C.D., In Interest of, 92-1560

• Decision Date: 02 September 1993
• Docket Number: No. 92-1560,92-1560
• Parties: In the Interest of C.D. and K.W.L., Minor Children. D.A., Mother, Appellant.
• Court: Iowa Court of Appeals

Page 97

508 N.W.2d 97

In the Interest of C.D. and K.W.L., Minor Children.

D.A., Mother, Appellant.

No. 92-1560.

Court of Appeals of Iowa.

Sept. 2, 1993.

Michael D. Andrew, Des Moines, for appellant.

Bonnie J. Campbell, Atty. Gen., John M. Parmeter, Sp. Asst. Atty. Gen., Judy Sheirbon, Asst. Atty. Gen., and Ray Blase, Asst. County Atty., for appellee State.

J. Michael Mayer, Des Moines, guardian ad litem, for minor children.

Considered by DONIELSON, P.J., and SACKETT and HABHAB, JJ.

SACKETT, Judge.

Denise Avery ¹ appeals a trial court order terminating her parental rights to her sons, Clay Daniels ², born August 14, 1988, and Kevin Little ³, born February 4, 1990. Denise contends the trial court should not have (1) admitted evidence which the State failed to produce in response to the mother's request for production, (2) found Denise had received adequate services to correct deficiencies in parenting, and (3) refused to dismiss the termination petition and continuing the children as children in need of assistance. We affirm.

In February 1991, Clay and Kevin were removed from their mother's home. The children had received bruises and contusions. Denise was alleged not to have been able to intervene when the children were struck by Rodney Meyer ⁴.

Clay and Kevin remained in Denise's custody. Rodney was ordered not to have contact with the children. In March 1991, Clay and Kevin were placed in foster care because Denise failed to protect Kevin from Rodney.

On March 26, 1991, the court found Clay and Kevin to be children in need of assistance under Iowa Code sections 232.2(6)(b) and 232.2(6)(c)(2). The children's placement in foster care was continued. The trial court ordered Denise complete psychological, psychiatric and parenting evaluations. The trial court ordered the children and Denise have no contact with Rodney.

Denise successfully completed a Parent Infant Nurturing Program. The program allegedly provided intensive individual and family therapy for Denise, Clay and Kevin. Denise also saw a therapist once a week. The therapist counseled Denise on parenting techniques.

In December 1991, Clay and Kevin were returned to Denise's custody.

In January 1992, Clay and Kevin were again placed in foster care. Clay was found to have a two-inch bruise on his buttocks. Rodney had been in Denise's home.

In June 1992, the State filed a petition to terminate Denise's parental rights. A hearing on the petition was set for July 27, 1992. A hearing was held on that date and on September 4, 1992, the court terminated Denise's parental rights to Clay and Kevin under Iowa Code section 232.116(1)(c). The court decision was premised on findings Denise had been offered services, but they did not correct her problems and Denise has continued to maintain a relationship with Rodney, who was shown to have abused the children. Denise has appealed.

Denise first contends the court should not have admitted reports in evidence not made available to Denise's attorney before trial.

On July 23, 1992, Denise filed a motion to continue the hearing on termination set for July 27, 1992, because, despite requests from the mother's attorney under the informal discovery provisions of Iowa Rule of Juvenile Procedure 1.3 for copies of reports the State intended to introduce into evidence, the State had not yet, on the Thursday before a Monday trial, produced written reports it intended to introduce into evidence. Denise contended the State's failure to produce the reports violated her constitutional right to confront the evidence presented against her. On Monday, July 27, 1992, Denise renewed her motion for continuance and it was resisted by the State and guardian ad litem. The trial court denied Denise's motion. Over Denise's objection, the court admitted the reports which had not been given to Denise's attorney until July 24, 1992 (a Friday afternoon). Denise contends the trial court should not have considered exhibits 3, 4, and 9. Exhibit 3, called a "Court Report for Termination of Parental Rights", was prepared by a person who called herself a Foster Care Specialist. The report contained an alleged history of the State's contact with Denise and her children, a number of statements allegedly made by others, and a general conclusion of the maker that parental rights should be terminated. Exhibit 4, a document called "Court Report", was prepared by a person identified as a Protective Service Worker with an organization identified only as Generations, Incorporated. Exhibit 9, a document called "Report in Support of Termination of Parental Rights", was apparently prepared by officer (no first name) Heyer outlining the history of the case.

The State contends the trial court did not abuse its discretion in admitting the reports into evidence because the reports were only a summary of the proceedings and services offered the family.

In ruling on Denise's motion to continue, the trial court found:

the documentation which has been requested is the underlying basis for the motion to continue was provided last week, and so there has been some opportunity and I think the argument that the case has been ongoing in the underlying CINA matter since March of 1991 has bearing on the overall ruling that the motion to continue should be denied.

The question is one of whether the juvenile court abused its discretion in not granting the request for continuance. See In re B.K.J., Jr., 483 N.W.2d 608, 611 (Iowa App.1992); In re R.B., 493 N.W.2d 897, 898 (Iowa App.1992).

Denise's attorney told the trial court the State's delay in getting the materials to him left him without ample time for preparation of this case.

Time is of the essence in dealing with children's issues. But the termination of parental rights and the legal severing of biological ties has serious repercussions both now and in the future for both the child and the parent. The child becomes a legal orphan, may or may not be adopted, and will suffer from being separated from his or her biological family. Therefore, the attorney for the child and the attorney for the parents should have information in ample time to prepare for trial.

The State has available to it an array of services and investigative resources not available to Denise who has very limited resources. In this hearing, Denise is pitted directly against the State. See Santosky v. Kramer, 455 U.S. 745, 761, 102 S.Ct. 1388, 1399, 71 L.Ed.2d 599, 612 (1982). There is little excuse for the State's failure to provide Denise's attorney with reports it intended to use in support of its position in ample time to allow her attorney to be prepared to meet the allegations in the reports. Supplying an attorney with voluminous reports on a Friday afternoon for a hearing the next Monday clearly makes adequate preparation very difficult. While we did not...