IN THE SUPREME COURT OF IOWA
No. 18–0947
Filed November 30, 2018
IN THE INTEREST OF M.D., K.T., G.A., AND S.A.,
Minor Children.
vs.
K.A., Mother,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Ida County, Patrick H. Tott,
Judge.
An incarcerated parent appeals an order by juvenile court
terminating her parental rights. DECISION OF THE COURT OF
APPEALS VACATED; JUVENILE COURT DECISION REVERSED AND
REMANDED.
Robert B. Deck of Deck Law PLC, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Kathryn K. Lang, Assistant
Attorney General, Meghann Cosgrove-Whitmer, County Attorney, and
Kristal L. Phillips, Assistant County Attorney, for appellee.
Lesley D. Rynell, Public Defender, Sioux City, guardian ad litem for
minor children.
2
CADY, Chief Justice.
In this appeal, we must decide the extent to which an incarcerated
parent is entitled to participate from prison by telephone in a hearing to
terminate parental rights. The juvenile court permitted the parent to
participate in the hearing by telephone but only to give testimony and
entered an order terminating parental rights following the hearing. On
appeal, the court of appeals affirmed the decision of the juvenile court.
On further review, we vacate the decision of the court of appeals, reverse
the decision of the juvenile court, and remand the case for an expedited
hearing consistent with the procedure set forth in this opinion. We
conclude an incarcerated parent is entitled to participate from a prison
or jail facility in the entire hearing for termination of parental rights.
I. Background Facts and Proceedings.
The juvenile court in Ida County terminated the parental rights of
a mother to her five children on May 22, 2018, following a hearing. The
children had been removed from the mother’s care prior to the hearing
primarily due to her chronic drug and alcohol abuse. She had used
methamphetamines off and on for years and was convicted and
sentenced to prison in 2010 for manufacturing methamphetamine. The
mother consumed and manufactured methamphetamine in the presence
of the children, and her drug addiction adversely impacted her ability to
parent and attend to the needs and development of her children. 1 The
children were in the care of their respective fathers at the time of the
termination hearing.
1One of the most serious consequences for young children raised by opioid and
methamphetamine addicted parents is the dramatic impact on brain development. See
Asher Ornoy et al., Developmental Outcome of School-Age Children Born to Mothers with
Heroin Dependency: Importance of Environmental Factors, 43 Developmental Med. &
Child Neurology 668, 672–73 (2001).
3
The mother was incarcerated in a jail facility in Winner,
South Dakota, at the time of the termination hearing. She had been
arrested in South Dakota on multiple felony charges involving possession
of controlled substances with intent to deliver, possession of
methamphetamines, and other crimes alleged to have occurred in three
different counties in South Dakota. Prior to the termination hearing, the
mother moved for a continuance due to her imprisonment or,
alternatively, requested to participate in the hearing by telephone.
The juvenile court denied the motion for a continuance. It
concluded the resulting delay would not be in the best interests of the
children. Instead, it granted the mother’s alternative request to appear
at the hearing by telephone, but only to present her testimony and to be
cross-examined. The juvenile court, however, directed that she present
her testimony at the close of the State’s case-in-chief to allow her counsel
to inform her prior to testifying of the nature of the evidence presented by
the State in support of the termination.
Counsel throughout the hearing represented the mother. After the
State concluded the presentation of its evidence, the mother conferred
with her counsel and then presented her testimony. At the conclusion of
the telephone call, the attorneys presented their closing arguments. The
juvenile court subsequently entered a written order terminating the
mother’s parental rights.
On appeal, the mother claimed the process provided by the
juvenile court for her to participate in the termination hearing deprived
her of her rights to confront witnesses, assist in cross-examination of
witnesses, and hear the evidence offered by the State. She identified
numerous findings of fact made by the juvenile court in the juvenile
order that were based on evidence submitted by the State that she
4
claimed was incorrect and was unable to refute due to the limitations on
her ability to participate in the hearing.
The State acknowledged the better practice may have been to allow
the mother to participate by telephone in the entire hearing, but argued
the procedure followed by the court satisfied the minimum requirements
of due process. The court of appeals found the procedure was “good
enough” under its precedence, although it too acknowledged the “better
practice” would have been to do more to give the mother a greater
opportunity to participate in the hearing. 2
The mother requested, and we granted, further review. She asks
that we establish the procedure for juvenile courts in this state to follow
in conducting hearings to terminate parental rights of parents who are
incarcerated. She requests a new hearing under a procedure that gives
her an opportunity to participate in the entire hearing.
II. Scope of Review.
Our review of termination of parental rights proceedings is de novo.
In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). Although we are not bound
by the juvenile court’s findings of fact, “we do give them weight,
especially in assessing the credibility of witnesses.” In re D.W., 791
N.W.2d 703, 706 (Iowa 2010). Constitutional claims, such as the
deprivation of due process, are also reviewed de novo. P.M. v. T.B., 907
N.W.2d 522, 530 (Iowa 2018).
2The court of appeals identified the issue on appeal as whether the juvenile
court violated the mother’s procedural due process rights by restricting her
participation at the hearing. The State also framed the issue in its brief on appeal as a
due process claim, and we granted further review under that framework. After we
granted further review and asked the State to file a response, the State argued for the
first time that the mother failed to preserve error specifically as a due process claim.
We decline to address this contention so late in the judicial process. Furthermore, any
sound resolution of the issue in this case necessarily requires us to rely on
considerations based on due process.
5
Moreover, our review of a district court’s denial of a motion for
continuance is for an abuse of discretion. State v. Clark, 814 N.W.2d
551, 560 (Iowa 2012). A court abuses its discretion when “the decision is
grounded on reasons that are clearly untenable or unreasonable,” such
as “when it is based on an erroneous application of the law.” In re A.M.,
856 N.W.2d 365, 370 (Iowa 2014) (quoting Office of Citizens’
Aide/Ombudsman v. Edwards, 825 N.W.2d 8, 14 (Iowa 2012)).
Most importantly, “our fundamental concern” in review of
termination of parental right proceedings “is the child’s best interests.”
In re J.C., 857 N.W.2d 495, 500 (Iowa 2014).
