, the juvenile court found that Jennifer was not an impediment to Thomas seeing the child.  In fact when he had seen the child, it had been because of her arranging the visit.  The court found that she had never denied him access to the child.

Best Interests of the Child

“Once the court has found a statutory ground for termination under a chapter 600A termination, the court must further determine whether the termination is in the best interest of the child.” In re A.H.B., 791 N.W.2d 687, 690 (Iowa 2010)

The court will consider, as detailed in Iowa Code section 232.116(2):

  • The child’s emotional and physical health
  • The physical, mental, and emotion condition and needs of the child
  • The closeness of the parent-child bond

The court explains that Thomas has not maintained contact with the child, has not supported the child financially, and has not affirmatively maintained a place of importance in the child’s life.  Therefore, the court affirms the juvenile court’s termination of Thomas’ parental rights.

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Iowa Supreme Court Issues Opinion Regarding a Paternity Fraud Cause of Action

The Iowa Supreme Court issued an opinion on Friday, June 1, 2012 regarding a case appealed from the Iowa district court in Grundy County.  The case, Dier v. Peters  focuses on the question of whether there should be a separate cause of action, separate from common law fraud, for Paternity Fraud.

Dier v. Peters

Cassandra Jo Peters allegedly informed Joseph O. Dier that he was the father of her child, O.D., born February 10, 2009.  Dier claims that as a result of this information he made voluntary financial contributions to Peters intended to be used for the care of Peters and the child.  According to Dier, Peters knew that O.D. was not Dier’s child, but still accepted the financial contributions.

At some point after the child was born, Dier filed an application in district court to obtain custody of O.D.  As a part of that case, there was a child custody evaluation completed.  Peters became afraid that she may lose custody of O.D. and requested that a paternity test be performed.  Two paternity tests later, and Dier was excluded from being O.D.’s biological father.  As a result, on August 2, 2011, Dier filed a petition seeking reimbursement of the financial contributions he had made to Peters throughout O.D.’s life.

Peters moved to dismiss the action for failure to state a cause of action because Iowa does not recognize a cause of action for Paternity Fraud.  Of course Dier resisted this motion claiming that Peters’ actions were tantamount to fraud at common law.

The Court reviewed the appeal for errors at law, meaning they accepted the facts as found by the district court.

In her motion to dismiss, Peters is correct that Iowa, along with many other states, does not recognize a specific Paternity Fraud claim for relief.  In this case, the Iowa Supreme Court rules on whether a putative father can bring a claim for damages as a result of fraud by a biological mother either by a claim of Paternity Fraud or common law fraud.

Can a Putative Father Recoup Past Paid Support?

This case is different from the majority of paternity fraud type cases where a father tries to reclaim court-ordered support.  Here, the financial support provided by Dier was completely voluntary and not ordered by the court.  The Iowa Supreme Court has held on numerous occasions that a father may not recover support that was paid as a result of a court order.  Iowa Code 600B.41A(4) states:

 4. If the court finds that the establishment of paternity is overcome, in accordance with all of the conditions prescribed, the court shall enter an order which provides all of the following:

a. That the established father is relieved of any and all future support obligations owed on behalf of the child from the date that the order determining that the established father is not the biological father is filed.

b. That any unpaid support due prior to the date the order determining that the established father is not the biological father is filed, is satisfied.

So, if the court should find that paternity has been overcome, the putative father cannot be reimbursed for previous payments made by court order, however, any previous unpaid support and any future support obligations are seen as satisfied.

 Common Law Fraud

The present case is not controlled by this statute however, so the Court bases its decision on whether Dier’s claim should be dismissed on whether it fits into the traditional elements of common law fraud.  The Court finds that Dier’s claim does in fact fit into the framework of common law fraud.  The elements as well as the Court’s analysis are as follows:

  •  1 and 2:  False Representation – The Court finds that Dier does in fact allege that Peters represented to him that he was the father and that the two subsequent paternity tests show that representation to be false.
  • 3:  Materiality – the misrepresentation is material if it substantially affects the interests of the party alleged to be defrauded; if it induces a reasonable person to react.  The Court states that Dier reacted as a reasonable person would if they were informed they were the father of a child.  The misrepresentation caused him to contribute financially to O.D. and Peter’s lives.
  • 4:  Knowledge of falsity – Dier would need to show that Peters had actual knowledge that the representation she made to Dier was false.  Dier alleges this to be the case in his pleadings.
  • 5:  Intent to deceive – The Court finds that Dier’s allegations would survive a motion to dismiss because he indicates that not only did Peters know he was not the biological father of O.D., but that she used that misrepresentation to secure money from him.
  • 6:  Justifiable Reliance – A plaintiff is not allowed to blindly rely on any representation made to him or her.  The Court acknowledges that a paternity test could have shown from the beginning that Dier was not the father, however, is not willing to hold that a putative father is never allowed to rely on the biological mother’s word that they are indeed the father.  Therefore, Dier’s assertions are enough to survive the pleading stage.
  • 7:  Proximate Cause – the allegations that Dier has made that he spent the money based on the misrepresentation are enough to survive a motion to dismiss.
  • 8:  Damages – Dier needs to make an ascertainable showing of damages or injury to satisfy the elements of a common law fraud claim.  He does show out of pocket expenses made as a result of the misrepresentation.  The Court does rule however that he may not recover the attorney fees incurred during the custody case litigation.

The Court states that Dier does not attempt to create a new cause of action in his claim for relief, but in fact, does make an allowable claim for relief under common law fraud.

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Witherspoon Bigamy Case Developments

As previously blogged about here on the Iowa Family Law Bulletin, actress Reese Witherspoon’s mother, Betty Witherspoon, has petitioned a Tennessee court to annul a marriage between her husband of 42 years and his new wife, Tricianne Taylor.  Betty and John Witherspoon separated in the mid 1990′s, however, have remained in contact with one another, even attending family events together.  They are not divorced.

Family Concerns for John Witherspoon

Betty and the Witherspoon children, including Reese Witherspoon, appear to be very concerned with John’s mental state claiming that he suffers from dementia and alcoholism.  They claim that Witherspoon’s new wife is taking advantage of him by applying for loans and apparently making changes to his will.  John reportedly told Betty that he did not remember marrying Tricianne.  John Witherspoon is in a conservatorship, but apparently, this has not prevented Tricianne Taylor from allegedly becoming a part of John’s financial life.  Tricianne strongly denies the accusations made against her.

Judge Appoints Lawyer to Conduct Investigation

A new development  occurred in the case when a Tennessee judge appointed a lawyer to investigate the events in John’s life that Betty and the rest of the Witherspoon family are alleging.  The hearing scheduled for later this week has been indefinitely postponed.

Media Petitions Court for Access

Reese has been attending court hearings with her father, however, the judge in the case has barred all media presence in the courtroom.  However, a local television station has petitioned the court to unseal the filings in the case and make all future filings and hearings accessible by the media.  This motion has been set for hearing on June 25, 2012.

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