Opinion
No. 5-726 / 05-1433
Filed November 23, 2005
Appeal from the Iowa District Court for Woodbury County, Brian L. Michaelson, Associate Juvenile Judge.
A father appeals the termination of his parental rights to his child. AFFIRMED.
Patrick H. Tott, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Dewey P. Sloan, Assistant County Attorney, for appellee.
Martha McMinn, Sioux City, for mother.
John Polifka of Juvenile Law Center, Sioux City, guardian ad litem for minor child.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
A father appeals the termination of his parental rights to his child pursuant to Iowa Code section 232.116(1)(b) (2005). He contends the State failed to prove the ground for termination by clear and convincing evidence. He also contends termination is not in the child's best interest. We review his claims de novo. In re C.H., 652 N.W.2d 144, 147 (Iowa 2002).
Iowa Code section 232.116(1)(b) provides for termination where there is clear and convincing evidence the child has been abandoned or deserted. Abandonment is characterized as a giving up of parental rights and responsibilities accompanied by an intent to forego them. In re A.B., 554 N.W.2d 291, 293 (Iowa Ct. App. 1996). The father argues the evidence does not show any intent to abandon his child. We disagree.
The child was born in February 2002. The father testified he lived with mother and child "[u]p to the first year, year and a half" of the child's life. The child was removed from her mother's care in March 2004. Although the father was made aware of how to contact the Department of Human Services regarding his child, the father failed to do so until just prior to the termination hearing. The father's parental rights were terminated in an August 2005 order. He did not attend any juvenile hearings, has not had any contact with his child since her removal, and did not abide by any of the directives of the case permanency plan. The father was arrested in Nebraska in January 2005 on charges of possession of a firearm, possession of a short firearm, possession of methamphetamine with intent to deliver, and violating the drug and money laws of Nebraska. If convicted, the maximum sentence he could serve is fifty years imprisonment. Although the father has been incarcerated since January 2005, he cannot claim his incarceration is the reason for his failure to maintain a relationship with his child and that the abandonment was thereby not intentional. As our supreme court has stated, a father
cannot use his incarceration as a justification for his lack of relationship with the child. This is especially true when the incarceration results from a lifestyle that is chosen in preference to, and at the expense of, a relationship with a child.
In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993). We conclude clear and convincing evidence supports termination under section 232.116(1)(b).
The father also contends termination is not in the child's best interest. We conclude the evidence shows the contrary. The father is a convicted sex offender. He has an extensive criminal history, as well as a history of drug abuse. At the time of termination, he was incarcerated and awaiting trial on charges that could result in a maximum of fifty years imprisonment. The father has not maintained a meaningful relationship with the child since the child's initial involvement with the juvenile court. Meanwhile, the child is living with her aunt and uncle, who plan to adopt her. The child refers to her aunt and uncle as "mom" and "dad." She refers to her cousin as her "brother." The best interest of the child clearly supports termination.