Opinion
No. 3-321 / 02-1085.
Filed July 23, 2003.
Appeal from the Iowa District Court for Webster County, James A. McGlynn, Associate Juvenile Judge.
The mother of three children seeks to terminate the father's parental rights to those children. AFFIRMED.
Jeffrey Lipman of Lipman Law Firm, P.C., Des Moines, for appellant-father.
James McCarthy, Fort Dodge, for appellee.
Rebecca Hanson, Fort Dodge, for minor child.
Considered by Harris, Snell, and Brown, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
The mother of three children seeks to terminate the father's parental rights to those children. She alleges the father has abandoned the children and inexcusably failed to support them. We find both grounds are supported by the evidence and therefore affirm the juvenile court's order terminating the father's parental rights.
I. Background and proceedings.
The petitioner, Dawn, is the biological mother of the three children: A.M.M., age ten; M.M.M., age seven, and C.B.M., age four. The respondent, Michael, is the biological father of M.M.M. and C.B.M. and the adoptive father of A.M.M. They lived together as a family until July 1999. Dawn discovered Michael masturbating in the presence of A.M.M. and took the children from the home to her parents. She reported the incident to the Iowa Department of Human Services (DHS). A child abuse investigation resulted in a founded report of sexual abuse by Michael with A.M.M. as the victim. In November 1999, following further investigation by law enforcement, Michael was charged with several sex offenses. He ultimately pleaded guilty to one count of sexual abuse in the third degree, in which A.M.M. was the victim, and was sentenced to an indeterminate ten years in prison. He is presently incarcerated at the Mt. Pleasant Correctional Facility.
Dawn and Michael are now divorced. She has sole custody of the three children. She has been living with Richard R. They have discussed marriage, but Dawn is hesitant. Richard has a good relationship with the children and would like to adopt them should he and Dawn eventually marry.
Michael has been ordered to pay child support, but has paid none. He has been in jail or prison since charges were filed, and consequently lost his job.
Since his incarceration, Michael has sent birthday cards to the children and has tried to contact them by phone. Dawn has not allowed the children to have the cards and does not accept the telephone calls. Michael sent Christmas gifts through a church group, which the children received.
Michael testified his estimated release date is July 2004 and that he will not be eligible for parole earlier than that. He has neither requested nor received any sexual abuse offender counseling or treatment. Michael now claims he will undertake sexual offender treatment at some time during his present prison term. He will not be eligible for parole until he participates in a sex offender program. Further, he pleaded guilty to a sexual abuse criminal offense about ten years ago involving a child of about the same age as A.M.M. and served some three years in prison. He refused to participate in sex offender treatment at that time.
Dawn commenced this action under Iowa Code chapter 600A (2001), alleging abandonment and lack of support as bases for termination. A guardian ad litem was appointed for the children. Her recommendation to the court was that Michael's parental rights be terminated. Michael has resisted the termination, claiming Dawn has failed to establish either that he has abandoned the children, in view of his continuing, mostly frustrated efforts to have contact with them, or that he has the ability to pay support due to his incarceration. The trial court, however, found both grounds had been established and this appeal by Michael followed.
II. Standard of review.
We review termination of parental rights cases de novo. In re S.J., 620 N.W.2d 522, 524 (Iowa Ct.App. 2000). Although not bound by the trial court's fact findings, we give them considerable weight in determining issues of credibility. In re Estate of Rutter, 633 N.W.2d 740,746 (Iowa 2001).
III. Discussion.
Iowa Code section 600A.8 provides:
The juvenile court shall base its findings and order under section 600A.9 on clear and convincing proof. The following shall be, either separately or jointly, grounds for ordering termination of parental rights:
. . . .
3. A parent has abandoned the child.
. . . .
