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In the Interest of K.C.L

Court of Appeals of Iowa
Feb 12, 2003
662 N.W.2d 374 (Iowa Ct. App. 2003)

Opinion

No. 2-937 / 02-0900

Filed February 12, 2003

Appeal from the Iowa District Court for Pocahontas County, James A. McGlynn, Associate Juvenile Judge.

A mother appeals from an order terminating her parental rights. AFFIRMED.

Gregory Stoebe of Stoebe Law Office, Humboldt, for appellant mother.

James McCarthy, Fort Dodge, for appellee father.

Dennis Fitzgerald of Crotty Fitzgerald, Pocahontas, guardian ad litem for minor child.

Considered by Vogel, P.J., and Zimmer and Hecht, JJ.


Tammy S. appeals from an order terminating her parental rights in an action brought under Iowa Code chapter 600A (2001). She contends: (1) she was entitled to court-appointed counsel and (2) the evidence was insufficient to find that she had abandoned her son, K.C.L. We affirm.

I. Background Facts and Proceedings.

Tammy and Lonnie L. are the biological parents of K.C.L., born in January 1996. The parties met at an establishment where Tammy was employed as an exotic dancer. They lived together from 1994 to 1996, but have never been married. When the parties separated in 1996, Tammy initially provided care for K.C.L.

In December 1996, Tammy was arrested for possession of marijuana. In January 1997, K.C.L. was adjudicated a child in need of assistance. The following March, the juvenile court transferred K.C.L.'s custody to his paternal aunt. The court's order was based on Tammy's failure to follow through with drug treatment. In 1998, custody was transferred to Lonnie and an order was entered requiring Tammy to pay child support.

In September 2001, Lonnie filed a petition seeking to terminate Tammy's parental rights. Tammy filed a pro se answer denying the petition. She sent several letters updating the court as to her address and status. Tammy participated in a trial setting conference on March 13, 2002 by phone. She never requested the appointment of counsel to represent her in this matter. Hearing on Lonnie's petition to terminate was held on May 17, 2002. Following hearing, the court terminated Tammy's parental rights after finding that she had abandoned K.C.L. pursuant to section 600A.8(3). Tammy was not present for the final hearing. The record reveals she had been arrested for possession of methamphetamine and public intoxication one day prior to the hearing and was in jail. She made no request to participate in the hearing by telephone and did not request any other accommodations be made. Tammy appeals from the termination of her parental rights.

II. Scope of Review.

The scope of review in termination cases is de novo. Iowa R.App.P. 6.4. Our primary concern is the best interests of the child. In re M.N.W., 577 N.W.2d 874, 875 (Iowa Ct.App. 1998). We look at both the child's long-range and immediate interests in making this determination. Id. We necessarily consider what the future likely holds for the child if returned to his or her parent. In re K.F., 437 N.W.2d 559, 560 (Iowa 1989) (citation omitted). "Insight for this determination can be gained from evidence of the parent's past performance, for that performance may be indicative of the quality of the future care that parent is capable of providing." Id. (citations omitted). The grounds for termination must be shown by clear and convincing evidence. Iowa Code § 600A.8.

III. Right to Counsel.

Chapter 600A does not provide a statutory right to court-appointed counsel for indigent parents. Tammy first alleges she was denied due process because she was not represented by counsel in the termination proceedings in district court. Tammy raises this issue for the first time on appeal. Generally, issues raised for the first time on appeal, even those of constitutional dimension, will not be considered. State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994). The reason for this rule is because the failure to make a challenge in a timely manner before the district court leaves nothing for the appellate courts to review. State v McCright, 569 N.W.2d 605, 608 (Iowa 1997). Tammy did not ask the court to appoint counsel for her while her termination case was pending. We find this issue has not been preserved for our review.

We recognize that Iowa Code chapter 232 calls for the furnishing of an attorney at public expense when requested by indigent parties. In the Matter of Jacobs, 309 N.W.2d 481, 484 (Iowa 1981). In addition, an indigent may have a constitutional right to court-appointed counsel in certain circumstances in proceedings to sever parental rights. See Lassiter v. Dep't of Social Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); see also In the Interest of J.L.L., 414 N.W.2d 133, 135 (Iowa 1987).

IV. Sufficiency of the Evidence.

Tammy contends there is insufficient evidence in the record to support the trial court's finding that she abandoned K.C.L. Upon de novo review of the record, we find clear and convincing evidence that Tammy abandoned K.C.L. under the terms of chapter 600A.

Chapter 600A provides a means for termination of parental rights upon the petition of a private individual, as opposed to an action initiated by the State. Compare Iowa Code § 600A.5 with Iowa Code § 232.111. Under the provisions of Chapter 600A, a parent, custodian, or guardian may petition a juvenile court for termination of parental rights. Iowa Code § 600A.5(1). Termination of parental rights is appropriate under this chapter where a parent has abandoned a child. Iowa Code § 600A.8(3). To establish abandonment it must be shown that the parent has rejected the duties imposed by the parent-child relationship. Iowa Code § 600A.2(18). Section 600A.2(18) explains that such rejection may be evidenced by "the person, while being able to do so, making no provision or making only marginal effort to provide for the support of the child or to communicate with the child." Id.

Upon de novo review of the record, we conclude Tammy has voluntarily abandoned K.C.L. within the meaning of Iowa Code section 600A.8(3). Tammy has maintained only sporadic contact with her son, failing to communicate with her child for over two years. She has provided no meaningful financial support for K.C.L. Tammy has a lengthy criminal record. She has been in and out of jails and prisons for the last several years and been unable to remedy her substance abuse problems. The record demonstrates she is both unprepared and unwilling to be a parent. She continued to commit criminal acts and use controlled substances even after learning Lonnie was requesting termination of her parental rights. The very day before the termination hearing, Tammy was arrested and jailed for possession of methamphetamine and public intoxication. By choosing to reject the responsibilities of parenthood, Tammy has now forfeited her right to reap the accompanying rewards. K.C.L. should not have to wait any longer for his mother to become a responsible citizen. Clear and convincing evidence supports Tammy's abandonment of K.C.L.

AFFIRMED.


Summaries of

In the Interest of K.C.L

Court of Appeals of Iowa
Feb 12, 2003
662 N.W.2d 374 (Iowa Ct. App. 2003)
Case details for

In the Interest of K.C.L

Case Details

Full title:IN THE INTEREST OF K.C.L., Minor Child, T.J.S., Mother, Appellant

Court:Court of Appeals of Iowa

Date published: Feb 12, 2003

Citations

662 N.W.2d 374 (Iowa Ct. App. 2003)