Opinion
No. 05-1098
Filed September 14, 2005
Appeal from the Iowa District Court for Dubuque County, Jane C. Mylrea, Associate Juvenile Judge.
A father appeals from a juvenile court order terminating his parental rights to one child. AFFIRMED.
Dan McClean of McClean Law Offices, Dyersville, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Fred H. McCaw, County Attorney, and Jean Becker, Assistant County Attorney, for appellee.
Todd Klapatauskas of Reynolds Kenline Law Firm, Dubuque, for mother.
Brannon Burroughs, Dubuque, guardian ad litem for minor child.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
Kenneth is the legal father of Bradly, born in November 2003. Kenneth appeals from a June 23, 2005 juvenile court order terminating his parental rights to Bradly. The order also terminated the parental rights of Bradly's mother and Bradly's biological father, but their rights are not involved in this appeal. Upon our de novo review, we affirm the juvenile court.
Kenneth married Bradly's mother when she was several months pregnant by another man, Bradly's biological father.
On November 8, 2004 the juvenile court entered an ex parte order removing Bradly from the custody of his mother and Kenneth and placing him in the legal custody of the Iowa Department of Human Services (DHS) for placement in foster family care. Bradly has thereafter remained in that status.
Bradly was adjudicated a child in need of assistance (CINA) on January 18, 2005, pursuant to Iowa Code section 232.2(6)(c)(2) (2005). In April 2005 the State filed a petition seeking termination of parental rights. Following a hearing the juvenile court entered an order on June 23, 2005, terminating Kenneth's parental rights to Bradly pursuant to Iowa Code section 232.116(1)(h) (child three or younger; adjudicated CINA; removed six of last twelve months, or last six consecutive months with less than thirty days at home; and cannot be returned to parents at present time). Kenneth appeals.
We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
On appeal Kenneth claims the State failed to prove the fourth element required for termination pursuant to section 232.116(1)(h), and the juvenile court erred in finding the contrary. The fourth element is proved when the evidence shows that at the time of the termination hearing the child could not be returned to the parents' custody without being subject to some harm which would justify adjudication as a CINA. See Iowa Code §§ 232.116(1)(h)(4) and 232.102(5)(b). The threat of probable harm will justify termination of parental rights, and the perceived harm need not be the one that supported the child's removal from the home. In re M.M., 483 N.W.2d 812, 814 (Iowa 1992).
Kenneth, who is twenty-five years of age, is physically disabled and unable to maintain employment. He has been diagnosed with and is being treated for several mental disorders. They include grandiose type delusional disorder, which causes him to be out of touch with reality; narcissistic personality disorder, which makes it difficult or impossible to focus on the needs of others; post-traumatic stress disorder; and bipolar disorder.
Kenneth has also been diagnosed with pedophilia. He has acknowledged perpetrating sexual abuse from about age five to age fourteen, when his abuse was then first discovered. He was later convicted of a sexual crime in 1997, and of two sexual crimes in 1999. He has been a registered sex offender since 1997. Kenneth's victims have been both male and female, and include both family members and members of the community generally. He is unable to estimate the number of his victims, as there have been so many.
Kenneth has been taking medication for pedophilia, to decrease his sexual urges, since 1997. However, since discharging his sentences for sexual offenses he is no longer legally obligated to do so. He acknowledges that if he discontinues his medication he is at high risk to re-offend. He nevertheless has refused, and continues to refuse, to complete a court-ordered psychosexual evaluation, maintaining there is no need to do so as there is no danger he would abuse Bradly. Kenneth has regularly visited adult pornographic web sites on the Internet.
Bradly came to the attention of the DHS in November 2004, was removed, and was later adjudicated a CINA. The removal and adjudication were the result of his mother participating in video sex with others over the Internet, bringing people to the family home for sex, allowing a thirteen-year-old male and his eleven-year-old sister to view pornographic materials in her home, and allowing a person who wished to have sex with the eleven-year-old female to be in her home with the eleven-year-old. All or most all of these activities were known to Kenneth for some time before he reported any concerns. The CINA adjudication was also the result of dirty and unsafe conditions in the family home. The events and conditions in the home resulted in two founded and confirmed child abuse reports, with Bradly as the victim and his mother and Kenneth as the responsible caretakers.
Kenneth remains married to Bradly's mother. He purports to understand the impropriety of sexual relations with minors. However, in July 2004 he entered into a relationship over the Internet with Melissa, a sixteen-year-old, intellectually low-functioning female who resided in Kentucky. In January 2005, on Melissa's seventeenth birthday and the day after the CINA disposition hearing regarding Bradly, Kenneth went to Kentucky and brought Melissa to Iowa. He began living with her and began an ongoing sexual relationship with her.
