IN THE INTEREST OF C.J. D., H.M.D., and J.A.D., Minor Children, A.J.W., Mother, Petitioner, K.M.D., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-717 / 07-0766
Filed December 12, 2007
IN THE INTEREST OF C.J.D., H.M.D., and J.A.D.,
Minor Children,
A.J.W., Mother,
Petitioner,
K.M.D., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Gary
Anderson, District Associate Judge.
A father appeals the termination of his parental rights to his children.
REVERSED.
Ryan Sewell of Stuart Tinley Law Firm, L.L.P., Council Bluffs, for appellant
father.
Jon Jacobmeier of Wilber & Jacobmeier, Council Bluffs, for appellee
mother.
William McGinn of McGinn, McGinn, Springer & Noethe, Council Bluffs, for
minor children.
Heard by Vogel, P.J., and Mahan and Zimmer, JJ.
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MAHAN, J.
Kevin appeals the termination of his parental rights. He claims the court
erred in finding clear and convincing evidence that he failed to support his
children without good cause according to Iowa Code section 600A.8(4) (2005)
and in finding that termination was in the best interests of the children.
He
makes additional constitutional claims regarding section 600A.8(10) (Supp.
2005), including that it (1) should not have been retroactively applied to his
conduct, conviction, and sentence; (2) deprives him of his substantive and
procedural due process rights; (3) denies him equal protection of the law; and (4)
constitutes an ex post facto law as applied to him. We reverse.
I. Background Facts and Proceedings
Kevin and Angela were married in 1993. The marriage produced three
daughters:
Christa, born in June 1994; Hannah, born in January 1998; and
Jenna, born in July 2000. During the latter part of the marriage, Kevin seldom
participated in family activities, stayed out all night, slept all day, and did not
attend his children’s school events. The parties separated in December 2001
when Angela came home in the middle of the day to find Kevin in bed and his
teenage girlfriend in the shower. During the subsequent divorce proceedings,
Angela was awarded temporary physical care of the children, and Kevin was
allowed temporary visitation every other weekend. Angela testified that from
January 2002 to November 2002 Kevin only exercised six to eight visits with his
children including only one overnight stay. Kevin was unreliable in picking the
children up for visits with him. He often left them packed up and waiting at their
grandparents’ house without calling to say he was not coming. He would also
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call and say he was too busy for a visit. Kevin also failed to take the Children in
the Middle course during this time, claiming it did not fit into his schedule.
Upon filing of the divorce decree on August 8, 2002, the court ordered
joint legal custody of the children. Angela received primary physical care subject
to Kevin’s reasonable right to visitation. Kevin was also ordered to pay and did
pay child support from January to November 2002. On November 20, 2002,
Kevin was indicted in federal court for “using a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of such conduct.”
Kevin was arrested and spent time in the Pottawattamie County Jail, the Polk
County Jail, and the Newton Correctional Facility until March 2005 when he was
transferred to a federal correctional facility in Pekin, Illinois.
On May 7, 2003, Kevin entered his guilty plea to the federal indictment
charge in which he stipulated to the following facts:
a. Sometime on or about the fall of 2000, he began a relationship
with a girl named Brandy R.
b. [Kevin] began his relationship with Brandy R. when she was
fifteen years-old. Brandy R.’s birth date is November 28, 1984.
[Kevin] was twenty-nine years-old when they met.
c. Sometime on or about February 2001, [Kevin] had rented an
apartment at 3018 ½ Avenue “B” in Council Bluffs, in the
Southern District of Iowa, in which to house Brandy R.
d. While Brandy R. was living there, she became acquainted with
another teenager by the name of Heather S. who was also living
in the downstairs apartment of this duplex.
e. Sometime between on or about February 8, 2001, through on or
about December 29, 2001, while [Kevin] was at the apartment,
he made a videotape of Brandy R. and Heather S. engaging in
sexually explicit conduct, i.e., oral-genital sexual intercourse,
masturbation, and the lascivious exhibition of the genitals and
pubic area.
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f. [Kevin] operated the video camcorder used to produce the
videotape of the sexually explicit conduct.
g. [Kevin] gave directions to Brandy R. and Heather S. and
encouraged them on what acts they should perform while being
videotaped by him.
h. [Kevin] acknowledged that the materials, i.e., the video
camcorder and video cassette, used to produce this visual
depiction of Brandy R. and Heather S. engaging in sexually
explicit conduct had been mailed, shipped or transported in
interstate or foreign commerce.
