Opinion
No. 2-442 / 02-0513.
Filed June 19, 2002.
Appeal from the Iowa District Court for Linn County, SUSAN FLAHERTY, Associate Juvenile Judge.
A father appeals the termination of his parental rights to his daughter. AFFIRMED.
Crystal Usher, Cedar Rapids, for appellant-mother.
Richard Mitvalsky of Gray, Stefani, Mitvalsky, P.L.C., Cedar Rapids, for appellant-father.
Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, and Rebecca Belcher, Assistant County Attorney, for appellee-State.
Christine Crilley, Cedar Rapids, guardian ad litem for minor child.
Considered by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Darrell is the father of Aria, born in 1996. He has a substance abuse problem and has been incarcerated for various crimes during most of Aria's life. The juvenile court terminated his parental rights pursuant to Iowa Code sections 232.116(1)(c) (physical or sexual abuse or neglect), (e) (child four or older cannot be returned to the home), and (g) (child three or younger cannot be returned to the home) (1999). On appeal, Darrell contends: (1) the court should have granted his motion to continue the termination hearing, (2) the Department of Human Services (Department) did not make reasonable efforts toward reunification, (3) termination is not in Aria's best interests, and (4) the court should have granted his motion for new trial. We affirm.
Iowa Code Section 232.116(1) was restructured effective April 24, 2001. Iowa Code § 232.116(1) subsections (c), (e) and (g) are now codified at subsections (d), (f) and (h), respectively.
Aria's mother, Teresa, consented to termination of her parental rights, but later appealed. The Iowa Supreme Court dismissed her appeal as untimely.
I. Pretrial Motion
Well before trial, the juvenile court commissioned a study to determine the level of bonding between Aria and her father. The evaluator submitted a report shortly before the hearing that the State conceded was not comprehensive. Darrell's attorney moved for a continuance to afford him time to obtain a more complete study. He also noted that Aria's mother had recently consented to termination of her parental rights, a fact that he needed time to address in his defense of Darrell. The court denied the motion. Our review of this ruling is for an abuse of discretion. In re C.W., 554 N.W.2d 279, 281 (Iowa Ct.App. 1996).
We find no abuse of discretion. Our courts have repeatedly stated the statutory time deadlines for separation of a parent from a child prior to termination must be viewed with a sense of urgency. In re C.B., 611 N.W.2d 489, 495 (Iowa 2000); In re C.W., 554 N.W.2d at 281. The deadlines had long since elapsed in this case. Additionally, Darrell acquired knowledge of the bonding study and Teresa's consent to termination before the scheduled termination hearing. Therefore, we conclude these factors did not warrant further postponement of permanency and the juvenile court did not abuse its discretion in denying the motion for continuance.
II. Reasonable Efforts
Darrell next contends the Department did not make reasonable efforts toward reunification. See Iowa Code § 232.102(7) and (10)(a); In re C.B., 611 N.W.2d at 492-93. On our de novo review of the record, we disagree.
Darrell was released from prison when Aria was almost four years old. Upon his release, the Department arranged for visitation with Aria. Darrell had supervised visits for approximately seven months. Although the service provider cut corners by canceling one or two visits, shortening others, and declining to facilitate Aria's regular attendance at a parent-child parenting class, the overall services furnished by the Department were reasonable. In addition to generally arranging visits at times that were suitable for Darrell, the service provider assisted Darrell with his parenting skills and transported Aria to one of the parent-child classes. A Department worker discussed the case plans with Darrell, made him aware of housing options in the community, and inspected housing he had obtained. In addition, the Department coordinated services such as parenting classes with the Department of Corrections, a fact we consider in determining whether the Department satisfied its reasonable efforts mandate. See In re S.J., 620 N.W.2d 522, 525 (Iowa Ct.App. 2000). We conclude the Department satisfied this mandate.
Darrell had some visitation with Aria while he was incarcerated.
III. Best Interests
Darrell also maintains termination of his parental rights is not in Aria's best interests. See Iowa Code § 232.116(2); In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). Again, on our de novo review of the record, we disagree. Although Aria knew Darrell was her father, she had little contact with him. This lack of contact was of Darrell's making. When Aria was born, he was in jail. Later, he was transferred to prison. When he was paroled four years later, he relapsed into drug use and ultimately stipulated to revocation of his parole.
Darrell was then placed at a residential correctional facility where he again had the chance to work toward reunification. Instead, he escaped from the facility. Following his arrest a few days later, he was placed in jail, where he remained at the time of the termination hearing. His tentative discharge date was December 2003.
Meanwhile, Aria was in limbo. While there is no question Darrell loves his daughter, we agree with the juvenile court that termination of his parental rights was in her best interests. See In re E.K., 568 N.W.2d 829, 831 (Iowa Ct.App. 1997).
In reaching this conclusion, we do not consider post-trial evidence proffered by Darrell, as this evidence is not a part of our record.
IV. Motion for New Trial
Darrell finally contends the court should have granted him a new trial because (1) the court struck re-direct and re-cross testimony of a service provider and (2) Darrell discovered material evidence concerning the fitness of Aria's foster parents. We reject his first contention because the court struck the testimony at Darrell's request. See McCracken v. Edward D. Jones, 445 N.W.2d 375, 378-79 (Iowa Ct.App. 1989) (party cannot complain of error he has invited or to which he has assented). As for the second argument, our highest court has stated that motions for new trial based on newly discovered evidence are "closely scrutinized and granted sparingly." In re D.W., 385 N.W.2d 570, 583 (Iowa 1986). Generally, a party must show
[T]hat the evidence is newly discovered and could not, in the exercise of due diligence, have been discovered prior to the conclusion of the trial; that it is material and not merely cumulative or impeaching; and that it will probably change the result if a new trial is granted.Id. Darrell cannot establish that the evidence would probably have changed the result if a new trial were granted. As Darrell was in jail at the time of the termination hearing and anticipated remaining in jail and prison for some time to come, he was not a viable candidate to assume Aria's care even if the juvenile court had considered the new evidence and deemed the foster parents unfit. When combined with Darrell's ongoing substance abuse problems and his minimal contact with Aria, the new evidence probably would not have affected the result.
V. Disposition
We affirm the juvenile court's termination of Darrell's parental rights to his daughter, Aria.
AFFIRMED.