D.W., In Interest of

• Decision Date: 16 April 1986
• Docket Number: No. 85-970,85-970
• Citation: 385 N.W.2d 570
• Parties: In the Interest of D.W., J.W., and M.W., Minor Children, B.W., Natural Mother, Appellant.
• Court: Iowa Supreme Court

Page 570

385 N.W.2d 570

In the Interest of D.W., J.W., and M.W., Minor Children B.W., Natural Mother, Appellant.

No. 85-970.

Supreme Court of Iowa.

April 16, 1986.

John R. Donner of Gartelos, Wagner, Mattson, Donner & Long, Waterloo, for appellant.

Thomas J. Miller, Atty. Gen., Gordon E. Allen, Sp. Asst. Atty. Gen., Charles K. Phillips, Asst. Atty. Gen., and Sara Kersenbrock, Asst. Co. Atty., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, McGIVERIN, CARTER, and LAVORATO, JJ.

REYNOLDSON, Chief Justice.

This second appeal in a parent-child termination case is another chapter in the long and tragic history of three children who now have been in foster care for three and one-half years. B.W., natural mother of these children, has appealed from trial court's order terminating her parental rights. We affirm.

B.W., now age twenty-four, is the unmarried mother of four children. Involved here are the three oldest children, each with a different father. We designate them as D.W., a daughter born April 21, 1980; J.W., a son born September 11, 1981; and M.W., a daughter born August 14, 1982. ¹

February 18, 1982, a petition was filed pursuant to Iowa Code section 232.2, alleging the two children then born, D.W. and J.W., were children in need of assistance (CHINA). Following a hearing commencing June 1, 1982, at which the State, mother, and children were represented by different counsel, the juvenile referee found these children to be in need of assistance by "order" dated and filed June 8, 1982. ² This instrument, pursuant to the 1981 Iowa Code section 231.3, advised the parties of their right to a rehearing before a juvenile court judge by filing a request with the clerk of court within seven days. No party made application for a rehearing. July 7, 1982, the juvenile court judge entered an order adopting the referee's findings of fact, conclusions of law, and judgment as his own. The mother was directed to submit to psychiatric evaluation, a new social contract was to be drafted including homemaker services and establishment of a conservator, the Department of Social Services ³ (Department) was to supervise the children in the mother's home, and the children were to be provided psychiatric examinations. No party appealed from this decision.

M.W. then was born on August 14, 1982. Ten days later the Department removed all three children from their mother's home because she had gone to a bar, leaving her young children (including her ten-day-old baby) with an inadequate baby-sitter. The juvenile court ordered the children to be temporarily placed in foster care. A temporary removal hearing was held. August 27, 1982, the court ordered that the children remain in foster care pending a dispositional hearing. The State immediately filed a CHINA petition on behalf of M.W.

The adjudication hearing on the CHINA petition for M.W. was held concurrently with the dispositional hearing for D.W. and J.W. This combined hearing began on September 9, 1982, but was continued until November 19, 1982, to allow for completion of testimony. ⁴ By order entered November 23, 1982, the juvenile court found M.W. to be a child in need of assistance and concluded all three children should remain in foster care while their mother entered into, and attempted to follow, a social contract with the Department.

A review hearing was held three months later on March 4, 1983. The court ordered continued foster care for the children. It also ordered the mother to follow the previous social contract with some approved amendments. The social contract was amended again in June 1983.

Another review hearing was held September 16, 1983. The State requested that foster care be continued, and indicated an intent to file a petition to terminate parental rights. The court ordered continued foster care. The State also requested that visitation between the mother and D.W. be stopped for one to three months based on the recommendation of a psychiatric social worker. The latter thought the visits caused or aggravated many of D.W.'s emotional and behavioral problems. Consequently, the juvenile court discontinued visits between the mother and D.W. for a one-month trial period.

The State filed a petition for termination of parental rights pursuant to Iowa Code section 232.116(5) on September 28, 1983. In an order dated October 27, 1983, the juvenile court discontinued visits between the mother and her daughter, D.W., for an additional two months, but upon application later permitted two December visits with D.W.: one visit with D.W. alone, and another with all three children.

The termination hearing was held January 19 to 27, 1984. The juvenile court, before making a decision on termination, sua sponte raised the issue of a possible defect in the previous CHINA adjudication for D.W. and J.W. The court became convinced the adjudication was based on a ground not alleged in the petition and therefore violated the mother's due process rights.