III. Analysis.
The cornerstone of the analysis of the issue presented in this case
is due process of law. See U.S. Const. amend. XIV, § 1; Iowa Const. art.
I, § 9. The protections provided people under the constitutional
guarantee of due process are fundamental to society. These protections
include procedural safeguards for people who face state action that
threatens a protected liberty or property interest. Bowers v. Polk Cty. Bd.
of Supervisors, 638 N.W.2d 682, 690 (Iowa 2002). Once the law finds a
protected interest to exist, the question turns to what process or
procedure the law must provide the person. In re C.M., 652 N.W.2d 204,
212 (Iowa 2002). Generally, three competing interests have shaped the
contours of this protection.
First, the private interest . . . affected by the [proceeding];
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and
[third,] the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.
6
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976); see In
re C.M., 652 N.W.2d at 212. These factors identify the interests and
concerns involved and draw upon evidence and analysis to give a specific
meaning to due process.
We have said that parental termination hearings involve state
action that threatens to deprive parents of their liberty interests in the
care, custody, and control of their children. In re C.M., 652 N.W.2d at
211. Thus, the broad issue we address in this appeal turns on how
much process is due to incarcerated parents who face a hearing to
terminate their parental rights.
Procedural due process plays a significant role in the overall
operation of our justice system. The way a justice system treats people
who enter it must be as just and fair as the court decisions made by its
judges. This understanding shines greater light on the critical
importance of procedural fairness of a court system and the need for
courts to ensure fairness in the process of justice itself.
The mother in this case asked for due process in the form of a
continuance of the termination hearing or, alternatively, an opportunity
to participate in the hearing by telephone. This claim illustrates the
challenge in achieving procedural due process. The outcome involves a
careful balancing of the personal interest of litigants, the ability of the
court system to accommodate and provide safeguards for litigants, and
the broad interests of the government to both provide safeguards and
protect the interests of all. The requested procedure also applies to a
final hearing on the merits of the action. Unlike a hearing on an
application for postconviction relief, the parent has not yet had his or her
day in court. The hearing involves a final adjudication of the rights at
stake.
7
A. Continuance of the Hearing. A continuance of a termination
hearing until an incarcerated parent is able to attend may be helpful to
the parent, but the delay that accompanies such continuances may be
detrimental to the best interests of children. See In re L.L., 459 N.W.2d
489, 495 (Iowa 1990) (indicating children must not be forced to wait for
responsible parenting). The focus of child welfare in this country, and
Iowa, is now on permanency, and continuances of court hearings to
accommodate parents might offend this goal. See In re C.B., 611 N.W.2d
489, 493 (Iowa 2000) (explaining the Adoption and Safe Family Act of
1997 refocused the goals of child welfare cases by its increased emphasis
on children’s health and safety and mandate that children be placed in a
permanent home as early as possible). The juvenile court in this case
understood this potential harm and sought to strike the balance
demanded by the Due Process Clause by allowing for a telephone
appearance at the hearing.
The State suggests a continuance is not even a procedural option
for a juvenile court in termination hearings when the parent is not
incarcerated in the same county as the court. It claims a court may only
order a person confined in a penitentiary or jail to appear in a civil case
to give testimony in a court in the county where the person is
imprisoned. See Iowa Code § 622.82 (2017). The State also points out
this statutory limitation is the foundation of the rule that has been
followed in Iowa, previously articulated by the court of appeals, and
applied by the juvenile judge in this case that incarcerated persons only
need to receive advance notice of a hearing, be represented by counsel at
a hearing, and be given an opportunity to present testimony orally by
telephone. See Webb v. State, 555 N.W.2d 824, 826 (Iowa 1996)
(applying the rule to postconviction-relief proceedings and citing In re
8
J.S., 470 N.W.2d 48, 52 (Iowa Ct. App. 1991), holding the same is true
involving the termination of parental rights).
We find it unnecessary to address the State’s statutory argument.
Section 622.82 generally applies to persons incarcerated in this state.
The mother in this case was not confined in Iowa. Furthermore, Iowa
Code section 232.112 specifically requires parents be given “an
opportunity to be heard” in a termination hearing. Nevertheless, the
motion for continuance made by the mother in this case did not ask the
juvenile court to order her appearance in court at a future hearing while
incarcerated. Additionally, the mother did not ask us to recognize a due
process right for incarcerated parents to be physically present at a
termination hearing. See In re Termination of Parental Rights of Heller,
669 A.2d 25, 32 (Del. 1995) (recognizing no due process right for an
incarcerated parent to be present at a hearing to terminate parental
rights); In re J.P.B., 509 S.W.3d 84, 97 (Mo. 2017) (recognizing no
constitutional right of incarcerated parents to attend a termination
hearing); St. Claire v. St. Claire, 675 N.W.2d 175, 177–78 (N.D. 2004)
(concluding an incarcerated parent has only a limited right to appear in
person at a hearing to terminate parental rights). Accordingly, we review
the juvenile court’s denial of the motion for continuance in this case
under an abuse-of-discretion standard and find ample reasons that show
the juvenile court properly exercised its discretion to deny the
continuance. See In re Involuntary Termination of Parent–Child
Relationship of K.W., 12 N.E.3d 241, 244–47 (Ind. 2014) (identifying and
applying eleven factors, typically used in consideration of a motion to
transport an incarcerated parent, to review the exercise of discretion in
denying a motion to continue a termination hearing). The mother made
no claim that she would be unable to participate meaningfully in the
9
termination hearing by telephone, with the physical presence of counsel
at the hearing. On the other hand, the delay associated with a
continuance of a hearing until the physical appearance of an
incarcerated parent can be achieved could very well be contrary to the
best interests of children and our nation’s policy. Considering all
relevant factors, the balance of the competing interests support the
mother’s alternative request to participate by telephone, not a
continuance. The fighting issue turns on whether the limitations
imposed by the juvenile court on the mother’s participation in the
hearing by telephone comply with due process.
