IN THE INTEREST OF A.B., Minor Child, J.B., Father, Appellant, R.K.C., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-094 / 07-0032
Filed March 14, 2007
IN THE INTEREST OF A.B., Minor Child,
J.B., Father,
Appellant,
R.K.C., Mother,
Appellant.
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Appeal from the Iowa District Court for Polk County, Karla J. Fultz,
Associate Juvenile Judge.
A father and mother each appeal the termination of their parental rights to
their daughter. AFFIRMED.
Tracie Sehnert of Kragnes, Tingle & Koenig, P.L.C., Des Moines, for
appellant-father.
Jennifer Oetker of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble &
Cook, L.L.P., Des Moines, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Annette Stanley,
Assistant County Attorney, for appellee.
Alexandra Nelissen of Nelissen & Juckette, P.C., Des Moines, guardian ad
litem for minor child.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
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SACKETT, C.J.
A mother and father appeal from the juvenile court order terminating their
parental rights to their daughter. They contend clear and convincing evidence
does not support the statutory grounds cited by the court and termination is not in
their daughter’s best interest. We affirm on both appeals.
Ashley, born in July of 2006, is the daughter of Rebecca and Jack. The
Department of Human Services became involved at Ashley’s birth because
Rebecca’s parental rights to two other children had been terminated—the more
recent in March of 2006. Ashley was placed in foster care, where she remained
during the pendency of this case. In September, she was found to be in need of
assistance. The court also waived reasonable efforts in September. Following a
combined permanency/termination hearing in November, the court terminated
Rebecca’s parental rights under Iowa Code sections 232.116(1)(d), (g), and (i)
and Jack’s parental rights under 232.116(1)(b), (d), (i), and (l) (2005).
Our review is de novo. Iowa R. App. P. 6.4. Although we give weight to
the juvenile court’s factual findings, we are not bound by them. In re K.N., 625
N.W.2d 731, 733 (Iowa 2001). When the juvenile court terminates parental rights
on more than one statutory ground, we need only find grounds to terminate under
one of the sections cited by the court to affirm. In re S.R., 600 N.W.2d 63, 64
(Iowa Ct. App. 1999).
The Father. Jack asserts the State did not prove the statutory grounds for
termination by clear and convincing evidence. Jack was incarcerated for willful
injury causing bodily injury before Ashley was born and remained there
throughout the pendency of the juvenile proceedings.
He has a history of
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domestic violence that resulted in a no-contact order to protect Rebecca from
him.
He also has a history of alcohol abuse and driving while intoxicated.
Concerns about Rebecca’s continuing relationship with Jack were a factor in
Ashley’s removal.
While incarcerated, Jack attended anger management classes and
Alcoholics Anonymous meetings. Parenting classes were not available. He was
unavailable for other services because of his incarceration. The court waived the
reasonable efforts requirement, noting:
[Jack] is unavailable to parent his child by reason of his own
actions. He has not provided emotional or financial support to her.
He will not be available to do so for some time. [Jack] has
abandoned his daughter.
Abandonment is “characterized as a giving up of parental rights and
responsibilities accompanied by an intent to forego them.”
In re A.B., 554
N.W.2d 291, 293 (Iowa Ct. App. 1996). Giving up parental rights is evidenced by
conduct of the parent, while intent refers to the parent’s state of mind. Id. The
exercise of parental rights requires more than a subjective interest in the child. A
parent must actively demonstrate involvement to the extent feasible. Id. Total
desertion is not required to show abandonment. In re Goettsche, 311 N.W.2d
104, 106 (Iowa 1981). Generally, 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, 624-25 (Iowa Ct. App. 1994).
A parent “must take full responsibility for the conduct [that] resulted in his
confinement.” Id. at 624. We find termination of Jack’s parental rights proper
under section 232.116(1)(b).
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Jack’s past history of violence, especially toward Rebecca, and his history
of driving while intoxicated convince us he poses significant risk to Ashley’s life.
Services likely would not correct these conditions within a reasonable time. We
find termination of Jack’s parental rights proper under section 232.116(1)(i).
Jack also asserts termination of his parental rights is not in Ashley’s best
interest. In part, he argues Ashley could be returned to Rebecca’s care until he
is available to care for her after his release from prison. Iowa Code section
232.116(2) provides:
In considering whether to terminate the rights of a parent under this
section, the court shall give primary consideration to the child's
safety, to the best placement for furthering the long-term nurturing
and growth of the child, and to the physical, mental, and emotional
condition and needs of the child.
Our consideration may include “[w]hether the parent's ability to provide the needs
of the child is affected by the parent's mental capacity or mental condition or the
parent's imprisonment for a felony.” Id. § 232.116(2)(a). We consider what the
future likely holds for Ashley if she is returned to her parents. Insight for that
determination may be gained from evidence of her parents’ past performance, as
it may be indicative of the quality of future care her parents are capable of
providing. See In re L.L., 459 N.W.2d 489, 493 (Iowa 1990); In re Dameron, 306
N.W.2d 743, 745 (Iowa 1981).
Jack’s history of domestic violence and his imprisonment for a felony
convince us that termination of his parental rights serves Ashley’s interest. To
the extent his argument concerns Ashley’s return to Rebecca’s care, he lacks
standing. See In re D.G., 704 N.W.2d 454, 459 (Iowa Ct. App. 2005) (noting one
parent cannot join in another parent’s “best interest” claim).
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The Mother.
Rebecca contends the State did not prove the statutory
grounds for termination by clear and convincing evidence.
She argues the
conditions that led to Ashley’s removal no longer exist and an additional period of
rehabilitation would allow her to resume Ashley’s care.
Rebecca’s efforts to comply with case plan requirements came very late in
the proceedings. Her parental rights to two other children have been terminated.
She has not addressed her parenting deficiencies and mental health issues.
Ashley could not be returned to Rebecca’s care at the time of the termination.
We affirm the termination of her parental rights under section 232.116(1)(g).
Rebecca also contends the court should have entered a permanency
order giving her an additional six months to regain custody of Ashley. Case
history records are entitled to much probative value when a parent’s record is
being examined. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). Rebecca has had
more than enough time to demonstrate her ability to parent her children.
“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). “The crucial days of childhood cannot
be suspended while parents experiment with ways to face up to their own
problems.” In re A.C., 415 N.W.2d 609, 613 (Iowa 1987), cert. denied sub nom
A.C. v. Iowa, 485 U.S. 1008, 108 S. Ct. 1474, 99 L. Ed. 2d 702 (1988). A
permanency order allowing Rebecca an additional six months would not be
appropriate.
Rebecca claims the court failed to review the factors in sections
232.116(2) and 232.116(3)(c) to determine whether termination was in Ashley’s
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interest. The provisions of section 232.116(3) are permissive, not mandatory. In
re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct. App. 1993). Our review of the court’s
order convinces us the court considered the factors in section 232.116(2)
concerning Ashley’s safety, the best long-term placement, Rebecca’s ability to
provide for Ashley’s needs, and Ashley’s placement in foster care with a family
who wants to adopt her. We find no merit in this claim.
AFFIRMED ON BOTH APPEALS.
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