In the Interest of C.T., Minor Child , 919 N.W.2d 767 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1695
Filed June 6, 2018
IN THE INTEREST OF C.T.,
Minor Child,
R.N., Mother,
Petitioner-Appellee,
J.T., Father,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Page County, Amy L. Zacharias,
District Associate Judge.
Father appeals from an order terminating his parental rights pursuant to
Iowa Code chapter 600A (2017). AFFIRMED.
Katherine Kaminsky Murphy of Kate Murphy Law, P.L.C., Glenwood, for
appellant.
Justin R. Wyatt of Woods & Wyatt, PLLC, Glenwood, for appellee.
Vicki R. Danley, Sidney, guardian ad litem for minor child.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.
In this private termination-of-parental-rights proceeding, Jeremiah, the
father, appeals from an order terminating his parental rights in his son, C.T. (born
2006). The petition was filed by C.T.’s mother, Renee, and the district court
granted the petition and terminated Jeremiah’s rights pursuant to Iowa Code
section 600A.8(3)(b) and (4) (2017). On appeal, Jeremiah challenges the
sufficiency of the evidence supporting the statutory grounds authorizing the
termination of his parental rights.
“Termination proceedings under Iowa Code chapter 600A are a two-step
process. In the first step, the petitioner seeking termination must first show by
clear and convincing evidence a threshold event has occurred that opens the door
for potential termination of parental rights. Once that threshold showing has been
made, the petitioner next must show, by clear and convincing evidence,
termination of parental rights is in the best interest of the child.” In re Q.G., ___
N.W.2d ___, ___, 2018 WL 2071823, at *9 (Iowa 2018).
We review termination proceedings initiated pursuant to Iowa Code chapter
600A de novo. See In re G.A., 826 N.W.2d 125, 127 (Iowa Ct. App. 2012). It is
the petitioner’s burden to prove each element of the case by clear and convincing
evidence. See Iowa Code § 600A.8. Clear and convincing evidence is a higher
burden than a preponderance of the evidence but less than evidence beyond a
reasonable doubt. See In re M.S., 889 N.W.2d 675, 679 (Iowa Ct. App. 2016). “It
is the highest evidentiary burden in civil cases. It means there must be no serious
or substantial doubt about the correctness of a particular conclusion drawn from
the evidence.” Id. “Although our review is de novo, we afford deference to the
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district court for institutional and pragmatic reasons.” Hensch v. Mysak, 902
N.W.2d 822, 824 (Iowa Ct. App. 2017). This means we give weight to the district
court’s findings of fact.
Where, as here, the district court terminated a parent’s rights pursuant to
more than one statutory provision, we will affirm the termination order if any ground
is supported by sufficient evidence. We turn our attention to Iowa Code section
600A.8(4). Pursuant to this provision, the district court may terminate a parent’s
rights upon clear and convincing evidence the “parent has been ordered to
contribute to the support of the child . . . and has failed to do so without good
cause.” Iowa Code § 600A.8(4). “If there has been a showing of a substantial
failure to pay, the court must then consider whether that failure was without good
cause. In considering whether there is good cause for failure to pay child support,
the key factual issue is the parent’s ability to pay. A parent’s intent is clearly tied
to an ability to pay.” See In re M.J.W., No. 17-0149, 2017 WL 2665957, at *3 (Iowa
Ct. App. June 21, 2017).
Here, there is clear and convincing evidence Jeremiah failed to provide
financial support for the child. The parties were married at one time but have since
divorced. Jeremiah was ordered to pay child support in the amount of $170 per
month. In a subsequent modification proceeding Jeremiah was again ordered to
pay child support in the amount of $170 per month plus an additional $30 per
month for back child support. Renee testified Jeremiah has not paid child support
since June 2012. Her testimony was corroborated by payment records from the
clerk of court. While Jeremiah testified he believed he may have paid additional
support, he was not able to produce any evidence of payment.
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Jeremiah contends his failure to support was for good cause. Specifically,
he contends he thought he was paying and/or he was unable to pay. We disagree
with the contention Jeremiah’s failure to pay was for good cause. The record
reflects Jeremiah now has four other children in addition to C.T. Jeremiah testified
his wages were subject to an income withholding order to support his children.
