Opinion
No. 3-261 / 02-2059
Filed July 10, 2003
Appeal from the Iowa District Court for Linn County, Nancy A. Baumgartner, District Associate Judge.
Father appeals a permanency order placing his son with his maternal grandparents. AFFIRMED.
Stephen Swift of Klinger, Robinson Ford, L.L.P., Cedar Rapids, for appellant-father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Harold Denton, County Attorney, and Kelly Kaufman, Assistant County Attorney, for appellee.
Nick Gloe of Faches, Gloe Quint, Cedar Rapids, guardian ad litem for minor child.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
Mark and Janean are the parents of Jesse, who was born March 31, 1996. In a November 14, 2002, permanency order, the district court rejected Mark's objection to changing the permanency goal from family reunification to long-term relative placement with Jesse's maternal grandparents. Mark appeals this order.
Appellate review of a permanency hearing is de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). We review both the facts and the law, and we adjudicate rights anew. In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993). The best interests of the child control the court's decision. Id. Although we give weight to the factual determinations of the juvenile court, especially when considering the credibility of witnesses, we are not bound by them. Id.
Mark first maintains the court erred in denying his request to grant a six-month extension under Iowa Code section 232.104(2)(b) (2001). That section provides the court the authority to "continue placement of the child for an additional six months at which time the court shall hold a hearing to consider modification of its permanency order." Iowa Code§ 232.104(2)(b). In particular, Mark asserts the effect of the entry of the court's order will be to impose a higher statutory burden when he later attempts to regain custody of his son. See Iowa Code § 232.104(5) (conditioning a child's return to his or her parents on a finding that to do so would be in the interest of the child). Because any subsequent burden is not a factor relevant to the original entry of a permanency order, we find no merit to this argument.
On our de novo review, we conclude the district court appropriately declined to extend the permanency issue for an additional six months. First, Mark could offer no definite time frame for his release from prison on felony drug charges. Even if released, it apparently would be only for work release in the short term. Furthermore, Mark's history is replete with instances of substance abuse, domestic violence, criminal activity, and outbursts of anger. Mark is not in any position to resume custody of Jesse either immediately or for the foreseeable future. Jesse's best interests are clearly served by the permanency order, the effect of which was to place him with his capable and caring grandparents and will allow him to remain with his sister, to whom he is strongly bonded and dependent upon.
Mark next asserts the court erred in allowing into evidence letters which he had written to Janean while in prison and which she had later turned over to the Iowa Department of Human Services. These letters had not been listed prior to trial as potential exhibits to be offered. When the State attempted to introduce them at trial, Mark's counsel objected, arguing they had not been disclosed previously and were subject to the confidential privilege between husband and wife pursuant to Iowa Code section 622.9. The court admitted the letters, subject to the objection, and reserved ruling on the marital privilege issue.
We generally review a trial court's evidentiary rulings for an abuse of discretion. In re E.H., III, 578 N.W.2d 243, 246 (Iowa 1998). We find an abuse of discretion where a decision is clearly unreasonable, is not based on substantial evidence, or is based on an erroneous application of the law. Id. An erroneous evidentiary ruling will not result in reversal unless it is prejudicial. Iowa R. Evid. 5.103( a); see also Iowa Code § 232.96(3) (suggesting the rules of evidence are applicable to juvenile proceedings).
We find it important to note Mark himself wrote the letters and Mark's counsel had general knowledge of the letters for some time, although no copies were provided to him. Mark's counsel received a copy one day prior to trial and could at that point have requested a continuance, but did not. See State v. Epps, 313 N.W.2d 553, 558 (Iowa 1981) (noting the failure to move for a continuance waives any alleged error in the admission of the testimony). Other than the general untimeliness, Mark forwards no specific arguments on appeal as to how the actual content of these letters prejudiced him. Therefore, we conclude the court did not abuse its discretion in considering the letters. We affirm on this issue.
Although we resolve this issue in favor of the State, we do note the State's introduction of the letters was in clear violation of the pretrial order, which states in relevant part:
Any party who intends to add . . . exhibits from the witness/exhibit list filed today, shall file an amended list with the court, sending copies to counsel and unrepresented parties prior to hearing no later then ten (10) days prior to hearing.
The State did not file an amended exhibit list and appears to only have provided Mark's counsel a copy of the letters one day prior to the trial.