In re Interest of J.A.P., No. 9-666/09-0486 (Iowa App. 11/25/2009), No. 9-666/09-0486.

CourtCourt of Appeals of Iowa
Writing for the CourtDoyle
PartiesIN THE INTEREST OF J.A.P. and A.A.P., Minor Children, M.A.M., Mother, Petitioner, A.E.P., Father, Appellant.
Decision Date25 November 2009
Docket NumberNo. 9-666/09-0486.

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IN THE INTEREST OF J.A.P. and A.A.P., Minor Children,
M.A.M., Mother, Petitioner,
A.E.P., Father, Appellant.
No. 9-666/09-0486.
Court of Appeals of Iowa.
Filed November 25, 2009.

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.

A father appeals from the decision terminating his parental rights. AFFIRMED.

Thomas P. Graves of Graves Law Firm, P.C., West Des Moines, for appellant father.

Todd E. Babich and Kodi A. Petersen of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, for appellee mother.

Lora McCollom-Sinclair, West Des Moines, for minor children.

Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Sackett, C.J., takes no part.

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A.E.P., the father of two children born in 2002 and 2004, appeals a ruling terminating his parental rights. A.E.P. contends that District Court Judge Eliza J. Ovrom should have recused herself from the proceedings and that he received ineffective assistance of trial counsel. We affirm.

I. Background Facts and Proceedings.

This action was brought by A.E.P.'s former wife, the mother of his two children. Her marriage to A.E.P. was dissolved by decree in December 2005. The decree, signed by District Court Judge D.J. Stovall, incorporated the parties' agreement, which provided that sole legal custody and primary physical care1 of the children was placed with their mother. A.E.P. was given supervised visits and ordered to pay child support of $341.33 a month. Judge Stovall also entered an order of protection for the mother and the two children ordering, among other things, that A.E.P. stay away from them. A.E.P. did not pay all the child support he was ordered to pay, and he had limited contact with the children.

There is evidence that in the early morning hours of May 9, 2006, A.E.P. broke into the home of his former wife and hit and detained her when the children were present. There is evidence that he also made threats to kill his former wife and her parents. As a result of the incident, A.E.P. was charged by trial information with burglary in the second degree, false imprisonment, domestic abuse assault with intent to inflict serious injury, and harassment in the first degree.

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On June 7, 2006, as a result of the events above, the Iowa Department of Human Services (Department) found A.E.P. had committed child abuse in that he denied his two children critical care and failed to provide them proper supervision. The Department found the incident was not minor, isolated, or unlikely to reoccur, and A.E.P.'s name was placed on the child abuse registry.

On February 13, 2007, A.E.P. with his attorney appeared before District Court Judge Eliza J. Ovrom and entered an Alford plea2 to all counts. Judge Ovrom found:

By direct conversation with [the] defendant on the record, the court finds the defendant understands the charge and its penal consequences, the rights being waived, and that there is a factual basis of the plea and that the plea is voluntary. The court further finds that the defendant has acknowledged 1) that it is in his/her best interest to enter this plea, 2) he/she has nothing to gain at trial and will gain much more by pleading, 3) that there is strong evidence of actual guilt, and 4) that he/she wishes to take advantage of the plea bargain.

Judge Ovrom then accepted A.E.P.'s Alford plea. She found he was advised of and waived his rights to file a motion in arrest of judgment and that he asked for immediate sentencing. Judge Ovrom then sentenced A.E.P. on all the counts finding the sentences should run consecutively for a period not to exceed fifteen years.

On June 22, 2008, A.E.P.'s former wife filed a petition to terminate A.E.P.'s parental rights. The petition alleged that A.E.P. had not had any significant contact with the children since May 2006 and that he did not contribute to their support. She sought termination pursuant to Iowa Code section

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600A.8(3)(b), 3(c), (4), and (9) (2007). She also requested that a guardian ad litem be appointed to represent the children. A guardian ad litem was then appointed.

