Opinion
No. 5-549 / 05-0054
Filed August 17, 2005
Appeal from the Iowa District Court for Floyd County, Bryan H. McKinley, Judge.
A father appeals the termination of his parental rights in this action brought under Iowa Code chapter 600A (2003). AFFIRMED.
Richard Stochl of Elwood, O'Donohoe, Stochl, Braun Churbuck, New Hampton, for appellant.
Rodney Mulcahy of Eggert, Erb, Frye Mulcahy, P.L.C., Charles City, for appellee mother.
Laurie Pederson, Rockford, Iowa, guardian ad litem for minor child.
Considered by Huitink, P.J., and Vogel and Zimmer, JJ.
I. Background Facts Proceedings
Randy and Dixie were previously married, and they had one child, Alix, who was born in February 1997. The parties divorced in 1998. They stipulated that Dixie would have physical care of Alix. Randy was granted regular visitation and ordered to pay child support of $234 per month.
Randy became involved with illegal drugs and progressively exercised less of his visitation rights. Randy was arrested in 1999. In 2000 he pled guilty to federal drug charges and was sentenced to a federal prison camp in South Dakota. Randy expects to be released in 2006. When Randy was sent to prison, his child support obligation was reduced to fifty dollars per month. He earns thirteen cents per hour working at the prison camp. Randy has not been making any payments on his child support obligation.
In the dissolution, Randy was awarded a house which he rents out. There was evidence that the mortgage payments, insurance and taxes on the home exceed the rental income.
Dixie has remarried. Her new husband, Luke, is interested in adopting Alix. In March 2004 Dixie filed a petition seeking to terminate Randy's parental rights under Iowa Code section 600A.8(3) (2003) ("A parent has abandoned the child.") and (5) ("A 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.").
At the trial held in October 2004 Dixie testified Randy had sent Alix two birthday cards and one Christmas card. She testified that while Randy occasionally called her, he did not ask to speak to Alix. She stated that Randy had not attempted to see Alix since 1999. Randy testified that he had sent at least twenty cards and letters, but some of these were addressed to Dixie instead of Alix. He testified that he had asked to speak to Alix when he called, but Dixie would not permit him to speak to his son. Randy's mother and sister testified that they had called Dixie and left messages, but she did not return their calls.
Dixie also testified that Randy had not been paying child support. Randy admitted this, but stated he did not have sufficient income to pay child support at the time.
The district court determined there was clear and convincing proof to support termination of Randy's parental rights under sections 600A.8(3) and (5). The court found Randy had made only minimal efforts to maintain contact with Alix. The court also found that Randy's incarceration was not a sufficient excuse for his lack of contact or his failure to provide any financial support. The court concluded termination of Randy's parental rights was in Alix's best interests. Randy appeals.
II. Standard of Review
Private termination proceedings are reviewed de novo. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). The grounds to terminate parental rights under chapter 600A must be proven by clear and convincing evidence. Iowa Code § 600A.8. Although we are 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).
III. Abandonment
The phrase "[t]o abandon a minor child" is defined in section 600A.2(18) to mean:
[A] parent, putative father, custodian, or guardian rejects the duties imposed by the parent-child relationship, guardianship, or custodianship, which may be evinced by the person, while being able to do so, making no provision or making only a marginal effort to provide for the support of the child or to communicate with the child.
Abandonment under section 600A.8(3) is characterized by the action of giving up of parental rights and responsibilities, accompanied by a corresponding intent. In re N.D.D., 434 N.W.2d 919, 920 (Iowa Ct.App. 1988) (citing In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981)).
A parent's incarceration cannot serve as an excuse for failing to attempt to communicate with a child. In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct.App. 1994). "The general rule is unavailability to parent as a result of being incarcerated is no excuse." Id. (citing In re R.L.F., 437 N.W.2d 599, 602 (Iowa Ct. App. 1989)). A parent must still make more than a marginal effort to maintain contact with his or her child. See Iowa Code § 600A.2(18).
In addressing the issue of abandonment, the district court found:
In this case, efforts made by Randy since 1999 to contact his son while incarcerated have been marginal at best, as well as minimal. Randy has never availed himself of the courts asking for visitation of his son while he is incarcerated. Considering the age of Alix (seven) and the length of time Randy has been away from his son (five years), he has surrendered any realistic chance of reunification. Neither Randy or his family, who visit him in prison in Yankton, South Dakota, has ever requested that Alix accompany a family member to visit Randy; therefore, Dixie should not be held responsible for lack of contact.
We find clear and convincing evidence in the record supports the district court's conclusion that Randy abandoned Alix within the meaning of section 600A.8(3). Even by Randy's account he has made few attempts to contact Alix. Furthermore, Randy's failure to make any payments towards his child support obligation manifests indifference, which constitutes abandonment. See In re C.M.W., 503 N.W.2d 874, 876 (Iowa Ct.App. 1993) (noting that where a parent's failure to pay child support manifests indifference to the child it is akin to abandonment).
We affirm the termination of Randy's parental rights to Alix under section 600A.8(3). Because of our conclusion on this issue, we do not need to address the district court's termination of Randy's parental rights under section 600A.8(5). See id. (noting that when we affirm the termination of parental rights on one ground, it is unnecessary for us to address other grounds raised before the district court).
IV. Best Interests
Randy asserts termination of his parental rights is not in Alix's best interests. Randy testified he was interested in visiting Alix. In addition, Randy has a child from a previous relationship. Randy argues that it is not in Alix's best interests to separate him from his sibling. Randy's mother and sister also expressed an interest in re-establishing a relationship with Alix.
The problem here is that Alix does not currently have a relationship with Randy or his family members. The district court noted, "it would not be in Alix's best interest to be forced to recreate a father-son relationship between himself and his biological father sometime in the future," where currently such a relationship does not exist. Due to Randy's abandonment of his son, Alix looks upon Luke as his father. We conclude termination of Randy's parental rights is in Alix's best interests.
We affirm the decision of the district court.
AFFIRMED.