Kevin was then sentenced to prison for a total term of seventy-two months and
was given credit for time served since November 2002.
On January 14, 2004, the district court modified the divorce decree to
award Angela sole legal custody. On July 8, 2004, a modification order based
upon an agreement of the parties ordered that the children were to have
telephone contact with Kevin during their counseling sessions and that Kevin was
not to have contact with the children while he was being held in a temporary
facility. On January 23, 2006, the district court awarded Kevin the privilege of
written communication and bi-monthly telephone contact with the children but
allowed him no personal visitation while he was incarcerated.
During his time in prison, Kevin attempted to strengthen his relationship
with his children through phone calls, gifts, cassette tapes of him reading story
books, and letters. The children do not like talking to him on the phone. Jenna,
now six years old, was two when Kevin was sent to prison and has no
recollection of ever seeing him. Hanna, now nine years old, was four when Kevin
was sent to prison. She also does not recollect her relationship with Kevin before
he was sent to prison, does not like talking to him on the phone, throws away the
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gifts he sends, and does not want to see him. Christa, now eleven years old,
was six when Kevin was sent to prison. She also does not like talking to him on
the phone, throws away his gifts, was hurt by him not picking her and her sisters
up for visits before he went to prison, and states that she does not love her dad.
It has been over five years since the children have seen their father.
Angela admitted that although she lets her children decide what kind of
relationship they want with Kevin, she does not encourage a relationship and has
openly expressed her displeasure of interaction with Kevin.
Specifically, she
testified that she has told the children she was “not going to force anything with
him.”
She admits Kevin has routinely called the children and that each girl
receives a couple of letters each week from him. She lets the older two girls read
their letters and reads Jenna’s letter to her. Angela testified that the girls always
throw the letters away and have never written Kevin back.
She stated that
although she does not encourage her children to write to Kevin, she does give
them the option.
Kevin was current on his child support obligations until he was
incarcerated in November 2002. Since then, he has made no payments. After
Kevin was incarcerated, his child support obligation was amended to require that
he pay $50 per month per child, or $150 per month. Kevin was unable to begin a
prison job until May 2005. The record shows that from April 2005 until October
2005, $810.44 was deposited in Kevin’s prison account.
The income was
derived from both his prison job and a significant amount from unknown outside
sources. The record does not reflect his income received from outside sources
in 2006 or 2007, but Kevin’s salary from his prison job averaged $17 per month.
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He spent approximately $356 between April 2005 and May 2005 on prison
clothing and hygiene for himself. From June 2005 through October 2005, he
spent approximately $452 in attorney fees to appeal his conviction.
Kevin was scheduled to be released to a half-way house in Council Bluffs
in August 2007. He will be released from prison on the terms that he have no
contact with any child under the age of eighteen unless he is accompanied by a
responsible adult who is aware of his conviction and supervision status and has
been approved in advance by his probation officer. He will also not be allowed to
congregate or loiter around school yards, playgrounds, swimming pools, arcades,
zoos, or other places frequented by children under the age of eighteen. Further,
he will not be allowed to possess any type of camera, including cameras within
cellular telephones, or video recording devices without probation officer approval.
Angela filed her petition for termination of Kevin’s parental rights pursuant
to Iowa Code sections 600A.8(4) and (10) on October 2, 2006. The district court
ordered termination of Kevin’s rights on both grounds. Kevin appeals.
II. Standard of Review
We make a de novo review of proceedings terminating a parent’s parental
rights. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). The grounds for termination
must be proved by clear and convincing evidence. Id. However, our primary
concern is the best interests of the children. Id. Although not bound by them, we
give weight to the district court’s findings of fact and determinations of the
credibility of witnesses. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998).
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III. Merits
On appeal, Kevin argues there was not clear and convincing evidence that
he failed to support his children without good cause, that Iowa Code section
600A.8(10)
cannot
be
retroactively
applied
to
him
and
is
otherwise
unconstitutional, and that termination was not in the best interests of the children.
A. Termination Under Section 600A.8(4)
Under section 600A.8(4) there are grounds for termination of a parent’s
rights if that parent “has been ordered to contribute to the support of the child or
financially aid in the child’s birth and has failed to do so without good cause.”
This must be established by clear and convincing proof. Iowa Code § 600A.8.