B. Participation in Hearing by Telephone. Generally, an
incarcerated parent who is unable physically to attend a termination
hearing must be given the opportunity to participate in the hearing by
alternative means. In re Baby K., 722 A.2d 470, 472 (N.H. 1998)
(concluding due process does not require an incarcerated parent’s
physical presence at the termination hearing “provided the parent is
otherwise afforded procedural due process at the hearing”); In re Adoption
of J.N.F., 887 A.2d 775, 781 (Pa. Super. Ct. 2005) (holding a trial court
must give an incarcerated parent the ability to meaningfully participate
in a termination proceeding if the parent desires to contest the
termination petition). Some courts have concluded that due process is
satisfied when an incarcerated parent is afforded the opportunity to
participate in the entire termination hearing by telephone from the
prison. Orville v. Div. of Family Servs., 759 A.2d 595, 599 (Del. 2000)
(holding the family court should have afforded the incarcerated mother
an opportunity to participate by phone for the entire hearing and citing
its prior decision in Heller, 669 A.2d at 32, as concluding the same
proposition); In re Baby K., 722 A.2d at 473 (finding the incarcerated
10
father’s inability to hear the proceedings via telephone “increased the risk
of an erroneous determination”). These courts stress that meaningful
participation in a parental termination case requires actual knowledge of
the testimony and documentary evidence offered in support of the
petition for termination. See Orville, 759 A.2d at 599. Parents often
have exclusive and particular knowledge of the evidence offered by the
state to support the termination petition and need to hear it to
understand the evidence needed to make an effective response. Id. at
600. It is a concept fundamental to a system of justice. These
observations make the parent’s interests in appearing by telephone for
the entire hearing compelling. See Santosky v. Kramer, 455 U.S. 745,
753–54, 102 S. Ct. 1388, 1394–95 (1982) (recognizing procedural
protections for parents facing termination of rights to their children are
more critical than for parents resisting state intervention into ongoing
family matters). Moreover, the full-participation standard has given rise
to a further requirement for juvenile courts to implement substitute
procedures and accommodations when circumstances surface to impugn
the ability of a parent to hear and participate in the entire hearing. See
Orville, 759 A.2d at 600. The substitute procedures center on a brief
continuance of the hearing to provide the parent a transcript or digital
reproduction of those portions of the hearing that the parent did not hear
over the telephone prior to testifying by telephone. See id. (offering a
variety of safeguards that can be utilized to protect an incarcerated
parent’s due process rights). They seek to give a parent the substantial
equivalence of full participation. See In re Termination of Parental Rights
to Idella W., 708 N.W.2d 698, 702–03 (Wis. Ct. App. 2005) (recognizing
alternative proceedings must be “functionally equivalent to personal
presence” (emphasis omitted)).
11
Other jurisdictions, on the other hand, are more deferential to the
limitations inherent in the authority of courts to order prisoners in other
states to be available to participate in an entire hearing. They permit
limited participation by telephone without additional safeguards if
justified by other circumstances based on a balancing of the Mathews
factors. See In re D.C.S.H.C., 733 N.W.2d 902, 910 (N.D. 2007)
(recognizing the importance of parent’s participation in entire proceeding,
but declining to remand in part due to the court’s inability to compel the
out-of-state correctional facility to allow incarcerated parent to
participate in entire hearing); see also In re Involuntary Termination of
Parent–Child Relationship of C.G., 954 N.E.2d 910, 921–23 (Ind. 2011)
(reviewing the approaches followed by courts in other jurisdictions).
We acknowledge the process due in each case is flexible depending
on the particular circumstances. In re A.M.H., 516 N.W.2d 867, 870
(Iowa 1994). We also acknowledge the procedure followed by the juvenile
court in this case provided some due process for the incarcerated
mother. Yet, the competing interests involved simply do not justify the
limitations imposed on full participation.
In termination hearings, the flexibility of due process should only
work to identify a substitute procedural safeguard for incarcerated
parents who are unable to participate by telephone for the entire hearing.
It does not justify a rule that only allows a parent to participate in the
hearing to the extent of testifying. We therefore reject a rule that limits
the telephone participation of an incarcerated parent in a hearing to
terminate parental rights to giving testimony.
Instead, we adopt the standard that juvenile courts in this state
must give incarcerated parents the opportunity to participate from the
prison facility in the entire termination hearing by telephone or other
12
similar means of communication that enables the parent to hear the
testimony and arguments at the hearing. The interests of the parent, the
child, and the state support this opportunity. In particular, it serves the
compelling interest of the parent to hear the evidence offered in support
of a termination petition and to respond effectively to the evidence. We
agree with the observations by other courts that parents normally have
unique and exclusive knowledge of evidence concerning the termination.
After all, their conduct is at issue. The risk of error is too great if a
parent does not have the opportunity to hear this evidence and to
formulate a response to it.
The opportunity to participate by telephone means the juvenile
court must preside over the proceedings in a manner that will best meet
this standard. It will require the type of technology commonly used in
courtrooms today, with a dose of cooperation from prison officials. We,
of course, recognize that circumstances may arise that will challenge the
juvenile court’s ability to enable a parent to participate in the entire
hearing, such as restrictions imposed by prison officials limiting the
ability of the incarcerated parent to be available for the entire hearing.
See Orville, 759 A.2d at 597 (involving out-of-state prison that would not
allow incarcerated parent to participate in entire hearing); In re
D.C.S.H.C., 733 N.W.2d at 908 (explaining juvenile court could not
compel out-of-state prison to compel incarcerated parent to participate in
entire hearing); In re Baby K., 722 A.2d at 472 (remanding due to
incarcerated parent’s inability to hear proceedings via telephone
connection). The problems can be particularly acute when out-of-state
correctional officials decline to make a parent available for the entire
hearing. The authority of the juvenile court to direct out-of-court officials
to comply with the hearing process is limited. See In re D.C.S.H.C. 733
13
N.W.2d at 908. This limitation, however, does not abate the continuing
role of due process.
In the event prison officials from other states, or other
circumstances, do not permit the standard to be met, the juvenile court
shall provide an alternative process that allows the parent to review a
transcript of the evidence offered at the hearing. In this instance, the
court must direct an expedited transcript of those portions of the hearing
that were closed to the parent be prepared and given to the parent to
review prior to testifying by telephone, along with all exhibits admitted
into evidence. This alternative means of participation not only permits
the parent to testify by telephone or teleconference after having an
opportunity to review the record, but to recall witnesses who testify for
the state for additional cross-examination and to present other testimony
and documentary evidence at the hearing. Orville, 759 A.2d at 600.
