Opinion
No. 5-927 / 05-1127
Filed February 1, 2006
Appeal from the Iowa District Court for Wright County, James A. McGlynn, Associate Juvenile Judge.
The father appeals the termination of his parental rights. AFFIRMED.
Roger L. Sutton of Sutton Law Office, Charles City, for appellant.
David R. Johnson of Brinton, Bordwell Johnson, Clarion, for appellee.
Douglas Cook of Cook Law Firm, Jewell, guardian ad litem for minor children.
Heard by Sackett, C.J., and Vogel and Mahan, JJ.
Jason appeals the termination of his parental rights. He argues the district court erred in finding (1) the children's best interests required termination and (2) he abandoned the children. We affirm.
I. Background Facts and Proceedings
Jason and Linda are the parents of four children ages seventeen, fourteen, and twins twelve years of age. Both parties were in high school when they had their first child. They married during the pregnancy of their second child in 1990. For some time during their marriage, they lived with Jason's parents. In 1993 Linda decided to return to school. Jason assumed the responsibility of being the children's primary caretaker. The parties decided to separate in January 1996. At the time of the separation, they agreed that Jason should have primary care of the children. Their divorce was final in the summer of 1997.
Linda moved in and gave birth to a baby with Eugene in July 1997. They eventually married and continue to live together. Sometime in 1998, Jason became addicted to methamphetamine. In September he called Linda to tell her that due to personal problems, he could no longer care for the children. The children moved in with Linda and Eugene, where they continue to reside. According to the modification decree adopted in November 1998, Jason is to pay $522.46 per month in child support and $105 per month in medical support. He is also to pay one-half of all unreimbursed medical expenses. The decree also granted Jason every other weekend and two weeks in the summer for visitation.
In 2002 Jason was arrested on felony drug-related charges. He pled guilty and received a sentence for a prison term not to exceed twenty-five years, but the mandatory prison time was reduced by one-third. When Jason called Linda after his drug arrest, she told him he would have to take her to court to enforce his visitation with the children. Though Jason alleges he has sent birthday cards and correspondence to the children about once a month, he has not seen them since he was incarcerated. Linda filed this petition to terminate Jason's parental rights in August 2004. Linda and Eugene have also drafted a petition for step-parent adoption.
It is clear she did not forbid visitation between 1998 and the time of Jason's arrest in 2002.
At the termination hearing, Linda alleged Jason failed both to pay child support and to maintain contact with the children. See Iowa Code § 600A.8(3) and (4) (2003). Evidence showed Jason rarely paid his child support without the need for a wage withholding order. He also failed to pay his medical support obligations without a court order. Though he experienced only short periods of unemployment, the amount of his payments steadily decreased. In 1999 he paid $7,208.13; in 2000 he paid $7,662.01; in 2001 he paid $5,729.24; in 2002 he paid $3,511.87; in 2003 he paid $3,366.51; and in 2004 he paid $146.30. Testimony also showed Jason failed to exercise much of his allotted visitation. The couple's oldest child testified she rarely saw Jason in 1999 and refused to visit him in 2000. She claimed both that Jason's family treated her unfairly and that Jason physically abused her. The couple's second child stopped visiting Jason sometime in mid-2001. Jason did not question the children's decisions to discontinue visitation. Finally, the evidence indicates that all the children have established a good relationship with Eugene.
Jason was incarcerated in January 2003.
The district court determined that Jason abandoned his children within the scope and meaning of Iowa Code section 600A.8(3). It also concluded that Jason had substantially complied with his child support obligation under section 600A.8(4). Finally, it concluded terminating Jason's parental rights so the children could be adopted by Eugene would be in the best interests of the children. Jason appeals.
II. Standard of Review
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. In re N.N., 692 N.W.2d 51, 54 (Iowa Ct.App. 2004); Iowa R. App. P. 6.14(6)( g). Our first and primary concern is the best interests of the children. D.G., 704 N.W.2d at 457; Iowa R. App. P. 6.14(6)( o). 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
The best interests of the children in this case clearly indicate Jason's parental rights should be terminated. Our question is whether the standards of the statute permit termination.
Under Iowa Code section 600A.8(3), a court may terminate a parent's rights if it finds the parent has abandoned the child. The Code defines abandonment of a minor child as "reject[ing] 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." Iowa Code § 600A.2(18). Abandonment occurs for children six months or older when the parent fails to maintain 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.
