IN THE COURT OF APPEALS OF IOWA
No. 14-0606 Filed August 13, 2014
IN THE INTEREST OF T.E., Minor Child,
S.B., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Page County, Susan L.
Christensen, District Associate Judge.
A mother appeals the juvenile court’s termination of her parental rights
with respect to her daughter. AFFIRMED.
C. Kenneth Whitacre, Glenwood, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Jeremy Peterson, County Attorney, and Carl M. Sonksen,
Assistant County Attorney, for appellee State.
Vicki Danley, Sidney, attorney and guardian ad litem for minor child.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ. 2
POTTERFIELD, P.J.
A mother appeals the juvenile court’s termination of her parental rights
with respect to her daughter. We affirm.
I. Factual and Procedural Background
The mother and child came to the attention of the Iowa Department of
Human Services (DHS) in January, 2013. DHS found the mother to have denied
critical care and to have failed to provide proper supervision for the child due to
the mother’s confessed use of methamphetamine while caring for the child.
Mounting concerns regarding the mother’s continued drug use and the child’s
exposure to domestic violence from the mother’s paramour resulted in the child’s
removal from her mother’s custody in early February, 2013. The child was
placed with her maternal cousin, where she remains today.
The mother has since been subject to numerous incarcerations, charges
of kidnapping, violation of a custody order,1 revocation of her probation, charges
of criminal mischief and disorderly conduct, and multiple referrals to substance
abuse treatment with which she has refused to cooperate. Throughout 2013, the
mother failed to undertake the juvenile court’s recommended steps to regain
custody of her child.
On January 30, 2014, the juvenile court held a trial on the State’s petition
for termination of the mother’s parental rights. The court found the facts
supported termination under Iowa Code sections 232.116(1)(e) and
1 After the child was removed from the mother’s custody, the mother absconded with the child during a scheduled visitation while the chaperone used the restroom. 3
232.116(1)(h) (2013).2 Parental rights were terminated on April 6, 2014.3 The
mother now appeals.
II. Scope and Standard of Review
“We review proceedings to terminate parental rights de novo.” In re H.S.,
805 N.W.2d 737, 745 (Iowa 2011).
III. Discussion
The mother requests that we reverse the order of the juvenile court,
presenting three issues as a basis to do so. First, she contests the court’s
finding that she has failed to maintain significant and meaningful contact with her
child. She claims she was barred from doing so while incarcerated, which
violated her constitutional rights. Second, she asserts the judge erred by failing
to recuse herself upon the mother’s motion. Third, she claims her constitutional
2 The court is authorized to terminate parental rights where: e. The court finds that all of the following have occurred: (1) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (2) The child has been removed from the physical custody of the child's parents for a period of at least six consecutive months. (3) There is clear and convincing evidence that the parents have not maintained significant and meaningful contact with the child during the previous six consecutive months and have made no reasonable efforts to resume care of the child despite being given the opportunity to do so. .... h. The court finds that all of the following have occurred: (1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child's parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time. Iowa Code § 232.116. 3 The father’s parental rights were terminated on the same date as a result of his consent to termination. 4
rights were violated when the juvenile court denied her request to be transported
from prison to attend the termination hearing in person.
A. Constitutional Claims. The mother’s first and third issues presented on
appeal are presented as constitutional issues not raised before the juvenile court.
“[T]he general rule that appellate arguments must first be raised in the trial court
applies to CINA and termination of parental rights cases.” In re A.B., 815 N.W.2d
764, 773 (Iowa 2012). “Even issues implicating constitutional rights must 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). These issues were not
raised in or touched upon by the court below,4 and they are not preserved for our
review. Id.
B. Meaningful Contact. To the extent that the mother’s first issue may be
read as a claim that the juvenile court erred in holding that the termination was
proper under Iowa Code section 232.116(1)(e), we affirm that holding. Though
she does not contest she has not maintained significant and meaningful contact
with the child, she asserts she was unlawfully prevented from doing so.
The mother “cannot use [her] incarceration as a justification for [her] lack
of relationship with the child.” See In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993).
“This is especially true when the incarceration results from a lifestyle that is
chosen in preference to, and at the expense of, a relationship with a child.” Id.
4 Particularly, we note the motion to be transported to the hearing from the mother’s place of incarceration was not raised as a constitutional issue below. Regardless, the mother had no absolute right to be physically present at the hearing. See In re T.M.C., 429 N.W.2d 165, 167 (Iowa Ct. App. 1988). She was represented by counsel, appeared telephonically, and had sufficient opportunity to present testimony, which satisfies due process. See In re J.S., 470 N.W.2d 48, 52 (Iowa Ct. App. 1991). 5
The mother’s inability to maintain contact with the child is due to her own lifestyle
choices that have resulted in her incarceration. This kind of inability to maintain
meaningful contact is no legal excuse for failing to do so. The requirements of
section 232.116(1)(e) have been satisfied, and the juvenile court’s order was
proper.
C.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF IOWA
No. 14-0606 Filed August 13, 2014
IN THE INTEREST OF T.E., Minor Child,
S.B., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Page County, Susan L.
Christensen, District Associate Judge.
A mother appeals the juvenile court’s termination of her parental rights
with respect to her daughter. AFFIRMED.
C. Kenneth Whitacre, Glenwood, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Jeremy Peterson, County Attorney, and Carl M. Sonksen,
Assistant County Attorney, for appellee State.
Vicki Danley, Sidney, attorney and guardian ad litem for minor child.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ. 2
POTTERFIELD, P.J.
A mother appeals the juvenile court’s termination of her parental rights
with respect to her daughter. We affirm.
