IN THE INTEREST OF D.J.M., 690 N.W.2d 697 (Iowa App. 2004)

IN THE INTEREST OF D.J.M., Jr., W.E.M., and J.A.C.M., Minor Children, C.V., f/k/a C.M., Mother, Petitioner-Appellee, D.J.M., Sr., Father, Respondent-Appellant.

No. 4-442 / 03-1546.Court of Appeals of Iowa.
July 14, 2004.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the Iowa District Court for Pottawattamie County, Mark Eveloff, District Associate Judge.

A father appeals from a juvenile court order which terminated his parental rights to his three children. REVERSED.

Mark Rater, Council Bluffs, guardian ad litem for appellant father.

C.R. Hannan of Reilly, Petersen, Hannan Dreismeier, P.L.C., Council Bluffs, for appellee mother.

Keith Engel, Council Bluffs, guardian ad litem for minor children

Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.

ZIMMER, J.

Donald M. appeals from a juvenile court order which terminated his parental rights to his three children. He claims the evidence was insufficient to support the juvenile court’s decision to terminate his parental rights based on non-support of his children. We reverse.

I. Background Facts Proceedings

Donald and Christin B. were formerly married.[1] They are the parents of Donald Jr., born in June 1998, William, born in July 1999, and Jacqueline, born in December 2000. Christin also has a daughter, Stephanie, from a prior relationship. Donald had sex with Stephanie when she was twelve years old. He was subsequently charged with felony sexual abuse. He pled guilty and received a ten-year prison term.[2]

Christin divorced Donald after learning of his illicit relationship with Stephanie. In April 2003, Christin brought an action to terminate Donald’s parental rights to Donald Jr., William, and Jacqueline. She alleged two statutory grounds for termination of Donald’s parental rights in her petition: failure to object to termination and lack of support.[3]

A hearing on the matter was held on June 27, 2003. Donald’s guardian ad litem appeared on his behalf at the termination hearing and objected to the termination of Donald’s parental rights. On August 21, 2003, the juvenile court entered an order terminating Donald’s parental rights based on lack of support under authority of section 600A.8(5). The court rejected Christin’s claim that Donald did not object to the termination of his parental rights. This appeal followed.

II. Scope of Review

Private termination proceedings are reviewed de novo. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2001).

III. Discussion

The only issue properly before this court on appeal is whether the trial court properly terminated Donald’s parental rights upon the statutory ground of non-support.[4] Donald claims his former spouse failed to meet her burden of proof on this issue. Upon our de novo review of the record, we conclude his contention has merit.

Section 600A.8(5) authorizes termination of parental rights if a parent has been ordered to pay child support and fails without good cause to do so. In re R.K.B., 572 N.W.2d at 601. The party requesting termination of parental rights on this ground has the burden to show by clear and convincing evidence that the defaulting parent had the ability to pay the amount of support ordered. Id. at 601-02. Our Supreme Court has concluded that the legislature intended termination for non-support to occur where a parent’s failure to pay manifests indifference to a child and is therefore akin to abandonment. See Klobnock v. Abbott, 303 N.W.2d 149, 152 (Iowa 1981).

In her petition to terminate Donald’s parental rights, Christin alleged that Donald has been court ordered to contribute to the support of his children. However, at the termination hearing, she offered no evidence to establish that Donald has been ordered to pay child support. Even if we assume, in the absence of any actual proof, that a support order exists, the record reveals no basis for determining the amount of Donald’s obligation or when it started. Moreover, Donald offered evidence through his guardian ad litem which indicates that he has been paying child support while in prison.[5] He also claimed that his former spouse sold his possessions to supplement her income. Christin did not rebut this assertion.

Upon our de novo review, we conclude the sparse record in this case, contains insufficient evidence to support termination on Donald’s parental rights for non-support under section 600A.8(5). Because we find Christin has failed to meet her burden of proof, we reverse the juvenile court’s order terminating Donald’s parental rights.

REVERSED.

[1] The record does not disclose the length of the parties’ marriage.

[2] Donald expects to be released from prison in about a year and a half. He hopes to reestablish a relationship with his children and contribute to their support following his release.

[3] The statutory grounds relied on by Christin are found in Iowa Code sections 600A.8(5) and (6) (2003). Christin did not raise the issue of abandonment as a basis for termination of Donald’s parental rights.

[4] In her brief on appeal, Christin argues that the court’s termination order should be affirmed because chapter 600A violates her right to Equal Protection of the law under the federal and state constitutions. We find nothing in the record which indicates that she raised this issue before the juvenile court. An issue not presented to and passed on by the juvenile court may not be raised on appeal for the first time, even one of constitutional dimensions. In re T.J.O., 527 N.W.2d 417, 420
(Iowa Ct.App. 1994). Accordingly, we do not address this argument on appeal.

[5] The guardian ad litem offered documentation indicating that child support is being withheld from Donald’s prison check on a monthly basis. Evidence in the record indicates that $10.50, which amounts to 50% of Donald’s monthly income is deducted from his check each month.