IN THE INTEREST OF M.M.C., Minor Child, S.J.J., Mother, Petitioner, D.M.C., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-291 / 06-1675
Filed June 27, 2007
IN THE INTEREST OF M.M.C., Minor Child,
S.J.J., Mother,
Petitioner,
D.M.C., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, James A.
McGlynn, Associate Juvenile Judge.
A father appeals from a chapter 600A juvenile court order terminating his
parental rights to one child. AFFIRMED.
Derek Johnson, Fort Dodge, for appellant-father.
Dan McGrevey, Fort Dodge, for appellee-mother.
Kurt Pittner, Fort Dodge, for minor child.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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MILLER, J.
Stacy is the twenty-eight-year-old mother, and Dan the thirty-year-old
father, of Makayla, who was just short of her seventh birthday at the time of a
termination of parental rights hearing. Dan appeals from a juvenile court order
granting Stacy’s petition for termination of Dan’s parental rights pursuant to Iowa
Code chapter 600A (2005). He raises as issues on appeal the following two
claims:
THE JUVENILE COURT ERRED IN FINDING CLEAR AND
CONVINCING EVIDENCE OF ABANDOMNENT.
THE JUVENILE COURT ERRED IN FINDING THE BEST
INTERESTS OF THE CHILD WERE SERVED BY TERMINATION
OF HER FATHER’S PARENTAL RIGHTS.
I.
BACKGROUND FACTS.
Stacy and Dan began living together in early 1998, but were never
married.
They lived together through Makayla’s September 1999 birth and
thereafter until about February 2000, when they separated. Makayla remained
with Stacy. Dan moved into his parents’ home.
For a period of about the next one and one-half years Dan had visits of
some four to six hours per visit with Makayla once each month or two.
Thereafter he began to show somewhat more interest in Makayla, and for a
period of a couple of months visited her for four to six hours two to three times
per month. Those visits decreased when he was charged with a drug crime or
crimes and ended when he was imprisoned in April 2002.
He attempted to
maintain some contact by an occasional card or phone call.
Dan was released on parole in May 2004. Between then and September
2004 he visited Makayla on four or five occasions for brief periods of time, always
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with a parent or sister present. By September 2004 Dan was again involved in
drugs. As a result Stacy restricted or denied visitation for a period of time. Dan
was subsequently returned to prison in June 2005. At the time of the late July
2006 termination of parental rights hearing he had been paroled to work release,
and would be transferred to a community-based correctional facility for a period
of some four months, but only when bed space became available.
Since Makayla was about one year of age Daniel has had no overnight
visitation with her, unless the visitation occurred with his parents or sister, who
usually picked Makayla up for visitation and returned her after visitation. He has
not visited Makayla since September 2004.
Stacy began dating Jeremy in about 2003. Jeremy is two years older than
Stacy. They began living together in mid-2004, and married in May 2005. They
have a son, born in late February 2006. Jeremy has been employed nine years
in a family business owned by his uncles. He earns about $35,000 to $40,000
per year. Jeremy and Stacy own the home they live in, are selling it, and are
purchasing another home. Stacy is employed providing day care in their home.
Following hearing the juvenile court found Stacy had proved the grounds
for termination pursuant to Iowa Code sections 600A.8(3) (abandonment) and
600A.8(4) (parent ordered to contribute to support of child and failed to do so
without good cause), and that termination was in Makayla’s best interest. Dan
appeals.
II.
SCOPE AND STANDARDS OF REVIEW.
A termination proceeding pursuant to chapter 600A is reviewed de novo.
In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998).
The statutory grounds for
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termination under chapter 600A must be proved by clear and convincing
evidence. Iowa Code § 600A.8. Although 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)(g). Our primary interest is the best interest
of the child.
Iowa R. App. P. 6.14(6)(o); R.K.B., 572 N.W.2d at 601.
The
petitioner has the burden to prove a statutory ground for termination under
chapter 600A.
R.K.B., 572 N.W.2d at 601-02.