We recognize this requirement will likely add additional expense
and require additional time to complete the termination process, but not
more than other existing procedural requirements needed to ensure
fairness in hearings where so much is at stake. It is in the best interests
of children for the court process to proceed without delay, but it is also in
the best interests of children that their parents have a full and fair
opportunity to resist the termination of parental rights. The potential for
error is enhanced if a parent is not informed of the evidence presented in
support of the termination. Furthermore, time needed for courts to
complete a hearing consistent with the notions of due process is not the
type of delay that is contrary to the best interests of children. This same
understanding applies to any expenses associated with the process of
providing parents with a transcript. Transcripts are commonly prepared
and used in our justice system, and using them as an alternative
14
safeguard in a termination hearing is not an administrative burden for
the state. A true and accurate record has always been a fundamental
component of justice and can be used in many ways to promote
confidence in a justice system. Additionally, time expended to prepare a
transcript for an incarcerated parent during a termination hearing will
reduce the time needed to file the transcript for the appeal.
Furthermore, technology now allows transcripts to be prepared much
faster than in the past, and some juvenile courts are now equipped with
digital recording. Finally, the expense of producing a transcript or other
record can be assessed as court costs.
In the end, the standard now established in this opinion for
juvenile courts to follow in termination hearings involving incarcerated
parents is compatible with what a justice system should do for all
litigants who need a reasonable accommodation. More importantly, the
role of the juvenile judge will continue to be the important driver of
procedural fairness expected of courts.
Judges who preside over parent termination hearings must first
seek to arrange for the incarcerated parent to participate in the entire
hearing by telephone, teleconference, or other similar means, and only
need to resort to the alternative procedure in response to uncooperative
out-of-state prison officials after first seeking their cooperation. 3 Thus,
the role of a juvenile judge to seek cooperation in managing the hearing
becomes part of due process. Judges are leaders and must at times
exercise leadership to help achieve justice. This leadership means
juvenile judges may need to confer with prison officials prior to
3The burden remains with the attorney for incarcerated parents to coordinate
their telephonic participation at the hearing. See Iowa Ct. R. 61(10). Nevertheless, our
judges are facilitators of justice for all who utilize our court system. In that sense, it is
important that they aid in ensuring parents are provided the appropriate due process.
15
termination hearings to explain the importance of the court procedures
and the need for their cooperation to help assure procedural justice. The
authority of a court does not just come from the issuance of an order. It
also can be found by creating an understanding of justice for others to
see and respond. Justice, in the end, is not just for courts to give people.
It is for all, and for all to give.
Upon review of the current procedure, we conclude juvenile court
judges must follow a different procedure moving forward. First, what has
been acknowledged as the better practice over the years will now be the
standard practice. Juvenile judges must give incarcerated parents the
opportunity to participate by telephone in the entire hearing. Second, if
the attorney representing the incarcerated parent is unable to obtain the
cooperation of prison officials to make the incarcerated parent available
for the entire hearing, the juvenile court must communicate with the
prison officials to explain the importance of participation by the parent
and the benefits of avoiding the alternative procedure. Finally, if the
efforts of the juvenile court are unsuccessful in giving the parent an
opportunity to participate in the entire hearing, the juvenile judge must
follow the alternative procedure that gives the incarcerated parent the
opportunity to review the record of the evidence presented by the state at
the hearing before testifying. In the end, the new procedure simply
means that the juvenile judge or court staff may need to make a phone
call or send a communication, a court reporter may need to prepare a
transcript, and the termination hearing may need to be bifurcated.
IV. Conclusion.
We vacate the decision of the court of appeals and reverse the
termination order of the juvenile court. We remand the case to the
16
juvenile court for additional expedited proceedings in accordance with
this opinion.
DECISION OF THE COURT OF APPEALS VACATED; JUVENILE
COURT DECISION REVERSED AND REMANDED.
All justices concur except Christensen, Waterman, and Mansfield,
JJ., who concur in part and dissent in part.
17
#18–0947, Interest of M.D.
CHRISTENSEN, Justice (concurring in part and dissenting in part).
I agree with the majority’s holding that the juvenile court did not
abuse its discretion in denying the mother’s motion for continuance. I
also agree this court should vacate the decision of the court of appeals,
reverse the decision of the juvenile court, and remand the case for an
expedited hearing. But, I cannot agree to the majority’s onerous
mandates for juvenile court judges and their effects on court reporters.
As a matter of sound judicial administration, incarcerated parents
generally should be permitted to participate by phone in the entire
termination hearing as long as it is arranged by the parent’s attorney and
allowed by prison officials. Contrary to the majority’s holding, failure to
do so in this case was simply a lack of sound judicial administration, not
a matter of constitutional due process. This case is about what is in the
best interest of a child and achieving permanency. However, the majority
unduly favors incarcerated parents by creating new, unwarranted
burdens on the juvenile courts that will impede the paramount goal of
protecting the best interests of children who so desperately need a
permanent home.
I. Error Preservation. First, we should not decide an important
constitutional matter on appeal when the mother failed to preserve her
due process argument for appeal. By ignoring our error preservation
rules, the majority is reversing the juvenile court for failing to credit an
argument that the mother never made. While the mother did move to
continue and appear by telephone, she did not raise due process
arguments in juvenile court or her petition for appeal. The motion
argues that “it would be unfair and unjust to hold a hearing regarding
the placement” without her presence, but that is the closest the record
18
comes to any form of due process argument. It is not close enough. 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.”).
Due process claims obviously implicate constitutional issues, but neither
the petition on appeal nor application for further review so much as cites
the due process provision of the Iowa Constitution or the United States
Constitution. Therefore, I would not leap to either constitution to decide
this issue on constitutional grounds.
II. Procedural Due Process. Second, the juvenile court did not
deprive the mother of her due process rights. The United States
Constitution and the Iowa Constitution both provide Iowans with due
process protections so that the state shall not “deprive any person of life,
liberty, or property without due process of law.” U.S. Const. amend. XIV,
§ 1; see Iowa Const. art. I, § 9. Procedural due process mandates “notice
and opportunity to be heard in a proceeding that is ‘adequate to
safeguard the right for which the constitutional protection is invoked,’ ”
before the government can deprive anyone of a protected interest. In re
C.M., 652 N.W.2d 204, 211 (Iowa 2002) (quoting Bowers v. Polk Cty. Bd.
of Supervisors, 638 N.W.2d 682, 691 (Iowa 2002)).