(3) Openly living with the child for a period of six months within the one-year period immediately preceding the termination of parental rights hearing and during that period openly holding himself or herself out to be the parent of the child.
Id. § 600A.8(3)(b). Incarceration does not excuse a parent's unavailability or conduct in an abandonment situation. In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct.App. 1994). Nor does it qualify as a justification for the parent's failure to have a relationship with the child. In re M.M.S., 502 N.W.2d 4, 8 (1993).
Jason has failed to maintain regular, sustained contact with his children and has not lived with them for any period of time for several years. Though he claims to have sent cards and letters, "[p]arental responsibilities include more than subjectively maintaining an interest in a child. The concept requires affirmative parenting to the extent it is practical and feasible in the circumstances." In re A.B., 554 N.W.2d 291, 293 (Iowa Ct.App. 1996).
Though Jason may have been trying to respect his children's wishes not to see him, abandonment in chapter 600A does not require subjective intent to abandon. Iowa Code § 600A.8(c). By accepting without inquiry both their refusal to visit and, subsequently, their mother's refusal to allow him to contact them after his arrest in 2002 for a class B felony, he has abandoned them. Parenthood requires parents to communicate with their children, even when communication might be difficult or uncomfortable. Parenthood also requires parents to make complicated, adult decisions that do not conform to the child's desires, but are in the child's best interest. Though we understand her reluctance to allow her children to associate with Jason, we cannot legally condone either Linda's acceptance of her children's refusal to visit or her own refusal to allow them to visit after his arrest. Nonetheless, it was Jason's responsibility to attempt to maintain a relationship with his children. Testimony shows, however, he failed to challenge either Linda's or his children's decision in any way at all.
We do not imply by this statement that Jason was under any duty to pursue court intervention to avoid a finding of abandonment.
Jason has also failed to comply with his child support obligations. While he was out of work for a short period of time and has been incarcerated since 2003, he has never attempted to modify his obligation. When asked at the hearing, he could not explain why his support had not been paid in various months that he was employed. Further, he testified in court that even while he was manufacturing methamphetamine, he did not forward any of the profits to Linda for the children's support. As a result, we conclude he did not contribute to the support of his children by a reasonable amount according to his means.
Our determination here is pursuant to the element of support in section 600A.8(3)(b). The district court's determination, it should be noted, was with respect to section 600A.8(4).
Once again, we note that the child support Jason paid was usually the result of a support order.
Jason puts forth several allegations concerning Linda's own absence from the children when they were young. There is little we can do about that past. Linda's life has stabilized; she has accepted and borne the responsibilities of parenthood for several years now. Whether her absence at the beginning of the children's lives was because she had their long-term well-being in mind, as the district court wrote, we do not decide. We do, however, recognize that earning an education and taking methamphetamine are not equal pursuits.
This is not so much a close case as it is a difficult one. Jason appears to have been a good father prior to his methamphetamine addiction. By all accounts, he was fairing well with the children, even in the face of their mother's early absence. Jason's family presented concerned testimony about what might happen to him if his parental rights are terminated. We worry, however, what will happen to these children if his rights are not terminated. The charge put to us is to do right in the interests of the children, not the parents.
Jason's testimony at the hearing shows he fails to understand his shortcomings as a parent. Even in the face of termination, he was unable to testify to anything he might have done differently in his relationship with his children. See In re L.L., 459 N.W.2d 489, 493-494 (Iowa 1990) (noting we look to a parent's past performance as indicative of the quality of care the parent will provide in the future). For seven years, his parental bond with his children was gradually loosened by his drug abuse. As the district court noted,
once [Jason] discovered methamphetamines, it is clear that he chose the drugs over his children. By doing so, he abandoned his children, first by causing an estrangement with them, and then after his arrest and conviction, by placing himself into prison.
His relationship with them has declined to virtual nonexistence. His problems with methamphetamines are certainly not unprecedented. Instead, this case is but another vivid example of their effect on a family. Jason may have been a commendable parent at one time, but he now seems, at best, indifferent.
We therefore conclude both the children's best interests and the law mandate Jason's parental rights be terminated. The children have been living with Linda and Eugene in a blended family situation for nearly seven years. By all accounts they have adjusted well to their home and family. Both the mother and stepfather are in a position to continue providing emotional and financial support to these children. Allowing Eugene to adopt the children would no doubt provide them with further security and stability. See In re B.L.A., 357 N.W.2d 20, 23-24 (Iowa 1984). For these reasons, we affirm the district court's order.