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IN THE COURT OF APPEALS OF IOWA No. 7-717 / 07-0766 Filed December 12, 2007

IN THE INTEREST OF C.J.D., H.M.D., and J.A.D., Minor Children, A.J.W., Mother, Petitioner, K.M.D., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Gary Anderson, District Associate Judge.

A father appeals the termination of his parental rights to his children. REVERSED.

Ryan Sewell of Stuart Tinley Law Firm, L.L.P., Council Bluffs, for appellant father. Jon Jacobmeier of Wilber & Jacobmeier, Council Bluffs, for appellee mother. William McGinn of McGinn, McGinn, Springer & Noethe, Council Bluffs, for minor children.

Heard by Vogel, P.J., and Mahan and Zimmer, JJ.

2 MAHAN, J. Kevin appeals the termination of his parental rights. He claims the court erred in finding clear and convincing evidence that he failed to support his children without good cause according to Iowa Code section 600A.8(4) (2005) and in finding that termination was in the best interests of the children. He

makes additional constitutional claims regarding section 600A.8(10) (Supp. 2005), including that it (1) should not have been retroactively applied to his conduct, conviction, and sentence; (2) deprives him of his substantive and procedural due process rights; (3) denies him equal protection of the law; and (4) constitutes an ex post facto law as applied to him. We reverse. I. Background Facts and Proceedings Kevin and Angela were married in 1993. The marriage produced three daughters: Christa, born in June 1994; Hannah, born in January 1998; and

Jenna, born in July 2000. During the latter part of the marriage, Kevin seldom participated in family activities, stayed out all night, slept all day, and did not attend his children's school events. The parties separated in December 2001 when Angela came home in the middle of the day to find Kevin in bed and his teenage girlfriend in the shower. During the subsequent divorce proceedings, Angela was awarded temporary physical care of the children, and Kevin was allowed temporary visitation every other weekend. Angela testified that from January 2002 to November 2002 Kevin only exercised six to eight visits with his children including only one overnight stay. Kevin was unreliable in picking the children up for visits with him. He often left them packed up and waiting at their grandparents' house without calling to say he was not coming. He would also

3 call and say he was too busy for a visit. Kevin also failed to take the Children in the Middle course during this time, claiming it did not fit into his schedule. Upon filing of the divorce decree on August 8, 2002, the court ordered joint legal custody of the children. Angela received primary physical care subject to Kevin's reasonable right to visitation. Kevin was also ordered to pay and did pay child support from January to November 2002. On November 20, 2002, Kevin was indicted in federal court for "using a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct." Kevin was arrested and spent time in the Pottawattamie County Jail, the Polk County Jail, and the Newton Correctional Facility until March 2005 when he was transferred to a federal correctional facility in Pekin, Illinois. On May 7, 2003, Kevin entered his guilty plea to the federal indictment charge in which he stipulated to the following facts: a. Sometime on or about the fall of 2000, he began a relationship with a girl named Brandy R. b. [Kevin] began his relationship with Brandy R. when she was fifteen years-old. Brandy R.'s birth date is November 28, 1984. [Kevin] was twenty-nine years-old when they met. c. Sometime on or about February 2001, [Kevin] had rented an apartment at 3018

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