I. Factual and Procedural Background
The mother and child came to the attention of the Iowa Department of
Human Services (DHS) in January, 2013. DHS found the mother to have denied
critical care and to have failed to provide proper supervision for the child due to
the mother’s confessed use of methamphetamine while caring for the child.
Mounting concerns regarding the mother’s continued drug use and the child’s
exposure to domestic violence from the mother’s paramour resulted in the child’s
removal from her mother’s custody in early February, 2013. The child was
placed with her maternal cousin, where she remains today.
The mother has since been subject to numerous incarcerations, charges
of kidnapping, violation of a custody order,1 revocation of her probation, charges
of criminal mischief and disorderly conduct, and multiple referrals to substance
abuse treatment with which she has refused to cooperate. Throughout 2013, the
mother failed to undertake the juvenile court’s recommended steps to regain
custody of her child.
On January 30, 2014, the juvenile court held a trial on the State’s petition
for termination of the mother’s parental rights. The court found the facts
supported termination under Iowa Code sections 232.116(1)(e) and
1 After the child was removed from the mother’s custody, the mother absconded with the child during a scheduled visitation while the chaperone used the restroom. 3
232.116(1)(h) (2013).2 Parental rights were terminated on April 6, 2014.3 The
mother now appeals.
II. Scope and Standard of Review
“We review proceedings to terminate parental rights de novo.” In re H.S.,
805 N.W.2d 737, 745 (Iowa 2011).
III. Discussion
The mother requests that we reverse the order of the juvenile court,
presenting three issues as a basis to do so. First, she contests the court’s
finding that she has failed to maintain significant and meaningful contact with her
child. She claims she was barred from doing so while incarcerated, which
violated her constitutional rights. Second, she asserts the judge erred by failing
to recuse herself upon the mother’s motion. Third, she claims her constitutional
2 The court is authorized to terminate parental rights where: e. The court finds that all of the following have occurred: (1) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (2) The child has been removed from the physical custody of the child's parents for a period of at least six consecutive months. (3) There is clear and convincing evidence that the parents have not maintained significant and meaningful contact with the child during the previous six consecutive months and have made no reasonable efforts to resume care of the child despite being given the opportunity to do so. .... h. The court finds that all of the following have occurred: (1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child's parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time. Iowa Code § 232.116. 3 The father’s parental rights were terminated on the same date as a result of his consent to termination. 4
rights were violated when the juvenile court denied her request to be transported
from prison to attend the termination hearing in person.
A. Constitutional Claims. The mother’s first and third issues presented on
appeal are presented as constitutional issues not raised before the juvenile court.
“[T]he general rule that appellate arguments must first be raised in the trial court
applies to CINA and termination of parental rights cases.” In re A.B., 815 N.W.2d
764, 773 (Iowa 2012). “Even issues implicating constitutional rights must 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). These issues were not
raised in or touched upon by the court below,4 and they are not preserved for our
review. Id.
B. Meaningful Contact. To the extent that the mother’s first issue may be
read as a claim that the juvenile court erred in holding that the termination was
proper under Iowa Code section 232.116(1)(e), we affirm that holding. Though
she does not contest she has not maintained significant and meaningful contact
with the child, she asserts she was unlawfully prevented from doing so.
The mother “cannot use [her] incarceration as a justification for [her] lack
of relationship with the child.” See In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993).
“This is especially true when the incarceration results from a lifestyle that is
chosen in preference to, and at the expense of, a relationship with a child.” Id.
4 Particularly, we note the motion to be transported to the hearing from the mother’s place of incarceration was not raised as a constitutional issue below. Regardless, the mother had no absolute right to be physically present at the hearing. See In re T.M.C., 429 N.W.2d 165, 167 (Iowa Ct. App. 1988). She was represented by counsel, appeared telephonically, and had sufficient opportunity to present testimony, which satisfies due process. See In re J.S., 470 N.W.2d 48, 52 (Iowa Ct. App. 1991). 5
The mother’s inability to maintain contact with the child is due to her own lifestyle
choices that have resulted in her incarceration. This kind of inability to maintain
meaningful contact is no legal excuse for failing to do so. The requirements of
section 232.116(1)(e) have been satisfied, and the juvenile court’s order was
proper.
C. Denial of Motion to Recuse. The mother’s second presented issue
merely states, “The judge, upon motion by the appellant refused to recuse
herself.” She here asserts impropriety on the part of the judge that would
invalidate her termination order on both the section 232.116(1)(e) and section
232.116(1)(h) bases, but she presents no factual or legal basis for classifying the
judge’s denial of the motion as an error.
We find no basis in the record to support the necessity of recusal.
Recusal is only necessary if the movant can demonstrate actual prejudice. In re
C.W., 522 N.W.2d 113, 117 (Iowa Ct. App. 1994). The purported basis for the
motion was that the juvenile judge may have harbored “bias from prior contacts.”
The record reveals the only prior contact the judge had with the mother was in
the child’s child-in-need-of-assistance proceedings. The mother presents no
evidence of any bias that arose from that contact. The judge had no obligation to
recuse herself.
IV. Conclusion
The juvenile court’s termination order was supported by clear and
convincing evidence of the statutory requirements in Iowa Code sections
232.116(1)(e) and 232.116(1)(h). We agree with the court that termination best
provides for the child’s safety, long-term nurturing and growth, and physical, 6
mental, and emotional needs. Because the mother failed to preserve her
constitutional claims on appeal for our review and her remaining claims are not
supported by the law or the facts of this case, we affirm.
AFFIRMED.