Opinion
No. 1-879 / 01-1103
Filed February 20, 2002
Appeal from the Iowa District Court for Woodbury County, Mary L. Timko, District Associate Judge.
The father appeals the termination of his parental rights. REVERSED.
Douglas L. Roehrich, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Charles K. Phillips, Assistant Attorney General, Thomas Mullin, Woodbury County Attorney, and Dewey Sloan, Assistant County Attorney, for Appellee-State.
John Polifka, Sioux City, for minor child.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
Matthew, the father of Grace, appeals the termination of his parental rights. He claims the evidence does not support the grounds cited by the juvenile court for termination and termination of his parental rights is not in Grace's best interest. The State supports the juvenile court's decision on appeal, but argued against termination of Matthew's parental rights in the juvenile court. We reverse the decision of the juvenile court.
Matthew and Molly were married when Grace was born in May 1998. Their marriage was dissolved in May of 2000. Molly was granted sole custody, and Matthew was denied visitation. He was ordered to pay child support. The petition to terminate only Matthew's parental rights was filed in December of 2000. The juvenile court terminated Matthew's parental rights under Iowa Code sections 232.116(1)(c), (d), and (g) (1999) by order filed June 18, 2001.
Our review of termination proceedings is de novo. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). The State has the burden to prove the allegations by clear and convincing evidence. In re B.B., 598 N.W.2d 312, 315 (Iowa Ct. App. 1999).
Grace was found to be a child in need of assistance in 1998. She had been admitted to a hospital and found to have a displaced femur fracture, short and spiral in nature, and multiple healing fractures at the costovertebral junction. Matthew admitted he accidentally was rough in changing Grace's diaper. Matthew and Molly denied there was any domestic abuse in their relationship. Grace spent seven days in the hospital and was released to her maternal grandmother. The parents contended that neither parent was responsible for the injuries their daughter received. Matthew subsequently was the named perpetrator in a founded physical abuse report. The report indicated Matthew acknowledged causing the fracture of the femur by pulling on Grace's leg while changing a diaper and handling Grace in a rough manner.
Following a hearing in July 1998, Grace was removed from her parents' care pending an adjudicatory hearing in August. She was placed with her maternal grandmother. In July a no-contact order against Matthew was issued after he assaulted Molly. In September 1998 Grace was found to be a child in need of assistance and returned to her mother's care so long as Grace and Molly lived with Molly's parents, Grace's maternal grandparents. Matthew was charged with felony child endangerment. He pled to and was found guilty of a reduced charge of child endangerment without serious injury, an aggravated misdemeanor. He served thirty days in jail. He completed a batterer's program. Subsequent review orders continued Grace's placement with Molly so long as Molly and Grace lived with Molly's parents. Molly and Matthew were both provided services. Matthew was given supervised visitation with Molly at the discretion of the Department of Human Services.
On October 31, 1999 Matthew wanted to take Grace trick or treating. He became angry after Molly refused his request and told him she intended to seek a dissolution of their marriage. The Department of Human Services at this point terminated Matthew's visitation and also appears to have terminated services for Matthew. This happened despite the fact that the social worker from the Crittenton Center who was working with Matthew was of the opinion he was making progress and that his services should not be discontinued.
Molly filed for a dissolution of the marriage. After the permanency review hearing in December 1999, the juvenile court ordered that Matthew be enrolled in a nurturing program and ordered that Molly and Matthew be allowed to concurrently litigate the issues of permanent custody, child support and visitation in district court, and that the county attorney initiate proceedings to terminate Matthew's parental rights.
The State filed a resistance to the order to initiate termination proceedings, contending termination would not serve Grace's welfare because the dissolution decree would give Molly sole custody and termination would eliminate Grace's rights and financial interest in any inheritance, windfall or estate of her father. Molly did not agree with the State's position, contending the dissolution decree did not provide adequate protection, she did not intend to rely on Matthew's financial support, and he had not provided financial support for Grace during the bulk of her life.
