Opinion
No. 4-163 / 03-1903
Filed March 24, 2004
Appeal from the Iowa District Court for Dubuque County, Jane M. Mylrea, Associate Juvenile Judge.
A father appeals from the order denying his private petition to terminate the parental rights of the mother of his five children. AFFIRMED.
Thomas Straka of Day, Hellmer Straka, P.C., Dubuque, for appellant.
Charles Pierce of Iowa Legal Aid, Dubuque, for appellee mother.
Todd Klapatauskas of Reynolds Kenline, L.L.P., Dubuque, guardian ad litem for minor children.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Steve S. appeals from the order denying his private petition to terminate the parental rights of Rebecca S., the mother of his five children. Concluding the juvenile court properly refused to terminate Rebecca's rights on grounds of abandonment and failure to support, we affirm.
Background Facts and Proceedings.
Steve and Rebecca were married on November 11, 1989, and had five children during the marriage: Matthew, born May 16, 1990, Tyler, born July 26, 1991, Zachery, born December 18, 1992, Nicholas, born August 29, 1994, and Kaitlyn, born August 27, 1996. Their marriage was dissolved in September of 1998. The decree granted Steve physical care of the children, but awarded Rebecca "reasonable visitation with the children on reasonable notice" to Steve. Rebecca was incarcerated from January of 2002 to January of 2003. Steve remarried in July of 2003.
On July 29, 2003, Steve filed a private petition to terminate Rebecca's parental rights to all five children. The children's guardian ad litem filed a report in which he recommended the juvenile court grant the petition to terminate Rebecca's parental rights. Following a trial, the court entered an order denying the request to terminate Rebecca's rights. It determined that Steve failed to prove either that Rebecca had "abandoned" the children or that Rebecca had failed to contribute support for the children, and had done so without good cause. Steve appeals from this order.
Scope and Standards of Review.
Private termination proceedings are reviewed de novo. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). Although we are not bound by them, we give weight to the district court's findings of fact, especially when considering the credibility of witnesses. Iowa R. App. P. 6.14(6)( f). The children's best interests are our paramount consideration. Iowa Code § 600A.1 (2003).
Abandonment.
Iowa Code section 600A.2(18) provides:
`To abandon a minor child' means that a parent . . . rejects the 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) (emphasis in original). Although "total desertion" is not necessary to establish abandonment, it does require clear and convincing evidence of the giving up of parental rights and responsibilities accompanied by an intent to forego them. See In re Goettsch, 311 N.W.2d 104, 106 (Iowa 1981). Moreover, parental responsibilities include more than subjectively maintaining an interest in a child. Id. The concept requires affirmative parenting to the extent it is practical and feasible in the circumstances. Id.
While we agree Rebecca unquestionably did not make the most of her allowable contacts with her children, the record does not reflect by clear and convincing evidence an intent to abandon them such that termination is appropriate. As the juvenile court noted, Rebecca exercised ten visits with the children between June of 1999 and December of 2000. Then, during her period of incarceration she had little contact, although she did claim to have sent letters and handmade cards to the children on various holidays and birthdays. Steve, however, disputes this claim, asserting he only received one card for one child during that period. Within one month of her release, Rebecca again sought to exercise visitation with the children. Although like before, her exercise of such visitation rights was irregular at best, she clearly did demonstrate some interest in re-acquainting herself with the children and demonstrating, in some manner, her parental role.
Steve also takes issue with the juvenile court's conclusion that it was improper for him to deny Rebecca access and legal visitation with the children and then claim her abandonment warrants termination. We note the record does support that Steve informed officials at the children's school that Rebecca was not to have contact with the children and that Steve did decrease, and eventually cut off, Rebecca's visitation with the children. We conclude that although these facts are not determinative of the issue, they certainly are factors the court properly considered in denying the termination request. However, we are careful to note that not all of Rebecca's parental inactivity can be attributed to Steve.
On our de novo review of the record, we do not find sufficient evidence to establish that Rebecca abandoned the children. While her parenting record is far from exemplary, it is not so lacking that we can say termination is appropriate on this ground.
Support.
Steve next sought termination under the authority of Iowa Code section 600A.8(5) which provides that a court may terminate a parent's rights where a "parent has been ordered to contribute to the support of a child . . . and has failed to do so without good cause." Our supreme court has concluded that the legislature intended termination for nonsupport to occur where a parent's failure to pay manifests indifference to a child and is therefore akin to abandonment. See Klobnock v. Abbott, 303 N.W.2d 149, 152 (Iowa 1981). The issue of whether nonpayment was without good cause focuses on the obligor's ability to pay. In re D.E.E., 472 N.W.2d 628, 630 (Iowa Ct.App. 1991).
Here, the record shows that although Rebecca clearly has amassed a very substantial child support payment arrearage, she nonetheless made some payments. As Rebecca notes, her pre-incarceration wages were garnished and throughout her incarceration half of her prison earnings were withheld for child support. In addition, Rebecca testified to her mental disabilities and recent reconstructive knee surgery that severely limited her ability to work and provide financial support for the children. She testified that she had applied for S.S.I. after her physician opined she is disabled from gainful employment.
As of the date of the termination trial, Rebecca's claim for S.S.I. benefits had not been granted.
Like the juvenile court, we cannot say Rebecca's child support arrearage rises to the level of an abandonment. See id. The record indicates that Rebecca's failure to comply with the child support order after her discharge from prison is substantially related to her mental and physical health problems rather than indifference to the children's welfare. Even the nominal amount of support paid by Rebecca may establish the intent to support her children. See In re R.K.B., 572 N.W.2d 600, 602 (Iowa 1998) (noting that, while petitioning parent need not show that obligor willfully failed to pay, obligor's intent is clearly tied to the ability to pay). We therefore affirm the juvenile court's refusal to order termination on this ground.
Best Interests.
Steve finally contends the juvenile court improperly failed to find termination was in the best interests of the children. Having already concluded in this opinion that the juvenile court correctly determined the asserted statutory grounds for termination were not met, we need not address this contention.