IN THE INTEREST OF J.C., Minor Child, D.V.R., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-681 / 07-1367
Filed October 12, 2007
IN THE INTEREST OF J.C., Minor Child,
D.V.R., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,
District Associate Judge.
A father appeals from a juvenile court order terminating his parental rights
to one child. AFFIRMED.
Donald L. Williams, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Stephanie Brown,
Assistant County Attorney, for appellee.
Zoshua Zeutenhorst of Marks Law Firm, Des Moines, for mother.
Jerry Foxhoven, Des Moines, guardian ad litem for minor child.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MILLER, J.
Darel is the father of Jaiden, who was one year and eight months of age at
the time of a mid-July 2007 termination of parental rights hearing. In a late July
order the juvenile court terminated Darel’s parental rights pursuant to Iowa Code
sections 232.116(1)(b) (child has been abandoned; child has been deserted), (d)
(child adjudicated child in need of assistance (CINA) for neglect by parent,
circumstance continues despite offer or receipt of services), (e) (child adjudicated
CINA, child removed from physical custody of parents at least six consecutive
months, parents have neither maintained significant and meaningful contact with
child nor made reasonable efforts to resume care of child), and (h) (child three or
younger, adjudicated CINA, removed from physical custody of parents six of last
twelve months, cannot be returned to parents at present time) (2007). Darel
appeals. 1 We affirm.
We review termination proceedings de novo. Although we
are not bound by them, we give weight to the trial court’s findings of
fact, especially when considering credibility of witnesses. The
primary interest in termination proceedings is the best interests of
the child. To support the termination of parental rights, the State
must establish the grounds for termination under Iowa Code section
232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
Jaiden was born in November 2005.
Darel and Jaiden’s mother lived
together only part-time, and finally separated in about March 2006.
Jaiden
remained with his mother. Jaiden was removed from his mother in mid-October
2006 when she tested positive for cocaine and marijuana. Jaiden was placed in
the temporary legal custody of his mother’s friend. He remained with that friend
1
The juvenile court’s order also terminated the parental rights of Jaiden’s mother, but
she has not appealed.
3
until placed in the custody of his maternal grandfather in January 2007, where he
has thereafter remained.
Jaiden was adjudicated a CINA in late November 2006, pursuant to Iowa
Code sections 232.2(6)(b) (parent has neglected child or is imminently likely to
do so), (c)(2) (parent’s failure to exercise reasonable degree of care in
supervising child), and (n) (parent’s imprisonment or drug abuse results in child
not receiving adequate care) (2005). Darel was serving a jail sentence at that
time.
In early July 2006 Darel pled guilty to criminal mischief in the third degree
and was placed on two years’ probation. He was arrested in early October 2006
for possession of a controlled substance and probation violations.
In later
October Darel pled guilty to the possession charge and was sentenced to jail.
He was released from jail in mid-January 2007.
Darel provided a bag of clothes, a few packs of diapers, and some formula
for Jaiden. This all occurred during about the first five months of Jaiden’s life,
ending about April 2006. Darel has never provided any financial support for
Jaiden.
Darel had no contact with Jaiden in the six months between his January
2007 release from jail and the July termination hearing. His only attempts to
have contact consisted of about three telephone calls trying to reach a case
worker and his attorney, all made in the first two to three months after his
January 2007 release. On one of those occasions he left a message, including
what he purported to be his telephone number, for the case worker. When she
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attempted to reach him at the number he had provided she was informed by a
male who answered the telephone that the number was not Darel’s.
Darel did not attend or participate in an April 11, 2007 CINA review
hearing. He claims his failure to attend was because he “didn’t get any kind of
papers.” The evidence shows, however, that he had been brought from jail to the
last previous hearing, at which the April 11 hearing was set.
Darel’s arrest for possession of a controlled substance led to concerns
about possible substance abuse. He did not provide a requested drug screen.
Darel was ordered to complete a substance abuse evaluation, and follow any
resulting recommendations. He did not do so.
Darel claims he has not abandoned, deserted, or neglected Jaiden. The
State asserts that he appears to address only one of the several statutory
grounds upon which his parental rights were terminated, section 232.116(1)(b)
abandonment, and has thus not preserved error on the others. The juvenile
court clearly addressed and ruled on each of the statutory grounds upon which it
relied.
The State’s point therefore more correctly raises an issue of waiver,
rather than error preservation. We need not and do not, however, decide the
appeal on that basis.
“Abandonment” means the giving up of parental rights and responsibilities,
accompanied by an intent to do so. 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. The concept requires affirmative parenting to the extent it
is practical and feasible in the circumstances.” Id. Darel provided no support for
Jaiden in the one and one-half years before the termination hearing. He had no
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contact with Jaiden in the period of at least nine months before the termination
hearing, and made no significant effort to do so. We conclude, as the juvenile
court did, that the State proved Darel abandoned Jaiden.
We also find the State proved the section 232.116(1)(h) grounds for
termination. The first three elements cannot reasonably be in dispute. We note
again Darel’s failure or refusal to take any required steps to address a possible
drug abuse problem. Further, Darel has been totally absent from Jaiden’s life for
so long that, as acknowledged by Darel in his testimony, “[Jaiden] don’t even
know who I am any more.” We find Jaiden cannot be returned to Darel at the
present time without being subject to adjudicatory harm. We thus also conclude
the State proved grounds for termination pursuant to section 232.116(1)(h).
Having found the State proved statutory grounds for termination pursuant
to two statutory provisions, we need not decide whether it also proved grounds
for termination pursuant to section 232.116(1)(d), section 232.116(1)(e), or both. 2
See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999) (“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 juvenile court to
affirm.”).
Darel’s petition might be read as also claiming the juvenile court erred by
not placing Jaiden in the custody of an appropriate relative or in foster care and
granting Darel additional time to prepare to have Jaiden placed with him. We
agree with the State that no such issue was presented to or passed upon by the
2
In declining to address these two additional statutory grounds that were relied upon by
the juvenile court we do not intend to suggest that the State did not prove these grounds
as well.
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juvenile court, and thus error was not preserved on any such claim.
We
therefore decline to address it. See In re K.C., 660 N.W.2d 29, 38 (Iowa 2003)
(“Even issues implicating constitutional rights must be presented to and ruled on
by the district court in order to preserve error for appeal.”).
AFFIRMED.
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