In the Interest of S.W., Minor Child

• Court: Court of Appeals of Iowa
• Decided: April 17, 2019
• Docket: 18-1356
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1356 Filed April 17, 2019

IN THE INTEREST OF S.W., Minor Child,

K.P., Mother, Petitioner-Appellee,

E.W., Father, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Madison County, Kevin Parker,

District Associate Judge.

The father appeals the termination of his parental rights for his child.

AFFIRMED.

Ronald W. Kepford, Winterset, for appellant.

Seth Harrington of Harrington Law LC, Urbandale, for appellee.

Breanna L. Young of Davis Brown Koehn Shors & Roberts P.C., Des

Moines, guardian ad litem for minor child.

Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2

VOGEL, Chief Judge.

The father appeals the termination of his parental rights to his child. In July

2014, the father pled guilty to one count of sexual abuse in the third degree and

two counts of sexual exploitation of a minor. He was sentenced to three terms of

incarceration not to exceed ten years. Two of the terms were ordered to run

concurrently, while the third was ordered to run consecutively to the others.

However, his sentences were suspended, and he was placed on probation. On

April 14, 2015, the father assaulted the mother and threatened to slit her and

S.W.’s throats. Following the domestic assault, the father’s probation was revoked

and his original sentence was imposed.

The mother filed a petition in May 2017 to terminate the father’s parental

rights under Iowa Code chapter 600A (2017). The father participated from prison

in the subsequent termination hearing and his rights were terminated in July 2017.

That order was vacated and a second termination hearing was scheduled for

March 15, 2018.1 The father filed his first motion to continue on March 14, stating

his new counsel was appointed February 15 and was unavailable on March 15.

The district court granted a continuance and rescheduled the hearing for March

29. The father again moved for a continuance, and the district court granted the

motion and appointed a guardian ad litem for the child. The hearing was

rescheduled for April 26.

1 After the father’s parental rights were terminated on July 6, 2017, the father filed a motion to vacate, arguing the Iowa Rules of Civil Procedure mandated he be appointed a guardian ad litem since he was incarcerated. The district court vacated the termination order, appointed a guardian ad litem for the father, and set the new termination hearing for March 2018. See Iowa R. Civ. P. 1.211 (stating “[n]o judgment without a defense shall be entered against a party then . . . confined in a penitentiary,” and “[s]uch defense shall be by guardian ad litem”). 3

On April 25, less than twenty-four hours before the scheduled hearing, the

father filed his third motion to continue, stating he remained incarcerated and his

correctional facility would not accommodate his request to allow him to participate

in the hearing by telephone.2 The mother filed a resistance to the motion, asserting

this was the third continuance and stating her fiancé wanted to adopt S.W. after

the termination. On April 26, the parties met at the scheduled hearing time and

the district court asked the father’s counsel if he had any additional information

regarding the motion to continue. Counsel stated, “I am prepared to move forward,

should the Court rule so. However, because [the father] is not available, I would

just ask for the continuance.” The district court then denied the motion, but it

allowed the record to remain open until May 14 so the father could “provide any

statements, affidavits, or exhibits.” The father’s guardian ad litem then filed a

professional statement on May 3, quoting the father as saying: “I don’t believe it is

right for someone’s rights to get terminated because they are in prison.” On June

29, the district court terminated the father’s parental rights.

The father appeals the termination of his parental rights and asserts his due

process rights were violated because he was unable to participate in the hearing.

“[T]he general rule that appellate arguments must first be raised in the trial court

applies to . . . termination of parental rights cases.” In re A.B., 815 N.W.2d 764,

773 (Iowa 2012). Furthermore, “[e]ven issues implicating constitutional rights must

2 Our supreme court recently modified the procedure for incarcerated parents’ participation in termination proceedings. See In re M.D., 921 N.W.2d 229, 237–38 (Iowa 2018). However, such procedure applies prospectively. See id. at 237 (stating “we conclude juvenile court judges must follow a different procedure moving forward”). Since the termination hearing in this case was held prior to the November 30, 2018 opinion, we find the new procedure is inapplicable here. See id. 4

be presented to and ruled upon by the district court in order to preserve error for

appeal.” In re K.C., 660 N.W.2d 29, 38 (Iowa 2003). Here, the only argument

presented by the father below was his inability to participate in the termination

hearing by telephone because of his incarceration. He failed to articulate a

constitutional due process violation until this appeal. Further, with no constitutional

violation findings by the district court, the father has not preserved error for our

review on this issue. See id.

To the extent the father has preserved error on his challenge to the denial

of his third motion to continue, our review is for abuse of discretion. In re C.W.,

554 N.W.2d 279, 281 (Iowa Ct. App. 1996) (“Denial of a motion to continue must

be unreasonable under the circumstances before we will reverse.”). The record

shows the district court granted the father’s first two motions to continue, despite

both being made the day before the scheduled hearing. Moreover, the district

court ordered the record to remain open for an additional nineteen days after the

termination hearing to allow the father to submit any additional statements,

affidavits, or exhibits. To the extent the father preserved error on his challenge to

the denial of his third motion to continue, we find the district court did not abuse its

discretion.