Opinion
No. 3-341 / 02-1839
Filed July 10, 2003
Appeal from the Iowa District Court for Fremont County, Mark J. Eveloff, District Associate Judge.
A father appeals from the order that terminated his parental rights under Iowa Code chapter 600A, and the paternal grandmother appeals the juvenile court's determination that she was not a necessary party to proceeding. AFFIRMED.
Jon Johnson of Johnson Law Firm, P.L.C., Sidney, for appellant-father.
G. Rawson Stevens, Shenandoah, for appellant-grandmother.
Michael Murphy of Murphy, Rodenburg Stierman Law Offices, P.C., Council Bluffs, for appellee-mother.
Shelly Sedlak, Assistant City Attorney, Council Bluffs, for minor child.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Davey appeals from the district court order that terminated his parental rights. Davey's mother, Janet, appeals the juvenile court's determination that she was not a necessary party in this matter. Upon review, we conclude the juvenile court should be affirmed.
Background Facts and Proceedings . Darci and Davey are the parents of Devin, born in 1994, and David, born in 1995. When the parties' marriage was dissolved in 1996, Darci received the children's physical care. Davey was awarded specified visitation and ordered to pay $366 a month in child support. Over the succeeding years Davey's interaction with and support of his children was erratic, and both visitation and voluntary support ceased in October 2000. By January 2002, although Davey's total support obligation exceeded $25,000, Darci had received only $9400. Nearly $7000 of this amount came, not from voluntary payments by Davey or even wage withholding, but from tax refund offsets, a forfeited appearance bond, and Davey's mother, Janet. Janet began making payments after she was awarded grandparent visitation by the district court, pursuant to Iowa Code section 598.35 (2001), in an order entered in Darci and Davey's dissolution of marriage case.
Darci remarried and for several years her new husband, Terry, had both supported the children and acted in a paternal role. Terry wished to adopt Devin and David, and in March 2002 Darci filed a petition to terminate Davey's parental rights. The petition also named Janet, and sought the termination of her visitation rights. By the time of the hearing all involved, including Janet, agreed that the juvenile court was without jurisdiction to affect the visitation rights Janet had been awarded in the dissolution case. Accordingly, Darci was allowed to amend her petition to eliminate the request to terminate Janet's visitation rights. Janet nevertheless resisted Darci's request to strike her answer, arguing that she was a necessary party under Iowa Rule of Civil Procedure 1.234. The court, finding chapter 600A did not define necessary parties to include grandparents, struck the answer.
Janet did object to Darci's request to withdraw the portions of the petition that related to her visitation rights. However, the objection went only to the timeliness of Darci's request, which was not made until the termination hearing.
After a contested hearing, the juvenile court determined that Davey had abandoned his children as contemplated in Iowa Code section 600A.8(3), and that he had failed to contribute to their support without good cause, as contemplated by section 600A.8(5). Determining that it was in the children's best interest, the court terminated Davey's parental rights. The court noted that it had given "virtually no credibility" to Davey's testimony.
Both Davey and Janet appeal. Davey argues the record does not contain clear and convincing evidence to justify the termination of his parental rights. Although Janet nominally reiterates her argument that she is a necessary party under Iowa rule 1.234, the core of her appeal is a contention that she is necessary party, as defined by statute, because her visitation rights render her a custodian of Devin and David.
Janet lists rules 1.233 through 1.235 in her table of authorities, as well as one of the statements of the issues presented for review, but neither cites to or relies upon the rules in the body of her argument, nor makes any effort to demonstrate how she fits within the rules' definitions. We therefore decline to consider the question of whether Janet was a necessary or indispensable party under the rules. See Kellar v. Peoples Natural Gas Co., 352 N.W.2d 688, 693 (Iowa Ct.App. 1984) (declining to consider "an `argument' which consists of nothing more than a bald assertion without any elaboration").
Scope of Reivew . We conduct a de novo review of the termination of Davey's parental rights. Klobnock v. Abbott, 303 N.W.2d 149, 150 (Iowa 1981). We give weight to the court's factual findings, especially when considering witness credibility, but we are not bound by them. Id. Because Janet's claim raises questions of statutory interpretation, our review of that issue is for the correction of errors at law. Iowa R.App.P. 6.4; In re Adoption of S.J.D., 641 N.W.2d 794, 797 (Iowa 2002).
