IN THE INTEREST OF S.M., D.M., and B.M., Minor Children, B.M., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 3-662 / 13-0784
Filed July 24, 2013
IN THE INTEREST OF S.M., D.M.,
Appeal from the Iowa District Court for Story County, Stephen A. Owen,
District Associate Judge.
A father appeals the termination of his parental rights to his child.
Bart K. Klaver of Thornton, Coy & Huss, P.L.L.C., Ames, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Stephen Holmes, County Attorney, and Thomas Kunstle,
Assistant County Attorney, for appellee.
Gerald Moothart of Moothart Law Office, Ames, for mother.
Daniela Matasovic, Ames, attorney and guardian ad litem for minor
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
A father appeals the termination of his parental rights to his three children.
He contends the State failed to prove the grounds for termination by clear and
He also contends his parental rights should not be
terminated because the children are in their motherâ€™s care.
Because clear and convincing evidence establishes the father has
abandoned his children, the grounds for termination have been proved. We also
find termination is in the childrenâ€™s best interests. Accordingly, we affirm.
Background Facts and Proceedings.
The children at issue ranged in age from twelve-years-old to five-years-old
at the time of the termination hearing. They were removed from the fatherâ€™s care
in December 2011 due to the fatherâ€™s methamphetamine use, some of which
allegedly occurred in front of the children. The father refused to submit to drug
testing at that time, and the children were placed in their motherâ€™s care.
The father has failed to participate in the services offered to him.
Following the childrenâ€™s removal, he submitted to one drug test, which showed
marijuana and methamphetamine use. The father then failed to participate in
drug testing thirty-one times. The father participated in some supervised visits
offered to him, although the juvenile court termed this participation to be â€śdismal
at bestâ€ť with the father frequently calling to cancel with little advance notice, often
arriving late, and shortening the visits. His last visit with the children was on April
19, 2012; the father shortened the visit from two hours to one hour after arriving
fifteen minutes late.
Since the April 19, 2012 visit, the father has had no contact with the
children. He failed to appear at the August 2012 review hearing, the January
2013 dispositional hearing, the March 2013 permanency hearing, or the April
2013 termination hearing.
Although he contacted the Department of Human
Services in January 2013 to inquire about re-engaging in services, he failed to
attend or reschedule the meeting he requested. His whereabouts were unknown
at the time of termination.
On February 1, 2013, the State filed a petition to terminate the fatherâ€™s
Following the hearing, the juvenile court entered an order
terminating the fatherâ€™s parental rights pursuant to Iowa Code sections
232.116(1)(b) and (f) (2013).
II. Scope and Standard of Review.
We review termination proceedings de novo. In re A.B., 815 N.W.2d 764,
773 (Iowa 2012). We are not bound by the juvenile courtâ€™s fact-findings, although
we do give them weightâ€”especially when assessing witness credibility. Id.
Termination of parental rights under Iowa Code chapter 232 follows a
three-step analysis. See In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). The first
step is to determine whether a ground for termination under section 232.116(1) is
established. Id. If so, the court then applies the best-interest framework set out
in section 232.116(2) to determine if the grounds for termination should result in
a termination of parental rights.
If the statutory best-interest framework
supports termination of parental rights, the court must finally consider if any of
the factors set out in section 232.116(3) weigh against termination of parental
We will uphold a termination order if clear and convincing evidence
supports the grounds for termination under section 232.116. In re D.S., 806
N.W.2d 458, 465 (Iowa Ct. App. 2011). Evidence is â€śclear and convincingâ€ť where
there are no â€śserious or substantial doubts as to the correctness or conclusions
of law drawn from the evidence.â€ť Id.
The father first contends the grounds for termination have not been
established. Although the juvenile court found termination was proper on two of
the grounds specified in section 232.116(1), we need only find sufficient evidence
exists to terminate on one of these grounds to affirm.
See In re S.R., 600
N.W.2d 63, 64 (Iowa 1999).
Termination is appropriate under section 232.116(1)(b) where â€śthere is
clear and convincing evidence that the child has been abandoned or deserted.â€ť
Iowa Code Â§ 232.116(1)(b).
Abandonment requires proof of two elements:
(1) the conduct of giving up parental rights and responsibilities and (2) the
accompanying state of mind. In re A.B., 554 N.W.2d 291, 293 (Iowa Ct. App.
1996). Parental responsibilities include more than subjectively maintaining an
interest in a child. In re D.M., 516 N.W.2d 888, 891 (Iowa 1994). A parent
demonstrates responsibility by showing â€śaffirmative parenting to the extent it is
practical and feasible in the circumstances.â€ť In re D.J.R., 454 N.W.2d 838, 842
(Iowa 1990). â€śThe affirmative duty requires a continuing interest in the child and
a genuine effort to maintain communication and association with the child.â€ť In re
S.K.C., 435 N.W.2d 403, 404 (Iowa Ct. App. 1988).
We find clear and convincing evidence shows the father has abandoned
the children. The fatherâ€™s participation in the supervised visits he was offered
was, as the juvenile court found, â€śdismal at best.â€ť He participated in visitation for
approximately four months, although he often did not take full advantage of the
time offered him. The father failed to visit with the children in the year preceding
termination, and has had no other contact with them. He also did not participate
in other services offered him. Nor did he attend various juvenile court hearings,
including the termination hearing. Finally, the father has failed to provide any
financial or emotional support to the children. The fatherâ€™s conduct shows he has
given up his parental rights and responsibilities.
Because the father has
abandoned the children, we find the grounds for termination under section
232.116(1)(b) have been proved.
The father also contends that his parental rights should not be terminated
because the children are in the custody of a relative, as set forth in Iowa Code
That section states that where a relative has legal
custody of a child, the court â€śneed not terminate the relationship between the
parent and child.â€ť
Iowa Code Â§ 232.116(3)(a).
The factors under section
232.116(3) have been interpreted by the courts as being permissive, not
mandatory. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct. App. 1993) overruled on
other grounds by P.L., 778 N.W.2d at 39-40. The court has discretion, based on
the unique circumstances of each case and the best interests of the children, in
deciding whether to apply the factors in this section to save the parent-child
Although the children are in the motherâ€™s custody, we find termination of
the fatherâ€™s parental rights serves their best interests. The father has abandoned
the children, a fact that they are all too aware of, given their ages.
juvenile court noted, the fatherâ€™s actions have caused â€śsignificant emotional
dismayâ€ť for the children, causing one of the children to act out on the mother.
The mother sought counseling for the child, who has since learned to express
negative emotions toward the father in a more appropriate way.
The children are bonded to their mother, who married shortly before the
termination hearing. The children are establishing bonds with her husband, who
has been providing for the childrenâ€™s financial, physical, and emotional support
for nearly two years. He wishes to adopt the children.
Given the childrenâ€™s need for permanency, we decline to apply the
provisions of section 232.116(3)(a). Accordingly, we affirm the termination of the
fatherâ€™s parental rights.