Opinion
No. 2-947 / 02-1674.
Filed December 11, 2002.
Appeal from the Iowa District Court for Clinton County, ARLEN J. VAN ZEE, District Associate Judge.
Mother appeals an order terminating her parental rights to two children. AFFIRMED.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Michael Wolfe, County Attorney, and Jayme Kirsch, Assistant County Attorney, Clinton, for appellee-State.
Sally Machetta, Davenport, for appellant.
John Wolfe of Wolfe Law Office, Clinton, for appellee-father.
Thomas Lonergan of Mayer, Mayer, Lonergan Rolfes, Clinton, guardian ad litem for minor children.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
A mother appeals an order terminating her parental rights to two children. We affirm.
A.F. is the mother of N.F., born in December 1997, and K.F., born in March 2000. C.F. is N.F.'s father and K.F.'s legal father. M.W. may be K.F.'s biological father.
A.F. is also the mother of a daughter born in February 2002. A.F. is uncertain as to who that daughter's father is, and parental rights to that daughter were not at issue in the underlying termination proceeding and are not involved in this appeal.
On December 8, 2000 N.F. and C.F. were adjudicated children in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(b) (parent has physically abused the child) (Supp. 1999). A.F.'s parental rights to N.F. and C.F. were terminated on October 1, 2002. Her rights to N.F. were terminated pursuant to Iowa Code sections 232.116(1)(f) (child four or older, CINA, removed from home for twelve of last eighteen months, cannot be returned home) (Supp. 2001), and her rights to K.F. were terminated pursuant to Iowa Code section 232.116(1)(h) (child three or younger, CINA, removed from home for six of last twelve months, cannot be returned home) (Supp. 2001).
C.F.'s parental rights and M.W.'s parental rights were also terminated, but they do not appeal.
A.F. does not dispute the sufficiency of the evidence supporting termination of her parental rights on the statutory grounds relied on by the juvenile court. Instead, she claims termination of her parental rights violated her right to free exercise of religion under the First and Fourteenth Amendments to the United States Constitution and article I, section 3 of the Iowa Constitution. More specifically, she claims the Iowa Department of Human Services (DHS) encouraged and ultimately required that she terminate her marital relationship with her husband, C.F., in order to avoid termination of her parental rights, and such a requirement violated her constitutional rights.
The State responds that error has not been preserved on this issue. It argues that although C.F. may have asserted such a defense in the juvenile court, the record does not show that A.F. did or that A.F. joined in any such argument that C.F. may have made.
C.F. and A.F. each had their own attorney in the termination proceeding.
A.F. did at several points in the termination hearing testify to the fact that she remained involved with C.F. to support him and maintain her family, and did so because she wanted to do what the Lord wanted her to do. However, nothing in the evidence she presented or her argument to the court expressly or by necessary implication raised the constitutional claim she now asserts on appeal. Further, in its October 1, 2002 order terminating parental rights the juvenile court did not address or pass on any such issue.
C.F. did file an Iowa Rule of Civil Procedure 1.904(2) motion in which he asserted, among other things, that the court's alleged action in calling on C.F. and A.F. to dissolve their relationship violated their rights under the First Amendment to the United States Constitution and article I, section 3 of the Iowa Constitution. However, as the State points out, A.F. did not file such a motion or join in C.F.'s motion. In ruling on the motion the trial court disavowed any intent to require C.F. and A.F. to dissolve their marital relationship in order to maintain their parental rights, pointing out the content and purpose of several earlier orders in the CINA proceeding.
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). A rule 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). This 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). A.F. did not present to the juvenile court, either at trial in the termination proceeding or by way of rule 1.904(2) motion, the issue she now attempts to assert for the first time on appeal. We conclude that, as urged by the State, A.F. has not preserved error on this issue.
