Opinion
No. 4-235 / 03-1323
May 26, 2004.
Appeal from the Iowa District Court for Mahaska County, Michael R. Stewart, District Associate Judge.
A father appeals from the order terminating his parental rights to his two children. AFFIRMED.
Linda Channon Murphy of Murphy Parks, P.L.C., Des Moines, for appellant-father.
Michael Brice, Oskaloosa, for appellee-mother.
Eric Palmer of Palmer Palmer Law Firm, Oskaloosa, for minor children.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Robert appeals from the order terminating his parental rights to his two children, Erin and Richard. He contends clear and convincing does not support the district court's determination that he abandoned the children and failed to contribute to their support without good cause. He further maintains termination is not in the children's best interests. We affirm.
I. Background Facts and Proceedings.
Robert is the father and Sharon the mother of two minor children, Richard, born August 24, 1989, and Erin, born May 3, 1993. In Robert and Sharon's 1994 dissolution of marriage decree, the parents were granted joint legal custody of the children, but Sharon was named their physical caretaker. On September 28, 1995, the children were adjudicated in need of assistance, based on a child abuse report with Robert as the perpetrator. As a result of the adjudication, Robert's contact with the children was limited to supervised visitation through the Department of Human Services (DHS). Robert exercised visitation on December 15, 1995, and perhaps one time following that. Robert has not had visitation with the children since December of 1995.
On March 7, 2003, Sharon filed a petition seeking to terminate Robert's parental rights to the children due to his abandonment and failure to support them without good cause. See Iowa Code §§ 600A.8(3), (5) (2003). Following a hearing, the district court granted the petition and terminated Robert's parental rights. Robert appeals from this order.
II. Scope of Review.
We conduct a de novo review of the termination of Robert's parental rights. Klobnock v. Abbott, 303 N.W.2d 149, 150 (Iowa 1981). We give weight to the court's factual findings, especially when considering witness credibility, but we are not bound by them. Id. III. Termination of Parental Rights. A. Abandonment.
To abandon a minor child [m]eans 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 marginal effort to provide for the support of the child or to communicate with the child.
Abandonment connotes "a giving up of parental rights and responsibilities accompanied by an intent to forego them." In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981). Our supreme court has noted this characterization captures the two elements necessary for abandonment as the term is defined by the code. Id. The "giving up" of parental rights and responsibilities refers to conduct. Id. The intent element relates to the accompanying state of mind. Id. Moreover, parental responsibilities include more than subjectively maintaining an interest in a child. Id. The concept requires affirmative parenting to the extent it is practical and feasible in the circumstances. Id. (citing In re J.L.Z., 421 A.2d 1064, 1064-65 (1980)) ("This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child."). However, abandonment does not require total desertion. Goettsche, 311 N.W.2d at 105.
As noted above, Robert last exercised visitation in December of 1995. A January 2, 1996 supervised visit was scheduled, but Robert postponed further visits at that time stating that "something had come up." Although he did contact DHS in February of 1996 and requested resumption of visitation upon his return from Colorado, where he apparently was attending to the administration of a deceased uncle's estate, Robert failed to follow through and visitation never resumed.
Not until January of 2001 did Robert attempt to re-establish contact with the children. He did so by sending a letter to Erin and Richard through the Child Support Recovery Unit asking them to contact him and claiming that he did not know how to find them and did not have the money to hire an attorney. The children read the letter and were given the option to contact him, but they declined.
Robert's next attempts at contact came in May of 2001 and then again in August of 2001 when he sent birthday cards to the children. He sent the cards to the church the children attended, and requested that they be forwarded to Richard and Erin. The children's pastor did deliver the cards.
We do not find convincing Robert's claim "[m]om has completely removed Dad from any interaction with these children over the past seven years" or that she "constructively removed him" from their lives. In furtherance of this contention, Robert asserts Sharon took an unlisted telephone number, began using the last name of her new husband, and failed to promote his relationship with the children. Although Sharon did, after several years of no contact, refuse Robert's request for visitation with the children, we are not persuaded that Robert's failure to have contact with the children in 1996, 1997, 1998, and 1999 is primarily attributable to Sharon. Robert concedes he knew Sharon continued to live in Oskaloosa even after her remarriage in 1997. He made no efforts save three pieces of correspondence to resume communication with the children until 2001. He made no efforts to locate or contact Sharon or the children through Sharon's family members living in the Oskaloosa area.
Robert further posits that he was reluctant to go to Sharon's home to visit the children because such action would not have been well received by law enforcement officers who were protective of Sharon. Even if we assume the truth of this assertion, however, the fact remains that Robert completely failed for several years to invoke procedures consistent with the law to protect his relationship with the children.
Robert also asserts that depression explains his failure to more aggressively seek a relationship with the children until 2001. The record does not establish, however, that Robert's mental health was so impaired as to justify total cessation of contacts with the children for several years. There is no evidence in the record tending to establish that mental health treatment was sought by or provided to Robert. Without more evidence, we cannot conclude that Robert's failure to contact the children for several years should be excused.
Instead, the clear and convincing evidence demonstrates Robert's indifference toward Erin and Richard. Robert's few attempts to contact them over the course of seven years fall far short of "affirmative parenting" or even "parenting to the extent it is practical and feasible in the circumstances." Goettsche, 311 N.W.2d at 105. Although Robert eventually hired counsel in 2003 to contact Sharon and request visitation, this was not done until after the Child Support Recovery Unit had taken action to force him to pay child support at a level approaching his ability to pay.
Accordingly, we conclude clear and convincing evidence supports the district court's conclusion in this case. Sharon established that Robert abandoned the children, as contemplated by Iowa Code section 600A.2(18).
B. Failure to Support Without Good Cause.
Having found clear and convincing evidence that Robert abandoned the children, as contemplated by Iowa Code section 600A.2(18), we need not address whether Robert failed to contribute to the support of the children without good cause. See In re B.L.A., 357 N.W.2d 20, 22 (Iowa 1984) (noting that a termination will be upheld if one ground is established by clear and convincing evidence).
C. Best Interests.
We next turn to the question of whether the termination of Robert's parental rights is in the children's best interests. In re R.K.B., 572 N.W.2d 600, 602 (Iowa 1998). Evidence was presented suggesting Erin has no recollection of Robert, and other evidence was offered indicating Richard does not now want to see him. Robert's long history of disinterestedness and remoteness clearly supports the district court's conclusion that termination is in the best interests of the children. See In re L.L., 459 N.W.2d 489, 493 (Iowa 1990) (noting a parent's past performance is significant, for that performance may be indicative of the quality and level of the future care they are capable of providing).
Furthermore, although we do not address the question of whether clear and convincing evidence supports the termination on grounds of failure to provide support the children, we find Robert's long record of inattention to the financial support of the children relevant to the question of best interests. As of the date of the termination hearing, Robert had amassed a child support arrearage of over $50,000. We echo the district court's sentiments that "[i]t is hard to conceive of a more dismal payment record." This long record of Robert's disinterest in the financial support of the children is probative of the level of future care and support which Erin and Richard could expect from Robert. Thus, we conclude termination of Robert's parental rights is in the best interests of the children.
IV. Conclusion.
We conclude clear and convincing evidence supports the termination of Robert's parental rights on grounds of abandonment. We further agree with the district court's determination that termination is in the best interests of the children. We therefore affirm.
AFFIRMED.