Jeremiah testified he believed, but never verified, some amount of the withheld
wages was to provide support for C.T. Renee testified she told Jeremiah she was
not receiving any support. Renee’s testimony was credible. Despite Renee telling
Jeremiah she was not receiving any child support for C.T., Jeremiah took no
action. He did not contact the child support recovery unit to follow up on the issue
and ensure some of his withheld wages were for the support of C.T. He did not
make voluntary payments or offer to make voluntary payments to Renee. He
simply chose to ignore his obligation to provide support for this child. That is
insufficient to establish good cause. See Iowa Code § 600A.1 (providing a parent
must “affirmatively assume the duties encompassed by the role of being a parent”
including “fulfillment of financial obligations”); see also In re R.K.B., 572 N.W.2d
600, 602 (Iowa 1998) (“[T]he legislature intended termination for nonsupport to
occur where a parent’s failure to pay manifests indifference to a child.”)
Jeremiah does not challenge whether termination of his parental rights is in
the best interest of the child. Nonetheless, we briefly address the issue. The
supreme court recently articulated the best-interest standard:
Iowa Code section 600A.1 provides a lengthy description
regarding application of the concept of “best interest of the child” in
termination proceedings. The provision states the best interest of
the child “shall be the paramount consideration” in interpreting the
chapter. [Iowa Code] § 600A.1. Yet, the section further provides the
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interests of the parents of the child “shall be given due
consideration.” Id.
The best interest of the child requires each parent
“affirmatively assume the duties encompassed by the role of being a
parent.” Id. Among other things, the court is directed to consider
“the fulfillment of financial obligations, demonstration of continued
interest in the child, demonstration of a genuine effort to maintain
communication with the child, and demonstration of the
establishment and maintenance of a place of importance in the
child’s life.” Id.
In addition to applying the language of Iowa Code section
600A.1, we have also borrowed from Iowa Code section 232.116(2)
and (3) to flesh out the best-interest-of-the-child test. In re A.H.B.,
791 N.W.2d 687, 690–91 (Iowa 2010). We consider the child’s
“physical, mental, and emotional condition and needs” and the
“closeness of the parent-child relationship.” Iowa Code §
232.116(2)-(3).
The best-interest-of-the-child test plainly has both backward-
looking and forward-looking components. We have cited with
approval a discussion of the court of appeals, which stated,
We look to the child’s long-range, as well as immediate,
interests. We consider what the future holds for the
child if returned to his or her parents. Insight for this
determination can be gained from evidence of the
parent’s past performance, for that performance may
be indicative of the quality of the future care the parent
is capable of providing. Our statutory termination
provisions are preventative as well as remedial. They
are designed to prevent probable harm to a child.
R.K.B., 572 N.W.2d at 601 (quoting In re C.M.W., 503 N.W.2d 874,
875 (Iowa Ct. App. 1993)).
Q.G., 2018 WL 2071823, at *9–10.
Here, the termination of Jeremiah’s parental rights is in the best interest of
the child. Jeremiah has not provided financial support for the child since 2012.
While Jeremiah had exercised visitation on a regular basis, his visitation with the
child has become infrequent and sporadic due to Jeremiah’s criminal conduct,
incarceration, lack of employment, and homelessness. The visitations that did
occur were not positive. By way of example, on one occasion, Jeremiah left C.T.
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at his apartment unattended in the middle of the night. Jeremiah did so because
he went to confront his ex-girlfriend and slash her tires. After Jeremiah was
arrested, Jeremiah’s ex-girlfriend told police C.T. may be “somewhere in the city”
and they needed to locate the child. The police found C.T. locked in the bedroom
of Jeremiah’s apartment. This incident led to a founded report of child abuse or
neglect for denial of critical care.
In contrast to Jeremiah’s conduct, Renee can provide for the financial and
emotional needs of the child. She has long-term gainful employment and financial
security. She has remarried. C.T. has a seven-year bond with his step-father,
Shain. Shain testified he wants to adopt C.T. We weigh these factors heavily in
the best-interest determination. See G.A., 826 N.W.2d at 131 (discussing the fact
that “G.A.’s step-father provides for all of G.A.’s needs and has expressed a
willingness to adopt the child pending the outcome of these proceedings”).
For these reasons, we affirm the order terminating Jeremiah’s parental
rights.
AFFIRMED.