In re CM

• Decision Date: 09 October 2002
• Docket Number: No. 02-0304.,02-0304.
• Citation: 652 N.W.2d 204
• Parties: In the Interest of C.M., Jr., a Minor Child, D.A., Mother, Appellant.
• Court: Iowa Supreme Court

652 N.W.2d 204

In the Interest of C.M., Jr., a Minor Child,

D.A., Mother, Appellant.

No. 02-0304.

Supreme Court of Iowa.

October 9, 2002.

Letitia A.W. Turner, Assistant State Public Defender, for appellant mother.

Amy D. Van Es, Mason City, guardian ad litem for minor child.

Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, Paul L. Martin, Cerro Gordo County Attorney and Gregg Rosenbladt, Assistant County Attorney, for appellee State.

TERNUS, Justice.

This case involves a termination of parental rights under Iowa Code section 232.116(1)(g) and (d) (2001). The parents of the minor child, C.M., appealed, and the court of appeals affirmed the termination. Upon the mother's application, this court granted further review for the sole purpose of addressing the constitutionality of the appellate procedures that governed her appeal.¹ The appellant specifically complains that she was limited to raising her claims of error in a petition on appeal rather than in a traditional brief. Upon our consideration of the arguments of the parties, we hold that the failure of the Iowa Rules of Appellate Procedure to provide an opportunity for full briefing in all termination cases does not violate a parent's constitutional rights to equal protection and due process.

I. Preservation of Error.

The appellant did not challenge the constitutionality of the governing rules in her petition on appeal. Constitutional questions must be preserved by raising them "at the earliest opportunity after the grounds for objection become apparent." State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987); accord State v. Wages, 483 N.W.2d 325, 326 (Iowa 1992)

. Once the appellant filed her notice of appeal, the procedures at issue were applicable. Consequently, a challenge to the constitutionality of those procedures could have been made in the petition on review filed by the appellant. Having failed to include her constitutional claims in her petition, those issues are not preserved for review.

Anticipating an error preservation problem, the mother asserts counsel rendered ineffective assistance by failing to raise the constitutional issues earlier. See generally In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992)

("The test for ineffective assistance of counsel in termination cases is generally the same as in criminal proceedings."). The elements of an ineffective-assistance claim are (1) counsel's performance was deficient, and (2) actual prejudice resulted. Id. If either element is not proved, the claim of ineffective assistance of counsel fails. State v. Pace, 602 N.W.2d 764, 774 (Iowa 1999).

Counsel has no obligation to raise an issue that has no merit. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998)

(stating "counsel is not incompetent in failing to pursue a meritless issue"). Because we determine the expedited appellate procedures do not violate the appellant's rights to procedural due process or equal protection, we likewise conclude counsel's failure to challenge the procedures on these bases did not constitute deficient legal representation. Therefore, the appellant cannot avoid her failure to preserve error on the basis of her counsel's allegedly ineffective representation.

Although error has not been preserved, it is still necessary to address the merits of the constitutional challenges as a component of the appellant's ineffective-assistance-of-counsel claim. We begin our analysis with a review of the applicable appellate rules.

II. Appellate Procedures.

Iowa Code section 232.133 governs appeals from juvenile court orders, including orders terminating parental rights. Prior to July 1, 2001, it stated that "[t]he procedure for such appeals shall be governed by the same provisions applicable to appeals from the district court provided that when such order or decree affects the custody of a child the appeal shall be heard at the earliest practicable time." Iowa Code § 232.133(2). Effective July 1, 2001, this statute was amended to add the following sentence: "The supreme court may prescribe rules to expedite the resolution of appeals from final orders entered pursuant to section 232.117." Iowa Code § 232.133(2) (Supp.2002); see also id. § 232.117 (addressing disposition of termination-of-parental-rights proceedings).

The impetus for this amendment is a heightened concern at the federal level that permanency for children be accomplished as soon as feasible. The federal effort to encourage prompt resolution of termination proceedings was recently discussed by this court:

Our laws relating to the welfare of children have been driven for the last twenty-five years by policies and laws generally developed at the national level. Under the Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272, 94 Statutes 500 (codified as amended in scattered sections of 42 U.S.C.), the concept of family preservation was established with a goal of reuniting children with their families after reasonable efforts by social services. Congress mandated services for families and children under the threat of ineligibility for federal matching funds to accomplish this goal....

