Opinion
No. 2-719 / 02-1152
Filed September 11, 2002
Appeal from the Iowa District Court for Poweshiek County, Michael R. Stewart, Judge.
Mother appeals an order terminating her parental rights to one child. AFFIRMED.
Nancy L. Burk, Toledo, for appellant.
Thomas D. Grabinski, Grinnell, for father.
Thomas J. Miller, Attorney General, Katherine S. Miller-Todd, Assistant Attorney General, Michael W. Mahaffey, County Attorney, and Kelly T. Bennett, Assistant County Attorney, for appellee-State.
Terri A. Beukelman, Pella, for minor child.
Considered by Huitink, P.J., and Miller and Hecht, JJ.
K.F. appeals the termination of her parental rights to her two-year-old daughter, H.K. We affirm.
The parental rights of H.K.'s father, D.K., were also terminated, but he does not appeal.
K.F. and D.K. are the unmarried parents of H.K. H.K. was initially removed from K.F.'s custody in August 2000 based on allegations of sexual abuse by D.K. H.K. was last removed from K.F.'s custody in September 2000. H.K. was adjudicated a child in need of assistance (CINA) in December 2000 pursuant to Iowa Code section 232.2(6)(d) (1999) (child has been or is imminently likely to be sexually abused by child's parent).
K.F. was provided with services beginning in September 2000. In November 2001 K.F. was some six to seven months pregnant by a newer boyfriend. She and her boyfriend wished to move from Grinnell, where she was receiving services and H.K. remained in foster care, to Storm Lake. The Iowa Department of Human Services, the service provider, and the guardian ad litem for H.K. all strongly recommended against such a move because K.F. had no driver's license and no readily available means of transportation, and it would thus be very difficult for K.F. to visit with H.K. and work toward reunification.
K.F. served an "Application to Transfer Case," seeking a "transfer" of the CINA case to Buena Vista County. In a written decision the juvenile court stated that what K.F. sought did not appear to be within the scope of Iowa Code section 232.62(2). K.F. proceeded to move to Storm Lake in late November and thereafter had only a very few visits with H.K. and participated in only limited additional services.
The State filed a petition for termination of parental rights in early April 2002. Following a June hearing the juvenile court terminated K.F.'s parental rights pursuant to sections 232.116(1)(d) and (g) (2001). On appeal K.F. does not challenge the existence of statutory grounds for termination. Her claim on appeal is that section 232.62, relied on by the juvenile court in denying transfer of the CINA case, violates [K.F.'s] Iowa State and United States Constitutional right to liberty to be free to move about the country without the grave consequences of having her child kept from her in a foster home in a community where the child had no significant ties.
These provisions have been renumbered as sections 232.116(1)(e) and (h) in the 2001 Code Supplement.
The State responds that K.F. did not preserve error with respect to the alleged violation of her constitutional rights.
K.F.'s application to transfer the CINA case raised no constitutional issue. The juvenile court's ruling on the application did not address or pass on any constitutional issue. In this termination of parental rights case, at no time prior to appeal did K.F. raise a constitutional issue, and at no time did the juvenile court address or pass on any constitutional issue.
"Issues must ordinarily be presented to and passed on by the trial court before they may be raised and adjudicated on appeal." Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). "It is well settled that [an Iowa Rule of Civil Procedure] 179(b) [now rule 1.904(2)] motion is essential to preservation of error when a trial court fails to resolve an issue, claim, defense, or legal theory properly submitted to it for adjudication." State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984) (citations omitted). The rule has been held to apply to termination proceedings. See In re A.R., 316 N.W.2d 887, 889 (Iowa 1982); In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994). K.F. did not file a motion pursuant to rule 1.904(2) in either the CINA proceeding or this termination proceeding. We conclude that by not filing such a motion in the juvenile court K.F. has not preserved error on the issue she now attempts to present. See In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (holding, in CINA proceeding, that constitutional and statutory challenges were waived by failing to file a rule 179(b) motion).
AFFIRMED.