Opinion
No. 4-141 / 03-1967
Filed March 10, 2004
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
A father appeals from a juvenile court order which terminated his parental rights to his son. AFFIRMED.
Thomas Crabb, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Justin Allen, Assistant County Attorney, for appellee-State.
Jane Rosien, Winterset, guardian ad litem for minor child.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
An imprisoned father appeals from a juvenile court order terminating his parental rights to his son. Upon our de novo review, we affirm the juvenile court's termination order.
I. Background Facts Proceedings
Heidi A. and Marcus P. are the unmarried parents of a son, Tanner, born June 13, 2002. The juvenile court removed Tanner from his mother's care shortly after his birth because of Heidi's profound substance abuse problems. The court adjudicated Tanner as a child in need of assistance (CINA) on July 23, 2002. He has been living in foster care since September 27, 2002.
On April 15, 2003, the State filed a petition to terminate Heidi's parental rights to Tanner. The original petition made no reference to Marcus because Heidi had reported that another man was Tanner's father. In July 2003 paternity testing revealed that Marcus was Tanner's biological father. As a result of this finding, the State filed an amended petition seeking to terminate Marcus's parental rights. Following a contested hearing, the juvenile court terminated the parental rights of both parents by order entered November 18, 2003. The father's parental rights were terminated under Iowa Code section 232.116(1)(h) (child is three or younger, child CINA, removed from home for six of last twelve months, and cannot be returned home) (2003). Marcus has appealed. Heidi has not appealed from the juvenile court's decision to terminate her parental rights.
The mother's parental rights to Tanner's half sister were also terminated. The record reveals the mother has a serious substance abuse problem and is unable to care for her children.
II. Scope of Review
The scope of review in termination proceedings is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2001). Our primary concern is the best interests of the children. C.B., 611 N.W.2d at 492.
III. Discussion
We find that Marcus's parental rights were properly terminated under section 232.116(1)(h). Marcus has been incarcerated since December of 2001 and was in prison when Tanner was born. He is currently serving a term of imprisonment not to exceed fifteen years for two felony offenses. It is uncertain when Marcus will be released from prison. At the time the termination hearing was held, the juvenile court properly concluded Tanner could not be returned to his father's care.
Marcus admits the State proved the statutory grounds for termination under section 232.116(1)(h), but contends that Department of Human Services failed to provide him with reasonable services because paternity testing was not accomplished in a timely manner. He suggests that if he had known he was Tanner's father sooner, he could have attempted to establish a relationship with his son or sought to have his parents care for Tanner until he is released from custody. We find no merit in this argument. Regardless of when paternity was established, the fact remains that Marcus has had no contact with his son. He has been incarcerated since Tanner was born because of his criminal activity and remains unavailable to participate in services outside the prison setting for the foreseeable future. At some point, the rights and needs of the child must rise above the rights and needs of the parent. In the Interest of J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997)
The father was receiving services in prison at the time of the termination hearing.
Marcus also contends his constitutional rights were violated because he was not notified of the CINA proceedings. The department did not become aware that Marcus was a possible father of Tanner until June 2003. Once paternity was established, Marcus was served and made a party to these proceedings. Moreover, we find no indication in the record that the juvenile court was asked to address the constitutional claims the father now asserts on appeal-the issues are not mentioned in the juvenile court's termination order. An issue not presented to and passed on by the juvenile court may not be raised for the first time on appeal, even one of constitutional dimensions. In re C.M., 652 N.W.2d 204, 207 (Iowa 2002). Therefore, we do not address this issue.
Marcus also suggests that it was in Tanner's best interests to be placed with his paternal grandparents. Once again, the termination order does not address this issue and we find no indication in the record that the issue was raised below. Because we conclude error was not preserved on this issue, we decline to address it.
We conclude that the State proved by clear and convincing evidence that Marcus's parental rights should be terminated. Tanner should not have to wait any longer for responsible parenting. He deserves permanency and stability. Termination of Marcus's parental rights clearly serves his son's best interests. Accordingly, we affirm the juvenile court.