Opinion
No. 5-722 / 05-0920
Filed November 9, 2005
Appeal from the Iowa District Court for Butler County, Peter B. Newell, District Associate Judge.
A father appeals from the order terminating his parental rights to his daughter. AFFIRMED.
Patrick B. Dillon of the Dillon Law Office, P.C., Sumner, for appellant.
Patrick C. Vickers and Richard Vickers of the Vickers Law Office, Greene, for appellee.
Gregory Lievens, Aplington, guardian ad litem for minor-child.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Heather and Adam are the parents of Megan, who was born in 1994. Heather and Adam never married, but initially had a good relationship following Megan's birth. Adam was present at Megan's birth and was involved in her life through the summer of 1995. However, in 1996 Adam's visits dropped to around one per month and later largely ceased altogether. In 1998, Adam, by his own admission, began using methamphetamine. Beginning in October of 2001 Adam served approximately nine months in prison as a result of a drug-related felony, and again in 2003 he was incarcerated on charges of third-degree burglary and willful injury. He was in prison at the time of the hearing on this matter and testified via the Iowa Communications Network. Adam admits to being a methamphetamine addict.
In August of 2004, Heather filed a petition to terminate Adam's parental rights to Megan under Iowa Code Chapter 600A. Following a trial, the court entered an order granting the petition and terminating Adam's parental rights. The court concluded Adam had abandoned Megan and had failed to contribute to her support without good cause after having been court-ordered to do so. Adam appeals from this order, contending (1) termination is not in Megan's best interests, (2) he did not abandon Megan, and (3) good cause existed for his non-payment of child support.
Private termination proceedings are reviewed de novo. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). The grounds to terminate parental rights under chapter 600A must be proven by clear and convincing evidence. Iowa Code § 600A.8 (2005). 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)( g).
The phrase "[t]o abandon a minor child" is defined in section 600A.2(18) to mean:
[A] parent, putative father, custodian, or guardian rejects the duties imposed by the parent-child relationship, guardianship, or custodianship, 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.
Abandonment under section 600A.8(3)(b) is established 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.
A parent's incarceration cannot serve as an excuse for failing to attempt to communicate with a child. In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct.App. 1994). "The general rule is unavailability to parent as a result of being incarcerated is no excuse." Id. (citing In re R.L.F., 437 N.W.2d 599, 602 (Iowa Ct. App. 1989)). A parent must still make more than a marginal effort to maintain contact with his or her child. See Iowa Code § 600A.2(18).
Upon our de novo review of the record, we concur in the determination that Adam abandoned Megan as contemplated in section 600A.2(18). As noted previously, although Adam initially was involved somewhat in Megan's life, that participation eventually withered to virtually nothing. Heather testified that after she and Adam "broke up" in the summer of 1995 Adam visited Megan approximately every-other week. However, that visitation diminished to about once per month at some point in 1996. According to Heather's knowledge, Adam had not had any face-to-face contact with Megan since 1997. Heather further testified that Adam has not attended Heather's school functions, has not sent birthday or Christmas presents, and did not send letters to her at her home.
While testimony from both Adam and his father established that Adam's contacts with Megan were slightly more than those illustrated in Heather's testimony, those contacts were still woefully inadequate. Even according to Adam, he only had "occasional" contact with Megan after 1997, and he attended "one or two" of her dance recitals. Further, by his own admission, he only saw her twice in 2002 and once in 2003.
Adam's criminal activities and consequent incarcerations also reduced his contacts with Megan. Adam asserts that in the period between his two terms of incarceration his lack of contact with Megan was not of his own choosing. He claims he was placed in a "catch 22" situation in which, if he drove to visit Megan or attended a dance recital he would be in violation of probation for driving without a license, whereas if he did not visit her, such would be used against him as a ground for termination. However, from the time he was released in September 2002 until he was again arrested in July 2003, rather than being a parent to Megan, Adam instead chose to engage in further criminal activity and to father a child with another woman. Accordingly, while he now claims a "cumbersome" parole supervision policy and his lack of a driver's license were insurmountable burdens, those burdens did not stop him from committing another criminal act that subjected him to yet another imprisonment and further distance from his daughter.
Moreover, Adam's history of making child support payments supports the abandonment finding. While he found the resources to purchase illegal drugs, he fell seriously behind in child support payments. At the time of trial, he was approximately $16,000 in arrears. This lack of effort to provide support is strongly indicative of Adam's turning his back on Megan.
Adam has made no more than a marginal effort to be a parent to Megan. Only when convenient has Adam made the minimal effort of writing an occasional letter to Megan or phoning her when she was visiting Adam's parents. His efforts have been far short of the "substantial and continuous or repeated" standard embodied in section 600A.8(3)(b). Although Adam regrets his minimal involvement as a father, more is required of him. We therefore affirm the court's conclusion that Adam abandoned Megan and that termination of his parental rights is in her best interests.
AFFIRMED.
Eisenhauer, J. concurs; Sackett, C.J., concurring specially.
I concur with the majority opinion in all respects except one. In affirming I also consider the fact the child's stepfather intends to adopt her, thus assuring she would have support from two parents.