IN RE K.M., 690 N.W.2d 464 (Iowa App. 2004)

IN THE INTEREST OF K.M. AND K.M., Minor Children, B.M., Father, Appellant.

No. 4-427 / 04-0650.Court of Appeals of Iowa.
June 23, 2004.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the Iowa District Court for Iowa County, Kristin L. Hibbs, Judge.

Father appeals order terminating his parental rights to son and daughter. AFFIRMED.

Michael Lindeman, Cedar Rapids, for appellant father.

Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Lewis McMeen, County Attorney, for appellee State.

Eric Tindal of Saylor Tindal, P.L.C., Williamsburg, for child.

Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.

VOGEL, P.J.

Benjamin appeals the termination of his parental rights[1] over his motion that the attorney for the State, Tim McMeen, should recuse himself from the proceedings because McMeen had participated in criminal prosecutions against Benjamin. At the outset of the termination trial, Benjamin’s attorney stated that Benjamin was serving time in prison for an offense prosecuted by McMeen and Benjamin felt McMeen should recuse himself from the case. The following colloquy between the court and Benjamin’s attorney took place:

THE COURT: . . . My question to you then was do you have evidence or does [Benjamin] have evidence of any actual prejudicial mind-set by the prosecutor or anything that was done inappropriately that would indicate to the Court that there was anything other than just the normal prosecution that any County Attorney handles when crimes occur in their county.
MR. LINDEMAN: He did not indicate to me anything unusual or different in the way the case was prosecuted that would warrant me to tell you anything. He just got sentenced to prison and he asked me to tell you about that.

. . . .

THE COURT: The Court will deny the motion at this time. The Court is not aware of any reason why the Court should ask Mr. McMeen to recuse himself other than the Defendant’s feeling that he doesn’t want Mr. McMeen in the case.

“Actual prejudice must be shown before a recusal is necessary. The appearance of impropriety is not sufficient to merit recusal.” In re C.W., 522 N.W.2d 113, 117 (Iowa Ct.App. 1994) (citing In re A.B., 445 N.W.2d 783, 784 (Iowa 1989)). Benjamin did not show actual prejudice when he requested the recusal, and he has not shown it on appeal.

AFFIRMED.

[1] The district court terminated Benjamin’s parental rights pursuant to Iowa Code sections 232.116(1)(b) (abandonment), 232.116(1)(e) (child CINA, child removed for six months, parent has not maintained significant and meaningful contact with the child), 232.116(1)(f) (child four or older, child CINA, removed from home for twelve of last eighteen months, and child cannot be returned home), and 232.116(1)(h) (child is three or younger, child CINA, removed from home for six of last twelve months, and child cannot be returned home) (2003).

Page 465