H.R.K., In Interest of, 87-1555

• Decision Date: 28 September 1988
• Docket Number: No. 87-1555,87-1555
• Citation: 433 N.W.2d 46
• Parties: In the Interest of H.R.K., R.M.A.C., AND R.L.C., Jr., Children, R.C. and R.C., Parents, Appellants.
• Court: Iowa Court of Appeals

Page 46

433 N.W.2d 46

In the Interest of H.R.K., R.M.A.C., AND R.L.C., Jr., Children, R.C. and R.C., Parents, Appellants.

No. 87-1555.

Court of Appeals of Iowa.

Sept. 28, 1988.

Thomas H. Preacher, Davenport, for appellant parents.

Thomas J. Miller, Atty. Gen., and Valencia Voyd McCown, Asst. Atty. Gen., for appellee State.

David Millage, Bettendorf, guardian ad litem for the children.

Considered by SCHLEGEL, P.J., and HAYDEN and SACKETT, JJ.

SCHLEGEL, Presiding Judge.

The parents of three children appeal from the district court order terminating their parental rights. They contend the juvenile court denied them due process by relying on evidence of sexual abuse, a subject not addressed in earlier CHINA hearings or CHINA adjudications, and by relying on their failure to complete a sexual abuse treatment program which required them to admit sexual abuse. They also challenge a number of evidentiary and procedural rulings. Finally, they challenge the sufficiency of the evidence to establish that the children cannot safely be returned to their custody.

Our review of proceedings to terminate a parent-child relationship is de novo. Iowa R.App.P. 4. We accord weight to the fact findings of the trial court, especially when considering the credibility of the witnesses the court has heard and observed first hand, but we are not bound by them. Upon our de novo consideration of the record before us, we affirm the termination order.

H.R.K., R.M.C. and R.L.C. were born in 1977, 1980, and 1981, respectively. All three children have the same mother, R.C. R.M.C. and R.L.C. also have the same father, B.C., who is presently R.C.'s husband and H.R.K.'s stepfather. The family has been involved with social services since 1983, when all three children were first adjudicated to be children in need of assistance. The children were also adjudicated CHINA in 1984 and 1985. The grounds for the CHINA adjudications included physical abuse, neglect, marital violence between the parents, frequent moves by the parents and other indications of instability, and the lack of a consistent, nurturing, and caring home environment.

Termination petitions for all three children were filed in March 1987. An order terminating parental rights was filed in September 1987. The parents appeal the termination order on a number of grounds.

Iowa Code section 232.116(5) (1987) permits the juvenile court to terminate the parent-child relationship if the child has been adjudicated in need of assistance, has been placed out of the parent's custody for more than twelve of the last eighteen months, and there is clear and convincing evidence that the child will suffer harm specified in Iowa Code section 232.2(6) (1987) if returned to the parent. See In re K.L.C., 372 N.W.2d 223, 227 (Iowa 1985). The types of harm specified in section 232.2(6) include the physical abuse or neglect of the child and the harm caused by the parents' failure to exercise reasonable care in supervising the child. Proof of any one of the types of harm delineated in section 232.2(6) is sufficient to support termination. See In re K.L.C., 372 N.W.2d at 228.

I. R.C. and B.C. first contend the juvenile court erred in judicially noticing certain documents from the earlier CHINA proceedings. R.C. and B.C. argue there was no showing that these documents were actually admitted into evidence in the CHINA proceedings and suggest that the documents may have been prepared for the CHINA proceedings but never actually admitted into evidence.

R.C. and B.C. rely upon our supreme court's decision in In Interest of Adkins, 298 N.W.2d 273 (Iowa 1980), for the proposition that an item judicially noticed can have no greater evidentiary weight in the proceeding in which it is noticed than in the proceeding of which it was originally a part. While a novel argument, we do not read Adkins so narrowly. In Adkins, the natural father contended that the juvenile court should not have taken judicial notice of the prior CHINA action in the termination proceeding because it was "a separate and distinct proceeding." The supreme court held "it is permissible for a trial court ... [in a] termination proceeding to judicially notice the prior CHINA case, including the evidence...." Adkins, 298 N.W.2d at 277-78 (emphasis added). Although not directly on point, we agree with the State that judicial notice in these proceedings is not limited to evidence, but includes any part of the CHINA record. Such a reading of Adkins is consistent with the court's rationale in support of its holding, to the effect:

CHINA and termination proceedings are not separate and distinct actions, but are interdependent and interwoven. The CHINA action may be a prelude or first step to termination of the parent-child relationship. Many of our decisions disclose that a termination action often follows directly from a prior CHINA adjudication.

Id. at 277 (citations omitted). Our reading of Adkins is also consistent with Harter v. State, 260 Iowa 605, 149 N.W.2d 827 (1967), in which the court held that evidence, which under ordinary rules of evidence applicable to a civil trial would be excluded as hearsay, lacking a proper foundation, improper opinion evidence, or not the best evidence, is admissible in [termination] proceedings and the nature of the evidence is to be considered as it affects its probative value rather than its admissibility. Harter, 260 Iowa at 608, 149 N.W.2d at 829.

In light of Adkins and Harter, we find appellants' argument to be without merit.

II. The parents also contend that the juvenile court erred by refusing to allow their attorney to interview the children, refusing their request for an independent medical examination of the children, and refusing to allow them to subpoena H.R.K. to testify at the termination hearing. In support of these requests, the parents argue that they have not had a fair opportunity to deal with their children's allegations of sexual abuse.

The trial court denied the parents' requests primarily on the grounds that to grant the requests would subject the children to undue trauma. Upon our review of the record, we agree.

Testimony at the hearings indicated that a physical examination of the children would be traumatic, particularly with respect to H.R.K. and R.C. because of the intimate nature of such an exam. The testimony also indicated that the likelihood of finding evidence of sexual abuse nearly a year and a half after the alleged incident was minimal.

Further testimony was offered that interviewing the children would be traumatic as well as harmful to the treatment process, particularly in view of the fact that the children have previously been asked to discuss the sexual abuse allegations a number of times:

Q. Do you have an opinion as to whether or not the...