Opinion
No. 3-165 / 02-1586.
Filed May 29, 2003.
Appeal from the Iowa District Court for Boone County, STEVEN J. OETH, District Associate Judge.
Father appeals district court termination of his parental rights to his minor child. REVERSED.
Steven Nalean of Nalean Nalean, Boone, for appellant father.
Alan Schroeder of Schroeder Law Office, Boone, for mother.
Francis Baltimore of Doran, Anderson Baltimore, P.L.C., Boone, for minor child.
Heard by SACKETT, C.J., and HUITINK and VOGEL, JJ.
Scott appeals the district court's termination of his parental rights to his minor child, Kelsey. We reverse.
Background Facts. Kelsey was born to Misty and Scott on May 20, 1997. Scott was not supportive of Misty during her pregnancy and initially denied paternity. The couple was never married though they tried on two occasions to establish a home together after Kelsey was born. Their on and off relationship was stormy and largely unsuccessful, leading to their final separation in August 1999. By October 1999, Misty and Scott had an informal agreement as to visitation, which Scott exercised on a rather sporadic basis. After several months Misty began denying visits when she noticed Kelsey's extreme reluctance to see Scott. Although Misty asked Scott to participate in counseling she had arranged, he refused. Scott then filed a petition for visitation in August 2000. On April 4, 2001, Scott and Misty entered into a Consent Decree regarding visitation, and visitation resumed.
Misty and Scott also had an informal agreement for child support which was formalized by a court order in late 1997. Scott made the child support payments until March 2001 when he quit his employment. Non-payment continued through Scott's subsequent incarceration and resumed in July 2002. Misty petitioner to terminate Scott's parental rights on May 31, 2002, based on abandonment. The district court did not find Scott abandoned Kelsey prior to April 4, 2001, as the minimal visitation from August 2000 to April 4, 2001, was due in part to the pending hearing and Misty's interim denial of visits. However, the district court did find abandonment after April 4, 2001; therefore, we will focus primarily on the time period from April 4, 2001, to the date of the hearing on September 12, 2002. As stated above, Misty and Scott entered into a Consent Decree on April 4, 2001, granting Scott formal visitation. Scott missed the first visitation under the Consent Decree on April 7, 2001, because he was out of state and late in returning. The next three visits took place as scheduled. However the visits scheduled for May 5, May 10, and May 19, 2001, did not occur.
On May 21, Scott was arrested on drug-related charges and remained in jail until June 4. After his release, stating her concern for Kelsey, Misty refused to allow Scott to resume visitation. Misty filed an application for a restraining order; the order was denied. Misty continued to refuse visitation upon the advice of her attorney.
On August 14, 2001, Scott was again arrested on drug-related charges and remained in jail until October 26, 2001. Upon release, Scott entered a substance abuse treatment center. In November, prior his release, Scott called and talked with Misty at length on her cell phone but she refused to let him speak with Kelsey, then age four. Scott requested Misty bring Kelsey to a "family day" at the treatment center, but this too was refused. Scott further requested his court-ordered visitation for Thanksgiving as he would be released prior to the holiday. Again, Misty refused Scott's request for visitation. Scott was discharged from the treatment center on November 18, 2001. Scott tried to contact Misty on her cell phone but it had been disconnected. Scott testified he had no other way to contact Misty as her home number was unlisted.
On December 7, 2001, Scott violated his probation and was again arrested, remaining in jail until June 11, 2002. Misty filed a petition to terminate Scott's parental rights on May 31, 2002. Scott resisted and on July 9, 2002, filed an application for visitation which was dismissed for lack of jurisdiction. Upon release from jail, Scott entered a residential facility until August 28, 2002.
At the time of the September 12, 2002, hearing, Scott had not seen Kelsey since May 20, 2001. The district court found Scott abandoned Kelsey after April 4, 2001. The district court further found that terminating Scott's parental-relationship would be in the best interests of Kelsey. Scott appeals.
Scope of Review. We conduct a de novo review of termination decisions. Iowa R.App.P. 6.4; In Interest of N.D.D., 434 N.W.2d 919, 920 (Iowa Ct.App. 1988); In re Kelley, 262 N.W.2d 781, 782 (Iowa 1978). The grounds for termination must be established by clear and convincing evidence. Iowa Code § 600A.8; In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993); N.D.D., 434 N.W.2d at 919. Our overriding concern in such cases is the best interests of the minor child. In re Goettsche, 311 N.W.2d 104, 105 (Iowa 1981).