On April 7, 2000 the juvenile court ordered, "that the County Attorney's office initiate termination of parental rights proceedings as it relates to Matthew and Grace." The court ordered that the matter come on for review on October 2, 2000. On September 14, 2000, Molly filed a motion for a rule to show cause asking that the Woodbury County Attorney be found in contempt of court for failing to file a termination petition. The matter came on for hearing on the issue of the county attorney's contempt. The court found the marriage had been dissolved on May 8, 2000, the sole custody of Grace was placed with Molly, Matthew was given no visitation, and Matthew was ordered to pay child support of $272 a month. The juvenile court found the county attorney was required to follow its order to file a termination. The child's guardian ad litem appeared at the hearing but presented no evidence. The juvenile court confirmed the earlier directive to initiate termination proceedings and fined the county attorney's office $500 for contempt, which could be purged by filing a petition to terminate Matthew's parental rights.
The issue of whether the county attorney was in contempt of court is not an issue before us and is not addressed. We are, however, aware of Iowa Code section 232.111 which provides in applicable part:
1. A child's guardian, guardian ad litem, or custodian, the department of human services, a juvenile court officer, or the county attorney may file a petition for termination of the parent-child relationship and parental rights with respect to a child.
2. a. Unless any of the circumstances described in paragraph "b" exist, the county attorney shall file a petition for termination of the parent-child relationship and parental rights with respect to a child or if a petition has been filed, join in the petition, under any of the following circumstances:
. . .
b. If any of the following conditions exist, the county attorney is not required to file a petition or join in an existing petition as provided in paragraph "a":
(1) At the option of the department or by order of the court, the child is being cared for by a relative.
The termination petition was filed in December 2000. The county attorney's office, which was representing the State, continued to take the position that parental rights should not be terminated.
The juvenile court terminated Matthew's parental rights finding he had a "temper control problem" and his attending a batterer's education program did not alleviate it. The juvenile court specifically found,
The State argued that there was no evidence that the child could not be returned to Matthew's care at this time. On the contrary, evidence does exist that there is no relationship between Matthew and Grace, that he has failed to support the child financially and that he has not demonstrated that he has made substantial changes in his ability to parent Grace since her removal from his and Molly's care. On the other hand, there is clear and convincing evidence that Matthew has done little to foster a place of importance in Grace's life or engage in any affirmative parenting within the confines of the court orders. The record is clear that the avenue was open to Matthew and he did not take the first step.
Matthew claims the statutory grounds for termination cited by the juvenile court are not supported by clear and convincing evidence. Specifically, he contends Iowa Code section 232.116(1)(c) does not apply because he and Molly are divorced, she has sole custody, he has no visitation rights, and that the circumstances leading up to the emergency room visit and the finding that Grace was a child in need of assistance no longer existed at the time of the hearing. Matthew contends section 232.116(1)(d) does not apply because he was ostracized by the Department of Human Services and they did not provide services to him after October 31, 1999. Matthew also advances that the fact Molly has sole custody under the dissolution decree supports his contention the statutory requirement for his making a reasonable effort to resume care of Grace "doesn't apply to the facts of this case." Matthew also contends section 232.116(1)(g) does not apply "because Grace is living in the home of one of her parents." Finally, Matthew contends that even if statutory grounds for termination exist, termination is not in Grace's best interest, but is only for Molly's convenience.
Matthew challenges all three grounds cited by the juvenile court for terminating his parental rights. When a juvenile court terminates a parent's rights on more than one statutory ground, we need only find grounds to terminate parental rights under one of the sections cited by the court to affirm the termination. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct. App. 1996).
Iowa Code section 232.116(1)(c)(2) requires in part that "the parents were offered or received services to correct the circumstances which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services." Iowa Code § 232.116(1)(c)(2). Matthew argues that because he does not live with Molly and Grace and does not have custody or visitation, "the circumstances leading up to the emergency room visit and the adjudication" no longer exist. The circumstances that resulted in Grace being found to be a child in need of assistance were not only Matthew living with his family and seeing his daughter, they were also his angry responses to stress and his unrealistic expectations of Grace.
Although Matthew did not totally comply with the case permanency plan and services provided, and did not pay all the child support as ordered, the Department of Human Services did not assist Matthew in reestablishing visitation with Grace after October 31, 1999. Nor did they follow his social worker's recommendation that he should continue to receive services.
Matthew was ordered to pay monthly child support of $272 beginning June 1, 2000. The decree of dissolution provided an income withholding order "may" be entered ex parte. It is not clear if such an order was entered. As of February 2001 Matthew had paid the support ordered only in June, July, August, and September 2000. If he did not pay any between February and June, when the termination order was entered, he would have been in arrears in the amount of $2720. There is a record of his paying child support of $275 in April 2000 and $272 in May 2000, prior to the effective date in the decree of dissolution. These payments were probably made under a temporary support order. The total support he paid according to the February 2001 printout from the clerk's office was $1907.