Kenneth has been provided with numerous services, but has not progressed beyond supervised visitation with Bradley. He has in the past acknowledged that he would have difficulty taking care of Bradly because he is barely able to take care of himself. During his visitations with Bradly Kenneth largely abdicates Bradly's care to Melissa. Melissa's youth, inexperience, and low intellectual functioning cause serious concerns regarding her ability to provide competent care for Bradly. Kenneth relies on Melissa to keep their apartment livable, but the case worker has to direct her to do things required to maintain its cleanliness.
In September 2004 a psychiatrist treating Kenneth for bipolar disorder and pedophilia stated there was no objective measurement of the risk of Kenneth re-offending; at best a clinical assessment combined with actual risk assessment instruments would "only provide a 50+ percent accuracy"; he did not do actuarial risk assessments; and that based entirely upon his clinical assessment, " [a]t the present time, I do not consider Kenneth to be at imminent risk." (Emphasis added). In a later deposition the psychiatrist opined that no one can make an accurate analysis of Kenneth's chance of re-offending. The DHS and service providers felt Bradly would be at risk if placed with Kenneth and could not be returned to him, because of Kenneth's diagnosis of pedophilia, history of sexual offenses against children, ongoing interest in pornography, and sexual relationship with a minor female. The DHS, service providers, and Bradly's guardian ad litem all recommended termination of Kenneth's parental rights.
Upon our de novo review we find that Bradly could not be returned to Kenneth without being imminently subject to the threat of neglect in the form of lack of appropriate supervision, abuse in the form of sexual abuse, or both. We affirm the juvenile court's determination that Bradly could not be returned to Kenneth at the time of the termination hearing.
Kenneth also claims "the State (sic) err[ed] in not removing the Guardian ad Litem after he unilaterally filed District Court action to disestablish the paternity of [Kenneth], at the request of the State." The State responds that error was not preserved on this issue.
At a May 4, 2005 dispositional hearing in the underlying CINA case, Kenneth sought removal of Bradly's guardian ad litem. The essence of his complaint, as set forth in a written motion filed May 5, was that the guardian ad litem had, without legal authority in the form of authorization from the juvenile court to litigate concurrently such an issue, filed an action seeking disestablishment of Kenneth's paternity of Bradly. In a May 5 order, filed May 6, 2005, the juvenile court granted concurrent jurisdiction and denied Kenneth's motion. No appeal was taken from that order.
At the termination hearing Kenneth renewed his objection to Bradly's guardian ad litem representing Bradly's interests, again complaining that the guardian ad litem had filed the disestablishment petition without a juvenile court grant of concurrent jurisdiction, and again sought removal of the guardian ad litem. The court took the matter under advisement, noting its prior grant of concurrent jurisdiction and recent ruling denying removal of the guardian ad litem. In its order terminating Kenneth's parental rights the court did not address or pass upon Kenneth's request for removal of Bradly's guardian ad litem. Kenneth did not file a post-ruling motion requesting that the court rule on the issue.
For two separate reasons we agree with the State that Kenneth has not preserved error on this issue.
First, the order in the CINA proceeding denying removal of the guardian ad litem was not appealed. An appeal must be taken within fifteen days of such an order. Iowa R. App. P. 6.5(2). Such a rule is mandatory and jurisdictional. See, e.g., Eaton v. Meester, 464 N.W.2d 691, 692 (Iowa Ct.App. 1990) (holding former Iowa Rule of Appellate Procedure 5(a), which required appeal within thirty days, was "mandatory and jurisdictional"). The absence of an appeal from that order caused principles of res judicata to bar further litigation of the same issue. See In re D.S., 563 N.W.2d 12, 15 (Iowa Ct.App. 1997) (citing In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994) for the proposition that principles of res judicata preclude a court from relitigating an issue that has previously been decided).
Second, even if relitigation of the issue was not barred by principles of issue preclusion, Kenneth nevertheless did not preserve error on this issue. "Issues must ordinarily be presented to and passed upon by the trial court before they may be raised and adjudicated on appeal. Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). This rule applies in termination of parental rights proceedings. See, e.g., In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994). "It is well settled that a rule [1.904(2)] motion is essential to preservation of error when a trial court fails to resolve an issue, claim, defense, or legal theory properly submitted to it for adjudication." State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984). This rule also applies in termination of parental rights proceedings. See, e.g., In re A.R., 316 N.W.2d 887, 889 (Iowa 1982). Because the juvenile court did not pass upon the issue in its termination order and Kenneth did not thereafter file a motion seeking a ruling, Kenneth has thus not preserved error on this issue.