“Without good cause” primarily concerns the parent’s ability to pay the ordered
child support. In re B.L.A., 357 N.W.2d 20, 22 (Iowa 1984). It is Angela’s burden
to show that Kevin had the ability to pay child support but refused to do so.
R.K.B., 572 N.W.2d at 601-02. It is not necessary that Angela show that Kevin
willfully failed to pay, but Kevin’s intent is clearly tied to his ability to pay. See
B.L.A., 357 N.W.2d at 22; Klobnock v. Abbott, 303 N.W.2d 149, 152 (Iowa 1981).
Kevin was current on his child support at the time of his incarceration in
November 2002. Upon incarceration, the district court reduced his child support
obligation to $50 per month per child. He made no further payments. Kevin’s
prison job paid approximately $17 per month, and he received significant income
in 2005 from outside sources. He spent $356 on various items for himself and
$420 to hire an attorney to appeal the conviction for which he pled guilty. In
addition, Kevin spent $6 per month for two phone calls each month to his
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children, $8 per month to send two letters per week to each of his three
daughters, and spent money to send his daughters storybook tapes and crafts.
Incarceration alone cannot excuse Kevin’s failure to pay. In re J.L.W., 523
N.W.2d 622, 624 (Iowa Ct. App. 1994). An incarcerated parent must take full
responsibility for the conduct that resulted in his confinement. Id. Our courts are
generally unsympathetic toward self-created obstacles to supporting one’s
children.
See In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993) (holding that
incarceration is no excuse for the lack of relationship with a child); In re J.S., 470
N.W.2d 48, 51 (Iowa Ct. App. 1991) (noting that a father’s incarceration did not
justify his failure to fulfill his parental responsibilities). Our legislature, however,
“intended for termination for nonsupport to occur where a parent’s failure to pay
manifests indifference to a child and is therefore akin to abandonment.”
Klobnock, 303 N.W.2d at 152.
Even though Kevin failed to contribute to the financial support of his
children, his actions do not manifest indifference to his children.
He made
numerous attempts to maintain a relationship with his daughters by calling them
twice every month and sending letters and small gifts to them on a weekly basis.
Although gifts are no replacement for child support, this statute was not intended
to terminate an involved parent’s parental rights. In re C.M.W., 503 N.W.2d 874,
875-76 (Iowa Ct. App. 1993); Klobnock, 303 N.W.2d at 152. It is very clear that
Kevin wishes to repair and maintain his relationship with his daughters.
Kevin was earning only $17 per month in prison. He spent $14 of this
amount for phone calls and letters. Any money paid in child support would have
been merely a token amount.
Kevin made stringent efforts to maintain his
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relationship with his children. Because his actions show no intent to abandon his
children or any manifestation of indifference toward them, and he used virtually
his entire prison paycheck to stay in touch with his daughters, good cause exists
for his failure to contribute to their support.
Therefore, the evidence is
inadequate to terminate his parental rights under section 600A.8(4).
B. Termination Under Section 600A.8(10)
Section 600A.8(10) allows termination of parental rights if:
[t]he parent has been convicted of a felony offense that is a criminal
offense against a minor as defined in section 692A.1, the parent is
divorced from or was never married to the minor’s other parent, and
the parent is serving a minimum sentence of confinement of at least
five years for that offense.
This law is specific to this case and was passed due to the lobbying efforts of
these children’s maternal grandmother. It went into effect July 1, 2006. Angela
submitted affidavits of two Iowa legislators, which stated the legislature’s intent in
enacting the statute was that it be applied retroactively. However, affidavits from
two legislators are not sufficient to show the entire legislature’s intent in passing
the statute.
We can find no legislative history that implies this statute was
intended to be applied retroactively.
Statutes are presumed to be prospective in operation unless expressly
made retrospective. Iowa Code § 4.5 (2007). Given no such express language,
we must presume this statute is prospectively applicable only. Id. It therefore
cannot be applied to terminate Kevin’s parental rights since he was convicted,
sentenced, and incarcerated in 2002 and 2003 before the statute was passed
into law. Because we find section 600A.8(10) to be inapplicable to Kevin, we do
not address his constitutional challenges to the statute.
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C. Best Interests of the Children
Although it may arguably be in the best interests of the children for their
father’s parental rights to be terminated, we do not reach that analysis because
we find no grounds for termination have been established by clear and
convincing evidence. J.L.W., 523 N.W.2d at 625. The children are adequately
protected under the court’s visitation order and will continue to be protected
under safeguards provided by the court in the dissolution matter.
REVERSED.
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