On March 5, 2009, a hearing was held on the petition. The parents were each represented by counsel, and a guardian ad litem appeared for the children. The record shows that Judge Stovall had recused himself from this case.3 The mother's second witness was testifying when A.E.P.'s trial counsel noted it had come to his attention that Judge Ovrom was the judge who accepted A.E.P.'s Alford plea and sentenced him. On that basis, he requested that Judge Ovrom recuse herself from the proceedings. The attorney for the mother and the guardian ad litem for the children were satisfied to allow Judge Ovrom to continue hearing the case.

Judge Ovrom responded to the motion noting she noticed when exhibits were admitted that she was the judge who had accepted A.E.P.'s Alford plea and sentenced him. She said she had no independent recollection of doing so, that she believed she could be fair, and she did not have any predisposition for or against either party. She determined taking the plea was not an automatic ground for recusal and she believed she could be fair. Judge Ovrom denied the request and heard the evidence.

On March 13, 2009, Judge Ovrom filed the ruling that led to this appeal. The factual findings addressed, among other things, the facts leading to the charges that formed the basis of A.E.P.'s Alford plea. The court found that on

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May 9, 2006, A.E.P. went to his former wife's house, kicked in the door, went inside, grabbed her, and yelled he would kill her and her father. The court further found A.E.P. pounded his former wife's head into the floor while the two children were in nearby bedroom. The court found the police were called, and A.E.P. was charged with burglary in the second degree, false imprisonment, domestic abuse assault with intent to inflict serious injury, and harassment in the first degree. The court found that A.E.P. pled guilty to the charges, was sentenced to fifteen years of prison pursuant to a plea agreement, and was currently serving the sentence.

The court also found the children were about seven months and two years old at the time the dissolution petition was filed and that A.E.P. had not been around the children for about three years. The court further found that A.E.P. was not capable of caring for the children and that there was a no-contact order preventing him from seeing the children. The court terminated A.E.P.'s parental rights under Iowa Code section 600A.8(3).4

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The court found that A.E.P. was ordered to make payments of child support of $341.33 beginning December 1, 2005, and had only made one payment, which was in the amount of $244.83 on April 10, 2006. The court also found that although he gave some additional money to his former wife through his attorney, A.E.P. did not pay the amount ordered and he paid no support while in prison though he had a job at the prison. The court terminated A.E.P.'s parental rights under section 600A.8(4).5

A.E.P. appeals.

II. Discussion.

A. Recusal.

A.E.P. contends that because Judge Ovrom accepted his Alford plea and sentenced him to incarceration, she should have recused herself from hearing the chapter 600A termination of parental rights case against him. He advances that we should accept a broad perspective when considering the fairness of chapter 600A proceedings. A.E.P.'s appellate attorney, in appellant's brief, makes the following statement: "I could not adequately express the overpowering sense of unfairness communicated to me by [A.E.P.] and his family over the simple fact that the [j]udge who sentenced him also ruled on an application to terminate his parental rights." A.E.P. asks that we adopt a rule that any judge who presides over the plea and sentencing of an individual should not preside over the same individual's termination of parental rights proceeding.

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A.E.P. acknowledges that he is unaware of any jurisdiction that has adopted such a rule. For the reasons that follow, we decline to adopt such a broad rule.

"We review a court's decision to recuse or not to recuse itself for an abuse of discretion." Taylor v. State, 632 N.W.2d 891, 893-94 (Iowa 2001) (citing State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994); State v. Farni, 325 N.W.2d 107, 110 (Iowa 1982)). The court abuses its discretion when its decision is based on untenable grounds or it has acted unreasonably. Id. at 894. "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." State v. Millsap, 704 N.W.2d 426, 432 (Iowa 2005) (citing Bousman v. Iowa Dist. Ct., 630 N.W.2d 789, 796 (Iowa 2001)). "Actual prejudice must be shown before a recusal is necessary." In re C.W., 522 N.W.2d 113, 117 (Iowa Ct. App. 1994). When a judge does not recuse herself, the burden is on the party seeking recusal to prove that she should have. Millsap, 704 N.W.2d at 432; Taylor, 632...

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