IN THE INTEREST OF S.D., Minor Child, L.W., Father, Appellant.
from the Iowa District Court for Polk County, Joseph W.
Seidlin, District Associate Judge.
father appeals the termination of his parental rights to his
L. Mason of JL Mason Law, PLLC, Des Moines, for appellant
J. Miller, Attorney General, and Meredith L. Lamberti,
Assistant Attorney General, for appellee State.
Charles Fuson of Youth Law Center, Des Moines, guardian ad
litem for minor child.
Considered by Vogel, C.J., and Doyle and Mullins, JJ.
father appeals the juvenile court order terminating his
parental rights to his child. He alleges the State violated
his procedural due process rights by failing to provide him
notice of the child in need of assistance (CINA) proceedings
after he informed the Iowa Department of Human Services (DHS)
that he was the child's father. He also challenges the
grounds for terminating his parental rights. We review his
claims de novo. See In re A.S., 906 N.W.2d 467, 472
father was in a relationship with the child's mother in
2015. The father learned the mother was pregnant
approximately one month after their relationship ended and
believed he was likely the child's father. After the
father learned of the child's birth some weeks after the
fact, he saw the child "maybe a couple of times a week
or whenever [the mother] would let me again."
State removed the child from the mother's care in October
2017 and initiated CINA proceedings. At that time, the father
was living in Arizona and had not had any contact with the
child since moving out of state. The State never notified the
father of the CINA proceedings because another man was listed
as the father on the child's birth certificate and the
mother identified that man as the child's father.
father was living in Missouri in March 2018 when he called
the mother and learned the child was in the custody of the
DHS. The father contacted the DHS in Polk County to inform
them that he was the child's father. The DHS initiated
paternity testing to exclude the putative father as the
child's father. The DHS asked the father to submit to
paternity testing, which confirmed he is the child's
father. The State filed a petition to terminate parental
rights to the child in August 2018. Shortly thereafter, the
State received the results of the father's paternity test
and amended the petition to include him. The father was then
served by certified mail with the petition to terminate
parental rights, original notice, order fixing time of
termination hearing, and other papers. The termination
hearing was held before the father returned a completed
affidavit requesting appointment of counsel, and the father
did not appear at the hearing. After the hearing, the court
appointed counsel to represent the father, and the father
filed a motion to reopen the record. The juvenile court
granted the motion and scheduled a second hearing.
time of the second termination hearing, the father was living
in Missouri and serving a five-year term of probation
resulting from a March 2018 domestic assault incident. The
father requires permission from his probation officer before
he can leave the state. He still had not seen or corresponded
with the child or made inquiry with the DHS about doing so.
father argues the State violated his procedural due process
rights by failing to add him as a party to the CINA
proceedings after he gave notice of being the child's
father. Based on this failure, he argues the juvenile court
was without jurisdiction to terminate his parental rights.
The State counters by citing the "long standing
precedent" of this court that failure to include a
parent in a CINA proceeding does not preclude termination of
parental rights. See, e.g., In re M.L.M.,
464 N.W.2d 688, 689 (Iowa Ct. App. 1990) (affirming
termination of a father's parental rights based on
father's abandonment of the child despite the State's
failure to notify the father of the CINA action). But see
In re J.C., No. 18-1514, 2018 WL 6719418, at *3 (Iowa
Ct. App. Dec. 19, 2018) ("The agency's failure to
notify the father of the child-in-need-of-assistance
proceedings prevented him from being heard in the
child-in-need-of-assistance action and rendered the
proceeding void as to him."). Regardless, the father did
not raise his due-process claim below. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It is a
fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court
before we will decide them on appeal."). Accordingly,
the father failed to preserve the issue for our review.
See In re K.C., 660 N.W.2d 29, 38 (Iowa 2003)
(finding parents waived procedural due process claim by
failing to raise objection before the juvenile court, noting
that "[e]ven issues implicating constitutional rights
must be presented to and ruled upon by the district court in
order to preserve error for appeal").
father also asserts the State failed to prove the grounds for
terminating his parental rights. Under Iowa Code section
232.116(1)(b) (2018), the juvenile court may terminate
parental rights if it "finds that there is clear and
convincing evidence that the child has been abandoned or
deserted." A parent abandons a child by relinquishing or
surrendering "the parental rights, duties, or privileges
inherent in the parent-child relationship." Iowa Code
§ 232.2(1). Abandonment is not required to occur over
any particular period of time, but proof of abandonment must
include "both the intention to abandon and the acts by
which the intention is evidenced." Id. A parent
deserts a child by relinquishing or surrendering "the
parental rights, duties, or privileges inherent in the
parent-child relationship" "for a period in excess
of six months." Id. § 232.2(14).