In the Interest of J.L.W.

523 N.W.2d 622, 1994 Iowa App. LEXIS 98, 1994 WL 635163
CourtCourt of Appeals of Iowa
DecidedAugust 25, 1994
Docket93-1992
StatusPublished
Cited by19 cases

This text of 523 N.W.2d 622 (In the Interest of J.L.W.) is published on Counsel Stack Legal Research, covering Court of Appeals 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 J.L.W., 523 N.W.2d 622, 1994 Iowa App. LEXIS 98, 1994 WL 635163 (iowactapp 1994).

Opinion

HAYDEN, Presiding Judge.

Toni W. and Michael B. were involved in a ten-year relationship. They had two sons born of this relationship who are not subject to the present proceedings. A third child, J.L.W., was born on July 27, 1991. Prior to J.L.W.’s birth, Toni and Michael had moved numerous times throughout the country. Toni and Michael were residing in West Virginia when she became pregnant with J.L.W. Toni’s relationship with Michael became strained. Toni called her aunt, Leone B., a resident of Onawa, Iowa, and asked permission to live with her until the baby was born. Leone agreed, and Toni left Michael and moved in with Leone. Toni has a bipolar personality and has a long history of mental illness. She takes lithium to control her mood swings.

Prior to J.L.W.’s birth, Toni asked R.J., her first cousin, and his wife if they wanted to adopt J.L.W. Initially R.J. and C.J. were hesitant to commit. They ultimately reached an agreement with Toni. They took J.L.W. home from the hospital and cared for her. They waited until Toni decided what course of action she would to take. After J.L.W.’s birth, Leone helped Toni and her sons settle in Danbury, Iowa. Toni signed a release of custody of J.L.W. to R.J. and C.J. on September 24, 1991.

Michael called Leone’s home several times during the period before J.L.W.’s birth. Michael learned Toni was living at Leone’s. After that, Michael called Leone at least once a month until December 1991. Michael sent a package for one of the boys for his birthday and sent a Christmas gift, but did not send any gifts for J.L.W. When Toni informed Michael J.L.W. would be put up for adoption, the record does not reveal Michael took any action. During the first eight months after J.L.W.’s birth, Michael did not send any support, cards, or gifts to or for J.L.W.

On April 4,1992, Toni wrote a letter to the attorney who drafted the release of custody agreement, informing him she wished to revoke the release. On April 8, 1992, Leone filed a petition for termination of Toni’s parental rights. On August 9, 1992, the trial court entered an ex parte order placing temporary custody with R.J. and C.J.

Michael married another woman on April 3, 1992. Several days later, Toni contacted Michael and sent him the money for a bus ticket from Kentucky. Michael left his new wife and moved to Onawa. On April 15, 1992, Michael completed a financial affidavit for appointment of counsel in which he alleged he and Toni were married under common law. Michael did not reveal he had married someone else twelve days earlier. Michael and Toni later filed a joint application for temporary visitation with J.L.W. The trial court approved the application. Toni exercised a few supervised visits, but Michael did not. Michael moved back to *624 Kentucky in May 1992. Upon his return, he was arrested on a parole violation on an underlying narcotics distribution charge. Michael was sentenced to one year in jail. During the year he was in jail, Michael did not attempt to contact J.L.W. or inquire about her welfare. He did attempt, however, to visit his sons who were then in Ohio and obtain custody of them.

On December 30, 1992, Toni filed a withdrawal of her objection to termination. On January 14,1993, Toni’s parental rights were terminated. She does not appeal. Michael filed a request for admission from Leone, asking her to admit he had not at any time consented to or approved the termination of his parental rights to J.L.W. Termination of his rights to J.L.W. was heard on September 23, 1993. The trial court terminated Michael’s parental rights on the ground Michael had abandoned J.L.W. Michael appeals. We affirm.

Michael argues there is insufficient evidence in the record to support the trial court’s finding he abandoned J.L.W. Michael claims the only reason he did not contact Toni or J.L.W. was the fact Toni had moved from Onawa and did not tell him of their destination. He claimed Leone refused to tell him where they were. Michael also claimed he gave Toni support for the children and inquired as to Toni’s mental health in regards to the children. Michael maintains even when he was in prison he attempted to comply with the court order for paternity blood testing. He further asserts the fact he was incarcerated should not be a significant factor in terminating his parental rights. He claims he only went back to Kentucky in May 1992 because he could not find employment in Iowa.

Appellate review of termination proceedings is de novo. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). We give weight to the findings of fact of the trial court, especially when considering the credibility of witnesses, but we are not bound by those determinations. Id. at 745 (citation omitted).

We hold there is clear and convincing evidence Michael abandoned the child. Michael abandoned J.L.W., within the meaning of Iowa Code section 600A.8(3), through his conduct in failing to have any contact with her whatsoever, in failing to provide any financial or emotional support to her, and in failing to express significant interest in her welfare by contacting her caretakers. Our supreme court has recognized there exists a parental interest in the integrity of the parental unit, but such interest is not absolute and may be forfeited by certain conduct. Dameron, 306 N.W.2d at 745.

Michael has stated he never intended to abandon J.L.W. Clearly, actions speak louder than words. Intent can be shown through conduct. Michael has established a record of complete disregard for J.L.W.’s welfare: no visits, no financial support, no cards, letters, or gifts.

Michael claims the only reason he did not contact J.L.W. or her mother was the fact they moved from Onawa and did not tell him of their destination. However, the record reflects during the three-week time period between July 1, 1991, and July 27, 1991, Michael called Leone’s residence. At the time, he learned J.L.W.’s mother was living there. Michael called Leone’s residence at least once per month after July through December 1991. In November 1991 Michael spoke directly to J.L.W.’s mother. Michael did not come to Iowa during this time period.

During these phone calls to Leone, Michael inquired about J.L.W. on only one occasion. He asked if anything was wrong with J.L.W. Leone advised Michael in a phone call in September of 1991 J.L.W. would be put up for adoption. The record reveals Michael took no action in response to this information.

Michael’s incarceration cannot serve as an excuse for his conduct. See, e.g., In re R.L.F., 437 N.W.2d 599, 602 (Iowa App.1989). The general rule is unavailability to parent as a result of being incarcerated is no excuse. Id. at 602. An incarcerated parent must take full responsibility for the conduct which has resulted in his confinement. See In re J.S., 470 N.W.2d 48, 51 (Iowa App.1991).

Michael also claimed he gave J.L.W.’s mother support for the children. J.L.W.’s *625 mother denies ever receiving any support for J.L.W.

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Bluebook (online)
523 N.W.2d 622, 1994 Iowa App. LEXIS 98, 1994 WL 635163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-jlw-iowactapp-1994.