D.E.D., In Interest of

• Citation: 476 N.W.2d 737
• Decision Date: 27 August 1991
• Docket Number: No. 90-1398,90-1398
• Parties: In the Interest of D.E.D., D.D., and J.L.D., Children. J.D., Mother, and D.E.J., Father, Appellants.
• Court: Court of Appeals of Iowa

Page 737

476 N.W.2d 737

In the Interest of D.E.D., D.D., and J.L.D., Children J.D., Mother, and D.E.J., Father, Appellants.

No. 90-1398.

Court of Appeals of Iowa.

Aug. 27, 1991.

Scot M. Halverson, Leon, for appellant mother.

Bruce L. Cook of Cook, Gotsdiner, McEnroe & McCarthy, Des Moines, for appellant father.

Bonnie J. Campbell, Atty. Gen.; Gordon E. Allen, Deputy Atty. Gen.; and Judy Sheirbon, Asst. Atty. Gen., for appellee State.

Heard by OXBERGER, C.J., and SACKETT and HABHAB, JJ.

SACKETT, Judge.

This is an appeal from a trial court's decision terminating the parental rights of three young children. The children have the same mother and three different fathers. The mother contends her parental rights should not have been terminated. We affirm on her appeal. The only father who appeals is the father of D.D., the middle child. We review de novo. Iowa R.App. P. 4. We reverse the order terminating his parental rights. We remand to the trial court for further proceedings consistent with this opinion.

The two older children, a girl born in March 1984, and a boy born in September 1987, were in their mother's custody when they were placed in foster care. The foster care placement was necessary because the mother had serious parenting deficiencies as a result of alcohol and drug dependency. The oldest child entered foster care in August 1987, and the second child entered foster care in December 1988. The third child suffered problems at birth as a result of her mother's ingestion of cocaine during pregnancy. This child was placed in foster care immediately following her birth in October 1989.

The two older children have been in the care of an aunt, their mother's sister, since March 1989. The aunt has satisfactorily cared for the children with the help of a roommate. The aunt intends to adopt the two older children. The youngest child has been separated from her half-siblings and lives in a second foster home. Her foster parents wish to adopt her.

The mother, on appeal, contends (1) even though her substance abuse problem has not been terminated, there is a prospect it will be, and her parental rights should not be terminated; (2) because two of the three children are with her sister, her parental rights should not be terminated; and (3) the parental rights of the three fathers were improperly terminated, consequently, her parental rights should not be terminated.

The mother's substance abuse problem did not begin until 1988. The evidence establishes she was an adequate parent prior to that time. She admittedly had not corrected her problem at the time of the termination hearing, and was not able to assume custody of the children.

The mother's substance abuse problem is serious. It prevents her from exercising those parenting skills necessary to assure her children's safety. The possibility of the problem being corrected in the near future is extremely remote. The State has met its burden of showing by clear and convincing evidence these children cannot be returned to their mother's care. See T.D.C., 336 N.W.2d 738, 744 (Iowa 1983).

We next address the mother's contention that parental rights should not be terminated because the children are in the custody of a close relative. A termination otherwise warranted may be avoided under Iowa Code section 232.116(3)(a) if the children are in the care of a relative.

We recognize there is substantial bonding between the mother and the two older children. The mother continues to have substantial contact with the children in her sister's care. The plan is to have the two older children stay with their aunt and be adopted by her. The aunt testified she does not intend to keep the children from their natural parents. Termination of the parental rights of the two older children will not change their current relationship with their parents. However, any relationship between the older children and their younger half-sister will be severed. We recognize there are cases where children in the care of relatives should not have their parental rights terminated, even when grounds for termination exist. In this case, however, we defer to the decision of the trial judge who is closer and more able to observe the parties and the actual family dynamics. See generally, In re R.M., 431 N.W.2d 196, 199 (Iowa App.1988). We reject the mother's argument on these grounds.

The mother's last contention is her parental rights should not be terminated because the court should not have terminated the parental rights of the three fathers who are all incarcerated. The dictates of Iowa Code section 232.133(1) allow a natural mother to challenge an order terminating or not terminating a natural father's parental rights. However, we disagree with the natural mother's argument that this section empowers her to challenge the termination of a father's parental rights after it has been determined there is clear and convincing evidence to support the termination of the mother's parental rights, and her parental rights have been terminated. We reject the natural mother's challenges to the termination of the natural fathers' parental rights. We affirm the termination of the mother's parental rights.