Discussion. Iowa Code section 600A.2(18) defines abandonment as follows:
a parent . . . rejects duties imposed by the parent-child relationship, . . . which may be evinced by the person, while being able to do so, making no provision or making only a marginal effort to provide for the support of the child or to communicate with the child.
Iowa Code § 600A.2(18) (2001). Termination for abandonment requires clear and convincing proof the parent relinquished his parental rights and responsibilities accompanied by an intent to forgo them. Iowa Code § 600A.8; Goettsche, 311 N.W.2d at 106. "The giving up of parental rights and responsibilities refers to conduct. The intent element relates to the accompanying state of mind." Id. Parental responsibility demands more than merely maintaining a subjective interest in the child, but requires affirmative parenting to the extent it is practicable and feasible under the circumstances. Id. Abandonment does not require total desertion. Id. at 105; see also Iowa Code § 600A.2(18).
Scott asserts he did not abandon Kelsey but rather Misty used the circumstances after April 4, 2001, including his incarceration, to deny Scott any contact with his daughter. Scott admits missing a few visitations but claims that his minimal contact with Kelsey was not for lack of effort but was a direct result of Misty's obstruction.
Misty contends she was afraid to allow contact between Scott and Kelsey as Scott was arrested on drug-related charges twice and violated his probation resulting in his incarceration off and on over the seventeen-month period between April 4, 2001, and September 12, 2002. Prior to this time period, when she did allow Scott to visit Kelsey the visits were sporadic and lasted only for a few hours. Misty also argues, and we agree, Scott may not use his incarceration as an excuse for not maintaining a relationship with Kelsey. See In re J.S., 470 N.W.2d 48, 49 (Iowa Ct.App. 1991). During Scott's time in jail, he did not write or call Kelsey except for one phone call in November of 2001 in which Misty did not allow Scott to speak with Kelsey. He did, however, ask Misty to bring Kelsey to the treatment facility for a "family day" and requested his Thanksgiving visitation when he was furloughed. Both were rebuffed by Misty.
Guardian ad litem's position. The guardian ad litem filed a brief in this appeal stating it was his belief that abandonment was not established by clear and convincing evidence. The guardian ad litem acknowledged Misty's "propensity to cut off visitation at her discretion" and Scott's efforts to continue contact with Kelsey. While the guardian ad litem was not convinced of abandonment on these facts, he did believe termination of the parent-child relationship to be in the best interests of Kelsey. The guardian ad litem's brief further discussed Kelsey's current home situation. Misty is now married to Greg Wisecup, and the couple has a child of their own. The home is stable and Greg has become a father-figure to Kelsey. If the termination is affirmed, Greg plans to adopt Kelsey. We acknowledge the efforts put forth by Greg in establishing a safe and stable home for Kelsey although it does not bear on whether Misty has carried her burden to establish Scott has abandoned Kelsey.
The district court based its determination to terminate Scott's parental rights on his drug-related arrests and resulting incarceration and separation from Kelsey. The court stated it was "not impressed with Scott's conduct relative to maintaining a relationship with Kelsey while he was incarcerated or in treatment."
We think it is important to note that Scott has at least sporadically attempted to build a relationship with his daughter. He paid child support when capable, $19,684 as of September 12, 2002, in part voluntarily and in part through mandatory wage withholdings. When Scott was residing in a half-way house in July 2002, he was working and paying child support once again. Scott has taken steps to gain visitation rights through court intervention on two occasions. Even though Scott was incarcerated several times during the seventeen-month period under review, he still put forth some effort to maintain a relationship with Kelsey.
We appreciate Misty's fears concerning Kelsey's visitation with Scott after he was arrested on drug-related charges. While we are mindful of Misty's position that she was trying to protect her child from a drug entangled father, her actions resulted in obstructing Scott's ability to maintain a relationship with his child. We cannot find the elements of abandonment are satisfied when Scott put forth an effort to maintain his relationship with Kelsey. While Scott made some very poor judgments resulting in his incarceration and consequent separation from his daughter, we agree the record lacks the statutory proof of clear and convincing evidence of abandonment.