Opinion
No. 5-485 / 05-0719
Filed July 13, 2005
Appeal from the Iowa District Court for Warren County, Richard B. Clogg, District Associate Judge.
A father appeals the juvenile court order terminating his parental rights. AFFIRMED.
Robert Rehkemper of Berger Law Firm, P.C., Urbandale, for appellant father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Gary Kendell, County Attorney, and Alyssa Kenville, Assistant County Attorney, for appellee-State.
Linda Murphy of Murphy Parks, Des Moines, for mother.
Jeffrey Mains of Mains Law Office, P.L.C., Des Moines, guardian ad litem for minor child.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
I. Background Facts Proceedings
Jeffrey and Jolynn are the parents of Taylor, born in April 1998; Brooke, born in November 1999; and Jeffrey Jr., born in January 2001. Jolynn's daughter from a previous relationship, Ashley, also lived with the parties. The family became involved with the Department of Human Services (DHS) in August 2003, when allegations arose that Jeffrey had sexually abused Ashley. An order was entered in November 2003 prohibiting Jeffrey from having contact with the children.
The children were removed from Jolynn's care in February 2004 after she had a drug test which was positive for methamphetamine. There were also concerns about a lack of supervision for the children. The children were placed with the maternal grandparents.
Taylor, Brooke, and Jeffrey Jr. were adjudicated to be children in need of assistance (CINA) under Iowa Code sections 232.2(6)(c)(2) (2003) (child is likely to suffer harm due to parent's failure to supervise) and (n) (parent's drug abuse results in child not receiving adequate care). The no-contact order was modified to allow Jeffrey to have supervised telephone contact with the children. A dispositional order was entered on May 6, 2004. Sex offender treatment was made available to Jeffrey. Jeffrey was ordered to obtain a psychosocial evaluation.
Jeffrey did not participate in services. He did not take advantage of his ability to have supervised telephone contact with the children. In June 2004 Jeffrey was found to be in contempt of court for violating the no-contact order by visiting the children. The children's placement was changed to foster care, but they were later returned to the grandparents' care.
In November 2004, in separate district court proceedings, the grandparents were appointed guardians of Taylor, Brooke, and Jeffrey Jr.
The guardian ad litem filed a petition in November 2004 seeking to terminate Jeffrey's parental rights. In February 2005, shortly before the termination hearing, Jeffrey filed a motion seeking to set aside the no-contact order. The juvenile court did not specifically rule on this order.
On April 25, 2005, the juvenile court entered an order terminating Jeffrey's parental rights pursuant to sections 232.116(1)(b) (abandonment), (d) (child CINA for neglect, circumstances continue despite the receipt of services), and (f) (child four or older, removed for at least twelve months, and cannot be returned home). The court found:
Jeff had limited contact with the DHS caseworker. Although given an opportunity for supervised telephone contact with his children, he declined to exercise that visitation. He has not attended or completed sex offender treatment. He failed to complete the psychosocial evaluation.
The court concluded that Jeffrey did not participate in services and the circumstances which led the to the children's adjudication continued to exist. Jeffrey appeals.
II. Standard of Review
The scope of review in termination cases 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 2000). Our primary concern is the best interests of the children. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997).
III. Due Process
Jeffrey claims the issuance of the no-contact order violated his due process rights because he was not given an opportunity to be heard either prior to, or immediately after, the time the order was entered. We note that Jeffrey was personally served a copy of the no-contact order on November 5, 2003, the day it was entered. Jeffrey did not contest the order until February 28, 2005, after the petition to terminate his parental rights had been filed.
We determine this issue had not been preserved for our review because although the issue was raised, the juvenile court did not rule upon it. See Otterberg v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 28 (Iowa 2005) (noting an issue has not been preserved where it has not been considered by the district court); In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994) (noting an issue may not be raised for the first time on appeal). When a ruling fails to address an issue properly submitted, the method to preserve error is to file a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). In re N.W.E., 564 N.W.2d 451, 455 (Iowa Ct.App. 1997). Jeffrey did not file any post-trial motions, and we conclude he has not preserved error on his due process claims.
Even if this issue had been preserved, however, we would find against Jeffrey on the merits. Jeffrey claims "the court's decision to terminate his parental rights was based entirely upon his lack of contact with his children resulting from a no-contact order. . . ." Even if the no-contact order had been improperly entered, it would not preclude termination of Jeffrey's parental rights on other grounds. It is clear, based on our discussion of the issues below, that the termination of Jeffrey's parental rights was not based solely on his lack of contact with the children.
IV. Sufficiency of the Evidence
Jeffrey asserts there is insufficient evidence in the record to support the juvenile court order terminating his parental rights. He first challenges the application of section 232.116(1)(d), which provides:
The court finds that both of the following have occurred:
(1) The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as the result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding.
(2) Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.
Here, there was evidence another member of the family had been sexually abused. There was also evidence that these children were neglected due to the parents' failure to adequately supervise them. Jeffrey was offered services, but he refused to participate. Therefore, the circumstances which led to the adjudication continued to exist, despite the offer or receipt of services. We conclude Jeffrey's parental rights were properly terminated under section 232.116(1)(d).
When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999). We do not address the other grounds for termination in this case.
V. Best Interests
Jeffrey points out that under section 232.116(3)(a), the juvenile court may forego termination of parental rights if "[a] relative has legal custody of the child." Section 232.116(3) has been interpreted to be permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). It is within the sound discretion of the juvenile court, based upon the unique circumstances before it and the best interests of the children, whether to apply this section. Id.
The juvenile court considered this issue and concluded termination was in the children's best interests. We find the juvenile court did not abuse its discretion. Jeffrey did not contact the children by telephone when he had the opportunity to do so. By his conduct, he had not expressed much interest in his children. We conclude termination of Jeffrey's parental rights is in the best interests of the children.
We affirm the decision of the juvenile court.