In the Interest of Goettsche

311 N.W.2d 104, 1981 Iowa Sup. LEXIS 1063
CourtSupreme Court of Iowa
DecidedOctober 21, 1981
Docket65657
StatusPublished
Cited by32 cases

This text of 311 N.W.2d 104 (In the Interest of Goettsche) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of Goettsche, 311 N.W.2d 104, 1981 Iowa Sup. LEXIS 1063 (iowa 1981).

Opinion

McCORMICK, Justice.

The question in this appeal is whether the trial court erred in terminating the parent-child relationship between Henry Goettsehe 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 abandon *106 ment 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.

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Bluebook (online)
311 N.W.2d 104, 1981 Iowa Sup. LEXIS 1063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-goettsche-iowa-1981.