In re M.A.F., No. 4-092/03-1885 (Iowa App. 2/27/2004)

• Decision Date: 27 February 2004
• Docket Number: No. 4-092/03-1885,4-092/03-1885
• Parties: IN THE INTEREST OF M.A.F., Minor Child, F.F., Sr., Father, Appellant.
• Court: Iowa Court of Appeals

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IN THE INTEREST OF M.A.F., Minor Child, F.F., Sr., Father, Appellant.

No. 4-092/03-1885

Court of Appeals of Iowa.

Filed February 27, 2004

Appeal from the Iowa District Court for Dallas County, John D. Lloyd, Judge.

F.F. appeals from the termination of his parental rights to M.A.F. AFFIRMED.

Thomas Lenihan, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Wayne Reisetter, County Attorney, and Sean Wieser, Assistant County Attorney, for appellee-State.

Mischeal Waller-Little, Bouton, for mother.

Victoria Meade, West Des Moines, guardian ad litem for minor child.

Considered by Huitink, P.J., and Vogel and Mahan, JJ.

HUITINK, P.J.

I. Background Facts & Proceedings

Fidel and Jeanifer are the parents of Mary Ann, born in July 2002. Mary Ann was removed from Jeanifer's care shortly after her birth due to the fact Jeanifer's parental rights to her five older children had recently been terminated.¹ The parties stipulated that Mary Ann should be adjudicated to be a child in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(b) (Supp. 2001) (parent has neglected child or is imminently likely to do so) and (c)(2) (child is likely to suffer harm due to parent's failure to exercise care in supervising child).

The juvenile court entered a dispositional order on December 16, 2002, continuing Mary Ann in foster care.² The court found Fidel needed more parental training and a better living arrangement before he could care for Mary Ann. Fidel has the care of another child, Fidel Jr. He and Fidel Jr. live in a bedroom in the home of Fidel's brother.

Fidel had a parenting evaluation by a clinical social worker in January 2003. The report found:

Fidel demonstrated an alarming lack of personal insight. Despite the fact that he has many, difficult stressful situations in his life, and despite the fact that he demonstrates a profound lack of awareness of child development, he identified that he has no problems, has never made any parenting mistakes and has no weaknesses as a parent.

The report found that if Mary Ann were placed in Fidel's care, she would be at an extremely high risk for neglect, and a moderate to high risk of physical abuse.

Social workers observed that Mary Ann was not bonded with Fidel and she expressed little emotion when she saw him. Although Fidel was informed that visitation could be increased on his request, he never requested additional visitation time.

In March 2003 the State filed a petition seeking termination of the parents' rights to Mary Ann. The juvenile court terminated the parents' rights under sections 232.116(1)(d) (2003) (child CINA for neglect, circumstances continue despite the receipt of services), (h) (child is three or younger, child CINA, removed from home for six of the last twelve months, and child cannot be returned home), and (i) (child meets definition of CINA, child was in imminent danger, services would not correct conditions). The court found, "The best interests of Mary Ann require that she not wait on her father to reluctantly acquire the knowledge necessary to adequately parent her, if he will acquire that knowledge at all."

Fidel filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). On reconsideration, the court determined the State had failed to adequately show that Fidel's parental rights should be terminated under section 232.116(1)(i). Fidel then filed a second motion pursuant to rule 1.904(2), claiming he was denied constitutional due process because his parental rights were terminated without "a separate individual finding of parental unfitness." The juvenile court concluded Fidel was not denied due process. Fidel appeals.

II. Standard of Review

The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000).

III. Due Process

Fidel claims he was denied due process because his parental rights were terminated without a predicate factual basis. In particular, he claims the CINA adjudication was not based on any acts or omissions by him.

The parent-child relationship is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511, 519 (1978). A parent's right to have custody of his or her child should be terminated only with the utilization of the required constitutional safeguards. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 2d 1042, 1045 (1923); In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997). A parent has a right to due process and a fair trial when the State seeks to terminate parental rights. In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994) (citing Alsager v. Iowa Dist. Ct., 406 F. Supp. 10, 22 (S.D. Iowa 1975)).

We first note that the parties stipulated that Mary Ann was a child in need of assistance. Fidel was present at the adjudication hearing and the dispositional hearing. Mary Ann was not placed in his care because the juvenile court found he needed more parental training and a better living arrangement before he could care for Mary Ann. We also note that Fidel did not directly challenge the dispositional order. The dispositional order was a final, appealable order. See In re W.D., 562 N.W.2d 183, 185 (Iowa 1997) (citing In re Long, 313 N.W.2d 473, 476 (Iowa 1981)). We will not reconsider whether Mary Ann should have been adjudicated a CINA. See In re A.W., 464 N.W.2d 475, 477 (Iowa Ct. App. 1990).

Furthermore, we find Fidel's parental rights were terminated based on his own acts and omissions. In addressing this issue, the juvenile court stated:

The father also argues that due process is violated by application of the various provisions of chapter 232 to him. The court does not believe that there is a due process problem as those statutes are applied in this case. The court made extensive findings concerning the father's...