Opinion
No. 6-030 / 05-1037
Filed March 15, 2006
Appeal from the Iowa District Court for Webster County, James A. McGlynn, Associate Juvenile Judge.
A mother appeals the juvenile court order terminating her parental rights in a private termination proceeding under Iowa Code chapter 600A (2003). AFFIRMED.
Marcy Lundberg of Blake Parker Law Office, Fort Dodge, for appellant.
Kurt Pittner, Fort Dodge, for appellee father.
Vanessa Blanchfield, Fort Dodge, guardian ad litem for minor child.
Considered by Vogel, P.J., and Mahan, J. and Beeghly, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
Robert and Tamara are the parents of Gaige, who was born in 1997. A dissolution decree was entered for the parties in 2001, and Tamara was awarded physical care of Gaige. Tamara has a long-standing problem with compulsive gambling. She also suffers from severe depression. Tamara admitted that while Gaige was in her care he often heard her say that she wanted to die.
In order to finance her gambling, Tamara stole funds from the bank where she worked, and she was charged with several criminal offenses. Tamara pled guilty to felony theft and forgery offenses in March 2003. She was placed on probation and ordered to attend in-patient treatment. She completed an intensive in-patient treatment program in April 2003.
While Tamara was dealing with her criminal problems, Robert filed a petition to modify the custody provisions of the dissolution decree. On June 12, 2003, Tamara learned that her mother was going to testify against her at the modification hearing. Tamara became extremely distraught. She went to her boyfriend's home and took his rifle. She then called her mother and several other people, making statements that could be interpreted as threats to kill herself and Gaige. Tamara testified that she made these statements in an effort to gain attention and that she did not have any serious intention to harm herself or Gaige.
Gaige was removed from Tamara's care and placed with Robert. A no-contact order was entered on June 13, 2003, prohibiting Tamara from contacting Gaige. Tamara was charged with being a felon in possession of a firearm. Her probation was revoked and she was sentenced to serve time in prison. After six months her sentence was reconsidered and she was placed on probation for five years. The court specifically provided that the no-contact order would remain in effect as a condition of her probation, which ends in April 2009. Upon her release from prison, Tamara began attending individual therapy and aftercare meetings for her gambling addiction.
In November 2004, Robert filed a petition seeking to terminate Tamara's parental rights under Iowa Code chapter 600A (2003). The parties agreed that Gaige has behavioral problems and needs counseling. Robert presented evidence that Gaige fears Tamara and does not want to see her. Gaige's therapist, Candace Trenary, testified that it would be in Gaige's best interests to have no further relationship with his mother.
The juvenile court determined Tamara's parental rights should be terminated. The court found "Tammy has abandoned Gaige by virtue of the extended forced separation due to her criminal actions." The court also found termination was in Gaige's best interests, noting that "[h]is behaviors and statements show that he has been adversely affected by the mother's talk of suicide." The court noted that under the criminal no-contact order Tamara cannot have contact with Gaige until April 2009, and that to force a reintroduction of Tamara into his life at that time would be very traumatic for Gaige. Tamara appeals the termination of her parental rights.
II. Standard of Review
Private termination proceedings are reviewed to novo. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). The grounds to terminate parental rights under chapter 600A must be proven by clear and convincing evidence. Iowa Code § 600A.8. Although we are not bound by them, we give weight to the district court's findings of fact, especially when considering the credibility of witnesses. Iowa R. App. P. 6.14(6)( g).
III. Abandonment
Section 600A.8(3) was amended effective July 1, 2004. The applicable portion of the statute provides:
The petition in this case was filed on November 22, 2004, and so the amended provisions of section 600A.8(3) apply in this case.
If the child is six months of age or older when the termination hearing is held, a parent is deemed to have abandoned the child unless the parent maintains 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 as 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.
2004 Iowa Acts ch. 1010, § 2 (codified at Iowa Code § 600A.8(3)(b)). A parent's subjective intent, which is unaccompanied by the actions outlined above, does not preclude a finding of abandonment. Id. (codified at Iowa Code § 600A.8(3)(c)).
Abandonment under section 600A.8(3) is characterized by the action of giving up of parental rights and responsibilities, accompanied by a corresponding intent. In re N.D.D., 434 N.W.2d 919, 920 (Iowa Ct.App. 1988). A parent's incarceration cannot be used as a justification for the parent's lack of a relationship with a child. In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993). Similarly, a no-contact order is not an ironclad defense against an allegation of abandonment. In re D.J.R., 454 N.W.2d 838, 842 (Iowa 1990).
Although Tamara was current in her child support obligations, she had not visited Gaige, communicated with him, or lived with him for a period of two years prior to the termination hearing held in 2005. Furthermore, due to the no-contact order, she was prohibited from having any contact with him for an additional four years, until April 2009. Even if Tamara were able to have the no-contact order dropped sooner than April 2009, a substantial period of time will have passed while she has not been part of Gaige's life.
While Tamara may blame the no-contact order for her lack of participation in Gaige's life, as the juvenile court found, "the forced separation of the mother from the child is completely the fault and responsibility of the mother." Tamara's statements, while in possession of a firearm, were construed by her mother and Gaige as a threat against Gaige's life. Tamara's statements and actions resulted in the no-contact order, and because of this she has not maintained substantial and continuous or repeated contact with her child. We conclude there is clear and convincing evidence Tamara had abandoned Gaige under the terms of section 600A.8(3)(b).
On appeal, Tamara has claimed there was insufficient evidence she had ammunition for the gun. At the hearing she testified, "I took the clip out of the gun. I put the clip in my — my glove box in my truck and the gun in the back of my truck." From this testimony it is not clear whether there was ammunition in the clip. We note that Tamara did not testify the clip was empty. In any event, the important factor in this case is the effect her conduct had on Gaige. Gaige was traumatized whether or not she had ammunition for the gun.
IV. Best Interests
Tamara contends that it is not in Gaige's best interests to terminate her parental rights. She believes it would be helpful for Gaige to meet with her in a therapeutic setting so that he can work towards getting over his fear of her. She also points out that she can contribute towards Gaige's support, and has managed to become current on her child support since getting out of prison.
Gaige has serious behavioral problems. He has stated he is afraid of his mother and does not want to meet with her. Gaige's therapist stated she believed it would be in Gaige's best interests to have no further relationship with his mother. While Tamara could continue paying support for Gaige, at this point she is only paying fifty dollars per month, and Robert testified he could support Gaige without her assistance. Based on these factors, we conclude termination of Tamara's parental rights is in Gaige's best interests.
We affirm the decision of the juvenile court.