IN THE INTEREST OF M.B., Minor Child, P.B., Father, Appellant, S.B., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-403 / 09-0409
Filed July 2, 2009
IN THE INTEREST OF M.B., Minor Child,
P.B., Father,
Appellant,
S.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Peter B.
Newell, District Associate Judge.
A mother and father appeal the termination of their parental rights to their
child. AFFIRMED.
David C. Laudner, Mason City, for appellant-father.
Dylan J. Thomas, Mason City, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Paul L. Martin, County Attorney, and Shawn Showers,
Assistant County Attorney, for appellee.
Mark Young, Mason City, attorney and guardian ad litem for minor child.
Considered by Mahan, P.J., and Eisenhauer and Mansfield, JJ.
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EISENHAUER, J.
A mother and father appeal the termination of their parental rights to their
child. Together they contend the court erred in hearing testimony from a witness
prior to addressing pre-trial matters, in admitting reports from the court appointed
special advocate (CASA), in finding the State made reasonable efforts to reunify
them with the child, and in finding termination is in the child‟s best interest. The
mother also contends the court erred in denying her application for new counsel,
in denying her motion for new trial, and in failing to allow the maternal
grandmother to intervene in the proceedings or otherwise participate in the
termination hearing. She also alleges her trial counsel was ineffective. The
father also contends the court erred in denying his motion for travel order and in
overruling his objections to the termination hearing being held without his
physical presence.
We review the decision to terminate parental rights de novo. In re N.V.,
744 N.W.2d 634, 636 (Iowa 2008). Evidentiary rulings are reviewed for an abuse
of discretion. In re E.H. III, 578 N.W.2d 243, 245 (Iowa 1998). We review a
denial of intervention for the correction of errors at law. In re A.G., 558 N.W.2d
400, 403 (Iowa 1997).
The child, born in August 2002, was adjudicated in need of assistance in
September 2004 after the child tested positive for methamphetamine and
cocaine. The mother is a substance abuser who has been incarcerated on drug
charges since April 2007. She expected to be paroled in March 2009.
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The father did not participate in the juvenile court proceedings in this
matter until December 2007.
He was incarcerated at the time and remains
incarcerated. It is unknown when he is schedule to be released, although he was
sentenced in May 2007 to forty-five years in prison.
A termination hearing was held in February 2009. Both parents appeared
and testified by telephone. The hearing commenced with testimony from the
foster mother taken over the telephone. After her testimony the court, stated,
“We put on Ms. Andrews right away before we actually introduce the case. So
now, we‟re going to go back and start the way we—We did that because we had
to get everybody involved in a conference call.” The court then introduced the
case, set the record, and had the persons in the courtroom introduce themselves.
Preliminary issues were then taken up, including a motion to bifurcate the
permanency hearing from the termination hearing, a renewed request to
transport the father to the hearing, a request to sequester the witnesses, an
“objection” to the ruling allowing Ms. Foos to continue as the mother‟s attorney,
and a record regarding a DHS worker‟s marriage to the father‟s cousin. The
court ruled the permanency issues would be taken up later, did not respond to
the renewed request to have father personally present, sequestered the
witnesses, and did not respond to the request by the mother and her attorney to
have new counsel.
On March 3, 2009, the district court entered its order, terminating the
parents‟ rights pursuant to Iowa Code section 232.116(1)(f) (2007).
Neither
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parent disputes the grounds for termination have been proved by clear and
convincing evidence.
We note at the outset due process does not require the parents‟ physical
presence at the termination hearing. See In re J.S., 470 N.W.2d 48, 52 (Iowa Ct.
App. 1991) (“Where a 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, we cannot say the
parent has been deprived of fundamental fairness.”). The juvenile court did not
abuse its discretion in denying the father‟s motion for travel order.
At the end of the foster mother‟s testimony, the maternal grandmother,
who had intervened in the CINA case, started to ask questions.
After one
question, the court asked the county attorney if he had a position on whether or
not the maternal grandmother should be allowed to ask questions. The county
attorney, the child‟s attorney, and the father‟s attorney all took the position the
grandmother‟s questions had to do with permanency and not termination and she
should not be allowed to ask questions. The mother‟s attorney stated her belief
the maternal grandmother should be allowed to ask questions. The court ruled,
“I‟m not going to allow [the grandmother] to ask these questions at this time.” We
conclude the court did not err in denying the mother‟s request to allow the
maternal grandmother to participate in the termination hearing.
The court
concluded that the questions went to the issue of permanency, not termination.
The court decided to bifurcate the issues and simply address the question of
termination at the hearing.
The mother argues this was error because the
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maternal grandmother “was not allowed the opportunity to use her knowledge of
and experience with the case to point out inconsistencies in State witnesses‟
testimony and argue against termination.”
The grandmother never asked to
intervene in the termination case and was available to testify as a fact witness.
We find no error.