Even if error was properly preserved, we find meritless A.F.'s claim that her children should be permitted to remain with her because her religious belief does not permit her to end her marital relationship with C.F. despite the danger he presents to their children. A parent does have a fundamental constitutional interest in family and parenting circumstances. Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999). However, the parental interest in the integrity of the family unit is not absolute and may be forfeited by certain conduct. In re C.C., 538 N.W.2d 664, 666 (Iowa Ct.App. 1995). We have affirmed termination of parental rights based in part on continued involvement in an abusive relationship. Id. at 667; see also In re L.B., 530 N.W.2d 465, 468 (Iowa Ct.App. 1995) (finding child could not be returned to mother because she failed to recognize that her abusive husband's presence in her life and home presented a continuing danger to the child).
Although the parties have not cited, and we have not found, a published Iowa case that addresses the issue in the context of a free exercise of religion claim, other states have dealt with the same or similar issues. The courts of those states have found that a state may intervene to prevent or stop certain conduct that presents a health or safety hazard, despite individuals' religious beliefs. See, e.g., People v. Hodges, 13 Cal.Rptr.2d 412, 418-20 (Cal. Super. 1992) (holding state's compelling interest in protecting children from child abuse justified interference with defendants' religious practices); In re T.M.B., 241 Neb. 828, 491 N.W.2d 58, 61 (1992) (holding juvenile court's assumption of jurisdiction over children who were physically abused by stepfather did not violate mother's and stepfather's First Amendment right to free exercise of religion); Moore v. State, 912 P.2d 1113, 1116 (Wyo. 1996) (stating statute prohibiting taking indecent liberties with a minor did not unconstitutionally impinge upon anyone's free practice of religion).
The evidence shows that C.F. has a chronic, severe, ongoing drug abuse problem. He was unsuccessfully discharged from substance abuse treatment programs in April, June, and July 2001. C.F. refused to provide a drug test in July 2001, again in August, and again in September. It appeared to service providers that C.F. was "high" when he appeared late for a supervised visit in August. In November 2001 C.F. was again unsuccessfully discharged from a substance abuse treatment program and tested positive for drug use. In December he admitted he had been using drugs in September and October 2001. In January 2002 he was again unsuccessfully discharged from a treatment program.
C.F. entered an inpatient substance abuse treatment program in late February 2002. He admitted he had been using drugs throughout the history of the case. He was successfully discharged March 11, 2002. However, he shortly relapsed. He tested positive for drug use in early April 2002 and again in late April. In late April he was again unsuccessfully discharged from a substance abuse treatment program.
Juvenile court orders in the CINA case required C.F. to have no contact other than supervised visitation with the children. The orders were entered because of his physical abuse of N.F. during a time period when he was abusing drugs and his apparent exposure of K.F. to his marijuana use. Nevertheless, A.F. not only wished to maintain her relationship with C.F., but allowed the children to continue contact with and exposure to him.
In its ruling on C.F.'s rule 1.904(2) motion the juvenile court disavowed any requirement by it or the department of human services that C.F. and A.F. dissolve their marital relationship. A review of the juvenile court's orders fully supports its position. The apparent purpose and intent of the juvenile court's orders was to encourage and work toward family reunification, but to do so while protecting N.F. and K.F. from the danger presented by C.F.'s ongoing and unresolved substance abuse. It is A.F.'s insistence on exposing the children to C.F. despite his unresolved drug abuse, not her desire and intent to maintain her marital relationship with him, that led the juvenile court to correctly conclude that the children could not be returned to her despite almost two years of juvenile court involvement and provision of services. Any requirement by the State that A.F. avoid a relationship that involved exposing the children to C.F.'s continuing drug abuse is not constitutionally impermissible.
AFFIRMED.
SACKETT, C.J., concurs specially.
I concur with the majority opinion but write separately to clarify my position. I agree with the mother that the State would violate her constitutional rights if it terminated her parental rights because she refused to dissolve her marriage. However, unlike the mother I do not find that to be the issue here. The question is not whether she remains married to the man. The question is whether he is a danger to the children and whether she puts them at risk in allowing him to be around them. I find clear and convincing evidence that he is a danger to the children and that she puts them at risk in allowing him to be around them.