Proof of a statutory ground,
however, is not dispositive. We must also determine whether it is in the child’s
best interests to terminate parental rights. In re J.L.W., 523 N.W.2d 622, 625
(Iowa Ct. App. 1994).
III.
MERITS.
A.
Statutory Grounds.
Either of the two statutory grounds relied on by the juvenile court is
sufficient to support termination.
See Iowa Code § 600A.8 (“The following
[subsections 1 through 8] shall be, either separately or jointly, grounds for
termination of parental rights:”); In re Voeltz, 271 N.W.2d 719, 723 (Iowa 1978)
(holding that if one of two statutory grounds alleged was established, the
termination would be upheld). Here, the juvenile court found both the section
600A.8(3) (abandonment) and the section 600A.8(4) (non-support) grounds
proven.
On appeal Dan challenges only the finding of abandonment.
We
therefore deem any issue concerning statutory grounds for termination pursuant
to section 600A.8(4) waived, and affirm the juvenile court’s finding that Stacy
proved grounds for termination under that provision.
See Iowa R. App. P.
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6.14(1)(c) (“Failure in the brief to state . . . an issue may be deemed waiver of
that issue.”).
We need not, however, rely on section 600A.8(4) alone as a statutory
ground for termination. Section 600A.8(3)(b) provides:
b.
If the child is six months of age or older when the
termination hearing is held, a parent is deemed to have abandoned
the child unless the parent maintains substantial and continuous or
repeated contact with the child as demonstrated by contribution
toward support of the child of a reasonable amount, according to
the parent’s means, and as demonstrated by any of the following:
(1)
Visiting the child at least monthly when
physically and financially able to do so and when not prevented
from doing so by the person having lawful custody of the child.
(2)
Regular communication with the child or with
the person having the care or custody of the child, when physically
and financially unable to visit the child or when prevented from
visiting the child by the person having lawful custody of the child.
(3)
Openly living with the child for a period of six
months within the one-year period immediately preceding the
termination of parental rights hearing and during that period openly
holding himself or herself out to be the parent of the child.
Stacy did briefly prevent Dan from visiting with Makayla, but only for a
period beginning in September 2004 when he had again become involved in
drugs. At other times when Dan was not imprisoned he only occasionally visited
her, and then only for a few hours. Dan had not visited Makayla in the two years
preceding the termination hearing. He acknowledged that his few visits of a few
hours each constituted total visitation time of no more than just over two days in
the period of over four years since April 2002. Even when not imprisoned, Dan
did not have regular communication with Makayla and at best made only a
marginal effort to communicate with her. Neither did he have, or make a serious
effort to have, regular communication with Stacy concerning Makayla. Daniel
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last lived with Makayla on a regular basis some six years before the termination
hearing.
We fully agree with the juvenile court that Stacy proved section
600A.8(3)(b) abandonment.
B.
BEST INTEREST.
Dan acknowledges he has no present relationship with Makayla. It is
apparent he has no bond with her.
Stacy and Jeremy have been together three years. They have an infant
son. Makayla is fully integrated in their family and has a close relationship with
Jeremy and with her little brother.
Jeremy has stable, secure employment and good income. He is willing to
support Makayla, and has in fact been a primary source of her support for the
past two years. Jeremy attends Makayla’s school events and is heavily involved
in both her organized and family recreational activities. He has been for the past
three years the male role model in her life.
Stacy and Jeremy’s relationship and marriage appear positive and stable.
Jeremy is a source of security to Makayla. He wishes to adopt her if Dan’s
parental rights are terminated, and he and Stacy intend that he will do so.
Makayla wishes to have Jeremy’s surname.
We agree with the juvenile court that termination of Dan’s parental rights is
in Makayla’s best interest.
IV.
CONCLUSION.
Any issue concerning section 600A.8(4) grounds for termination is waived.
Based on our de novo review we conclude Stacy proved by clear and convincing
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evidence that Dan abandoned Makayla.
We further conclude termination of
Dan’s parental rights is in Makayla’s best interest.
juvenile court order terminating Dan’s parental rights.
AFFIRMED.
We therefore affirm the
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