Termination of Parental Rights. After a thorough review of the record, including the report of the guardian ad litem, we conclude that there is clear and convincing evidence Davey failed to pay child support without good cause, as contemplated by Iowa Code section 600A.8(5). See In re C.M.W., 503 N.W.2d 874, 875 (Iowa Ct.App. 1993). Accordingly, we need not address whether the record contains such evidence regarding Davey's alleged abandonment of his children. See In re B.L.A., 357 N.W.2d 20, 22 (Iowa 1984) (noting that a termination will be upheld if one ground is established by clear and convincing evidence).
Davey argues the guardian ad litem's report should be disregarded, because she did not properly interview him and ascertain his intent regarding lack of interaction with the children and nonpayment of support. Davey, however, lived in other states during the pendency of this proceeding, and the guardian ad litem had considerable difficulty in contacting him. When the guardian ad litem was finally able to reach Davey by telephone, she conducted an interview and provided Davey her contact information. Davey made no further effort to reach the guardian ad litem or provide additional information. We conclude the guardian ad litem adequately discharged her duties, given the circumstances. Like the district court, we afford her opinion the appropriate weight.
Even though Davey's payment history improved after the termination petition was filed, the amount of voluntary support he paid prior to Darci instituting the termination proceeding, $2500, is only ten percent of his total obligation. It is clear that Davey substantially failed to meet his support obligation. See Klobnock, 303 N.W.2d at 152 (noting that a substantial, and not merely sporadic or insignificant failure must exist). Davey argues that there is nevertheless good cause for his nonpayment, as he was often without sufficient funds to pay the support.
Like the district court, we place little stock in Davey's claims that he paid child support directly to Darci, and therefore the Collection Services Center's payment history does not accurately reflect the total amount paid.
The issue of whether nonpayment was without good cause focuses on the obligor's ability to pay. In re D.E.E., 472 N.W.2d 628, 630 (Iowa Ct.App. 1991). Nonpayment of support when one has an ability to pay manifests an indifference to the child akin to abandonment. Id. While Darci bears the burden of establishing Davey's ability to meet his obligation, this is not tantamount to a requirement that Darci prove willfulness in failing to pay. See In re R.K.B., 572 N.W.2d 600, 602 (Iowa 1998); In re D.E.E., 472 N.W.2d at 630.
Davey argues that Darci failed to prove he had an ability to meet his support obligation, because no evidence was presented as to his income or actual earning capacity during those times when he did not pay child support. Even without such evidence, the record establishes Davey's ability to pay support far in excess of what he voluntarily paid prior to the filing of the termination petition. Davey testified that he has construction experience, primarily in carpentry and welding. There is no indication that Davey is, or has been, incapable of gainful employment. On the contrary, Davey admitted that, if he had initially stayed in Iowa, he could have remained "fully employed" doing carpentry and welding work. Moreover, the payment record of the Iowa Collection Services Center reveals periods of time during which Davey paid little or no support, but for which tax refunds were issued.
The record indicates that Davey's lack of financial support is less a matter of inability, than indifference. He admitted that he failed to pay support on many occasions, but asserted that it was because Darci had interfered with his visitation rights. While we are not convinced Darci did in fact interfere with Davey's visitation, any such interference would not constitute good cause for nonpayment of support. See Klobnock, 303 N.W.2d at 152-53. We give little weight to Davey's assertion that his failure to pay support on other occasions was because what money he had was required to support his "new family," which consisted of his fiancé and her child. When Davey possessed funds that could support others, his legal obligation ran, not to his fiancé and her child, but to his own children.
There is a vast difference between being unable to support ones children, and choosing not to do so. Even a nominal amount of support, paid as regularly as possible, would be evidence of Davey's intent to support Devin and David. See In re R.K.B., 572 N.W.2d at 602 (noting that, while petitioning parent need not show that obligor willfully failed to pay, obligor's intent is clearly tied to the ability to pay). As Davey testified, however, he had other, seemingly more important, "priorities." The record clearly and convincingly establishes, for at least a substantial portion of the time when Davey did not meet his support obligations, that he had the ability to make those payments. Davey's actions have manifested an indifference to his children that is akin to abandonment. See Klobnock, 303 N.W.2d at 152.
