Interest of K.W.

• Decision Date: 29 October 2003
• Docket Number: No. 3-796/03-1438.,3-796/03-1438.
• Parties: IN THE INTEREST OF K.W., a/k/a K.C., Minor Child, J.B., Father, Appellant.
• Court: Iowa Court of Appeals

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IN THE INTEREST OF K.W., a/k/a K.C., Minor Child, J.B., Father, Appellant.

No. 3-796/03-1438.

Court of Appeals of Iowa.

Filed October 29, 2003.

Appeal from the Iowa District Court for Muscatine County, James A. Weaver, District Associate Judge.

A putative father appeals from the juvenile court order terminating his parental rights to his daughter.

AFFIRMED.

Jeffrey M. Johnson, Muscatine, for appellant-father.

Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Gary Allison, County Attorney, and Korie L. Shippee, Assistant County Attorney, for appellee-State.

Arlen L. Poock, Muscatine, guardian ad litem for minor child.

Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.

SACKETT, C.J.

Justin, the putative father of Kenley, appeals from the juvenile court order terminating his parental rights to his daughter.¹ He contends (1) he never was informed he had a child, so the evidence does not support a conclusion he abandoned her, and (2) Kenley was not removed from his custody, and the State provided no services to him, so the statutory ground in Iowa Code section 232.116(1)(h) (2003) is inapplicable. We affirm.

Kenley was born to Misty in February 2002. The Department of Human Services (DHS) removed Kenley from Misty's care in July because of her failure to provide for Kenley's medical needs. She was found to be a child in need of assistance in September and placed in family foster care. Misty named four potential fathers, including her husband and Justin. All but Justin were tested and eliminated as Kenley's father. In October 2002 DHS attempted to contact Justin by mail about the case and to have him tested as a potential father. The letter went unanswered and was not returned as undeliverable. A certified letter sent to Justin in March 2003 was returned with the notation, "moved left no address." Following publication of notice of the termination petition in March and April, DHS learned Justin was incarcerated in Jacksonville, Illinois, and served notice on him there.

Although the petition does not clearly identify whether some of the allegations apply to one or both parents, it appears DHS sought to terminate Justin's parental rights under Iowa Code sections 232.116(1)(b) (abandonment) and 232.116(1)(h) (child three or younger cannot be returned to parents' custody at the present time).

After receiving notice of the petition for termination and that counsel was appointed, Justin wrote to his attorney stating, in pertinent part:

I am asking for full custody [with] my grandmother as an overseer til I am released September 30, 2003. I would like for a chance to prove I am a fit father.

I have received paperwork that states I have abandoned the child but the truth is the mother . . . never told me she has had my child. If I would have known, I would have been a part of her life.

Justin also wrote two "to whom it may concern" letters. In one, he asked that the termination hearing to be postponed for a year so he could participate after his release from prison. He also asked for a DNA test and stated he was "willing to take responsibility and help raise it" if the child was his. The other letter reiterated his lack of knowledge he was a father, set forth the rehabilitative efforts he was making in prison, and declared he did not wish to give up his parental rights.

The guardian ad litem filed a report in support of terminating Kenley's parent's rights. He noted Justin did not contact DHS after being sent a letter in October 2002. Justin did not request any services or make any attempt to establish a place of importance in Kenley's life. The juvenile court found:

The father is imprisoned. He is not able to provide care for his daughter. He was not involved with her prior to his imprisonment. It is impractical to assess his parenting skills. Given the nature of the crimes for which he has been imprisoned [sexual abuse with force] it is unlikely he could act as a custodian for the child before undergoing extensive treatment for sexual offenders.

The court terminated Justin's parental rights under sections 232.116(1)(b) and (h). Justin appeals.

On appeal, Justin raises two issues. First, can a father who does not know he has a child "abandon" that child as set forth in section 232.116(1)(b)? Second, can the "removal" element in section 232.116(1)(h) be satisfied if a parent never has had custody of the child?

We review de novo. In re A.Y.H., 508 N.W.2d 92, 94 (Iowa Ct. App. 1993). The State has the burden of proving the grounds for termination by clear and convincing evidence. See In re T.A.L., 505 N.W.2d 480, 483 (Iowa 1993). If the juvenile court terminates a parent's rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the court in order to affirm. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct. App. 1996). The parent-child relationship is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S. Ct. 1526, 1542, 32 L. Ed. 2d 15, 35 (1972). A parent has the right to due process and a fair trial when the State seeks to terminate parental rights. In re R.B., 493 N.W.2d 897, 898 (Iowa Ct. App. 1992); see also Alsager v. Iowa Dist. Ct., 406 F. Supp....