Opinion
No. 6-044 / 05-1977
Filed February 15, 2006
Appeal from the Iowa District Court for Muscatine County, John G. Mullen, District Associate Judge.
A father appeals from the termination of his parental rights. AFFIRMED.
Phillip Fontana of Muscatine Legal Services, Muscatine, for appellant mother.
Jeffrey Fields, Iowa City, for appellant father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Gary Allison, County Attorney, and Korie Shippee, Assistant County Attorney, for appellee State.
Arlen Poock, Muscatine, for minor children.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
James appeals the termination of his parental rights. He argues clear and convincing evidence fails to show (1) he abandoned or deserted his children under Iowa Code section 232.116(1)(b) (2003); (2) he was offered or received assistance and circumstances continued under section 232.116(1)(d)(2); (3) the children were removed for six consecutive months under section 232.116(1)(e)(2); (4) he has failed to maintain significant contact with his children under section 232.116(1)(c)(3); and (5) the children have been removed for twelve of the last eighteen months or twelve months consecutively and trial visitation period has been less than thirty days under section 232.116(1)(3). We affirm.
I. Background Facts and Proceedings
James and Tamara have three sons aged ten, seven, and five years. In September 2002, James was incarcerated after pleading guilty to two counts of lascivious acts with a child, a D felony. In September 2004, he was served with a child in need of assistance (CINA) petition for the boys. Due to his incarceration, he was unable to be present at any of the proceedings. However, records show he was not represented by counsel until an April 2005 hearing concerning a modification of disposition order. He did not contact the Iowa Department of Human Services (DHS) concerning his children until August 2005. At that time he requested a guardian ad litem for the children and counsel for himself. As a result of his sentence and treatment, James is not able to communicate with his children in writing, by telephone, by e-mail, or in any other way. He therefore has not had contact with his children since his incarceration. He also has not paid any child support. His treatment counselor reported it was unlikely he would be released until 2007. He will then be subject to supervision.
The victim was James's step-daughter, his sons' older sister.
The district court terminated James's parental rights pursuant to sections 232.116(1)(b), 232.116(1)(d), 232.116(1)(e), and 232.116(1)(f). The district court concluded that if placed with James, the children would be subject to a high risk of adjudicatory harm in the nature of physical abuse, neglect, and failure of supervision. It also concluded that, because it is uncertain when James will be released from prison, additional services will not resolve any adjudicatory harm. It further concluded that, by virtue of his offending behavior, he has deserted his children. Finally, the court concluded that the best interests of the children necessitated terminating James's parental rights. II. Standard of Review
The district court also terminated Tamara's parental rights. She appealed, but her appeal was dismissed due to untimeliness.
We review the termination of parental rights de novo. In re D.G., 704 N.W.2d 454, 457 (Iowa Ct.App. 2005). The grounds for termination must be proven by clear and convincing evidence. In re L.E.H., 696 N.W.2d 617, 618 (Iowa Ct.App. 2005). "Clear and convincing evidence means there are no serious or substantial doubts as to the correctness or conclusions of law drawn from the evidence." In re C.B., 611 N.W.2d 689, 692 (Iowa 2000). We give weight to the district court's fact findings, especially its credibility determinations, but are not bound by them. Iowa R. App. P. 6.14(6)( g); In re N.N., 692 N.W.2d 51, 54 (Iowa Ct.App. 2004). Our first and primary concern is the best interests of the children. Iowa R. App. P. 6.14(6)( o); D.G., 704 N.W.2d at 457. We look to the children's short- and long-term interests. In re J.J.S., Jr., 628 N.W.2d 25, 28 (2001).
III. Merits
In order to affirm a termination, we need only find grounds sufficient to terminate under one of the statutory grounds identified by the district court. In re S.R., 600 N.W.2d 63, 64 (1999). In this case, however, we find clear and convincing evidence to affirm the termination under each ground identified by the district court.
According to section 232.116(1), we may terminate parental rights if:
(b) The court finds that there is clear and convincing evidence that the child has been abandoned or deserted.
. . . .
(d) The court finds that both of the following have occurred
(1) The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as the result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding.
(2) Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.
(e) The court finds that all of the following have occurred:
(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
(2) The child has been removed from the physical custody of the child's parents for a period of at least six consecutive months.
(3) There is clear and convincing evidence that the parents have not maintained significant and meaningful contact with the child during the previous six consecutive months and have made no reasonable efforts to resume care of the child despite being given the opportunity to do so. For the purposes of this subparagraph, "significant and meaningful contact" includes but is not limited to the affirmative assumption by the parents of the duties encompassed by the role of being a parent. This affirmative duty, in addition to financial obligations, requires continued interest in the child, a genuine effort to complete the responsibilities prescribed in the case permanency plan, a genuine effort to maintain communication with the child, and requires that the parents establish and maintain a place of importance in the child's life.
(f) The court finds that all of the following have occurred:
(1) The child is four years or older.
(2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of the child's parents for at least twelve of the last eighteen months, or for at the last twelve consecutive months and any trial period at home has been less than thirty days.
(4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102.
First, desertion is defined as "the relinquishment or surrender for a period in excess of six months of the parental rights, duties, or privileges inherent in the parent-child relationship." Iowa Code § 232.2(14). The statute does not require intent to desert, but "a lack of attempted contact with the child or by only incidental contact with the child." Id. The statute does not require total desertion. In re Goettsche, 311 N.W.2d 104, 105 (Iowa 1981).
James has had no contact with his children since his incarceration in 2002. He both acknowledges he received notice from DHS in September 2004 and claims he was receiving updates on his children's well-being from his parents. He did not send representation to any of the hearings until April 2005. After that, he again lapsed into silence until he was notified of the petition to terminate in August 2005. Though his lack of communication with his children may be due to the restrictions on his communication with them, a no-contact order is not an ironclad defense against abandonment. In re D.J.R., 454 N.W.2d 838, 842 (Iowa 1990). James never sought to have the order modified. He never paid child support. He never signed a release to allow DHS to share information with prison staff. Regardless of his situation, James still had a duty to parent "to the extent it [was] practical and feasible in the circumstances." Goettsche, 311 N.W.2d at 106. Therefore, termination under section 232.116(1)(b) is appropriate.
Second, the boys were adjudicated children in need of assistance in October 2004 due to their mother's denial of care and supervision. Though James was notified of the proceedings in September 2004, he made no inquiry with DHS. "While the State has the obligation to provide reasonable reunification services, the [father] had the obligation to demand other, different or additional services prior to the termination hearing." S.R., 600 N.W.2d at 64. However, an incarcerated parent must take full responsibility for the conduct that resulted in confinement, and in this case, no contact. In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct.App. 1994). Due to James's own actions, any services DHS could have provided him were extremely limited. Further, he never requested any services other than those that were provided to his family. For that reason, he has not preserved for appellate review the issue of whether services were adequate. Id. at 64. Termination under section 232.116(1)(d) is appropriate.
Finally, it is unlikely James will be released from prison for some time. Even upon his release, he will be subject to supervision and will be unable to care for his sons for at least two years. In short, he has no suitable home and no timetable by which he can secure one. In re J.O., 675 N.W.2d 28, 31 (Iowa Ct. App. 2004) (terminating parental rights for similar reasons). While we are to be patient with parents, children cannot wait forever. Id. Therefore, termination under sections 232.116(e) and (f) is also appropriate.