Goettsche, In Interest of

Decision Date21 October 1981
Docket NumberNo. 65657,65657
Citation311 N.W.2d 104
PartiesIn the Interest of Darrin Paul GOETTSCHE and Drew Thomas Goettsche, Children. Appeal of Henry GOETTSCHE.
CourtIowa Supreme Court

Dale E. Ruigh of Smith, Nutty, Sharp, Ruigh & Benson, Ames, for appellant.

S. A. Holm of Pasley, Singer, Pasley, Holm & Thomas, Ames, for petitioner-appellee Pamela Pohar.

William J. Pattinson, of Hegland, Newbrough, Johnson, Brewer & Maddux, Ames, guardian ad litem for the children.

Considered by LeGRAND, P. J., and HARRIS, McCORMICK, ALLBEE and LARSON, JJ.

McCORMICK, Justice.

The question in this appeal is whether the trial court erred in terminating the parent-child relationship between Henry Goettsche and his sons Darrin and Drew. The action was brought by Pamela Pohar, mother of the children, under chapter 600A, The Code. The relationship was terminated on the ground of abandonment under section 600A.8(3). We affirm the trial court.

In relevant part, section 600A.8 provides:

The juvenile court shall base its findings and order (terminating parental rights) on clear and convincing proof. The following shall be, either separately or jointly, grounds for ordering termination of parental rights:

....

3. A parent has abandoned the child.

4. A parent has been ordered to contribute to the support of the child or financially aid in the child's birth and has failed to do so without good cause.

Abandonment is defined in section 600A.2(16):

"To abandon a minor child" means to permanently relinquish or surrender, without reference to any particular person, the parental rights, duties, or privileges inherent in the parent-child relationship. The term includes 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.

Section 600A.1 states that the provisions of chapter 600A are to be construed liberally. The welfare of the child is to be the paramount consideration.

This appeal requires construction and application of the abandonment ground. We do not reach Pamela's contentions involving the constitutionality, construction and application of the separate ground in section 600A.8(4) authorizing termination for nonpayment of child support. See Klobnock v. Abbott, 303 N.W.2d 149 (Iowa 1981).

I. Construction of the statute. Henry raises three issues concerning the meaning of abandonment. First, he asserts it requires proof of "total desertion." Second, he alleges nonpayment of child support cannot be considered as evidence of abandonment. Finally, he contends abandonment can be found only when the parent has left the child on a doorstep or similarly left its welfare wholly to chance or fate.

The assertion that the statute requires total desertion before abandonment can be found does not bear scrutiny. Henry cites Pitzenberger v. Schnack, 215 Iowa 466, 245 N.W. 713 (1932), in support of his position. The court in that case cited with approval a definition of abandonment from Words and Phrases which included the term "total desertion." However, as Henry separately acknowledges in his brief, the present statutory definition is controlling here. See § 600A.2(16). That definition, which is different from the one quoted in Pitzenberger, does not require total desertion. We also note that the Pitzenberger decision was based on the failure of proof on the intent issue rather than on the desertion concept. See 215 Iowa at 470, 245 N.W. at 715.

We also find no merit in the second issue raised by Henry. His theory is that because nonpayment of child support is a separate ground for termination, considering the same evidence as proof of abandonment would make the separate ground superfluous. This argument has significance because he persuaded the trial court that the ground authorizing termination for nonsupport is unconstitutional. Moreover, the court's finding of abandonment rested in part on a finding of an unjustified substantial failure to pay court-ordered support.

We have recognized, however, that abnegation of court-ordered financial responsibility is relevant evidence of indifference to the child involved. It is "the equivalent of abandonment." In Interest of Kelley, 262 N.W.2d 781, 785 (Iowa 1978). Moreover, in requiring the statute to be construed liberally and in authorizing the termination grounds to be considered "either separately or jointly," the legislature plainly did not intend to preclude consideration of evidence relevant to one ground simply because it might also be relevant to another ground. Because the grounds overlap, the evidence may overlap as well. Certainly in some cases a failure to pay support may not be sufficient to warrant termination solely on that basis. Nonetheless the evidence might well be sufficient with other evidence to prove abandonment. We refuse to take the artificial and unrealistic view of the statute which Henry advocates.

His final statutory construction issue relates to the section 600A.2(16) language making the required permanent relinquishment or surrender of the child "without reference to any particular person." Henry contends this means a child left with a specific person can never be found to be abandoned. This concept is expressed in an older Utah case, Jensen v. Earley, 63 Utah 604, 612, 228 P. 217, 220 (1924), overruled on other grounds, Walton v. Coffman, 110 Utah 1, 169 P.2d 97 (1946). It has not been followed in later Utah cases. E. g., Re Adoption of Guzman, 586 P.2d 418 (Utah 1978) (mother found to have abandoned child in custody of her former husband). It has also been rejected in other jurisdictions. E. g., Petition of C. E. H., 391 A.2d 1370, 1373 (D.C.App.1978); In re Adoption of Maxwell, 4 N.Y.2d 429, 176 N.Y.S.2d 281, 151 N.E.2d 848 (1958).

We do not think our legislature intended to limit terminations based on abandonment in the way Henry suggests. Rather, we think the legislature intended that the relinquishment or surrender must not be a situation where the parent has merely turned to a particular person for help in caring for the child in a time of need. Circumstances of this kind are illustrated and discussed in Matter of Burney, 259 N.W.2d 322 (Iowa 1977).

We characterized abandonment in Burney as "a giving up of parental rights and responsibilities accompanied by an intent to forego them." Id. at 324. We think this characterization captures the two elements necessary for abandonment as the term is defined in section 600A.2(16). The giving up of parental rights and responsibilities refers to conduct. The intent element relates to the accompanying state of mind.

Moreover, parental 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. See In re J. L. Z., 492 Pa. 7, 421 A.2d 1064, 1064-65 (1980) ("This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.... Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child's life."); see also Placey, Effect of the Adoption Act of 1970 on Termination of Parental Rights, 81 Dickinson L.Rev. 709 (1977).

II. Proof in this case. Our review of the record is de novo. Klobnock, 303 N.W.2d at 150.

Henry and Pamela were married in 1961. The marriage was dissolved in January 1976. Pamela received custody of Drew, who is now 12, and Darrin, now 10. Henry was ordered to pay $100 per month per child as support and was given visitation "at reasonable times and places."

Both parents have resided in Ames since the dissolution. Henry has always had a good job...

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  • In the Interest of C.A.V., No. 0-329/10-0075 (Iowa App. 6/16/2010)
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    • June 16, 2010
    ...the conduct of the parent in giving up parental rights and responsibilities and the parent's intent to do so. In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981). A parent may evince an intent to abandon the child even though the parent subjectively maintains an interest in the child if that i......
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    ...is shown by "affirmative parenting to the extent it is practical and feasible in the circumstances." In the Interest of Goettsche, 311 N.W.2d 104, 106 (Iowa 1981) (emphasis added). Thus, it is D.R.'s failure to exercise even the limited visitation rights provided for in the order, coupled w......
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    ...the conduct of the parent in giving up parental rights and responsibilities and the parent's intent to do so. In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981). A parent may evince an intent to abandon the child even though the parent subjectively maintains an interest in the child if that i......
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    ...is “relevant evidence of [the parent's] interest in the child's well-being.” To support this argument, Valarie cites In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981), a termination case under chapter 600A,5 where we stated the “abnegation of court-ordered financial responsibility is relevan......
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