In the past, we have recognized that termination proceedings
“threaten[] to deprive the [parent] of [a] liberty interest in the care,
custody, and control of [his or] her child.” Id. at 211. Given the
protected interest implicated in termination proceedings, we balance
three competing interests to determine the constitutional requisites of
the procedure. Id. at 212. These interests are
(1) the private interest affected by the proceeding; (2) the risk
of error created by the procedures used, and the ability to
avoid such error through additional or different procedural
19
safeguards; and (3) the countervailing governmental
interests supporting use of the challenged procedures.
Id.
We examined these competing interests involved in termination
proceedings in In re C.M., in which we held that a parent’s due process
rights were not violated when the parent was limited to raising her claims
of error on appeal in a petition rather than in a brief. Id. at 207, 211–12.
In doing so, we noted the importance of the presence of counsel as a
safeguard for the parent’s due process rights. Id. at 212. Regarding the
first factor, we concluded, “A parent has an interest in the custody of his
or her child.” Id. Regarding the third factor, we explained that it is in
the state’s interest to finalize the termination expediently “so as to meet
the child’s emotional and psychological need for a permanent home, as
well as to control the financial drain on the State caused by needlessly
protracted proceedings.” Id. We also found the parent has an interest
“in a speedy conclusion because of the potential of regaining custody.”
Id. Despite these competing interests, we cannot forget the paramount
interest in termination proceedings is always the best interests of the
child. See, e.g., In re J.C., 857 N.W.2d 495, 500 (Iowa 2014); see also
Iowa Code § 232.1 (2017) (“This chapter shall be liberally construed to
the end that each child under the jurisdiction of the court shall receive,
preferably in the child’s own home, the care, guidance and control that
will best serve the child’s welfare and the best interest of the state.”).
This case hinges on the second factor, which is “the risk of error
created by the procedures used, and the ability to avoid such error
through additional or different procedural safeguards.” In re C.M., 652
N.W.2d at 212. We have previously held that “[b]iological parents have a
due process right to notice and a hearing before termination of their
20
parental rights may occur.” In re J.C., 857 N.W.2d at 506. This
requirement “serves the best interests of the child by ensuring that
subsequent placements are not later upset, to the detriment of the child.”
Id. at 507. Nevertheless, a parent’s right to notice and hearing does not
mean the parent has a due process right to attend the termination
hearing. Cf. Webb v. State, 555 N.W.2d 824, 826 (Iowa 1996) (per
curiam) (citing In re J.S., 470 N.W.2d 48, 52 (Iowa Ct. App. 1991)).
A termination of parental rights (TPR) proceeding is a civil matter.
In re D.J.R., 454 N.W.2d 838, 846 (Iowa 1990). In In re J.S., a father
argued the juvenile court violated his due process rights when it denied
his request to be transported from prison to attend the termination
hearing in person, claiming he had the “right to know the charges,
allegations, and evidence presented against him, as well as a right to
have the State present its case first.” 470 N.W.2d at 51. The parent’s
counsel attended the hearing, and the parent’s testimony was presented
by deposition. Id.
The court of appeals concluded in a published opinion that a
parent is not “deprived of fundamental fairness” so long as the “parent
receives notice of the petition and hearing, is represented by counsel,
counsel is present at the termination hearing, and the parent has an
opportunity to present testimony by deposition.” Id. at 52. In reaching
this conclusion, the court of appeals noted the parent “mistakenly
assert[ed] [S]ixth [A]mendment rights granted to a criminal defendant in
a criminal case. The termination of parental rights is a civil case.” Id. at
51–52.
In Webb, we cited In re J.S. to support our holding that a
defendant’s due process rights “did not include attendance at the
[postconviction-relief] hearing.” 555 N.W.2d 824, 826 (Iowa 1996). In
21
Webb, the defendant seeking postconviction relief received notice of the
hearing and telephone conference, was represented at the hearing by
counsel, and was provided the opportunity to present his testimony by
telephone. Id. at 826. We determined these safeguards adequately
“accorded the fundamental fairness due to him.” Id. (citing In re J.S.,
470 N.W.2d at 52).
In this matter, similar to the father in In re J.S. and the defendant
in Webb, the juvenile court provided the mother with procedural
safeguards necessary to afford her fundamental fairness to protect
against the risk of erroneous deprivation of her parental rights. Although
the mother did not participate telephonically for the entirety of the
hearing, her attorney was present on her behalf for the entirety.
Moreover, much of the evidence presented against the mother was well
documented due to her criminal charges and record, as well as her past
interactions with the department of human services due to the children’s
child-in-need-of-assistance (CINA) adjudications. At the termination
hearing, the State asked the juvenile court to take judicial notice of many
of the same exhibits used in the CINA adjudications. Thus, not only did
the mother have access to the CINA transcripts, but she also had access
to the CINA exhibits, which were the same exhibits used in her
termination hearing. The mother was aware of the claims being made
against her, and many of the facts she disputes on appeal boil down to
credibility determinations the juvenile court was within its discretion to
make.
At the time the juvenile court issued its TPR order in May, the
mother in this case was facing several criminal charges in the State of
South Dakota, including (1) possession of a controlled substance with
intent to deliver (class 3 felony), (2) possession of a controlled substance
22
(class 5 felony), (3) three counts of possession of drug paraphernalia
(class 2 misdemeanor), (4) possession with intent to deliver a controlled
substance—methamphetamine (class 4 felony), (5) two counts of
possession of a controlled substance—methamphetamine (class 5 felony),
(6) possession of a controlled substance—clonazepam/klonopin (class 6
felony), (7) distribution of a controlled substance—methamphetamine
(class 4 felony), (8) unauthorized ingestion of a controlled substance—
methamphetamine (class 5 felony), (9) ingesting marijuana (class 1
misdemeanor), and (10) possession of two ounces or less of marijuana
(class 1 misdemeanor). She also pled guilty to conspiracy to
manufacture in the State of Iowa, a class C felony, and served time in
prison from 2008 to 2010.
