Opinion
No. 2-851 / 02-1395
Filed October 30, 2002
Appeal from the Iowa District Court for Cherokee County, Mary Timko, Associate Juvenile Judge.
A father appeals the termination of his parental rights to his minor child. AFFIRMED.
John Loughlin of Loughlin Law Firm, Cherokee, for appellant.
Marvin Miller, Cherokee, for mother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Kristal Phillips, Assistant County Attorney, for appellee-State.
John Polifka, Sioux City, guardian ad litem for minor child.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
A father appeals the termination of his parental rights to his minor child. He claims: (1) the State did not provide reasonable services to reunite him with his child; (2) the termination proceedings violated his due process rights; and (3) the State did not prove by clear and convincing evidence his parental rights should be terminated. We affirm.
Background Facts and Proceedings. Terry and Janel are the parents of Trey, born in 1997. The parents divorced shortly after Trey was born. Trey resided with his mother and his half-brother, Jacob. Trey was adjudicated to be a child in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(b) and (c) (1998) on December 9, 1998, when he and his brother were found alone in their apartment. At the time, Janel was passed out in another apartment. Due to the severity of Janel's substance abuse problem, Trey and Jacob were removed from the home and placed in foster care.
At the discretion of the Department of Human Services, Terry had regular visitation with Trey until December 1999. In December 1999 Terry was arrested for sexual exploitation of a minor, sexual abuse in the third degree, and felon in possession of a firearm. At the time of his arrest, Terry was visiting with Trey. After Terry's arrest all visitation with Trey was discontinued. Terry was sentenced to ten years for the crime of sexual abuse in the third degree and he was sentenced to five additional years for the crime of possession of a firearm. In addition, Terry has holds from other states, including Montana where he has served only ninety days of a ten-year sentence.
While Terry has been incarcerated, his only contact with Trey has been limited telephone conversations and ICN visits. Those conversations did not appear to go well as very little communication took place, and Trey really did not understand to whom he was speaking. Trey has not actually seen his father in over two years.
On March 13, 2002, the State filed a petition to terminate parental rights. Following a termination hearing, the juvenile court terminated Terry's parental rights pursuant to Iowa Code sections 232.116(1)(f), (g), and (j) (Supp. 2001). Terry appeals.
In its order terminating parental rights, the court cites to Iowa Code sections 232.116(1)(e), (f) and (i). However, the applicable law in this termination is correctly cited as Iowa Code sections 232.116(1)(f), (g), and (j) (Supp. 2001) due to an amendment to section 232.116 that renumbered the sections but did not substantively alter them.
Standard of Review. We review termination proceedings de novo. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997). The grounds for termination must be proven by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 831 (Iowa Ct.App. 1997). Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. Iowa R. App. 6.14(6)( g); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993). Our primary concern is the best interests of the child. In re T.B., 604 N.W.2d 660, 662 (Iowa 2000).
Reasonable Efforts. Terry contends the State did not provide reasonable services to reunite him with Trey. He claims the fact he was incarcerated prohibited him from receiving services. The services required to be supplied an incarcerated parent, as with any other parent, are those that are reasonable under the circumstances. In re S.J., 620 N.W.2d 522, 525 (Iowa Ct.App. 2000). In determining what circumstances are reasonable the Department may wish to consider some or all of the following factors: the age of the children, the bonding the children have or do not have with their parent, including any existing clinical or other recommendations concerning the nature of parenting deficiencies, the physical location of the child and the parent, the limitations of the place of confinement, the services available in the prison setting, the nature of the offense, and the length of the parent's sentence. Id. It is the parent's responsibility, however, to demand services if they are not offered prior to the termination hearing. In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App. 1997).
We question whether Terry has preserved error on this issue because there is no evidence he requested any reunification services either before or after he was incarcerated. Terry's sole request was for visitation with Trey. Requesting visitation is not tantamount to requesting services. Even if Terry had preserved error on this issue, his claim is without merit. There is no evidence to suggest Terry has a substantial relationship with his son. Terry has been in prison for over half of his son's life, and there is no concrete evidence as to when he will be released from prison given the fact he awaits possible imprisonment in other states. Further, it troubles this court that Terry was convicted of sexual abuse in the third degree. Based upon the record, we find the Department acted reasonably under the circumstances. Consequently, the termination of Terry's parental rights is not precluded by the Department's failure to offer him reunification services.
Due Process. Terry argues his due process rights were violated. The State responds Terry has failed to preserve this issue for review because (1) he provides no argument to indicate what due process violation has occurred, and (2) this argument was not raised or considered by the district court. Matters not raised in the trial court, including constitutional questions, cannot be asserted for the first time on appeal. State v. Lyon, 223 N.W.2d 193, 194 (Iowa 1974); In re C.D., 508 N.W.2d 97, 100 (Iowa Ct.App. 1993). From our review of the record, we conclude Terry did not preserve any due process claims for review on appeal.
Termination of Parental Rights. Terry contends the State did not prove, by clear and convincing evidence, his parental rights should be terminated. On our de novo review of the evidence, we determine there is clear and convincing evidence in the record to justify the termination of Terry's parental rights under section 232.116(1)(f).
When a juvenile court terminates parental rights on more than one ground, we need only find one ground exists to affirm. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999). Having found termination appropriate under section 232.116(1)(f), we need not reach Terry's argument the juvenile court erred in terminating his parental rights under the other Code sections.