Opinion
No. 1-1065 / 01-1260
Filed April 10, 2002
Appeal from the Iowa District Court for Woodbury County, Mary L. Timko, Associate Juvenile Judge.
Father appeals the termination of his parental rights to his minor child. AFFIRMED.
William Binkard, South Sioux City, Nebraska, for appellant.
Thomas J. Miller, Attorney General, Mary Pippin, Assistant Attorney General, Cindy Weber, Assistant Woodbury County Attorney, for appellee.
Stephanie Forker Parry, Sioux City, for minor child
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
On May 2, 2001, the district court terminated the parental rights of the appellant father, Charles, to his minor child Marcus. Charles's rights were terminated under Iowa Code section 232.116(1)(b) (1999), based on a finding Charles had abandoned or deserted Marcus. Termination under that section requires clear and convincing proof Charles intended to relinquish his parental rights and responsibilities and engaged in conduct evidencing that intent. In re D.M., 516 N.W.2d 888, 891 (Iowa 1994). Charles appeals, claiming there was not clear and convincing evidence of abandonment, that reasonable services were not provided, and that the termination was not in Marcus's best interest. Under our de novo review, in which our primary consideration is the child's best interests, In re J.J.S., Jr., 628 N.W.2d 25, 28 (Iowa Ct.App. 2001), we affirm.
After Charles found out his then-girlfriend, Melissa, was pregnant with Marcus, but prior to the couple's November 1999 marriage, the two participated in a burglary that resulted in Charles's incarceration. Charles was imprisoned when Marcus was born in April 2000, and remained so up through the time of termination. Charles has never seen Marcus, never provided financial support, and never attended available parenting classes. After Marcus's birth there was some debate as to whether Charles was actually the biological father and, even though Charles was notified of the child in need of assistance (CINA) proceedings in June 2000, he did not contact the Department of Human Services regarding establishment of paternity until October 2000. Charles did not seek any services from the Department, including visitation, until February 20, 2001. This was nearly ten months after the CINA petition was filed, two months after the termination petition was filed, and less than two weeks prior to the termination hearing.
Although Charles maintains he has "continuously maintained a paramount interest" in Marcus, such contention is not born out by the record. "[P]arental responsibilities include more than subjectively maintaining an interest in a child. The concept requires affirmative parenting to the extent it is practical and feasible in the circumstances." In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981). While Charles's ability to interact with Marcus may have been restricted by his incarceration, his lack of efforts go above and beyond the limitations of his situation. See In re D.J.R., 454 N.W.2d 838, 842 (Iowa 1990) (regarding contacts with child under a no-contact order). He is not entitled to rely upon an allegation the Department failed to provide reasonable services where he did not timely request such services. See In re M.T., 613 N.W.2d 690, 692 (Iowa Ct.App. 2000).
We find the State has proven by clear and convincing evidence that Charles abandoned Marcus with the intent to do so. Cf. In re D.E.D., 476 N.W.2d 737, 739 (Iowa Ct.App. 1991) (finding termination not warranted where incarcerated father attended then taught parenting course, made a series of contacts with his child, attempted other thwarted contacts, and had one instance of prison visitation). The facts underlying the abandonment finding also support the conclusion that Marcus's best interests are served by the termination of Charles's parental rights. Marcus was nearly ten months old by the termination hearing and had absolutely no bond with his father. As we have previously noted, "[c]hildren simply cannot wait for responsible parenting." In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). We therefore affirm the juvenile court.
AFFIRMED.