Burney, Matter of

• Decision Date: 21 September 1977
• Docket Number: No. 3-60543,3-60543
• Citation: 259 N.W.2d 322
• Parties: In the Matter of Steven Franklin BURNEY, a minor. In re the Matter of the Conservatorship and GUARDIANSHIP OF Steven Franklin BURNEY, a minor. Appeal of Mildred HAINES and Clifford Haines.
• Court: Iowa Supreme Court

Page 322

259 N.W.2d 322

In the Matter of Steven Franklin BURNEY, a minor In re the Matter of the Conservatorship and GUARDIANSHIP OF Steven Franklin BURNEY, a minor Appeal of Mildred HAINES and Clifford Haines.

No. 3-60543.

Supreme Court of Iowa.

Sept. 21, 1977.

Garold F. Heslinga, Oskaloosa, for appellants.

William J. Brandenburg, Des Moines, for appellee.

Heard by MOORE, C. J., and RAWLINGS, REES, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

This is a child custody dispute. Steven Franklin Burney, born out of wedlock to 17-year-old Robin M. Burney of Des Moines on December 12, 1974, was placed by the mother in the home of Mildred and Clifford Haines four days after his birth. Mildred Haines was the sister of a woman with whom Robin had resided. Upon Robin's petition Mildred was appointed guardian of Steven in May 1975. In early 1977 Robin asked that Steven be returned to her. When the Haines refused, Robin commenced this action seeking termination of the guardianship, after which the Haines separately petitioned the court to terminate her relationship with Steven. The actions were consolidated for trial. After trial the court terminated the guardianship and denied the Haines' petition to terminate Robin's parental rights. The Haines appeal from this decision, and we affirm.

Steven's natural father is known but has expressed no interest in the child, has contributed nothing toward his support, and is not involved in this proceeding. Robin ended her relationship with him several months before Steven's birth. After the birth she considered and rejected the notion of releasing Steven for adoption. Instead she accepted the suggestion of Mildred Haines' sister that she arrange to have the Haines care for the child on a temporary basis.

Some dispute exists regarding how long the Haines were to care for the child. They contend they were to have Steven for a month or two, until Robin became 18. They insist that her failure to claim his custody until almost two and one-half years later proves she abandoned him. Robin contends the Haines were to care for Steven until she became able to care for him. She denies she abandoned him.

The Haines live in Beacon, near Oskaloosa. Clifford, age 41, is a trucker. Mildred, age 42, is a homemaker. They have two grown sons. It is uncontroverted that they have taken excellent care of Steven, are deeply attached to him, and want to continue to raise him as their own child. For the first year of his life they did not represent themselves to him as his parents, but since then they have permitted him to believe they are his father and mother. He calls them "daddy" and "mommy".

Robin visited Steven in the Haines home and occasionally elsewhere an average of once or twice a month. She gave him toys and clothing and gave Mildred Haines money for his care when she was able to do so. Mildred said she received $300, which she put in a savings account for Steven. After placing Steven with the Haines, Robin held various jobs and studied to obtain a G.E.D. high school equivalency certificate. She received her certificate in 1976. In 1975 Robin moved into an apartment with Mark Tingwald, whom she married in February 1977. Mark has been regularly employed and shares Robin's desire to have Steven live with them.

In their brief the Haines argue Robin's claim to Steven rests solely on her relationship. They assert "She has no religion, no funds, no experience, questionable morality and a brand new marriage." They contrast this with the good home they have provided and offer Steven, and they emphasize the trauma of transferring his custody to Robin.

I. The Haines' petition for termination of parental rights. In asking that Robin's parental rights be terminated, the Haines allege three grounds. They contend Robin surrendered Steven, abandoned him, and substantially, continuously and repeatedly

neglected to meet her parental duties. Their action is brought under § 600A.5, The Code, and their allegations are made under § 600A.8.

It is clear Robin did not surrender Steven's custody to the Haines within the meaning of § 600A.8(1), because she did not sign a release of custody pursuant to § 600A.4.

It is also clear Robin did not abandon Steven within the meaning of § 600A.8(3). Principles governing abandonment are discussed in Doan Thi Hoang Anh v. Nelson, 245 N.W.2d 511, 515-516 (Iowa 1976). Abandonment involves a giving up of parental rights and responsibilities accompanied by an intent to forego them. In this case Robin continuously manifested her desire to maintain her relationship with Steven and except for delay in asserting her parental rights did nothing to show an intention to abandon him. We do not find the delay in asserting her rights is alone sufficient to establish abandonment.

Furthermore we find the evidence falls far short of showing a substantial, continuous or repeated neglect of parental...