M.M.S., In Interest of

• Citation: 502 N.W.2d 4
• Decision Date: 16 June 1993
• Docket Number: No. 92-658,92-658
• Parties: In the Interest of M.M.S., A Minor Child. B.C., Father, Appellant, R.S., Mother, Appellee.
• Court: United States State Supreme Court of Iowa

Page 4

502 N.W.2d 4

In the Interest of M.M.S., A Minor Child B.C., Father, Appellant R.S., Mother, Appellee.

No. 92-658.

Supreme Court of Iowa.

June 16, 1993.

James B. Malloy of Nelson, Johnson & Malloy, Ogden, for appellant.

Michael F. Mumma and Rita Harmening Pedersen of Mumma & Pedersen, Jefferson, for appellee.

Dennis W. Ladd, Jefferson, guardian ad litem for the child.

Considered en banc.

HARRIS, Justice.

This appeal challenges an order terminating the relationship between a father and his natural daughter. We agree with the trial court's finding of abandonment and affirm the order of termination. So doing we vacate a contrary decision by the court of appeals.

The proceedings were brought by the child's mother, pursuant to Iowa Code section 600A.8 (1991), which provides in pertinent part:

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.

Iowa Code section 600A.2(16) defines abandonment this way:

"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.

(The definitions contained in Iowa Code section 600A.2 have since been renumbered alphabetically; the definition of abandonment is now found in Iowa Code section 600A.2(17) (1993).)

Our review is de novo. Iowa R.App.P. 4. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. Iowa R.App.P. 14(f)(7). We think the following facts are established by clear and convincing evidence.

The child, Megan, now six years old, was born March 23, 1987. She is the natural child of the petitioner Rebecca and the respondent Brent. Rebecca and Brent were never married. Rebecca's pregnancy resulted from a single encounter. Indeed the relationship between Brent and Rebecca could scarcely be more casual. They had never dated and were barely acquainted. Brent testified he had "only seen her a few times." Rebecca was fifteen when Megan was born. Brent was nineteen. At the time of the encounter, Rebecca was a high school freshman. Brent was a senior.

After this single encounter, Brent stepped completely out of Rebecca's life. The two never saw each other again. Brent has never been a part of Megan's life either; he has never seen her and has provided her with no support.

Brent concedes all of this, but thinks there was no abandonment because he was never adequately confronted with his paternity. At the time of Megan's birth, Rebecca believed another person was the father. The birth certificate does not show the name of a father. Although he certainly knew he was eligible, Brent chose to believe rumors that another person was Megan's father, and gave the matter no further attention. For reasons that will appear, Rebecca was not anxious to implicate Brent in Megan's life. Under the circumstances Megan spent her infancy oblivious of her father, and Brent spent those years oblivious of her.

There the matter would have undoubtedly remained but for the fact that, in 1990, the year Megan turned three, Rebecca sought public assistance. As a result the State pursued the matter of paternity, first against a person Rebecca then thought to be the father. When the blood test proved the first named was not the father, the State's attention turned to Brent.

Notwithstanding their casual association, Brent knew of Rebecca's pregnancy and concedes that, when he learned the first-named person was not the father, he "had a feeling maybe she was mine." He would have had this knowledge by the time the paternity action against him was filed April 18, 1990.

To say the least, Brent did not greet the news with unrestrained enthusiasm. On June 1 he filed a denial of paternity. On June 10 he signed a stipulation to submit to withdrawal of a blood specimen to test his paternity. Such a submission is a requirement upon motion of the court or either party. Iowa Code § 675.41 (since transferred and rewritten in Iowa Code § 600B.41 (1993)). Brent missed the first scheduled appointment but did appear by arrangement several days later. Results, confirming his paternity, were received by his counsel on August 21, and mailed to him the same date. The results prompted Brent to sign a stipulation of paternity on August 24, 1990. The stipulation was not filed in court until September 17.

On September 26, 1990, Brent entered federal prison, where he remains incarcerated. His incarceration is for possession with intent to distribute cocaine (five counts) and perjury (seven counts). He may be eligible for release to a half-way house in the fall of this year (1993), or for parole in March 1994.

Brent defends the charge of abandonment on the claim that association with his daughter was uncalled for prior to September 1990 and has been impossible since then. He contends he could not be expected to try to associate with Megan until he knew of their relationship, and he could not do so after his incarceration. In order to properly analyze Brent's claims, it will be necessary to describe him and retrace his steps.

Although Brent expresses some hopeful intentions to reform, and although there are indeed some signs of encouragement since he went to prison, Brent has a strong propensity for violence, a moderately extensive criminal history, and a history of drug addiction. There is no question concerning the following trial court findings:

Brent is described as an individual who has been hot tempered, self-centered, and lived a "wild past." He has not maintained any steady employment. He admits to past alcohol and drug usage. He also has prior convictions for operating while intoxicated, assault causing bodily injury, false imprisonment and harassment. He has been in in-patient substance abuse treatment and underwent a batterer's program. Prior to his current imprisonment, he had been incarcerated on two other occasions, once for 24 days. Two close friends of Brent are also in prison. During his current imprisonment, he failed to advise Rebecca of the change in the location of his incarceration to Yankton, South Dakota....

The hot temper to which the trial court referred was manifested by rather extreme acts of violence, particularly with regard to women with whom Brent was associating. The assault causing bodily injury charge for which he was earlier incarcerated was one example. And Brent conceded he had threatened to harm another woman and that it "may be possible" that he had threatened to kill her. This propensity for violence is of great concern to Rebecca, and the cause for her reticence concerning his associating with Megan.

I. We think Brent is shown to have abandoned Megan. During Megan's first three years she became established within a family with Rebecca and later with a stepfather, Rebecca's husband. At the time of trial the family was expanded to include a half-brother. While she put these roots down, Megan had no association with Brent, or even awareness of him. During this period Rebecca alone and later her husband, certainly not Brent, bore all of the burdens, responsibilities and expenses of nurturing the child. While Megan was being so nurtured, Brent's abandonment was taking place and becoming complete. He must be charged with some sense of involvement on the basis of his encounter with Rebecca and his knowledge of her pregnancy that followed, even notwithstanding rumors of another father. Brent's lack of precise knowledge of his paternity may or may not have been deliberate. His lack of association with Megan may or may not have been understandable. He nevertheless demonstrated a willingness to stay completely outside Megan's life, and let others provide for all her care, and develop the association with her that he did not. This in time amounted to abandonment.

And just where was Brent during Megan's formative infant years? In early 1990, about the time the paternity suit was filed against him, Brent was so far into the drug culture as to be testifying before and lying to a federal grand jury about his own and an accomplice's activities in selling cocaine. These matters led to the criminal sentence Brent is now serving.

Brent argues he had only nine days from the filing of the paternity decree until his incarceration in which to establish a relationship he had so long chosen to ignore. We think he had far longer, and opted against it both by his indifference and his choice of lifestyle. During the months prior to his incarceration, the period when he was involved with the activities leading to his incarceration, Brent was forced to a growing awareness of Megan. He had, not only the nine days he claims, but a period of at least several weeks following the time when he was certain of his paternity before he began his incarceration. He took no advantage of it.

We are unpersuaded by Brent's claim of limited opportunities. In the first place it is he who is most responsible for his limited opportunities. As Rebecca testified, she "didn't send him to prison. He did that himself." Secondly, we think a showing of abandonment does not require a multitude of spurned opportunities. An abandoned child is no less abandoned because the parent can rationalize a reason for the abandonment. When opportunities for association with a child are few, they become more precious, and the spurning of them more egregious. If few opportunities for...