Opinion
No. 4-821 / 04-1633
Filed December 8, 2004
Appeal from the Iowa District Court for Washington County, Lucy J. Gamon, District Associate Judge.
A father appeals from a juvenile court order which terminated his parental rights to his three children. AFFIRMED.
Katherine McConnell of Lloyd, McConnell Davis, L.L.P., Washington, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Barbara A. Edmondson, County Attorney, for appellee-State.
Leslie Lamping of Day, Meeker, Lamping Schlegel, Washington, guardian ad litem for minor children.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Teddie F. appeals from a juvenile court order which terminated his parental rights to his three children. He contends there is not clear and convincing evidence to support termination of his parental rights because the State failed to make reasonable efforts to reunite him with his children. He also claims the required hearings were not held prior to termination. Finally, he claims the juvenile court should not have terminated his parental rights because a relative has custody of his children. Upon our de novo review, we affirm the juvenile court's decision.
I. Background Facts Proceedings
Brandy F. and Teddie F. are the parents of three children; Brandon F., born August 23, 1996; Beretta F., born March 5, 1998; and Neil F. born, February 22, 1999. Brandy is also the mother of Miranda B., born May 13, 1991.
Shawn J. is Miranda's father.
Teddie F. has been incarcerated since 1999 for a sex offense with a minor. On September 11, 2003, the juvenile court issued an order removing the children from the custody of their mother after concluding removal was necessary to avoid imminent risk to the children's lives or health. Brandy was homeless at the time. The record reveals the mother has a lengthy history of being unable to provide adequate care for her children. Brandy has a significant criminal history and has mental health issues which adversely affect her ability to meet her children's needs.
On November 17, 2003, the children were adjudicated in need of assistance (CINA) with respect to their mother. The children were adjudicated to be in need of assistance with respect to their father on January 14, 2004.
On August 11, 2004, the State filed a petition to terminate Brandy and Teddie's parental rights. Following a termination hearing held on September 8, 2004, the juvenile court entered an order terminating the father's parental rights pursuant to Iowa Code sections 232.116(1)(e) (2003) (child adjudicated CINA, removed from home for at least six consecutive months, and parent has not maintained significant and meaningful contact), (f) (children four or over, removed from home for twelve of last eighteen months, and cannot be returned home), (j) (child CINA, parent imprisoned for crime against child or unlikely to be released for five or more years). The mother's parental rights were also terminated. Only the father has appealed.
II. Scope of Review
We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). 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 child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Discussion
On appeal, the father first claims that because the State failed to make reasonable efforts to reunify him with his children his parental rights should not have been terminated. See In re S.J., 620 N.W.2d 522, 525 (Iowa Ct.App. 2000) (stating that although parent's imprisonment may create difficulties in providing reunification services, imprisonment does not absolve the department of its mandate to provide reunification services under all circumstances). The services to be supplied to an incarcerated parent are only those that are reasonable under the circumstances. Id.
Teddie has been incarcerated since 1999. He is currently serving a twenty-five year sentence for second-degree sexual abuse. His victim was a nine-year-old friend of Miranda's, his children's older half-sister. The abuse occurred while the victim was spending the night with Miranda in April of 1999. Teddie will not be eligible for release until 2016. By that time, his two oldest children will be adults and his youngest child will be sixteen. The record reveals there is also a founded child abuse report alleging Teddie sexually abused Miranda. Under the circumstances presented here, the juvenile court correctly concluded that it was reasonable for the Department of Human Services not to provide any services to reunify the children with their father. Accordingly, we reject this assignment of error.
Teddie next contends his parental rights should not have been terminated because the court failed to hold a dispositional hearing for him prior to the termination hearing. The State contends the father failed to preserve error on this issue. An issue not presented to and passed on by the juvenile court may not be raised for the first time on appeal. In re N.W.E., 561 N.W.2d 451, 455 (Iowa Ct.App. 1997). The record reveals this issue was not presented to the juvenile court and the termination order does not address it. Therefore, this issue has not been preserved for our review and we do not address it.
In his final assignment of error, Teddie contends the court should not have terminated his parental rights because his biological mother and stepfather have custody of his children. Iowa Code section 232.116(3)(a) states that the court need not terminate parental rights if the children are in the legal custody of a relative. This section is permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). The juvenile court has the discretion to apply this section based on the circumstances before it and the best interests of the children. Id. Our primary concern is the children's long term and immediate best interests. Id.
Teddie testified it would be in the children's best interests to know him and to know he cares about them. He believes that supervised visits would be available where he is incarcerated. Teddy has not seen his children since 1999. He has no bond with any of his children and will not be released from prison until the year 2016 at the earliest. The children's guardian ad litem recommends that Teddie's parental rights be terminated. Like the juvenile court, we do not believe the children would benefit from visiting with a father who has sexually abused their older half sister and who has been convicted of sexually abusing a nine-year-old child. We agree with the juvenile court's conclusion that termination of Teddie's parental rights is clearly in his children's best interests.
Miranda told a child protective worker that Teddie had sexually abused her and Teddie confessed to Detective Lyle Hansen that he had sexually abused Miranda. There is also a founded child abuse report that alleges Teddie sexually abused Miranda.
We affirm the decision of the juvenile court.