. . . .

Recently, the reasonable efforts requirement has undergone some transformation. This is because the family preservation concept [that] guided our federal national policy for the last two decades was found to be detrimental to children in some cases. Consequently, the Adoption and Safe Families Act of 1997, Public Law 105-89, 111 Statutes 2115 (codified as amended in scattered sections of 42 U.S.C.), now broadens the focus of reunification to place greater emphasis on the health and safety of the child, and mandates a permanent home for a child as early as possible. See 42 U.S.C. § 675(5)(C) ... In response, our legislature recently enacted amendments to our comprehensive juvenile justice act to permit waiver of reasonable efforts when aggravating circumstances exist. These amendments ... recognize a child's right to appropriate custodial care and the important element of time.

In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (citations omitted) (emphasis added). Thus, the new federal law shifted the focus from family reunification to "time-limited family reunification services." See 42 U.S.C. § 629(a)(7).

In response to these developments, the Iowa Supreme Court adopted amendments to the Iowa Rules of Appellate Procedure to expedite the disposition of termination appeals. In relevant part, the rules now provide that the appellant in a termination case has fifteen days within which to file a notice of appeal, as opposed to thirty days in other appeals. See Iowa R.App. P. 6.5(2). In addition, the amended rules require the appellant's trial counsel to prepare a petition raising issues for appeal rather than arguing issues in a traditional appellant's brief. See Iowa Rs. App. P. 6.6(4), 6.151.² The petition on appeal must be filed within fifteen days of filing the notice of appeal, see Iowa R.App. P. 6.6(4), and the opposing party then has fifteen days to serve a response, see Iowa R.App. P. 6.152(1). Relying on the appellant's petition on appeal, any response to the petition, the juvenile court record, and the trial transcript, the appellate court then conducts a de novo review of the trial court's termination order. Iowa R.App. P. 6.154(1). At that point, the appellate court may "affirm the juvenile court decision, reverse the juvenile court decision, remand the case to the juvenile court, or set the case for full briefing pursuant to rules 6.13 and 6.17 or as directed by the court." Iowa R.App. P. 6.154(1). Thus, full briefing becomes available only at the option of the reviewing court. Moreover, refusal by the court of appeals to grant full briefing is not grounds for further review by this court. Iowa R.App. P. 6.154(2).

III. Scope and Standard of Review.

The mother challenges the new appellate procedure on two grounds: equal protection and procedural due process. Review of constitutional claims is de novo. Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001). The party claiming the statute is unconstitutional must "negate every reasonable basis upon which the statute could be upheld." Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 688 (Iowa 2002).

IV. Equal Protection.

A. Appellant's argument. The mother asserts the new appellate procedures impermissibly distinguish between classes of appellants without a legitimate state purpose. More specifically, she claims the use of a petition on appeal in lieu of full briefing violates her right to equal protection of the law by restricting her access to the appellate courts in comparison to appellants in other civil and criminal cases. She states: "To permit the victim of a broken contract to fully participate in an appeal by filing a full brief with argument while prohibiting a mother seeking to preserve her right to be a part of her child's life from doing the same is not a logical nor legitimate distinction and serves no legitimate state purpose."

B. Applicable legal principles. The Fourteenth Amendment prohibits a state from "deny[ing] to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The principles of law governing equal protection claims are well established:

The Equal Protection Clause requires that similarly-situated persons be treated alike. "If people are not similarly situated, their dissimilar treatment does not violate equal protection." Any government classification of persons, however, "must meet the applicable constitutional standard imposed under the Equal Protection Clause." Unless a suspect class or a fundamental right is involved, any classification made by the legislature need only have a rational basis.

Bowers, 638 N.W.2d at 689 (citations omitted). When, however, "the challenged statute classifies persons in terms of their ability to exercise a fundamental right or when it classifies or distinguishes person by...