Opinion
No. 4-279 / 04-0408
May 14, 2004.
Appeal from the Iowa District Court for Humboldt County, James A. McGlynn, Associate Juvenile Judge.
A father appeals from a juvenile court order terminating his parental rights to two children. AFFIRMED.
Derek Johnson, Fort Dodge, for appellant-father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Tom Meyer, County Attorney, for appellee-State.
Gregory Stoebe of Stoebe Law Office, Humboldt, guardian ad litem for minor children.
James McCarthy, Fort Dodge, for appellee-mother.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
S.S. is the father, and S.K. the mother, of twin daughters born in January 1999. S.S. appeals from a March 3, 2004 juvenile court order terminating his parental rights to the children. He claims (1) he was "denied due process" because the juvenile court terminated his parental rights based on a ground that was not alleged in the State's petition for termination, and (2) the evidence did not show that termination of his parental rights was in the children's best interest. We affirm.
S.K.'s parental rights were not involved in the juvenile court termination of parental rights proceeding, and are not involved in this appeal.
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).
The State's amended petition sought termination of S.S.'s parental rights pursuant to Iowa Code sections 232.116(1)(d), (e), (f), and (l) (2003). The juvenile court held a lengthy and extended hearing on December 17, 2003 and February 6, 2004, after which it filed written findings of fact, conclusions of law, and an order terminating S.S.'s parental rights on March 3, 2004.
S.S. first claims the juvenile court terminated his parental rights on the ground of "abandonment," a ground the State did not plead in its amended petition. In its conclusions the juvenile court did refer to the phrase "To abandon a minor child," as that phrase appears and is defined in Iowa Code section 600A.2(18). It then went on to point out that the statute does not provide a minimum period for abandonment or indicate whether a parent can undo abandonment once it occurs, concluded that evidence of abandonment is a factor which the court must consider "in determining whether it is in the child's best interest to order the termination of parental rights," and further concluded that even though abandonment was established termination should not occur unless the court found termination to be in the child's best interest. It is apparently this discussion that leads S.S. to claim the juvenile court terminated his parental rights based on a finding of abandonment.
The juvenile court did not identify by Code section the specific statutory provision or provisions for termination which it found the State had proved. It did, however, make detailed findings of fact and state as one of its conclusions that "the Court finds clear and convincing evidence exists to support the grounds alleged in the petition." It went on to order that the petition, as filed and later amended, "is hereby granted," and that S.S.'s parental rights to the twins were terminated.
This is one of a series of recent cases in which the claim, or a claim, on appeal is that the juvenile court terminated parental rights on a ground not pled or on a ground not proved by the evidence. A common denominator in these cases is that the juvenile court's ruling does not state what specific statutory provision or provisions for termination alleged in the petition the court has found to have been proved. In rulings terminating parental rights the juvenile court should, separately as to each parent whose parental rights it is ordering terminated, specify the statutory provision or provisions pursuant to which it is ordering termination. Doing so will avoid unnecessary issues on appeal, and in some cases perhaps avoid the appeal itself.
We conclude the juvenile court, as it expressly stated, considered evidence of abandonment only as a factor in determining whether it was in the children's best interest to order the termination of S.S.'s parental rights. We further conclude the juvenile court's ruling makes it sufficiently clear it terminated S.S.'s parental rights on each of the statutory grounds pled by the State. We therefore reject S.S.'s claim that he was denied due process of law by having his parental rights terminated on a ground not alleged in the State's petition.
Although S.S. does not separately or alternatively claim that the grounds for termination alleged by the State were not proved, we briefly address the question. The children were born in January 1999 and were four or older when the termination hearing was held and termination was subsequently ordered. They had been adjudicated children in need of assistance in February 2002. They had been removed from S.S.'s physical custody continuously since January 2002. At the time of the termination hearing S.S. was serving terms of imprisonment. Although he was to have a parole hearing in March 2004, his tentative discharge dates on his prison terms were in the years 2005 and 2007. The children clearly could not be returned to his custody and supervision at the time of the termination hearing or within the reasonably foreseeable future. We find, as the juvenile court did, that the State proved by clear and convincing evidence the grounds for termination under Iowa Code section 232.116(1)(f). We need not determine whether the State also proved the grounds for termination under the several other statutory provisions it also relied on. See In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996) (holding that we only need to find grounds to terminate under one of the statutory provisions relied on by the district court in order to affirm.).
S.S. also claims that the termination is not in the children's best interest. S.S. was imprisoned on a drug charge at the time of the children's birth, and thereafter remained in prison for eighteen months, followed by four months in a residential correctional facility while on parole. While in prison he had little or no contact with the children and while in the residential correctional facility he had minimal contact with them. Following his November 2000 release from the residential correctional facility he saw the children more often, and lived with them and S.K. some or all of the time between November 2000 and November 2001 when he left them. Between November 2001 and June 2002 he saw the children only about six times, the last time being on February 14, 2002. His parole was revoked in June 2002 and he has thereafter been incarcerated on one or more of his drug-related convictions. He has had no contact or communication with the children since February 2002.
The children were returned to S.K. in May 2003. She became married about that time. She and her husband have a child together. S.K. is doing well. Her husband hopes to adopt the twins if S.S.'s parental rights are terminated.
We agree with the juvenile court that termination of S.S.'s parental rights is in the best interest of the twins in order that they may have the opportunity to secure the stability and permanency they need and deserve.