In the Interest of C.J.P., Minor Child, D.P., Mother, J.E., Father ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1814
Filed October 12, 2016
IN THE INTEREST OF C.J.P.,
Minor Child,
D.P., Mother,
Petitioner-Appellee,
J.E., Father,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hansen,
Judge.
An incarcerated father appeals the termination of his parental rights under
Iowa Code chapter 600A. AFFIRMED.
Alexander D. Smith of Parrish Kruidenier Law Firm, Des Moines, and
Stephie N. Tran (until withdrawal), West Des Moines, for appellant father.
Shane C. Michael of Michael Law Firm, West Des Moines, for appellee
mother.
Cherie L. Johnson of Law Office of Cherie L. Johnson, P.L.C., West Des
Moines, guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., Tabor, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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TABOR, Judge.
An incarcerated father, Jerry, appeals the district court’s order terminating
his parental rights to his four-year-old daughter, C.J.P. Jerry contends he did not
abandon his daughter as contemplated by Iowa Code section 600A.8(3) (2015).
He further argues severing their legal relationship is not in C.J.P.’s best interests.
We disagree on both points. As the district court observed, “even
considering his current situation,” Jerry has made only “minimal efforts” to
establish a relationship with C.J.P. Because Jerry has been in prison for most of
his daughter’s life and has done little to reach out to her, no parent-child bond
exists. The district court found C.J.P. was thriving in the care of her mother,
Danielle, and maternal grandparents, and exposure to Jerry—given his violent
criminal history—would not be in C.J.P.’s best interests. Because we reach the
same conclusions as the district court, we affirm.
I. Facts and Prior Proceedings
Jerry had some visits with C.J.P. after she was born but never lived with
the child. He went to prison when his daughter was just three months old. Jerry
is serving a thirty-year prison sentence with a seven-year mandatory minimum on
convictions of robbery, theft, and conspiracy to deliver drugs. He is eligible for
parole in 2018 but testified parole is not guaranteed. Even after his release, he
will be required to live in a halfway house under the supervision of the Iowa
Department of Corrections. Jerry has a history of committing assaults and
admits he was verbally abusive to Danielle during their relationship.
Danielle and her parents are currently C.J.P.’s caretakers. C.J.P. has
lived with her maternal grandparents since she was an infant and is well
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integrated into their home. The grandparents took custody of C.J.P. when both
her parents were incarcerated. When asked by the guardian ad litem who her
“daddy” was, C.J.P. responded “Papa Terry”—her grandfather.
Danielle filed a petition to terminate Jerry’s parental rights on March 31,
2015. The district court held a hearing in August and granted Danielle’s petition
in September 2015. Jerry now appeals.
II. Untimely Notice of Appeal
The district court issued its termination order on Sunday, September 27—
via the Electronic Data Management System (EDMS). Jerry’s trial counsel did
not file a notice of appeal until October 28—one day after the thirty-day deadline.
Our supreme court asked the parties to file statements addressing its jurisdiction
to consider the untimely appeal. Jerry’s counsel explained she calculated the
filing deadline from Monday, September 28, when the clerk accepted the entry of
judgment.1 In November 2015, the supreme court issued an order submitting the
jurisdictional question with the appeal. In December 2015, the court issued
Concerned Citizens of Se. Polk Sch. Dist. v. City Dev. Bd., 872 N.W.2d 399, 404
(Iowa 2015), which held the official filing date of an order is the date it is filed by
the court and electronically stamped in EDMS and not the date of the notice of
filing from the clerk’s office.
Jerry’s appellate brief was drafted by new counsel, who acknowledges the
notice of appeal was untimely under the Concerned Citizens decision. Appellate
counsel contends trial counsel rendered ineffective assistance in missing the
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Danielle’s counsel did not file a statement and was late in seeking to file a proof brief.
The supreme court rejected her request to file a belated proof brief and ordered the
appeal to proceed without the appellee’s participation.
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deadline.2 Alternatively, Jerry asserts he is entitled to a delayed appeal because
it is in the interests of justice.
We opt to take the second route. Our court has held the inherent power to
grant a delayed appeal extends to termination of parental rights cases under
chapter 232. See In re A.B., No. 99-0049, 1999 WL 976097, at *3 (Iowa Ct. App.
Oct. 27, 1999) (noting delayed appeals may be granted in criminal cases “when
counsel’s procedural errors have denied a defendant’s clearly expressed
intention and good faith effort to appeal” and finding the same due process
considerations apply to termination of parental rights cases). We believe the
same is true for indigent parents in termination cases arising under chapter 600A
and grant Jerry’s request for a delayed appeal. Cf. In re S.A.J.B., 679 N.W.2d
645, 651 (Iowa 2004) (holding Iowa’s equal protection clause guarantees
indigent parents the right to counsel in involuntary termination of parental rights
proceeding brought under chapter 600A).
III. Standard of Review
We conduct a de novo review of termination proceedings under chapter
600A. See In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). We defer to
the factual findings of the district court, especially witness-credibility findings, but
we are not bound by them. See In re G.A., 826 N.W.2d 125, 127 (Iowa Ct. App.