The mother’s failure to maintain a meaningful and significant
relationship with the children is a further indicator of her inability to
prioritize what is in their best interest. She had not had any authorized
contact with her children in the five months preceding her termination
and stopped visiting the children on her own prior to her arrest, though
she did text M.D. from jail. M.D. subsequently attempted suicide and
explained that her mother’s text messages contributed to her suicide
attempt.
The evidence shows the other children have also sustained
significant emotional harm related to contact with their mother, as K.T.,
G.A., and E.A. have all participated in therapy to address behavioral
concerns. K.T. has reported struggles with her emotions regarding her
mother, and G.A.’s negative behaviors increased when her mother
stopped visiting in January 2018. The only child who was not
undergoing therapy at the time of the TPR hearing was S.A., who was
less than two years old at the time.
23
The mother has failed to address her substance abuse issues and
other mental health issues by refusing services offered to her to treat
these issues. Though the mother claimed to have been sober for sixty
days at her TPR hearing, she was also incarcerated during this time.
There is a significant difference between remaining sober in the
structured, monitored prison setting and maintaining sobriety outside of
prison.
She previously had her parental rights terminated to two other
children due in large part to her substance abuse. The evidence also
shows the mother engaged in drug use and criminal activity before the
children in this case were removed from her care, and she exposed at
least some of these children to the various men she was using drugs with
before the children’s removal from her care. Nevertheless, the mother
continues to deny her role in the abuse, claiming the children’s
emotional trauma is the result of her inability to be with them. See In re
L.H., 904 N.W.2d 145, 153 (Iowa 2017) (“An important aspect of a
parent’s care for his or her child is to address his or her role in the abuse
of the child.”).
Moreover, the mother continued to maintain unhealthy
relationships with a number of men involved with drugs in the past while
the CINA adjudication was pending in this case. Since 2015, she has
relapsed with five different men. She began a relationship with one of
these men in December 2017 and married him the month before the TPR
hearing.
Notably, once the children were removed from the mother’s care,
all of them were placed with their respective biological fathers in stable
homes. The fathers continue to participate in services to assist their
children in receiving the treatment they need, and they have been
24
working together to ensure the children spend quality time together as
siblings. The juvenile court correctly found that these placements were
in the best interests of the children and that clear and convincing
evidence supported terminating the mother’s rights. See In re D.W., 791
N.W.2d 703, 706 (Iowa 2010) (“We will uphold an order terminating
parental rights if there is clear and convincing evidence of grounds for
termination under Iowa Code section 232.116. Evidence is ‘clear and
convincing’ when there are no ‘serious or substantial doubts as to the
correctness or conclusions of law drawn from the evidence.’ ” (quoting In
re C.B., 611 N.W.2d 489, 492 (Iowa 2000)).
The majority’s holding that the juvenile court violated the mother’s
due process rights because due process “give[s] incarcerated parents the
opportunity to participate from the prison facility in the entire
[termination] hearing” goes too far and ignores settled law that has been
followed for decades in termination proceedings. The majority’s decision
that mandatory participation in the entire hearing provides the parent
with the opportunity to “recall witnesses who testifi[ed] for the state for
additional cross-examination and to present other testimony and
documentary evidence at the hearing,” conflates the rights granted to a
criminal defendant with those afforded to a parent in a civil termination
hearing. Not only does this threaten the validity of Webb, but the
majority’s decision to provide parents with heightened due process rights
in civil termination hearings also calls into question the validity of our
juvenile rules of procedure.
Generally, the juvenile court operates under less strict procedural
rules than other courts. “The tasks of the juvenile court and the
procedures developed are somewhat akin to the tasks and procedures
developed in administrative law.” In re Delaney, 185 N.W.2d 726, 737
25
(Iowa 1971) (Becker, J., concurring specially). For example, rule 8.19 of
our juvenile rules allows the use of hearsay evidence “in whole or in part”
in child-in-need-of-assistance and termination proceedings as long as
“there is a substantial basis for believing the source of the hearsay to be
credible and for believing the information furnished.” Iowa Ct. R. 8.19;
see also Iowa Code § 232.96(4)–(6). However, the majority’s decision to
transform the termination hearing procedures from civil to quasi-
criminal and prioritize the rights of a parent over the best interest of a
child serves only to thwart this court’s commitment to putting the
welfare of Iowa’s children first.
A number of courts provide juvenile court judges with discretion
on this issue, “while finding that representation by counsel and the
opportunity to appear via deposition are the two key components
required in a due process analysis of a parent who is not in attendance
at a proceeding” to terminate parental rights. In re Involuntary
Termination of Parent–Child Relationship of C.G., 954 N.E.2d 910, 921–22
(Ind. 2011) (surveying the procedural due process requirements of other
states with regard to a parent’s presence at a termination hearing).
Other states that have departed from this procedure to enhance the
rights of parents have at least provided guidance to aid juvenile courts in
their determination of whether a parent’s attendance is allowed at the
entire termination hearing. For example, the Supreme Court of Nebraska
provides the juvenile court with discretion on this issue but requires the
juvenile court to make its determination after considering the following
factors:
the delay resulting from prospective parental attendance, the
need for disposition of the proceeding within the immediate
future, the elapsed time during which the proceeding has
been pending before the juvenile court, the expense to the
26
State if the State will be required to provide transportation
for the parent, the inconvenience or detriment to parties or
witnesses, the potential danger or security risk which may
occur as a result of the parent’s release from custody or
confinement to attend the hearing, the
reasonable availability of the parent’s testimony through a
means other than parental attendance at the hearing, and
the best interests of the parent’s child or children in
reference to the parent’s prospective physical attendance at
the termination hearing.
In re L.V., 482 N.W.2d 250, 258–59 (Neb. 1992). Not only is Nebraska in
the same federal circuit as us, but it also has similar statutes governing
children in need of assistance and the termination of parental rights.
Compare Neb. Rev. Stat. Ann. § 43-283 (West, Westlaw through 2d Reg.
Sess. of the 105th Leg.(2018)), with Iowa Code § 600A.7.