We therefore turn to the question of whether the termination of Davey's parental rights was in the children's best interests. In re R.K.B., 572 N.W.2d at 602. We note that, between the filing of the parties' dissolution decree and the filing of the termination petition, the exercise of Davey's visitation could best be described as erratic and sparse. In the sixteen months immediately preceding filing, Davey had absolutely no contact with his children. Like the district court, we do not find credible Davey's claims that this was due to Darci interfering with his visitation rights.
Davey's behavior not only manifests an indifference to his children, but it has impaired his relationship with Devin and David. Although Davey tried to portray a relationship that is now close and loving, evidence presented by Darci, as well as the report of the guardian ad litem, indicates a relationship that is strained and uncertain. In contrast, it is clear that Devin and David have a close and loving relationship with their stepfather, who has provided the children with the financial and emotional support they should have received from Davey.
We also agree with the district court's assessment that Davey's position, both at trial and on appeal, is less motivated by his personal desire to maintain a relationship with his children, than by Janet's fear that she will lose contact with Devin and David if Davey's rights are terminated. If Davey's rights are not terminated, we question how long his recent interest in his children will last. The children's interests are best served by terminating Davey's parental rights. We therefore affirm the district court's decision in this regard.
Necessary Party . Janet argues that she meets the statutory definition of a necessary party in a termination of parental rights proceeding, because her visitation rights rendered her a custodian of Devin and David. See Iowa Code §§ 600A.5(3)(b)(3), .6(1) (defining necessary party to include a child's custodian). Although Janet's visitation rights were not at issue in this termination proceeding, and we thus have serious doubts as to her standing to pursue an appeal, we will nevertheless address her claims.
Janet relies on Patterson v. Keleher, 365 N.W.2d 22 (Iowa 1985) to support her argument. In that case our supreme court found a grandparent with visitation rights under Iowa Code section 598.35 (1983) was entitled to notice of a step-parent adoption under Iowa Code section 600.11(2), because she was the child's custodian. Keleher, 365 N.W.2d at 26. The court determined, under the particular facts of the case, that visitation should be equated with custody. Id. Janet argues that we should adopt the rational of Keleher, and find that custodian as used in chapter 600A also envisions a person with visitation rights. We reject Janet's claim for several reasons.
Keleher involved the interpretation of chapter 598A, as the grandmother's visitation rights were established in a uniform child custody decision under that chapter. Id. at 24. The court's decision to equate visitation with custody was based on the nexus between custody and visitation that manifested itself in a number of chapter 598A's provisions. Id.at 26. Significant among these was section 598A.10, which required the court to join as a party to the proceedings anyone who claimed visitation rights with the child. See id. ("The expressed legislative intent that a person with visitation rights must be noticed in an Iowa Code chapter 598A custody adjudication is a clear indication that the legislature must have envisioned a broad concept of the `custodian' required to receive notice in the more drastic and final adoption proceeding.").
Chapter 598A has been repealed by the legislature and replaced with chapter 598B (2001). Although some of chapter 598A's provisions that related to custody and visitation were substantially reenacted in chapter 598B, section 598A.10 was not among them. Compare Iowa Code § 598A.10 (1983) with Iowa Code § 598B.205 (2001). Thus, it is unclear whether Keleher would have the same force and effect in a uniform child custody proceeding brought under the current code. Moreover, the grandmother's visitation rights in this matter were granted in conjunction with a dissolution decree entered under chapter 598. We are not convinced that chapter 598 manifests the same nexus between custody and visitation as does former chapter 598A.
However, we need not stretch for the proper definition of a custodian under chapter 600A, as the chapter contains a statutory definition. Pursuant to Iowa Code section 600A.2(6):
"Custodian" means a stepparent or a relative within the fourth degree of consanguinity to a minor child who has assumed responsibility for that child, a person who has accepted a release of custody, or a person appointed by a court or juvenile court having jurisdiction over a child.
Under the plain language of the statute, Janet is not a custodian of Devin and David. Her claim that she is a necessary party to the termination proceedings because she is a custodian must therefore fail. Having considered the remainder of Janet's arguments, we find them to be equally without merit. The district court's rulings must be affirmed.