Opinion
No. 3-697 / 03-1313
Filed October 15, 2003
Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge.
A putative father appeals a juvenile court order terminating his parental rights to one child. AFFIRMED.
Edward Bull, Des Moines, for appellant-father.
Brad Schroeder, Des Moines, for appellee-mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Jon Anderson, Assistant County Attorney, for appellee-State.
Karl Wolle, Des Moines, guardian ad litem for minor child.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Harry is the putative father, and Angele, the mother, of Calvin, born September 22, 2002. Harry appeals from a July 22, 2003 juvenile court order terminating his parental rights to Calvin pursuant to each of the following statutory provisions: Iowa Code sections 232.116(1)(b), (d), (e), and (h) (2003). We affirm.
The juvenile court also terminated Angele's parental rights. Angele consented to termination and does not appeal.
We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
Harry and Angele lived together for some four to five months during which Angele became pregnant with Calvin. Harry was aware Angele was pregnant, Angele told Harry he was the father, and Harry believed he was the father. Harry later moved out. Angele was still pregnant when Harry last saw her. Harry was in jail when Calvin was born. He was later released from jail, but then was still later arrested again and has been in jail or prison since early 2003.
Calvin was removed from Angele's physical custody on September 24, 2002, two days after his birth, while Angele and Calvin were still in the hospital. He was removed because Angele is "severely delayed," lacks all insight necessary to parent, and does not possess the ability to take care of herself, much less take care of a special needs child such as Calvin is. Calvin has remained in foster care since his removal.
After Harry moved away from Angele he did not contact her or inquire about her pregnancy or Calvin's birth. On January 28, 2003, while Harry was in the Polk County Interim Jail, he was served with an original notice, petition, and notice of hearing in the child in need of assistance (CINA) case. He did nothing.
Harry was convicted of robbery in the second degree and sentenced to a ten-year term of imprisonment. While at the Iowa Medical and Classification Center in Oakdale in May 2003 he was served with an original notice and petition in this proceeding. On May 27 he wrote a "to whom it may concern" letter, opposing termination of his parental rights.
Calvin is a "high needs" infant. He has special medical needs as a result of drug effects he suffered at birth, birth defects, and being prone to asthma and respiratory problems. He is extremely susceptible to illness. As of early 2003 he had suffered three major illness of ten to fourteen days each in the immediately preceding two and one-half months, and had been sick more than one-half of the days in that time period.
Harry has never seen Calvin. He has apparently never communicated with Angela concerning Calvin or provided any support for him. He has no knowledge of or ability to deal with Calvin's medical problems and needs. He is required to serve seventy percent of his indeterminate ten-year sentence before being eligible for parole or release. His tentative discharge date is in the year 2011. At the time of the termination hearing he was confined at the Anamosa State Penitentiary, from where he participated by telephone. He acknowledges that due to his incarceration he is unable to provide and care for Calvin. He recently discovered information that leads him to believe he is in fact not Calvin's father. He nevertheless opposes termination of any parental rights to Calvin that he might have.
Harry contends the State failed to prove by clear and convincing evidence each of the four statutory grounds pursuant to which the juvenile court terminated his parental rights. We address two of the four grounds.
The juvenile court may order termination if it finds the parent has abandoned the child. Iowa Code § 232.116(1)(b). Section 232.1(1) provides:
"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.
Abandonment is "a giving up of parental rights and responsibilities accompanied by an intent to forego them." In re D.M., 516 N.W.2d 888, 891 (Iowa 1994) (quoting In re Burney, 250 N.W.2d 322, 324 (Iowa 1977)). Giving up parental rights and responsibilities refers to conduct, and the intent element refers to the accompanying state of mind. Id.
[P]arental responsibilities include more than subjectively maintaining an interest in a child. The concept requires affirmative parenting to the extent it is practical and feasible in the circumstances. See In re J.L.Z., 492 Pa.7, 421 A.2d 1064, 1064-65 (1980) ("This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child . . . . Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child's life.").
In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981).
Harry has never had any contact, communication, or association with Calvin. He has provided no financial or emotional support for him. Until the State sought termination of any parental rights he might have to Calvin he at no time did anything to demonstrate any desire or intent to assert any rights to Calvin or undertake or carry out any responsibilities toward him. We conclude the State proved by clear and convincing evidence that Harry abandoned Calvin and affirm on this issue.
Harry contends the State failed to prove by clear and convincing evidence the fourth element necessary for termination under section 232.116(1)(h), that Calvin cannot be returned to the custody of his parents as provided in section 232.102 at the present time. A child cannot be returned to the parent under section 232.102 if by doing so the child would be exposed to any harm amounting to a new CINA adjudication. In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). "The threat of probable harm will justify termination, and the perceived harm need not be the one that supported the child's initial removal from the home." Id.
Harry has no knowledge of or ability to deal with Calvin's medical needs. If placed in Harry's custody Calvin would be subject to a new CINA adjudication pursuant to both section 232.2(6)(e) (child in need of medical treatment to cure or alleviate serious physical injury or illness and whose parent is unable to provide such treatment) and section 232.2(6)(n) (child whose parent's imprisonment results in child not receiving adequate care). As a practical matter, because of Harry's imprisonment he is in fact simply unable to assume physical custody of Calvin, whether with or without Calvin being subject to adjudicatory harm. We conclude the State proved by clear and convincing evidence that Calvin cannot be placed in Harry's custody at the present time and affirm on this issue.
Having found termination was appropriate pursuant to each of two statutory provisions, we need not determine whether it was also appropriate under the other two provisions upon which the juvenile court also relied. See In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996) (holding that we only need to find grounds to terminate under one of the statutory provisions relied on by the district court in order to affirm).