Matthew and his attorney made unsuccessful attempts to get the Department of Human Services to provide services so Matthew could resume visitation. There is merit in Matthew's assertion that the department did not provide services. The county attorney trying the case before the juvenile court was critical of the Department for that omission.
Matthew also claims he "made every attempt to maintain significant and meaningful contact" with Grace. He contends the no-contact order, the dissolution of his marriage to Molly, the loss of legal custody of Grace, and the termination of services by the Department of Human Services support his argument that the requirements of Iowa Code section 232.116(1)(d) don't apply in this case.
Because we decide this case on different grounds, we find it unnecessary to decide whether the State proved either of these two grounds for termination by clear and convincing evidence.
Matthew claims the statutory requirement in Iowa Code section 232.116(1)(g)(4) (child cannot be returned to the custody of the child's parents) cannot apply to the facts of this case because Grace "is living in the home of one of her parents." In Iowa a non-custodial parent's rights may be terminated even if the child is living with the other parent. In re N.M., 491 N.W.2d 153, 155 (Iowa 1992); In re C.W., 554 N.W.2d 279, 282 (Iowa Ct. App. 1996). However, the default decree of dissolution awarded sole custody of Grace to Molly. We conclude the juvenile court's grant of concurrent jurisdiction to the district court for the dissolution proceedings effectively eliminated this section from application to the circumstances of this case.
Matthew claims, even if statutory grounds exist to terminate his parental rights, it is not in Grace's best interest to do so. See In re M.S., 519 N.W.2d 398, 400 (Iowa 1994) (holding that even if statutory grounds for termination exist, the decision to terminate must still be in the best interest of the child). When addressing this issue we look to both the immediate and long-term interests of Grace. See In re M.T., 613 N.W.2d 690, 691 (Iowa Ct. App. 2000).
Matthew has no set visitation with Grace and cannot visit the child without obtaining a court order allowing it. The decree ordered Matthew to pay child support. Grace has a right to financial support from both of her parents. Molly advances she does not intend to rely on support from Matthew for Grace and that she is financially supported by her parents. There is no indication in the record Grace was receiving financial support from the State at the time of the termination order. While we applaud the dedication of Molly and her parents toward Grace and their willingness to support her, we cannot assume, nor does this record prove, that they will have the ability to support her to her majority and provide her with assistance for further education. These are obligations Matthew is and can be further ordered to supply under the dissolution decree. Terminating Matthew's parental rights under the current status of Iowa law terminates Matthew's support obligation. We are unable to find that terminating Matthew's parental rights provides any more protection for Grace than the custody and visitation provisions of the dissolution decree. Although we recognize, as Molly argues, Matthew could seek to modify the decree or to obtain a court order granting visitation, to do so he would need to show both a change of circumstances and his ability to assure Grace's safety. To modify, the court would act to insure Grace's safety before making any changes. We note Molly can also seek modification to increase support which could inure to Grace's benefit.
Terminating Matthew's parental rights eliminates Grace's right to support or any prospective inheritance, windfall, or estate from Matthew. The State on appeal contends this is an inadequate reason not to terminate. The fact that support would be cut off by termination is an inadequate reason, by itself, to refuse to terminate parental rights. See In re L.S., 483 N.W.2d 836, 840 (Iowa 1992). Termination also cuts the paternal grandparents off from any relationship with Grace. We find under these circumstances that termination is not in Grace's best interest. She has a right to support from Matthew and to know her extended family. See In re Yardley, 149 N.W.2d 162, 167, 260 Iowa 259, 268 (1967); State ex rel. Perkins v. Perkins, 325 N.W.2d 764, 766 (Iowa Ct. App. 1982). We find no compelling reason to terminate Matthew's parental rights under the circumstances before us. See Alsager v. Dist. Ct., 406 F. Supp. 10, 23 (S.D.Iowa 1975) (holding "the State must show that the consequences, in harm to the children, of allowing the parent-child relationship to continue are more severe than the consequences of termination").
We find, under the circumstances of this case, that termination is not in Grace's best interest. Accordingly, we reverse the juvenile court's termination of Matthew's parental rights.
REVERSED.
Mahan, J. dissents.
I respectfully dissent. I would affirm the juvenile court.