D.J.R., In Interest of

• Citation: 454 N.W.2d 838
• Decision Date: 18 April 1990
• Docket Number: No. 89-503,89-503
• Parties: In the Interest of D.J.R., A child, D.R., Natural Father, Appellant, M.R., Natural Mother, Appellant.
• Court: United States State Supreme Court of Iowa

Page 838

454 N.W.2d 838

In the Interest of D.J.R., A child,

D.R., Natural Father, Appellant,

M.R., Natural Mother, Appellant.

No. 89-503.

Supreme Court of Iowa.

April 18, 1990.

Rehearing Denied May 23, 1990.

Steven M. Porto, West Des Moines, for appellant D.R.

William A. Price, Des Moines, for appellant M.R.

Thomas J. Miller, Atty. Gen., Gordon E. Allen, Deputy Atty. Gen., Kathrine S. Miller-Todd, Asst. Atty. Gen., James A. Smith, County Atty., and Karen A. Romano, Asst. County Atty., for appellee State of Iowa.

Marlene Cebuhar of the Youth Law Center, Des Moines, attorney and guardian ad litem for the child, D.J.R.

Considered by McGIVERIN, C.J., and LARSON, CARTER, LAVORATO and NEUMAN, JJ.

McGIVERIN, Chief Justice.

In November 1988, the juvenile court terminated the parental rights of D.R. and M.R. with respect to their daughter, D.J.R. Both D.R. (the father) and M.R. (the mother) appealed. ¹ The case was transferred to our court of appeals. That court affirmed the judgment of the juvenile court. D.R. and the State applied for further review, which we granted. ²

Our review is de novo. In the Interest of Dameron, 306 N.W.2d 743, 745 (Iowa 1981). We review both the facts and the law and adjudicate the parties' rights anew on the propositions properly presented for review. Id. The best interest of the child is the overarching consideration in a case of this nature. Id.

Although our reasoning in this case differs from that of the court of appeals, we agree with the court of appeals conclusion that the juvenile court properly terminated the parental rights of D.R. and M.R. We affirm the decision of the court of appeals and the judgment of the juvenile court.

I. Background facts and proceedings. D.J.R. was ten years old when she was removed from her parents' custody in March 1985. The initial impetus for the removal was D.J.R.'s report to a schoolteacher that D.R. had physically and sexually abused her. ³ D.J.R. was placed in the custody of the Polk County Department of Human Services (DHS) pending resolution of the child in need of assistance proceeding concerning her.

While in the custody of the DHS, D.J.R. underwent psychological evaluation by Dr. John C. Meidlinger. Dr. Meidlinger's preliminary report noted D.J.R.'s tendency to "confabulate," that is, make up answers to fill gaps in her memory or understanding. The report also noted her unusual lack of attachment to her parents and her adamant desire not to be returned to her parents from foster care. Dr. Meidlinger's final report, issued after five sessions with D.J.R. which took place in March and April 1985, contains the following comments:

Initially, I had concerns about the possibility of some organic defects in [D.J.R.] but over the course of time as her anxiety has decreased and I have been able to evaluate her more completely I view her apparent inability to distinguish reality from fantasy more in terms of her early developmental isolation and her attempts to confuse and keep adults at a distance. Intellectually, she is functioning in the dull-normal to borderline retarded range. She has limited ability to organize and work in a constructive fashion on her own. She tends to be tangential and to fabricate stories in the course of normal conversations and has little insight as to the effect of these stories on listeners. She tends to be very angry and alienated. She is unusually detached from her parents and views them in a very negative and hostile light. She has little insight into her own thoughts and feelings, has only a very rudimentary conscience and operates mostly in terms of trying to get what she wants while avoiding punishment for incurring the anger of others. Her most outstanding characteristic is her lack of empathy and feeling for others and her exclusive reliance on internal fantasy life, which is I believe, likely related to early developmental deprivation and lack of an ongoing caring relationship with a responsible adult.

Diagnostically I would describe her as Schizotypal Personality Disorder, a diagnosis which includes bizarre fantasies, social isolation, odd speech and feelings of depersonalization and constricted inappropriate affect. This diagnosis indicates a need for long-term ongoing therapy predicated on the development of a relationship with another person and the focus of that relationship is to help [D.J.R.] understand herself and through that understanding to gain empathy for others and an ability to maintain ongoing relationships and to depend less on internal fantasies and self-preoccupation.

Dr. Meidlinger recommended long-term therapy for D.J.R. and strongly recommended that D.J.R. not be returned to the custody of D.R.