A CHINA adjudication is a prerequisite to termination of parental rights under Iowa Code section 232.116(5). After further hearing relating to this issue, the court ordered that the termination proceeding be dismissed in seven days on the ground the CHINA adjudication was defective. This provided the State seven days in which to decide upon a course of action.

The State filed an appeal within this seven-day period. Upon the State's application we held the appeal was not from a final judgment, but nonetheless granted permission to appeal. Subsequently, we transferred the case to the court of appeals.

In an opinion filed November 20, 1984, the court of appeals held the mother's due process rights were violated when the juvenile referee found D.W. and J.W. to be children in need of assistance on a ground not alleged and one for which the mother had not been given proper notice. Noting the mother had appeared and was represented by counsel at every stage of the CHINA and termination proceedings, the court of appeals further held she waived the due process requirement of proper notice when she failed to raise or preserve the error at any time prior to the completion of the termination hearing. The proceeding was remanded to the juvenile court for a determination on the merits of the termination petition. ⁵

Upon remand, the juvenile court entered an order filed February 18, 1985, terminating the mother's parental rights to all three children pursuant to Iowa Code section 232.116(5).

One day after the termination order was filed, the mother's then counsel ⁶ filed an "Application to Reopen Trial for Additional Testimony and Raise Allegation of Ineffective Assistance of Counsel." This pleading tersely alleged the mother wanted to present evidence that she had ineffective assistance of counsel "during her child-in-need-of-assistance proceedings." Thereafter this lawyer, realizing the termination order had been entered, filed a redesignation of pleadings so that the application filed previously was recaptioned as a petition for new trial.

The State resisted the petition and a hearing was held on April 3, 1985. At that time, the juvenile court directed counsel for the mother to submit a separate formal motion on the allegation of ineffective assistance of counsel. The court further indicated a separate hearing then would be held on the motion. The April 3 hearing thereafter proceeded to the remaining issue, the motion for new trial based on newly discovered evidence. Affidavits were submitted by both sides on this issue. After waiting two months with no motion relating to ineffective assistance of counsel being filed, the court entered a ruling denying the motion for new trial on the ground the affidavits raised no new matters that would warrant another trial. ⁷ It did not specifically address the ineffective assistance ground, no motion having been filed during this period.

The mother now appeals, asserting the juvenile court erred in three ways. She asserts its decision to terminate her parental rights was not supported by clear and convincing evidence as required by Iowa Code section 232.116(5); she was denied a constitutional right to effective assistance of counsel; and her motion for new trial was erroneously denied.

I. The evidentiary issue.

We examine this issue with the principle in mind that our review is de novo. We give weight to the factual findings of the juvenile court, especially when the credibility of witnesses is involved. In re W.G., 349 N.W.2d 487, 491 (Iowa 1984), cert. denied, --- U.S. ----, 105 S.Ct. 1212, 84 L.Ed.2d 353 (1985); In re T.D.C., 336 N.W.2d 738, 740 (Iowa 1983).

In this division we are concerned with the third of three statutory requirements imposed by Iowa Code section 232.116(5) before parental rights may be terminated.

5. The court [must find] that:

a. The child has been adjudicated a child in need of assistance pursuant to section 232.96; and

b. The custody of the child has been transferred from his or her parents for placement pursuant to section 232.102 for at least twelve months; and

c. There is clear and convincing evidence that the child cannot be returned to the custody of his or her parents as provided in section 232.102.

Iowa Code § 232.116(5) (1983); see In re C. and K., 322 N.W.2d 76, 78 (Iowa 1982), appeal dismissed, 459 U.S. 1094, 103 S.Ct. 711, 74 L.Ed.2d 942 (1983); see also Iowa Code § 232.96(8), (9) (further requiring the court to find, in the CHINA proceeding, that the facts are established by clear and convincing evidence before sustaining the petition).

Section 232.116(5)(c) refers to section 232.102(6), which governs review hearings for determining whether a child may be returned to his or her parents. Section 232.102(6) in turn refers to section 232.2(5), ⁸ which defines when a child is in need of assistance. Therefore, we have determined that before parental rights may be terminated pursuant to section 232.116(5) "there must be clear and...