5. A parent has been ordered to contribute to the support of the child . . . and has failed to do so without good cause.
Although the parent-child relationship is of constitutional dimension and strongly protected, In re R.K., 649 N.W.2d 18, 20 (Iowa Ct.App. 2002), it may be forfeited when the best interests of the child require it. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). Parental termination procedures are designed to be preventative as well as remedial so that precluding future harm is a legitimate goal, id., and a parent's past performance may provide valuable insight into what is likely to occur in the future. Id. A. Abandonment. Iowa Code section 600A.2(18) defines abandonment to mean
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.
Abandonment is "characterized as a giving up of parental rights and responsibilities accompanied by an intent to forego them." In re of A.B., 554 N.W.2d 291, 293 (Iowa Ct.App. 1996). Giving up parental rights is evidenced by conduct of the parent, while the intent refers to the parent's state of mind. Id. The exercise of parental rights requires more than a subjective interest in the child. The parent must actively demonstrate his involvement to the extent it is feasible. Id. Total desertion is not required to show abandonment. In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981). Michael claims his efforts to maintain contact with the children while in prison show his continued interest. He insists that, but for Dawn's interference, he would have had contact with the children throughout his incarceration. This, he urges, demonstrates both objectively and subjectively he has not abandoned the children.
The general rule is that incarceration provides no excuse for an absent parent's failure to provide the comfort, guidance, and support owed by a parent to his children. See In re J.L.W., 523 N.W.2d 622, 625 (Iowa Ct.App. 1994). That parent "must take full responsibility for the conduct which has resulted in his confinement." Id. However, that proposition is not without limits. In In re A.E., No. 01-1099 (Iowa Ct.App., April 24, 2002), cited by Michael, our court declined to find abandonment where the continued efforts at contact with the children by an incarcerated father were largely frustrated by the mother. But that case did not involve a parent whose incarceration resulted from sexually abusing one of the children involved in the termination case.
The juvenile court found Michael's efforts at continued contact were minimal. We agree, and further conclude they were largely a pretext. We also conclude, as did the juvenile court, Michael has no intention of seeking sexual abuse treatment while in prison, but would serve out his term, just as he had in his previous period of incarceration. We believe this demonstrates with a great deal more certainty than his statements to the contrary that Michael is not sincerely seeking reunification with his children. He is unwilling now, as he was before, to make any effort at rehabilitation or to shorten the time he is in prison and therefore without contact with the children. This failure effectively demonstrates he has surrendered and rejected any realistic chance of reunification with the children, a dereliction tantamount to abandonment.
B. Support. Michael concedes he has not provided any support for the children, although ordered to do so. The reason he gives is simply that he has been incarcerated all of the time since ordered to pay support. The statute, Iowa Code section 600A.8(5), makes non-support a separate ground for terminating parental rights unless there is good cause for not paying. In establishing non-support, we recognize that ordinarily "[t]he burden is on the petitioner to show the parent had the ability to pay child support." In re R.K.B., 572 N.W.2d 600, 601-02 (Iowa 1998). On the other hand, courts are notably unsympathetic toward self-created obstacles to supporting one's children. See In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993) (holding a parent cannot use incarceration as justification for lack of relationship with child); J.L.W., 523 N.W.2d at 625 (stating a parent "must take full responsibility for the conduct which has resulted in his confinement."); In re J.S., 470 N.W.2d 48, 51 (Iowa Ct.App. 1991) (noting incarceration was no justification for father's failed responsibility). We believe, as did the trial court, that Michael cannot ironically use his incarceration for sexually abusing one of his children as "good cause" for not being able to pay court-ordered child support.
Michael was first ordered to pay $540.00 per month by administrative order entered in March 2000. Subsequently, in June 2000 the marriage dissolution decree ordered him to pay $50.00 per month.
C. Best interests of the children.During the termination trial Michael admitted sexual contact with A.M.M., but he denied he was guilty of the sex offense which resulted in his earlier imprisonment. However, it remains he pleaded guilty to that offense, which speaks with more volume than his present denial. This repeated conduct clearly shows the court should not allow the children to be exposed to Michael on a daily basis. We believe it is decidedly in the children's best interests that the parent-child relationship between Michael and the three children be terminated.
AFFIRMED.