Opinion
No. 5-687 / 05-1309
Filed October 26, 2005
Appeal from the Iowa District Court for Crawford County, Donavon Schaefer, District Associate Judge.
J.S. appeals from the termination of his parental rights to A.S. AFFIRMED.
Robert L. Brink of Eller, Brink Sextro, L.L.P., Denison, for appellant father.
Stephen M. Engelhardt of Engelhardt Law Office, P.C., Denison, for mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Thomas Gustafson, County Attorney, and Stephen Brannen, Assistant Count Attorney, for appellee State.
Julie A. Schumacher of Mundt, Fianck Schumacher, Denison, for minor child.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
I. Background Facts and Proceedings.
Ariea was born on February 19, 2003. Jeffrey and Randi are Ariea's parents.
In early December 2003 Randi and Ariea moved to Manilla, Iowa, to live with Jeffrey's brother, Martin, because Jeffrey was incarcerated in Omaha, Nebraska. On December 29, 2003, Randi left Ariea in Martin's care and moved back to Omaha so she could be near to Jeffrey. On February 9, 2004, Randi informed Martin of Jeffrey's release from custody and her intention to resume care of Ariea.
Upon learning of Ariea's situation, the Iowa Department of Human Services sought an emergency removal order, placing Ariea in temporary foster care. The court issued the requested order after determining Ariea's parents were absent from Iowa and there was a risk that they would flee the jurisdiction of the court with Ariea before the department could intervene. After a February 26, 2004, hearing on the removal order, the court ordered Ariea's continued placement in foster care. The court cited Jeffrey's pending indictment on child pornography charges, the parent's residential and financial instability, as well as their stated intention to move with Ariea to another state.
On March 12 Ariea was adjudicated a child in need of assistance pursuant to Iowa Code section 232.2(6)(b) (parent has physically abused or neglected child (or is imminently likely to do so)). The subsequently entered dispositional order continued Ariea's out-of-home placement with relatives and ordered family-centered services for both Randi and Jeffrey. These services were discontinued in October 2004 because Randi could not be located, and Jeffrey was incarcerated in Kansas.
On January 28, 2005, the State filed a petition to terminate Randi's and Jeffrey's parental rights on multiple grounds. Following a hearing on the merits of the State's petition, the trial court found:
After review of the evidence, the contents of the court files, and recommendations of the parties and counsel, the court finds that the grounds for termination of parental rights of Randi and Jeffrey . . . have been proved by clear and convincing evidence. The court further finds that Ariea has remained out of her parents' custody for more than seventeen months of her twenty-nine-month life. The evidence also clearly established that neither Ariea's mother Randi . . . nor her father Jeffrey . . . can take custody of Ariea and provide for her needs at the current time, nor is there any indication that Ariea could be returned to the custody of either parent in the foreseeable future.
The court further finds that the department of human services has made reasonable efforts both prior to and shortly after Ariea's removal from the custody of her parents to avoid continued placement out of the home and the eventual termination of her parental rights.
The court also found that termination of parental rights was in Ariea's best interest.
Based on these findings, the trial court terminated Randi's parental rights pursuant to Iowa Code section 232.116(1)(a) (2005). Jeffrey's parental rights were terminated pursuant to section 232.116(1)(b) and section 232.116(1)(e)(1), (2), and (3), as well as 232.116(1)(h). Jeffrey appeals. Randi does not.
II. Standard of Review.
The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). Our primary concern is the best interests of the children. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997).
III. Sufficiency of the Evidence.
The dispositive issue is whether the evidence supports termination of Jeffery's parental rights on any of the grounds relied on by the trial court. Iowa Code section 232.116(1)(b) provides for termination of parental rights if the court finds by clear and convincing evidence the parent has abandoned the child. Under section 232.116(1)(e), the court may also terminate a parent's rights if the court finds a child has been adjudicated a child in need of assistance, removed from his or her parents' care for more than six consecutive months, and there is clear and convincing evidence the parents have not maintained significant, meaningful contact with the child. Iowa Code § 232.116(1)(e). Significant, meaningful contact is defined as including but not limited to:
the affirmative assumption by the parents of the duties encompassed by the role of being a parent. This affirmative duty, in addition to financial obligations, requires continued interest in the child, a genuine effort to complete the responsibilities prescribed in the case permanency plan, a genuine effort to maintain communication with the child, and requires that the parents establish and maintain a place of importance in the child's life.
Iowa Code § 232.116(1)(e)(3). Under section 232.116(1)(h), the court may also terminate a parent's rights if the court also finds there is clear and convincing evidence the child cannot be returned to the custody of the child's parents, has been removed from the custody of the parents for at least six of the last twelve months, is three years or younger, and has been adjudicated a child in need of assistance. Iowa Code § 232.116(1)(h)(4).
The record includes abundant evidence supporting the trial court's earlier quoted findings of fact, and we adopt them as our own. We specifically note that Ariea was left with Martin for approximately two months without adequate provisions for food and other necessities. Additionally, Jeffrey had no contact with Ariea during those two months.
The record also indicates that Ariea was adjudicated a child in need of assistance on March 12, 2004. Ariea remained in out-of-home placement for more than six months, beginning on February 9, 2004, and has not been returned to parental custody since that time. Jeffrey has failed to maintain any significant or meaningful contact with Ariea as those terms are defined in the foregoing statute. He has not attempted to remain in contact with the Department of Human Services worker or engage in any services provided by the department. The only evidence of Jeffrey's interest in the child is a letter to the trial judge. The court cannot excuse Jeffrey's failure to maintain meaningful contact with his daughter because he is incarcerated. In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct.App. 1994) (citing In re R.L.F., 437 N.W.2d 599, 602 (Iowa Ct.App. 1989)). "An incarcerated parent must take full responsibility for the conduct which has resulted in his confinement." In re J.L.W., 523 N.W.2d at 624. Like the trial court, we conclude that Ariea cannot be returned to Jeffrey's custody, and we affirm on this issue.
IV. Best Interests.
Even if the statutory grounds for termination of parental rights are established, the court need not terminate parental rights if such action is not in the children's best interests. In re M.M.S., 519 N.W.2d 398, 400 (Iowa 1994). Jeffrey faces several criminal charges in Kansas and Nebraska. There was a previous founded claim of child abuse concerning Jeffrey's child from a previous relationship on July 3, 2002 naming Jeffrey as the person responsible for Assault with Intent to Commit Sexual Abuse.
Jeffrey has not formed any bond with Ariea since she was removed from his custody by maintaining any contact with her. Additionally, Jeffrey has at least two more years to serve on his prison sentence. Ariea is at a critical age of bonding and she needs to have her needs put first. The DHS worker stressed that Ariea has the opportunity for a permanent placement with stability. DHS has emphasized that permanency is essential to Ariea because of her young age. In consideration of this evidence, the termination of parental rights was in the best interest of Ariea.
We, like the trial court, conclude termination of parental rights is in Ariea's best interest. We accordingly affirm the trial court's decision to terminate Jeffrey's parental rights.