Opinion
No. 2-373 / 01-1875
Filed August 28, 2002
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
Father appeals the juvenile court's termination of his parental rights to his two children.
AFFIRMED.
Scott L. Bandstra, Des Moines, for appellant.
William Crispin, Des Moines, for mother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John P. Sarcone, County Attorney, and Jennifer Navis, Assistant County Attorney, for Appellee-State.
Pamela A. Vandel, Des Moines, for minor child.
Considered by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Father appeals the juvenile court's termination of his parental rights to his two children contending the court erred in: (1) finding the State had proven by clear and convincing evidence he had abandoned the children, and (2) finding that the children could not be returned to his care at the present time. We affirm.
Michael is the biological father of Michelle, born September 7, 1992, and Destiny, born November 24, 1994. Michael has a long criminal history and was last sentenced to incarceration in July 1999 for possession of methamphetamine with intent to deliver. Michelle and Destiny were adjudicated children in need of assistance (CINA) on November 20, 2000 under Iowa Code sections 232.2(6)(c)(2) and (n) (1999). Michael's whereabouts were unknown. The CINA dispositional order on January 8, 2001 confirmed the children to be in need of assistance; ordered Michael to cooperate with the Iowa Department of Human Services (DHS), "drop random UA's" for the DHS, and sign releases; and provided that he could have visitation with the children at the discretion of the DHS.
Michael was present at the January 2001 dispositional hearing but did not attend any other proceedings until the termination hearing on October 25, 2001.
While residing at the Fort Des Moines Correctional Facility on work release Michael had visitation with his daughters twice in early 2001. However, as of February 26, 2001 visitation was ended because Michael violated the conditions of his work release program by going to a casino and not returning to the facility. He was not picked up again until March 2001 and then served the remainder of his sentence for the methamphetamine charge at the Clarinda Correctional Facility. As of August 29, 2001 Michael had not provided a single UA for testing and had not made contact with the DHS since his incarceration at Clarinda in March. In fact, the DHS did not know where Michael was until about August of 2001.
A petition to terminate Michael's parental rights to Michelle and Destiny was filed by the State on September 12, 2001. Hearing was held on the matter October 25, 2001. Michael was present and testified at the hearing. At the time of the hearing Michael had been out of prison for approximately three weeks, after having been incarcerated for five of the past six years. He had never seen the children during the times he was imprisoned.
Michael testified at the termination hearing that he had essentially lived a criminal lifestyle his entire life and he had begun using illegal substances at the age of nine. He also testified he had a problem with methamphetamine, using as much as an "eight-ball" or a couple hundred dollars worth of methamphetamine per day, but that since his release from prison he had nevertheless not taken any action to sustain sobriety, such as attending AA or NA meetings. Michael acknowledged he was never the caretaker of his children and he could not even describe his oldest daughter because he had only seen her three times in the last five years. Finally, Michael testified he was not currently in a position to have the children with him because he had no place to live, he did not have a steady job, and he could not provide the things the children would need. However, he believed if he was granted additional time to "get on his feet" he would be able to care for the girls.
The juvenile court found the State had proven the necessary elements for termination of Michael's parental rights to Michelle and Destiny under Iowa Code sections 232.116(1)(b), (c), (d), (e), and (k) (2001). On appeal Michael challenges only two of the five grounds upon which the court relied in terminating his parental rights. Specifically, Michael asserts the juvenile court erred in concluding the State had established by clear and convincing evidence that he had abandoned his children under section 232.116(1)(b) (Supp. 2001) and that the children could not be returned to his custody under section 232.116(1)(f)(4). We could affirm on the sole basis that Michael has waived the other three grounds by not challenging them. We choose, however, to address the two grounds he does challenge.
In its order terminating Michael's parental rights, the court relied upon Iowa Code sections 232.116(1)(b), (c), (d), (e), and (k) (2001). However, the applicable law in this termination case is correctly cited as Iowa Code sections 232.116(1)(b), (d), (e), (f), and (l) (Supp. 2001) due to an April 24, 2001 amendment to subsection 232.116(1) that added a statutory ground for termination. This resulted in the re-lettering of paragraphs, but did not substantively alter the previous statutory provisions for termination. For purposes of this appeal we will refer to the current, applicable paragraphs.
Apparently Michael concedes the elements in subparagraphs 232.116(1)(f)(1)-(3) were proved, as he does not contest any of these elements on appeal.