2012). When interpreting chapter 600A, the best interests of the child involved is
“the paramount consideration,” but we also give “due consideration” to the
interests of the child’s parents. See Iowa Code § 600A.1. The parent petitioning
2
Due process considerations require appointed counsel to provide effective assistance.
Cf. In re D.W., 385 N.W.2d 570, 579 (Iowa 1986) (considering chapter 232 termination).
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for termination has the burden to show the other parent has abandoned the child.
See id. § 600A.8(3)(b); G.A., 826 N.W.2d at 129. The termination findings must
be based on clear and convincing proof. Iowa Code § 600A.8.
IV. Analysis
A. Evidence of Abandonment
Danielle’s petition for termination of Jerry’s parental rights alleged he had
abandoned C.J.P. under section 600A.8(3)(b).3 Abandonment means “reject[ing]
the duties imposed by the parent-child relationship.” Id. § 600A.2(19). That
rejection may be shown when the parent, “while being able to do so, mak[es] no
provision or mak[es] only a marginal effort to provide for the support of the child
or to communicate with the child.” Id.
A parent is deemed to have abandoned a child who is six months of age
or older “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”: (1) visiting the child at least monthly when physically and financially able to
do so; (2) in lieu of visiting, having regular communication with the child or with
the person having custody of the child; or (3) living with the child for six months
within one year of the termination hearing and holding himself or herself out to be
the parent. Id. § 600A.8(3)(b). A parent’s subjective intent to maintain a
relationship with his or her child does not preclude a finding of abandonment if
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The petition also sought termination under section 600A.8(9): “[T]he parent has been
imprisoned and it is unlikely that the parent will be released from prison for a period of
five or more years.” The district court found Danielle had not proven this ground by clear
and convincing evidence because Jerry was eligible for parole in 2018.
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the parent’s subjective intent is not manifested through the actions listed in
subsection (b). Id. § 600A.8(3)(c).
Under section 600A.8(3)(b), the threshold element of “substantial and
continuous or repeated contact” is economic contributions. The district court
found: “It is undisputed that [Jerry] has not provided any financial support for
C.J.P. during her life.” The court noted Jerry earned $120 per month through the
prison system and, admittedly, could have sent some portion of those earnings to
his mother to assist with C.J.P.’s support, but he did not do so. Under the
predicate language of section 600A.8(3)(b), Jerry has abandoned his daughter.
See In re W.W., 826 N.W.2d 706, 710 (Iowa Ct. App. 2012).
Not only has Jerry failed to provide financial support, he has not kept in
regular communication with C.J.P. or her maternal grandparents. Jerry’s only
effort to stay in touch with his young daughter is by writing her letters a few times
a year, including holiday and birthday greetings—all the while realizing she likely
did not receive them. Jerry has not inquired about the possibility of adding C.J.P.
to his visitor list at the Newton Correctional Facility or setting up telephone
conversations with her. He testified he considered making a recording of his
voice for C.J.P. but did not follow through with the plan. He has not asked any of
his family members to help him establish a relationship with C.J.P.
It is true Jerry’s long-term incarceration allows him limited options to forge
bonds with his young daughter, but his own poor choices led to his predicament.
“Under Iowa’s termination case law, a parent ‘cannot use his incarceration as a
justification for his lack of relationship with the child.’” In re C.A.V., 787 N.W.2d
at 101 (citation omitted). Moreover, Jerry has not pursued those options that do
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exist in an effort to build a relationship with C.J.P. On this record, we find clear
and convincing evidence to support the district court’s finding of abandonment.
B. Child’s Best Interests
After the petitioning parent has established a statutory ground for
termination, that parent must prove termination of the other parent’s rights is in
the best interests of the child. In re R.K.B., 572 N.W.2d 600, 602 (Iowa 1998).
We turn to the question of C.J.P.’s best interests, giving “due consideration” to
the interests of Jerry and Danielle. See Iowa Code § 600A.1.
After independently reviewing the record, we concur with the district
court’s assessment—termination of Jerry’s parental rights serves C.J.P.’s best
interests. In setting out an analytical framework to determine the best interests of
a child under chapter 600A, our supreme court has found the parallel provisions
in section 232.116(2)4 to be a useful guide. See In re A.H.B., 791 N.W.2d 687,
690–91 (Iowa 2010). C.J.P.’s short-term and long-term nurturing is best
safeguarded by her maternal grandparents, who have raised her from infancy,
and her mother, who is now able to provide for the child’s well-being. Jerry’s
imprisonment on violent felony charges and his assaultive history do not make
him a good prospect for future parenting. Because Jerry has not created an
emotional bond with C.J.P., none is broken by the termination.
AFFIRMED.
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Iowa Code section 232.116(2) states, in relevant part:
[T]he court shall give primary consideration to the child’s safety, to the
best placement for furthering the long-term nurturing and growth of the
child, and to the physical, mental, and emotional condition and needs of
the child. This consideration may include . . . :
a. Whether the parent’s ability to provide the needs of the child is
affected by . . . the parent’s imprisonment for a felony.