The majority points to a case in Delaware as an example in
support of its position that incarcerated parents should be afforded the
opportunity to participate in the entire termination hearing by telephone
from prison. See, e.g., Orville v. Div. of Family Servs., 759 A.2d 595, 599
(Del. 2000). However, the majority should not rely on the Delaware
court’s interpretation of Delaware’s statutes when they are
fundamentally different from Iowa’s statutes on the termination of
parental rights. For example, when a child in Delaware has attained the
age of one year, notice of termination must be given to every alleged
father, whether or not he has registered with the Office of Vital Statistics.
Del. Code Ann. tit. 13, § 8-405 (West, Westlaw through 81 Laws 2018,
chs. 200–453). On the other hand, when a child has not attained the age
of one year, the Delaware Code allows for the termination of parental
rights “of a man who may be the father of a child” without notice if “[t]he
man did not register timely with the Office of Vital Statistics; and [t]he
man is not exempt from registration under § 8-402.” Del. Code Ann.
tit.13, § 8-404.
27
In contrast, Iowa does not treat the father of a six-month-old child
any differently than the father of a six-year-old child. They are going to
both receive notice of termination proceedings. Perhaps Orville requires
telephonic participation for the entire termination hearing to make up for
other procedural shortcomings such as notice. Overall, whatever the
reason, Iowa does not need to have such a hard-and-fast rule. We have
procedural safeguards in our CINA and TPR statutes to adequately
accord fundamental fairness to parents. See, e.g., Iowa Code § 232.88
(requiring reasonable notice be provided to parents, guardians, and legal
custodians when a CINA petition has been filed); id. § 232.89 (providing
the parent, guardian, or custodian identified in the CINA petition with a
right to counsel for all CINA hearings and proceedings); id. § 232.113
(providing the parent identified in a TPR petition with the right to counsel
for all TPR hearings and proceedings); id. § 232.112(1) (entitling parents,
guardians, and legal custodians to receive notice of TPR proceedings).
Notably, Iowa law authorizes the juvenile court to temporarily
excuse the presence of a parent “when the court deems it in the best
interests of the child.” Id. § 232.38(2). This confirms that the best
interests of the child ought to prevail in the event of any conflict with a
parent’s asserted right of attendance. Does the majority believe this
statute is unconstitutional?
Finally, the majority’s holding is detached from reality, as it creates
substantial practical problems and provides no guidance to resolve them.
For example, termination hearings often times take several days to
complete and involve numerous witnesses and voluminous exhibits to
review. The Iowa Department of Corrections (DOC) is a state agency that
operates within the executive branch of the government. Yet, the
majority expects juvenile court judges to exert authority over the DOC’s
28
prison facilities by directing the facilities to divert their resources to
ensure an incarcerated parent participates in the entire hearing by
telephone or a similar means of communication. The problems merely
increase if the parent is in federal prison. Despite the majority’s
emphasis on the ability of judicial leadership to persuade out-of-state
correctional officials to make the parent available for the entire hearing,
even the best leadership from juvenile judges may not be enough to
ensure this cooperation.
In those situations when arrangements cannot be made for an
incarcerated parent to participate in the hearing, the majority mandates
juvenile courts to order an expedited transcript of those portions of the
hearing that the parent could not attend prior to testifying by telephone,
along with all exhibits in evidence. The cost of a several-day transcript is
certainly significant. Requiring court reporters to expedite a several-day
trial even more than what is expected in an already expedited proceeding
is unrealistic. 4
Significantly, attorneys for parents routinely have to prepare their
petitions on appeal without the benefit of a transcript. We have approved
that procedure recognizing the importance of the expedited deadlines for
processing juvenile cases. See In re L.M., 654 N.W.2d 502, 506 (Iowa
2002). It is not realistic to put chapter 232 procedures on hold while
transcripts are prepared.
The majority seems to turn a blind eye to the overarching directive
of Iowa Code chapter 232 to achieve permanency for the child in a timely
4Iowa is already experiencing a significant shortage of official court reporters.
See, e.g., Iowa Judicial Branch FY 19 Budget Request, https://www.iowa
courts.gov/static/media/cms/2019_budgetrevenues_76551E67392EF.pdf (“There are
6 court reporter positions that have been vacant for over one year and 12 total current
court reporter vacancies.”).
29
fashion and to always place the child’s best interest first. The majority
must be reminded that this is a child welfare proceeding—the
termination of a parent’s rights happens to be the vehicle by which a
child’s permanency is achieved when reunification has not been
successful. An incarcerated parent’s procedural due process rights
cannot hinder the timely permanency for a child, and they cannot trump
what is in the best interest of a child.
The facts in termination proceedings change frequently. This is
especially the case when the juvenile court is dealing with parents who
have a severe substance-related disorder and frequently participate in
drug testing throughout the course of their termination proceedings.
Even a delay of a few weeks could require the state to come back after it
presented its case before the delay and present more evidence. This
risks getting into a timely back-and-forth presentation of evidence
between the parties that only delays the proceedings to the detriment of
the children involved. 5
In any event, if the majority is going to require an incarcerated
parent’s telephonic attendance through the entire termination hearing,
the burden should be on the parent’s attorney—not the presiding judge—
to see that the parent’s right to attend the hearing is being fulfilled. This
aligns with our court-approved standards of practice for attorneys
representing parents in juvenile court. Specifically, our standards
include the following: “Take reasonable steps to communicate with
5It also represents a step backward from the vision and principles adopted by
the Child Welfare Advisory Committee and Children’s Justice State Council, which
emphasize the urgency required to provide children with permanency. See Children’s
Justice State Council & Iowa Dep’t of Human Servs., Child Welfare Advisory Comm.,
Iowa’s Blueprint for Forever Families 1 (2011),
https://idph.iowa.gov/Portals/1/Files/Substance Abuse/forever_families.pdf
(“Permanence is treated with a sense of urgency as if the child were our own or a child
of a family member.”).
30
incarcerated clients and to locate clients who become absent. Develop
representation strategies. Establish a plan for the client’s participation
in case-related events.” Iowa Ct. R. 61(10). These standards also
acknowledge the issues an incarcerated parent’s participation raises and
explains, “[T]he attorney should make arrangements with the
incarcerated client’s prison counselor to have the parent appear by
telephone” if the parent wishes to participate in the hearing. Id. r. 61(10)
cmt. [5].