We next address the claim of D.E.J., the father of the middle child D.D. He contends his parental rights should not have been terminated. D.E.J. has been incarcerated since the child's birth. He was incarcerated at the time of the termination hearing. Prior to being incarcerated, he suffered from a substance abuse problem. He contends, with the assistance of programs available through the facility where he is located, he has corrected this problem. In the facility he has taken a parenting course, and at the time of trial was assisting with the teaching of a parenting course available through the prison system. He has made a series of contacts with his child. He has attempted a series of contacts that were thwarted. The child visited him in prison one time. There was some indication at the time of trial he would be released shortly to a halfway house. He claimed to be engaged to a woman with children who could assist him in parenting.

The State sought to terminate his parental rights under abandonment as defined in Iowa Code section 232.116(1)(b). The trial court ultimately concluded the State did not prove the elements necessary to terminate his parental rights under this section. We agree.

During trial, the State made an oral motion to add a new ground under which to terminate his parental rights. Over objection by the attorney for this father, and the attorney for the mother, the trial court allowed the amendment. The amendment made by the State was:

That the parental rights of D.J. with respect to D.E.D. should be permanently terminated within the meaning of section 232.116(1)(g) of the 1989 Code of Iowa as amended in that (1) D.E.D. is a child three years of age or younger, (b) that D.E.D. has been adjudicated to be a child in need of assistance pursuant to Section 232.96, (c) that custody of D.E.D. has been transferred for placement pursuant to Section 232.102 at least six months, and (d) there is clear and convincing evidence that D.E.D. cannot be returned to the custody of his father, D.J., pursuant to Section 232.102 at the present time.

And those would be the * * * amendments that I would offer to the Court at this time and urge the Court to allow under Iowa Rule of Civil Procedure 88.

The father contends the trial court abused its discretion in allowing the motion. We find the trial court did abuse its discretion in allowing the amendment. However, we do not agree with the parties the scope of review on this issue is for an abuse of discretion. Rather, the question is whether the father's due process rights were protected when the trial court allowed the State to interject a new ground for termination of parental rights during the trial.

The parent-child relationship is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15 (1972). The State has the right to terminate the legal relationship between a parent and a child, but the constitution limits its power to do so. Id. The State must meet due process requirements in a termination of parental rights procedure. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982). Due process requires sufficient notice of the complaint against the parent and of the time of the hearing. See Alsager v. District Court, 406 F.Supp. 10, 17-21 (S.D.Iowa 1975); Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37, 42 (1979); People v Hoehl, 193 Colo. 557, 568 P.2d 484, 486 (1977); State v. Joyce, 361 So.2d 406, 407 (Fla.1978); Woodruff v. Keale, 64 Haw. 85, 637 P.2d 760, 767 (1981); State v. Meinert, 225 Kan. 816, 594 P.2d 232, 234-35 (1979); Bowers v. State, 38 Md.App. 21, 379 A.2d 748, 749-51 (1977); People v. Jackson, 140 Mich.App. 283, 364 N.W.2d 310, 312 (1985); Linn v. Linn, 205 Neb. 218, 286 N.W.2d 765, 769 (1980); In re Mills, 52 Or.App. 777, 629 P.2d 861, 864-65 (1981); Commonwealth v. Mack, 467 Pa. 613, 359 A.2d 770, 772 (1976); In re K.B., 302 N.W.2d 410, 411 (S.D.1981); In re D.T., 89 S.D. 590, 237 N.W.2d 166, 169 (1975); In re Aschauer, 93 Wash.2d 689, 611 P.2d 1245, 1249-50 (1980); State v. Killory, 73 Wis.2d 400, 243 N.W.2d 475, 479-80 (1976).

The father had no notice prior to the hearing of the grounds under which termination was decreed. Due process requirements were not met.

We vacate the order terminating D.E.J.'s parental rights and remand to the trial court to hold a hearing, after adequate notice to D.E.J., to determine whether grounds to terminate exist under the amended petition.

Abandonment involved different issues than the father's ability to assume custody of the child. We cannot, under this record, determine whether the father would have been able to assume custody....