The mother contends the court erred in denying her request for new
counsel. This request was made one week prior to the termination hearing. The
mother‟s trial counsel had represented the mother throughout the underlying
CINA proceedings and the court found she would have more knowledge of the
case than any newly appointed counsel. Determining appointing new counsel
would cause extensive delays in a case already four and a half years old, the
court denied the request. We find no abuse of discretion in so doing. To the
extent the mother argues her due process rights were violated by not being
present at the hearing, we reject her claim. As noted above, due process did not
require her presence.
The parents both contend the court erred in allowing testimony from the
first witness—the child‟s foster mother—prior to hearing various motions. The
foster mother testified by telephone as soon as the record was opened. Neither
parent objected to her testimony or asked to have witnesses sequestered.
Nonetheless, they complain proceeding in this manner prevented them from
seeking the sequestration of other witnesses before receiving the foster mother‟s
testimony.
However, neither parent cites to any attempt to sequester the
witnesses before the foster mother‟s testimony or explains how this failure tainted
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the other witnesses‟ testimony.
We conclude the court did not abuse its
discretion in the manner in which it conducted the termination hearing.
We likewise conclude the court did not abuse its discretion in admitting the
CASA reports.
The father objected to admission of the CASA report as
containing hearsay and the mother joined in this objection. However, Iowa Code
section 232.89(5) states:
5. The court may appoint a court appointed special advocate to act
as guardian ad litem. The court appointed special advocate shall
receive notice of and may attend all depositions, hearings, and trial
proceedings to support the child and advocate for the protection of
the child. The court appointed special advocate shall not be
allowed to separately introduce evidence or to directly examine or
cross-examine witnesses. The court appointed special advocate
shall submit a written report to the court and to each of the parties
to the proceedings containing results of the court appointed special
advocate‟s initial investigation of the child‟s case, including but not
limited to recommendations regarding placement of the child and
other recommendations based on the best interest of the child.
The reports were properly admitted.
Finding no error in the procedural and
evidentiary rulings of the court, we also conclude the court did not err in denying
the mother‟s motion for new trial.
Mother also claims her attorney was ineffective. Due process requires
counsel appointed under a statutory directive to provide effective assistance. In
re D.W., 385 N.W.2d 570, 579 (Iowa 1986).
A party claiming ineffective
assistance of counsel to show (1) that counsel‟s performance was deficient, and
(2) that actual prejudice resulted. Unless both showings are made, the claim
must fail. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674, 693 (1984). Our scrutiny of counsel‟s performance must “be
highly deferential,” id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694, and must
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“indulge a strong presumption that counsel‟s conduct falls within the wide range
of reasonable professional assistance; that is, the [party] must overcome the
presumption that, under the circumstances, the challenged action „might be
considered sound trial strategy.‟” Id. at 689, 104 S. Ct. at 2066, 80 L. Ed. 2d at
694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L.
Ed. 83, 93 (1955)).
We conclude the mother cannot establish prejudice. The overwhelming
evidence supports the trial court‟s conclusion: “There is absolutely no reason to
expect that [the mother] will in the near future develop the capabilities of
providing a safe and stable home for this child.”
We now turn to the parents‟ contention termination is not in the child‟s best
interest. We have reviewed the entire record de novo as required. N.V., 744
N.W.2d at 636. The father has had limited contact with the child and did not
participate in the CINA proceedings until December 2007.
He is currently
incarcerated and it is unknown when he will be released. The father failed to
demonstrate he had any significant bond with the child or that he would be in a
position to develop a bond any time in the near future.
The mother contends she is closely bonded with the child and termination
would be devastating to the child. She also argues her impending release from
prison would allow for reunification shortly after the termination hearing.
However, the mother has significant issues with substance abuse and domestic
violence.
Although she participated in various programs while in prison,
additional time would be necessary to determine whether the mother is able to
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maintain sobriety and healthy relationships. Given the mother‟s lengthy history of
involvement in the juvenile court, as well as her illegal substance abuse, and
domestic violence issues, the future does not bode well for reunification. See In
re T.B., 604 N.W.2d 660, 662 (Iowa 2000) (holding the future can be gleaned
from a parent‟s past performance).
While the law requires a “full measure of patience with troubled parents
who attempt to remedy a lack of parenting skills,” this patience has been built into
the statutory scheme of chapter 232. In re C.B., 611 N.W.2d 489, 494 (Iowa
2000). Children should not be forced to endlessly await the maturity of a natural
parent. Id. At some point, the rights and needs of the child rise above the rights
and needs of the parent. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App.
1997). This child was adjudicated CINA four and one-half years ago. She has
been out of her mother‟s care for the majority of that time. The child needs and
deserves permanency. Termination is in her best interest.
The parents also contend the State failed to make reasonable efforts to
reunify them with the child. However, the mother has been receiving services
from the DHS since 1997 and has received “all the services which are possible to
be offered to a family.”
The father argues he did not receive the visits with the child he requested.
The reasonable efforts requirement is not a strict substantive requirement for
termination. C.B., 611 N.W.2d at 493. Instead, the services provided by DHS to
reunify parent and child after removal impacts the State‟s burden of proving the
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child cannot be safely returned to the care of a parent. Id. The requested visits
would have in no way impacted the ability of the father to care for his child.
We affirm the termination of the mother and father‟s parental rights.
AFFIRMED.
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