We review termination proceedings de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Our primary concern in termination proceedings is the best interests of the children. Id.
Iowa Code section 232.116(1)(b) provides that the court may terminate parental rights if it finds clear and convincing evidence that the children have been abandoned or deserted. Iowa Code § 232.116(1)(b). Michael was given the opportunity in February of 2001 to begin to establish a relationship with his daughters. At that time Michelle stated to her counselor that she had no recollection of her father. Michael completed only two visits with the girls and then disappeared from their lives once again when he failed to return to the Fort Des Moines Correctional Facility. After he was picked up again in March of 2001 Michael made no further efforts to write or contact his children, despite the fact he knew who their DHS caseworker was and that he could contact the children through their caseworker. Michael has seen his children only three times in the past five years and during the five years he was incarcerated had spoken to them on the phone only twice. He has never paid any child support for these children, he sent them no cards or letters during his time in prison, and he has never been their caretaker.
Michael argues his conduct has not shown he has given up on parenting his children and had no intent to so. He asserts he loves his children, has had visitation with them, and has bonded with them. However, based on the facts set forth above we believe Michael's feeble contacts must be viewed in the light that total desertion is not required for a showing of abandonment. In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993); In re Goettsche, 311 N.W.2d 104, 105 (Iowa 1981).
Furthermore, it is Michael, and Michael alone, who is responsible for the fact he has had somewhat limited opportunities to see his children throughout their lives. Michael cannot use incarceration as a justification for his lack of relationship with his children, especially when the incarceration is the result of a lifestyle that he has chosen in preference to, and at the expense of, a relationship with the children. In re M.M.S., 502 N.W.2d at 8; see also In re J.S., 470 N.W.2d 48, 51 (Iowa Ct. App. 1991) (finding incarceration is no justification for father's failed responsibilities; termination ordered).
An abandoned child is no less abandoned because the parent can rationalize a reason for the abandonment. When opportunities for association with a child are few, they become more precious, and the spurning of them more egregious. If few opportunities for association are available, spurning all of them will suffice for a showing of abandonment.
In re M.M.S., 502 N.W.2d at 7.
Michael testified at the termination hearing that his entire life has involved criminal activities. Furthermore, it was his choice to abscond from his work release program and thereby end whatever beginnings of a relationship he may have started with the girls through the few visitations they had. Both this specific act, and his criminal lifestyle in general, show Michael has continually chosen to put his own interests above the needs of his children. Michael chose to end visitations with this daughters after February 2001, despite the fact his contact with them had already been severely limited due to his repeated incarcerations. We conclude these facts support the juvenile court's decision that clear and convincing evidence shows Michael abandoned the children and supports termination of his parental rights under section 232.116(1)(b). Upon our de novo review we reach the same decision.
We further find there is clear and convincing evidence that the children cannot be returned to Michael's custody at the present time. Michael testified at the termination hearing that he was not currently in a position to take care of the girls because he had no place to live, did not have a steady job, and could not provide the things they need. However, he thought if he had a little more time he would be able to care for the children. Michael also testified he was not attending any aftercare, such as AA or NA, for his admitted long-term drug problem with methamphetamine and indicated he would not do so if it did not increase his chances of seeing his children. As set forth above, Michael had been incarcerated for approximately five of the last six years and had been out of prison for only three weeks at the time of the termination hearing.
Based on the short amount of time Michael has been out of prison, his current housing and employment situation, and the fact he is not willing to take any affirmative action to maintain his sobriety despite a nearly lifelong drug problem, we find the children are likely to suffer adjudicatory harm if returned to Michael's care at this time. Accordingly, upon our de novo review we conclude the juvenile court was correct in finding the children could not be placed in Michael's care at the present time and terminating his parental rights pursuant to section 232.116(1)(f) as well as section 232.116(1)(b).
These children have waited long enough for a father. It is not this State's public policy to force children to wait interminably for their parents to become responsible enough to parent them. The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems. In re C.B., 611 N.W.2d at 494. "Children simply cannot wait for responsible parenting. Parenting cannot be turned off and on like a spigot. It must be constant, responsible, and reliable." In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). We find it is in these children's best interest to terminate Michael's parental rights in order to allow them to achieve the stability, security and permanency they so deserve.
We affirm the juvenile court's termination of Michael's parental rights to Michelle and Destiny under Iowa Code sections 232.116(1)(b) and (f).
AFFIRMED.