Summary
noting the statute recognizes "there may be circumstances in which a parent seeks to prevent the other parent from establishing a parent-child relationship by including the phrase, 'while being able to do so'" in the definition of "to abandon a minor child" set out in Iowa Code section 600A.2
Summary of this case from In re B.G.E.Opinion
No. 3-989 / 03-1272
Filed February 27, 2004
Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse, Judge.
The mother, guardian, and guardian ad litem appeal the district court's refusal to terminate a father's parental rights in this private termination action. AFFIRMED AND REMANDED.
Mark Lowe of Hopkins Huebner, P.C., Adel, for appellant-mother.
Kenneth Nelson and Matthew Craft of Randall Nelson, P.L.C., Waterloo, for appellant-Nelson.
Aaron K. Hawbaker, Cedar Falls, guardian ad litem, pro se.
Cathleen Siebrecht of Borseth, Siebrecht Siebrecht Law Offices, Altoona, for appellee-father.
Heard by Huitink, P.J., and Vogel and Mahan, JJ.
I. Background Facts Proceedings
Jay and Jeannie are the parents of a child, known in this case as "Baby Girl," born on March 13, 2003. When Jeannie became pregnant, she informed Jay, and he told her they could raise the child together, or he would raise the child alone, and they would work things out. Shortly thereafter, Jeannie moved to live with her parents, she severed her relationship with Jay, and she told him she intended to give the child up for adoption. Jay did not agree with Jeannie's plans for the child.
Jay offered to assist with Jeannie's maternity expenses. He asked if he could attend her doctor's appointments and the birth of the baby. After the child was born, he asked to see the baby, or at least have some pictures. Jeannie refused all of Jay's requests. She continued with her plans to give the child up for adoption.
On the day the child was born, Jeannie filed a petition seeking the termination of her parental rights and those of Jay. The child was placed with a guardian, Kenneth Nelson, who is also the attorney for the prospective adoptive parents. Jeannie claimed Jay's parental rights should be terminated on the grounds of abandonment, pursuant to Iowa Code sections 600A.8(3) (2003) (abandonment by parent) and (4) (abandonment by putative father).
Jay hired an attorney. He filed a declaration of paternity with the Iowa Department of Public Health. He filed a petition to establish paternity and sought custody of the child. He took a parenting class. Jay furnished his home with items necessary for the care of an infant. He arranged for someone to care for the child while he was at work.
A termination hearing was held in July 2003. The district court found:
[Jeannie] alleges that [Jay's] actions were not significant enough for this Court to find that he did not abandon his daughter. She complains that he did not call her often enough or attempt to see her, yet she is the party that terminated their relationship. She complains that he did not provide financial assistance although she admits it was offered and she declined. While this matter has been pending, Mr. Nelson has refused [Jay's] requests to have contact with his child. Before trial, the most [Jay] was allowed to do was meet with the prospective adoptive parents and possibly see his daughter if he consented to the termination of his rights. On March 27, 2003, [Jeannie] sent [Jay] the child's footprints. To date, this is the only memento he has of his daughter. [Jay] has never been allowed to see the baby in person or in pictures. When [Jay] learned [Jeannie] was serious about the adoption and it became evident he needed legal assistance, he made every effort to obtain counsel. Once he retained counsel, he followed through with all the legal options he had, yet, [Jeannie] and Mr. Nelson are asking this Court to find that [Jay] abandoned his child. This Court finds that at all times during the pregnancy and even after the child's birth, [Jay's] acts clearly demonstrated he wanted custody of his daughter. [Jay] has in no way abandoned his child.
The court found Jeannie was not credible because she admitted she had told Jay she "will do whatever it takes to make sure that he loses at trial." The court concluded it would not be in the child's interests to terminate Jay's parental rights. The court noted that Jay "has great love for his child. He has a safe and stable home for he and his daughter to live in."
The court granted the termination petition as to Jeannie, but determined Jay's parental rights should not be terminated. The court ordered that the child be placed in Jay's care. Jeannie, Nelson, and the guardian ad litem all appeal the district court's decision.
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
Jeannie sought to terminate Jay's parental rights on the ground of abandonment. 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.
We have previously found that a parent abandoned his child within the meaning of section 600A.8(3), "through his conduct in 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).
The appellants admit that Jay expressed significant interest in the child after she was born, and demonstrated a willingness to assume custody of the child. They assert, however, that he should have done more during Jeannie's pregnancy and that Jay's efforts are "too little, too late." In making a determination of abandonment, "the court may consider the conduct of the putative father toward the child's mother during the pregnancy." See Iowa Code § 600A.8(4)(c).
We determine that we should look at the evidence as a whole, and not isolate the period of Jeannie's pregnancy. Furthermore, the evidence does not support a finding that Jay's conduct toward Jeannie during her pregnancy shows he intended to abandon his child. Jay offered financial and emotional support, but these were rejected by Jeannie. The statute recognizes there may be circumstances in which a parent seeks to prevent the other parent from establishing a parent-child relationship by including the phrase, "while being able to do so" in section 600A.2(18).
We find the evidence supports the district court's conclusion "that at all times during the pregnancy and even after the child's birth, [Jay's] acts clearly demonstrated he wanted custody of his daughter." We find there is insufficient evidence Jay abandoned his child.
IV. Best Interests
Once a determination is made that a ground for termination under section 600A.8 has been established, we may address the issue of the child's best interests. J.L.W., 523 N.W.2d at 625. Because we have found there are no grounds for termination under section 600A.8, we need not address the issue of best interests of the child. We agree with the district court, however, that Jay showed he could provide a safe and stable home for the child, and that it is in the child's best interests to be placed in Jay's custody.
V. Termination of Jeannie's Parental Rights
On appeal, the guardian ad litem asserts that if we uphold the decision not to terminate Jay's parental rights, then Jeannie's parental rights should also not be terminated. Jeannie resists, clearly stating that she does not want to continue a parent-child relationship with this child. Jay also resists, stating he is fully prepared to parent the child on his own. He asserts it would not be in the child's best interests to preserve the child's relationship with Jeannie, when Jeannie is opposed to the relationship. We affirm the district court's decision to terminate Jeannie's parental rights.
VI. Trial Court Costs
Jeannie contends the district court abused its discretion by requiring her to pay all of the district court costs, including the fees of the guardian ad litem. Jeannie asserts some of these costs should be assigned to Nelson, as the guardian of the child. She asks that she be given leave to seek retaxation of costs. We determine the matter should be remanded solely on the issue of the assessment of costs by the trial court.
VII. Attorney Fees
Jay seeks attorney fees for this appeal. He does not cite, however, any law providing for an award of attorney fees in a termination action under chapter 600A. We find no basis to award attorney fees in this case.
We affirm the decision of the district court refusing to terminate Jay's parental rights. We remand for reconsideration of the assessment of trial court costs. We do not retain jurisdiction. Costs of this appeal are to be assessed equally to Jeannie and Kenneth Nelson.