Opinion
No. 2-444 / 02-0584.
Filed May 31, 2002.
Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis, District Associate Judge.
Father appeals an order terminating his parental rights. AFFIRMED.
Lars G. Anderson of Holland Anderson, L.L.P., Iowa City, for appellant.
Patrick Ingram of Mears Law Office, Iowa City, for mother.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney General, J. Patrick White, County Attorney, and Deborah Farmer Minot, Assistant County Attorney, for appellee-State.
L. Jay Stein of Stein, Pugh Moreland, L.L.P., Iowa City, for minor child.
Considered by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Daniel appeals a juvenile court order terminating his parental rights to his son, Michael, who was born March 7, 1996. We affirm.
Daniel has never been married to Michael's mother, Shannasey. Shannasey conceived Michael when she was fifteen and Daniel was sixteen. Michael was removed from Shannasey's home in December 2000 and the State filed a child in need of assistance (CINA) petition on December 12, 2000. Michael was adjudicated a CINA pursuant to Iowa Code sections 232.2(6)(d) and (c)(2) (1999) based on Shannasey's paramour, Dustin, having broken D.G.'s arm.
Shannasey later married R.G. by whom she had two children, J.G. and D.G. Later yet, while still married to R.G., she gave birth to a fourth child, fathered by fifteen-year-old Dustin. Her parental rights to all four children have been terminated and are not at issue in this appeal.
On November 13, 2001 the State filed a petition seeking to terminate the parental rights of Shannasey and Daniel to Michael. On March 18, 2002, following a hearing, the court terminated Daniel's parental rights pursuant to Iowa Code sections 232.116(1)(b), (d), and (f) (Supp. 2001). Daniel appeals.
In its order terminating Daniel's parental rights the court cites to Iowa Code sections 232.116(1)(b), (c), and (e) (2001). However, the applicable law in this termination of Daniel's parental rights is correctly cited as Iowa Code sections 232.116(1)(b), (d), and (f) (Supp. 2001) due to an April 24, 2001 amendment to subsection 232.116(1) that added a new paragraph (c), resulted in the relettering of other paragraphs, but did not substantively alter the relettered paragraphs.
We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
After Shannasey informed Daniel she was pregnant, Daniel told her he was not old enough to be a father. When Shannasey was about two months pregnant Daniel left Iowa and went to Florida, ostensibly to testify for a friend charged with sexual assault and later return to Iowa. However, he thereafter stayed in Florida. At some time not shown by the record he did send Shannasey about $500 over a three-month period. He has not thereafter provided any form of material support for Michael, who is now six years of age.
Daniel has faced several criminal charges in Florida since moving and remaining there. In about April 1996 he was charged with Capital Sexual Battery, with a potential sentence of up to life in prison. The charge involved a minor female. He eventually pled no contest to Lewd Assault or to Lewd and Lascivious Acts, and was imprisoned from about March 1997 to September 1999.
Daniel remains on parole in Florida, where he is a registered sex offender. He is required to take sex offender classes until he completes them, and has substantial fines to pay. It appears he will not be off parole until late August 2002.
While in prison Daniel had no contact with Shannasey or Michael, although he testified he tried to do so by occasionally sending cards or letters. Since being released on parole he has on occasion called Shannasey, and on a few of those occasions has spoken to Michael. However, no one has ever told Michael that Daniel is his father.
In about February 2001 Daniel became aware Michael (and Shannasey's other children) had been removed from Shannasey's care and placed in a foster home. He did nothing until Shannasey told him she feared she might lose the children. Daniel's wife, with whom he has two children and from whom he is now separated, then came to Iowa in about June or July 2001 and spoke to Department of Human Services (DHS) personnel, asking what Daniel needed to do to get custody of Michael. She informed DHS that Daniel would be moving to Iowa in about a month. DHS staff told her to have Daniel contact them when he had moved.
About a month after Daniel's wife appeared at the DHS Daniel contacted the DHS by phone and said he was going to be moving to Iowa soon. He was told that when he got to Iowa he should contact DHS, make an appointment, and meet with DHS. Daniel did not move to Iowa and had no further contact with the DHS until well after termination proceedings were filed. He did not appear for any court hearings in the CINA proceeding.
Michael bears his mother's maiden name as his surname. Daniel has never registered as Michael's father with the Iowa Paternity Registry or a similar registry of another state. Daniel had never sought to be established as Michael's father, and paternity testing occurred only as a result of juvenile court orders during the termination proceeding. Test results showing Daniel to be Michael's father became available only as of February 2002, three months after the termination petition was filed and about one month before the termination hearing.
Michael and Daniel have never met and have no relationship whatsoever. No one has ever told Michael that Daniel is his father. Michael believes that R.G., Shannasey's husband, with whom Michael lived for most of the first three and one-half years of his life, is his father.
Michael and his younger half brother, J.G., have remained together in foster care since removal from Shannasey's care, and have had significant improvements in their mental and physical health. They have a close relationship with each other, and have bonded with their foster parents, who are interested in adopting them.
The juvenile court terminated Daniel's parental rights on three separate statutory grounds, including section 232.116(1)(b), abandonment. Daniel asserts the court erred in finding abandonment. He testified that he wishes to have a relationship with Michael, because he believes a child should be with a biological parent or relative.
" Abandonment of a child" means the relinquishment or surrender, without reference to any particular person, of the parental rights, duties, or privileges inherent in the parent-child relationship. Proof of abandonment must include both the intention to abandon and the acts by which the intention is evidenced. The term does not require that the relinquishment or surrender be over any particular period of time.
Iowa Code § 232.2(1) (2001).
"There are two elements necessary for abandonment. The giving up of parental rights and responsibilities refers to the party's conduct. The intent to forego parental rights and responsibilities is the accompanying state of mind." In re S.K.C., 435 N.W.2d 403, 404 (Iowa Ct.App. 1988). "In addition, 'parental 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 D.M., 516 N.W.2d 888, 889 (Iowa 1994) (quoting In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981)).
Daniel has never had any relationship with Michael. His only communication with Michael has been a few telephone conversations in the last one to two years. Michael and Daniel have never met. Michael believes R.G. to be his father. Daniel made no genuine effort to establish a father-son relationship with Michael until after the termination proceeding was filed, when Michael was almost six years of age. That effort has clearly occurred only as a result of the termination proceeding itself.
Daniel's belated effort to become Michael's father is insufficient to overcome the clear and convincing evidence that for years he intended to and did in fact relinquish any parental rights and responsibilities concerning Michael. He perhaps subjectively maintained an interest in Michael, but a subjective interest is not sufficient. His recent effort to have Michael placed with himself or a relative does not change the fact he was content to allow others to raise Michael without Michael knowing that he was really Michael's father or the fact he abdicated his parental responsibility to engage in the active parenting which a parent-child relationship requires.
We find clear and convincing evidence of abandonment and affirm the juvenile's court's termination of Daniel's parental rights on that ground. We need not address the remaining grounds relied on by the juvenile court. See In re A.J., 553 N.W.2d 909, 911 (Iowa Ct. App. 1996) (holding that where the district court terminates parental rights on more than one statutory ground, we only need to find grounds to terminate under one of the statutory provisions in order to affirm).
AFFIRMED.