Opinion
No. 2-038 / 01-1226.
Filed March 13, 2002.
Appeal from the Iowa District Court for Polk County, DARRELL J. GOODHUE, Judge.
A mother appeals the termination of her parental rights to her child. AFFIRMED.
Michael Miller, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Mary Pippin, Assistant Attorney General, and Bret Lucas, Assistant County Attorney, for appellee-State.
John Swartz, Urbandale, for father.
Kimberly Ayotte of the Youth Law Center, Des Moines, for minor child.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
The mother appeals a juvenile court order terminating her parental rights to her child. She contends the evidence fails to support termination under Iowa Code section 232.116(1)(b) (1999). She also contends the juvenile court should have applied the exception to termination under section 232.116(3)(a). Finally, she contends she was denied due process of law when the court refused to allow her to participate in the termination hearing by phone. We affirm.
I. Background Facts and Proceedings .
Tonya is the mother of Isaiah, born on June 22, 1998. In December 1999, Isaiah was placed with his great-aunt, Penny, in Iowa after his mother was arrested and incarcerated in Arizona. Tonya signed a six-month "Power of Attorney and Delegation of Parental Powers" giving Penny authority concerning Isaiah. Tonya was convicted and incarcerated in Arizona on charges of forgery and aggravated robbery.
After her power of attorney expired, Penny was unable to get Tonya's authorization to obtain medical coverage for Isaiah. In December 2000, Isaiah was adjudicated to be a child in need of assistance under section 232.2(6)(j) (the child involved is without a parent, guardian or other custodian). The court ordered Isaiah to remain with his great-aunt and her husband under the supervision of the Department of Human Services.
Meanwhile, things were not going well for Isaiah's parents in Arizona. Following Tonya's convictions, she was in jail for a few months and then placed in a work-release program, from which she absconded. She was incarcerated again until October 2000, when she was released. While incarcerated, she had some phone contact with Isaiah through Penny. Following her release, Tonya did not contact Penny or provide her with information concerning her whereabouts. She did not visit Isaiah. Tonya violated the conditions of her parole and was incarcerated again.
In March of 2001, the State filed a petition to terminate the parental rights of Isaiah's mother and father. When the termination petition was filed, both Tonya and Isaiah's father, Leslie, were incarcerated in Arizona. Prior to the termination hearing, Tonya filed a motion to participate in the hearing by telephone. The juvenile court denied her motion after finding it lacked the necessary facilities and equipment to grant the request. After a termination hearing in May 2001, the juvenile court terminated Tonya's parental rights under section 232.116(1)(b). The court also terminated the parental rights of Isaiah's father. Tonya filed a notice of appeal. Isaiah's father did not appeal the termination of his parental rights.
II. Scope of Review .
Termination proceedings are reviewed de novo. Iowa R. App. P. 6.4; In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Although they do not bind us, we give weight to the juvenile court's findings of fact, especially when considering credibility of witnesses. Id. The primary interest in termination proceedings is the best interests of the child. Id. The State has the burden to prove the allegations of the petition by clear and convincing evidence. See Iowa Code § 232.116.
III . Termination of Parental Rights .
The court terminated Tonya's rights pursuant to section 232.116(1)(b). That section provides the court may order termination of parental rights if the court finds there is clear and convincing evidence that the child has been abandoned or deserted.
Iowa Code section 232.2 provides as follows:
Definitions.
As used in this chapter unless the context otherwise requires:
1. "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.
* * *
14. "Desertion" means the relinquishment or surrender for a period in excess of six months of the parental rights, duties, or privileges inherent in the parent-child relationship. Proof of desertion need not include the intention to desert, but is evidenced by the lack of attempted contact with the child or by only incidental contact with the child.
Two elements must be shown to establish abandonment: conduct that involves giving up parental rights and responsibilities, and the intent to forgo parental rights and responsibilities. Affirmative parenting is required to the extent practical and feasible. This affirmative duty requires a continuing interest in the child and a genuine effort to maintain communication and association with the child. Parental responsibility includes more than maintaining subjective interest in a child. In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981). Total desertion is not required to prove abandonment. In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993).
At the time the termination hearing was held, Isaiah had not seen his mother for seventeen months. During those seventeen months, Tonya did not provide financial support for Isaiah and maintained only incidental phone contact with him. The "Power of Attorney and Delegation of Parental Powers" Tonya signed in December of 1999 was only effective for six months. After the power of attorney expired, Tonya did not execute another one until March 2001. Tonya chose to engage in criminal activity, abscond from the halfway house where she was placed, and violated the terms of her probation. As a result, she was still incarcerated when the termination hearing was held. Her renewed interest in her son is insufficient to overcome the clear and convincing evidence that she relinquished her parental duties to Isaiah and intended to leave his parenting to others. We conclude the requirements of section 232.116(1)(b) have been met.
IV. Section 232.116(3)(a) Argument .
Section 232.116(3)(a) provides that the court need not terminate parental rights if a relative has legal custody of the child. A termination, otherwise warranted, may be avoided under this section. In re D.E.D., 476 N.W.2d 737, 738 (Iowa Ct. App. 1991). The exceptions to termination set forth in section 232.116(3) have been interpreted by the courts as permissive, not mandatory. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct. App. 1993). The words "need not terminate" are clearly permissive. Id. The court has discretion, based on the unique circumstances of each case and the best interests of the child, whether to apply the factors in this section to save the parent-child relationship. Id.
After careful review of the record, we conclude Tonya's parental rights should be terminated, and we decline to apply the exception. We conclude the juvenile court properly exercised its discretion in this case. At the time of the termination hearing, Isaiah had been living outside his mother's home for more than half of his life. The record indicates Tonya would remain incarcerated for at least another seven months following the termination hearing. Isaiah deserves the permanency which termination of his parental rights can provide. He has waited long enough for his parents to provide him with a safe and stable home. We conclude termination was clearly in his best interest. Accordingly, we affirm the juvenile court's order.
V. Due Process Claim .
Tonya's final contention is that her right to procedural due process was violated by the juvenile court's denial of her motion to participate in the termination hearing by telephone and also by the denial of her motion for continuance. Tonya was imprisoned in Arizona when the petition to terminate was filed. She remained incarcerated at the time of the termination hearing. The juvenile court denied her motion to participate in the hearing by telephone because it found it lacked the necessary facilities and equipment to grant her request.
Due process requires fundamental fairness in judicial proceedings. In re J.S., 470 N.W.2d 48, 52 (Iowa Ct. App. 1991). Tonya received notice of the petition and hearing. She was represented by counsel. Her counsel was present at the termination hearing. In ruling on Tonya's motion, the juvenile court found she had the opportunity to present testimony by deposition. We conclude Tonya was not deprived of fundamental fairness in these proceedings. See id.
AFFIRMED.