Opinion
No. 3-001 / 02-1958.
Filed February 28, 2003.
Appeal from the Iowa District Court for Carroll County, James A. McGlynn, Associate Juvenile Judge.
A father appeals an order terminating his parental rights to three children. AFFIRMED.
Jeffrey R. Minnich of Neu, Minnich, Comito Neu, P.C., Carroll, for appellant father.
Thomas J. Miller, Attorney General, Katherine Miller-Todd, Assistant Attorney General, and John Werden, County Attorney, for appellee-State.
R. Eich and Christopher Polking, Carroll, for mother.
Joseph Halbur, Carroll, guardian ad litem for minor children.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Patrick and Ora are the parents of ten-year-old Lucas, eight-year-old Albert, and five-year-old Toni. The children were removed from parental custody on September 15, 2000, when Patrick and Ora were arrested on weapons, drug, and child endangerment charges. The children have not subsequently been returned to parental custody.
Ora is also the mother of twelve-year-old Megan. Ora's parental rights to Megan were terminated by consent.
The children were adjudicated children in need of assistance (CINA) October 25, 2000, pursuant to Iowa Code sections 232.2(6)(b), (g), and (n) (1999). As a result of charges arising out of their September 15, 2000 arrests, both parents were convicted of two felonies and six indictable misdemeanors and sentenced to terms of imprisonment in June 2001. Following a July 2001 permanency hearing the juvenile court directed the county attorney to institute proceedings to terminate parental rights.
The petition for termination of parental rights sought termination of both parents' parental rights under Iowa Code section 232.116(1)(d), (e), (i), (l), and (n) (Supp. 2001). Following an August and September 2002 hearing, on November 20 the juvenile court terminated both parents' parental rights to the children under sections 232.116(1)(d) (child adjudicated CINA for neglect, circumstances continue despite offer or receipt of services), (i) (child meets definition of CINA, neglect constituted imminent danger to child, services would not correct conditions within reasonable period of time), and (l) (child adjudicated CINA, parent has substance abuse problem and presents a danger, child cannot be returned within a reasonable time) (Supp. 2001). Although not alleged in the petition, the juvenile court also found that the State had proven grounds for termination under section 232.116(1)(f) (child four or older, adjudicated CINA, removed from the home twelve of last eighteen months, cannot be returned home). (Supp. 2001). Patrick 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).
Patrick raises six issues. In the first three he claims the evidence did not meet the clear and convincing standard required for termination pursuant to certain paragraphs of subsections 232.116(1)(d), (i), and (l) (2001) respectively. However, these provisions of the 2001 Code became subsections 232.116(1)(e), (j), and (m) in the 2001 Code Supplement. The first, although pled by the State, was not relied on by the juvenile court as a ground for termination. The second and third were neither pled nor relied on by the juvenile court. Patrick thus does not challenge three of the statutory grounds for termination the juvenile court found to have been proven by clear and convincing evidence, sections 232.116(1)(d), (i), and (l) (Supp. 2001). He has thus waived any claim of error concerning those grounds for termination. See Iowa R.App.P. 6.14(1)( c) (failure in brief to state, to argue, or to cite authority in support of an issue may be deemed waiver of that issue). We have nevertheless conducted a de novo review of the record and based on evidence summarized later in this opinion we conclude the State presented clear and convincing evidence supporting termination under sections 232.116(1)(d), (i), and (l) (Supp. 2001). We need not decide whether the juvenile court erred in also relying on section 232.116(1)(f) (Supp. 2001), a ground not pled by the State. See In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995) (stating that while district court relied on more than one statutory ground, we only need to find one statutory ground proven to affirm).
Patrick's fourth claim is that the evidence did not meet the clear and convincing evidence required for termination pursuant to section 232.116(1)(f)(2), (3), and (4) (2001). This claim also involves statutory provisions neither pled by the State nor relied on by the juvenile court and we discuss it no further.
Patrick's fifth claim is that the evidence did not meet the clear and convincing standard required for termination pursuant to section 232.117(3).
The juvenile court made certain findings that are fully supported by the evidence. Patrick had been drug addicted for about ten years. The parents' possession of drugs and drug paraphernalia and manufacture of controlled substances constituted an imminent danger to the children. Patrick has a severe, chronic substance abuse problem and presents a danger to himself or others as evidenced by his prior acts. He underwent a substance abuse evaluation but did not follow recommendations. His imprisonment was based in part on three drug-related convictions. The children had been removed from parental custody for about twenty-four months. The evidence also showed that although Patrick hoped to be paroled at an earlier date, the tentative discharge of his sentence was September 12, 2003, and if he happened to be paroled at an earlier date he would likely be on intensive parole supervision for an extended period of time. In addition, the evidence showed that persons with substance abuse problems such as Patrick's have a relapse rate of approximately seventy percent.
The school administrator in charge of special education and at risk student needs testified that on a consistent basis over a five-year period the three children's condition was the worst she had dealt with in twenty-five years in education. The evidence showed, and the juvenile court found, that the children had for a long time been forced to live in filthy conditions in a house unfit for habitation and without clean clothes to wear. The juvenile court also found that during the almost nine months they were released on bond prior to being imprisoned the parents were encouraged to clean and fix their home to the point they could have visits with the children but did not do so.
Section 232.117(3), summarized and paraphrased, states that if the court finds grounds for termination have been proven it may order termination, and if it orders termination it shall transfer guardianship and custody of the child to one of certain described entities or individuals. It does not, as asserted by Patrick, deal with discretionary, less restrictive alternatives to termination. Based on the evidence presented to the juvenile court and partly summarized in our two immediately-preceding paragraphs, we conclude the evidence did meet the clear and convincing standard required for termination under sections 232.116(1)(d), (i), and (l) (Supp. 2001) and reject Patrick's claim to the contrary.
Patrick's final claim is the juvenile judge abused his discretion by denying Patrick's request that he recuse himself. He asserts recusal was required because the juvenile judge was prejudiced and biased against any less restrictive alternative than termination of parental rights, as is shown by the fact the juvenile judge had ordered the county attorney to file a petition to terminate parental rights.
Section 232.104(2)(c) (Supp. 2001) provides the juvenile court may, as one of several options after a permanency hearing, direct the county attorney to institute termination proceedings. The July 2001 permanency hearing and resulting order directing the county to institute termination proceedings shortly followed each parent's June 2001 imprisonment for two concurrent sentences of no more than five years and six additional, shorter, concurrent sentences.
An appearance of impropriety is not sufficient to merit recusal. In re C.W., 522 N.W.2d 113, 117 (Iowa Ct.App. 1994). Rather, actual prejudice must be shown before recusal is required. Id. The children had been removed from their parents for almost two years, and it appeared neither parent would be available to take custody for an extended time, perhaps as long as an additional year. The juvenile court's order to institute termination proceedings was consistent with law and was logical and reasonable under the circumstances of the case. The facts did not support a claim of actual prejudice. We find the juvenile judge did not abuse his discretion by declining to recuse himself.
AFFIRMED.