Opinion
No. 2-441 / 02-0561.
Filed May 31, 2002.
Appeal from the Iowa District Court for Clinton County, Arlen J. Van Zee, District Associate Judge.
Father appeals the termination of his parental rights to his minor child. AFFIRMED.
Mary Wolfe, Clinton, for mother.
J. David Zimmerman, Clinton, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Michael Wolfe, County Attorney, and Ross Barlow, Assistant County Attorney, for appellee-State.
Stephen Haufe of Frey, Haupe Current, P.L.C., Clinton, for minor child.
Considered by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Father appeals the termination of his parental rights to his minor child contending the Department of Human Services (DHS) did not make reasonable efforts to reunite him with his child and termination of his parental rights was not in the child's best interest. We affirm.
Aaron and Summer are biological siblings. Each was adopted by a different set of parents at an early age after being removed from their biological parents. Aaron and Summer are the biological parents of Skylar, born September 30, 1998, who is a child resulting from their incestuous relationship. At the time Skylar was conceived Aaron was aware of the genetic and health risks of conceiving a child with Summer, whom he knew to be his biological sister. After Skylar's birth Aaron and Summer continued their relationship and had a second child. Both voluntarily consented to termination of their parental rights to the second child. Aaron was arrested and charged with incest in May 1999, based on Skylar's birth. He was convicted and sentenced to five years for incest in August 1999. He had previously been convicted of arson, and his parole was revoked as well. He remained incarcerated at the time of the termination hearing and it appears that he will not be released or paroled until approximately August of 2003.
The State filed a petition to terminate the parental rights of Summer and Aaron to Skylar on January 10, 2002. Following a contested termination hearing the juvenile court terminated Summer's parental rights pursuant to Iowa Code section 232.116(1)(a) (Supp. 2001) and Aaron's parental rights pursuant to Iowa Code section 232.116 (1)(h). Aaron appeals.
In its order terminating Aaron's parental rights, the court cites to Iowa Code section 232.116(1)(g) (2001). However, the applicable law in this termination of Aaron's parental rights is correctly cited as Iowa Code section 232.116(1)(h) (Supp. 2001) due to an April 24, 2001 amendment to subsection 232.116(1) that added a statutory ground for termination, resulted in the relettering of paragraphs, but did not substantively alter relettered paragraphs.
We review termination proceedings de novo. Iowa R. App. P. 6.4; In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Our primary concern in termination proceedings is the best interests of the child. Id.
Aaron contends the court erred in terminating his parental rights because there was a lack of reasonable efforts toward reunification and termination was not in Skylar's best interest because he was actively involved in her life prior to his incarceration. We question whether the issue of adequacy of efforts by the DHS toward reunification has been preserved for our review. The juvenile court did not address the issue of reasonable services in the termination order and Aaron did not file a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). "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) (emphasis added). "It is well settled that 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) (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). We find that by not filing a rule 1.904(2) motion in juvenile court Aaron has not preserved error on this issue. See In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (holding, in child in need of assistance proceeding, that constitutional and statutory challenges were waived by failing to file a rule 179(b) motion).
We further find the termination of Aaron's parental rights is in Skylar's best interest. Aaron was only a part of Skylar's life for a few months in between periods of incarceration. He has never provided any financial support for Skylar, and he has not been in a position to care for her for the past three years and likely will not be until August of 2003. At the time of the hearing Aaron recognized that even when released he would not be able to provide for Skylar and acknowledged it will probably be necessary for her grandparents to raise her. Skylar has been residing with Summer's adoptive parents and is strongly bonded with them, recognizing not Aaron but her grandfather as her father.
Furthermore, Aaron appears to not yet acknowledge there was anything wrong with his relationship with his sister. He told one social worker he intended to pick up where they left off when he is released from prison. Skylar needs the stability of a permanent home with responsible and mature parents. "The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems." In re C.B., 611 N.W.2d at 494. We find it is in Skylar's best interest to terminate Aaron's parental rights in order to allow her to achieve the stability and permanency she deserves.
We affirm the juvenile court's order terminating Aaron's parental rights to Skylar.
AFFIRMED.
Vaitheswaran, dissents in part.
I respectfully dissent from the majority's conclusion that Aaron did not preserve error on the issue of whether the Department complied with its reasonable efforts mandate. The State has the burden of proving the elements of Iowa Code § 232.116(1)(g). One of the elements is that the child cannot be returned to the parent's custody. Iowa Code § 232.116(1)(g)(4). This element implicates the reasonable efforts requirement. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The juvenile court concluded the State met its burden of proving this element. On appeal, Aaron disagrees. To the extent he challenges the sufficiency of the evidence supporting that element, I would conclude he has preserved error. Id. at 492-4; In re A.R., 316 N.W.2d 887, 889 (Iowa 1982) (sufficiency of evidence may be challenged on appeal even if not raised below). I would therefore reach the merits of this issue.
Now located at 232.116(1)(h).