If the prison facility is unwilling to make accommodations for the
client to participate telephonically, or if the client is ineligible for
telephonic participation because of behavior infractions while
incarcerated, then the attorney should make a record of such barriers so
that the juvenile court has an opportunity to address them accordingly.
Nevertheless, it is unrealistic and improper to expect a juvenile court
judge to use his or her judicial authority to advocate for arrangements to
be made for an incarcerated parent to participate in the entire telephone
hearing by telephone. It is the attorney’s responsibility—not the
court’s—to make arrangements for meaningful participation in court
hearings.
Further, the court’s decision is certainly creating a slippery slope.
It provides incarcerated parents with greater due process rights than
nonincarcerated parents. While the majority expects our juvenile courts
to make special arrangements and exceptions to accommodate the needs
of incarcerated parents so they can be telephonically present for the
entire termination hearing, it ignores the needs of nonincarcerated
parents. What happens when a nonincarcerated father is unable to
attend the termination hearing because his employer will not provide him
31
with time off work?6 Is the juvenile court judge now expected to contact
the father’s employer and throw his or her weight around in an effort to
excuse the parent’s absence from work to attend the termination
hearing? Similarly, what happens when the case involves a parent who
is incarcerated and another parent who is not incarcerated and the
juvenile court cannot accommodate both the prison facility’s schedule
and that of the nonincarcerated parent?
Will this case provide legal authority for an incarcerated parent to
demand the same services by a district court judge and court reporter in
a dissolution, child custody, or paternity action? 7 If the majority is
saying that an incarcerated parent in a civil matter is entitled to a judge
becoming actively involved in making telephonic arrangements or, in the
alternative, ordering an expedited transcript for the entire hearing, then
it is not a stretch to answer that question with a yes.
Overall, I agree that the preferable practice in termination
proceedings is to allow the parent to participate telephonically for the
entire termination proceeding if allowed by prison officials. Absent
6In Iowa, an employee who appears as a witness in obedience to a subpoena “in
any public or private litigation in which the employee is not a party to the proceedings” is
“entitled to time off during regularly scheduled work hours with regular compensation,
provided the employee gives to the appointing authority any payments received for court
appearance or jury service, other than reimbursement for necessary travel or personal
expenses.” Iowa Admin. Code r. 11—63.12 (emphasis added). However, this rule does
not require employers to provide employees with time off and compensation to appear in
obedience to a subpoena in a civil proceeding in which the employee is a party to the
proceedings. Thus, even the power of a subpoena is not enough to prevent a
nonincarcerated parent from being penalized at work for time off resulting from the
parent’s obedience to a subpoena to attend a TPR hearing.
7Cf. Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060 (2000) (“[We have
recognized the fundamental right of parents to make decisions concerning the care,
custody, and control of their children. In light of this extensive precedent, it cannot
now be doubted that the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and
control of their children.” (Citations omitted.)).
32
juvenile court findings to support its decision not to allow the parent to
participate telephonically for the entire termination hearing—findings
that do not exist in this case—the juvenile court should have allowed the
mother in this case to participate telephonically for the entire
termination as a matter of sound judicial administration. My agreement
to remand notwithstanding, the majority’s decision to remand this case
to the juvenile court should have stemmed from our supervisory
authority rather than a constitutional mandate.
This court has inherent supervisory authority to direct the
procedures to be followed in Iowa courts, and “our cases have
consistently recognized the inherent common-law power of the courts to
adopt rules for the management of cases on their dockets in the absence
of statute.” Iowa Civil Liberties Union v. Critelli, 244 N.W.2d 564, 568–69
(Iowa 1976); see also Iowa Const. art. V, § 4 (stating that the supreme
court “shall exercise a supervisory and administrative control over all
inferior judicial tribunals throughout the state”). This allows us to order
what is best without constitutionalizing the matter. For example, we
have used our supervisory authority to adopt the Pew Commission report
that discussed “Fostering Judicial Leadership” and recommended “that
courts use best practice approaches” to better “the lives of children in
foster care and their families.” Pew Comm’n, Progress on Court Reforms:
Implementation of Recommendations from the Pew Commission on
Children in Foster Care 4, 10 (2009), https://www.pewtrusts.org/-
/media/legacy/uploadedfiles/
phg/content_level_pages/reports/kawcourtsassessmentoctober2009pdf.
pdf; see Iowa Supreme Ct. Resolution, In Support of the
Recommendations of the Pew Commission on Children in Foster Care
(Sept. 10, 2007). We have also regularly exercised our inherent
33
authority to allow delayed appeals in criminal cases where the defendant
can document that he or she attempted to initiate an appeal before the
deadline, without ever finding that a due process violation actually
occurred. This is done “to prevent unnecessary challenges,” and on the
theory that a valid due process argument “might” be advanced. See
Swanson v. State, 406 N.W.2d 792, 793 (Iowa 1987). We have also
“exercised our supervisory authority over the rules of procedure and
evidence to prohibit the use of unstipulated polygraph examinations in
Iowa courts,” although this holding “was not based on due process
grounds.” See Dykstra v. Iowa Dist. Ct., 783 N.W.2d 473, 485 (Iowa
2010).
Instead of following settled law or using our supervisory authority
to provide procedural direction, the majority throws a stick of dynamite
into the juvenile court system by adopting a hard and fast approach
holding incarcerated parents are entitled to participate telephonically for
the entire termination hearing or, in the alternative, delaying the child’s
permanency by stopping the trial so that expedited full transcripts can
be prepared. The majority is altering the constitutional landscape in our
state based on an unpreserved constitutional claim without providing a
cogent analysis of controlling constitutional precedent. “No particular
procedure violates [due process] merely because another method may
seem fairer or wiser.” In re C.M., 652 N.W.2d at 212 (alteration in
original) (quoting Bowers, 638 N.W.2d at 691). Yet, this appears to be
the basis for the majority’s holding today. For these reasons, I concur in
part and dissent in part.
Waterman and Mansfield, JJ., join this concurrence in part and
dissent in part.