In May 1985, a DHS worker twice contacted D.R. by telephone to discuss the possibility of D.R. coming to visit D.J.R. On both occasions, D.R. stated that he did not want to see D.J.R. and declined to arrange a visit.

In July 1985, D.J.R. was adjudicated a child in need of assistance by stipulation of her guardian ad litem, her parents, and the State. The stipulation and resulting order of the juvenile court expressly did not include any finding of physical or sexual abuse of D.J.R. The stipulation and order did include a no-contact order "prohibiting any contact whatsoever between [DR.] and [D.J.R.] outside a therapeutic setting." D.J.R.'s custody was placed with the DHS for placement commensurate with her needs.

D.J.R.'s status as a child in need of assistance was confirmed by the court after hearings in March and September 1986. Neither D.J.R.'s parents nor her parents' attorney attended these hearings. ⁴

In September 1987, the State filed a petition to terminate the parental rights of D.R. and M.R. with respect to D.J.R. As grounds for termination, the State alleged abandonment of D.J.R. under Iowa Code section 232.116(1)(b) (1987 & Supp.), as well as the ground set forth in Iowa Code section 232.116(1)(e). ⁵

The matter was tried to the juvenile court. On November 1, 1988, the juvenile court entered its findings and order terminating the parental rights of D.R. and M.R. with respect to D.J.R. The court found that the State had proven by clear and convincing evidence that D.J.R. had been abandoned by her parents. In addition, the court found that the State had proven by clear and convincing evidence that the parental rights of D.R. and M.R. should be terminated on the ground set forth in Iowa Code section 232.116(1)(e). Specifically with regard to section 232.116(1)(e)(3), the court found that D.J.R. could not be returned to the custody of her parents as provided by section 232.102 because: 1) she would be imminently likely to suffer physical abuse or neglect; 2) she would be imminently likely to suffer inadequate supervision; 3) she was in need of treatment for serious mental illness, disorder or emotional damage but her parents were unwilling or unable to provide treatment; and 4) she for good cause desired to have her father, at least, relieved of her care and custody. The court found it to be in D.J.R.'s best interest to terminate the parental rights of D.R. and M.R.

The parents' posttrial motions were overruled. D.R. and M.R. appealed. ⁶

II. Sufficiency of the evidence. In order to terminate a person's parental rights, consistent with the United States Constitution, the State must prove the existence of an otherwise valid ground for termination by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599, 603 (1982). Our statutes reflect this fact. See, e.g., Iowa Code § 232.116. D.R. argues that his parental rights with respect to D.J.R. cannot be terminated because the State failed to prove the existence of any statutory ground for termination by clear and convincing evidence.

We believe that clear and convincing evidence establishes at least two of the specific statutory grounds relied on by the juvenile court: abandonment of D.J.R. within the meaning of Iowa Code section 232.116(1)(b), and D.J.R.'s need for treatment to cure serious mental illness, disorder, or emotional damage, for which D.R. is unable or unwilling to provide treatment, under Iowa Code section 232.116(1)(e)(3).

A. Abandonment. As used in chapter 232, "abandonment of a child" means:

[T]he permanent relinquishment or surrender, without reference to any particular person, of the parental rights, duties, or privileges inherent in the parent-child relationship. Proof of abandonment must include both the intention to abandon and the acts by which the intention is evidenced. The term does not require that the relinquishment or surrender be over any particular period of time.

Iowa Code § 232.2(1). Although we realize that D.R. has been subject to a limited no-contact order with respect to D.J.R. since March 1985, we think the evidence is clear and convincing that D.R.'s intentional lack of contact with D.J.R. went so far above and beyond compliance with that order as to amount to abandonment.

The no-contact order in this case expressly provided that D.R. could visit D.J.R. in a therapeutic setting. Thirty months passed between the removal of D.J.R. from D.R.'s home and the filing of the termination petition. Despite numerous contacts by those involved in D.J.R.'s care during that time, D.R. chose not to attend or participate in court review hearings, group home staffings, foster care review board hearings, or therapy. He did not visit D.J.R. even in a therapeutic setting. He did not seek modification of the no-contact order. He chose to sit idly by while social workers and foster parents cared for D.J.R. In March 1987, D.R. and M.R. were ordered to pay the cost of D.J.R.'s care. Neither parent even came to the hearing on the matter. Neither parent paid any part of the support ordered.

In October 1987--thirty-one months after D.J.R. was removed from D.R.'s home and one month after the termination proceeding had begun--D.R. contacted a social...