In re R.B., No. 12–2260.

CourtCourt of Appeals of Iowa
Writing for the CourtConsidered by VAITHESWARAN
Citation832 N.W.2d 375
PartiesIn the Interest of R.B., G.B., and P.B., Minor Children, J.B., Father, Appellant.
Docket NumberNo. 12–2260.
Decision Date13 March 2013

832 N.W.2d 375

In the Interest of R.B., G.B., and P.B., Minor Children,
J.B., Father, Appellant.

No. 12–2260.

Court of Appeals of Iowa.

March 13, 2013.


[832 N.W.2d 377]


Jacob L. Mason, Ankeny, for appellant father.

Thomas J. Miller, Attorney General, Katherine S. Miller–Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Andrea Vitzthum, Assistant County Attorney, for appellee State.


Laura Lockwood, Des Moines, for appellee mother.

Kathy Miller of the Juvenile Public Defender Office, Des Moines, attorney for minor children.

Mike Bandstra, Des Moines, guardian ad litem for minor children.

Considered by VAITHESWARAN, P.J., and TABOR and MULLINS, JJ.

VAITHESWARAN, P.J.

A father appeals the termination of his parental rights to his three youngest children, born in 2008, 2010, and 2011.

I. Background Facts and Proceedings

The father's children were removed from his care in February 2012 based on allegations that the three oldest sustained long-term sexual and physical abuse. The youngest three were placed in foster care, and the father had no further contact with them.

Meanwhile, the father fled. The State charged him with sexual abuse and began a nationwide search for him. He was apprehended at his mother's home in Chicago and was returned to Iowa to face charges. At the time of two termination hearings in November 2012, the father was in jail and had yet to stand trial.

On the eve of the first termination hearing, the father filed a motion to continue the hearing on the ground that the termination proceeding impinged upon his Fifth Amendment right against self-incrimination. U.S. Const. amend. V. The father also alleged as grounds for continuance the Department of Human Services' failure to notify his mother of the proceedings, as required by Iowa Code section 232.84(2) (2011).

At the first termination hearing, the juvenile court denied the motion to continue. On the advice of counsel, the father asserted his Fifth Amendment right against self-incrimination and declined to answer any questions. The father's attorney was allowed to make a record concerning the department's failure to notify the father's mother of the proceedings.

[832 N.W.2d 378]

Following the hearings, the juvenile court terminated the father's parental rights pursuant to Iowa Code section 232.116(1)(e) (requiring proof of several elements, including proof that parent has not maintained significant and meaningful contact with the child) and (h) (requiring proof of several elements, including proof that a child three or younger cannot be returned to the parent's custody). This appeal followed.

II. Continuance Motion

The father does not contest the grounds for termination. He focuses on the court's disposition of his motion to continue, arguing: (A) his constitutional “right to be free from self-incrimination was violated when the court denied the motion to continue the termination proceedings until such time the father could testify without the prejudicial effect on the pending criminal prosecution” and (B) the juvenile court should have granted his motion based on the department's failure to notify his mother that the children were removed from his care.

Motions to continue “shall not be granted except for good cause.” Iowa Ct. R. 8.5. Our review of the court's denial of the motion on a non-constitutional ground is for an abuse of discretion, and we will reverse only “if injustice will result to the party desiring the continuance.” In re C.W., 554 N.W.2d 279, 281 (Iowa Ct.App.1996). The concept of justice incorporates a prejudice component, which must be viewed in a pragmatic fashion. Ragan v. Petersen, 569 N.W.2d 390, 394 (Iowa Ct.App.1997). Where constitutional rights are implicated, our review is de novo. See In re N.N.E., 752 N.W.2d 1, 6 (Iowa 2008).

A. Fifth Amendment. “The Fifth Amendment Self–Incrimination Clause, which applies to the States via the Fourteenth Amendment, provides that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” McKune v. Lile, 536 U.S. 24, 35, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (citation omitted). This provision prohibits a State from imposing substantial penalties “because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.” Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977); accord In re C.H., 652 N.W.2d 144, 150 (Iowa 2002) (“The State may not penalize [a father] for noncompliance with a court order impinging on his right against self-incrimination.”).

“[T]he government need not make the exercise of the Fifth Amendment privilege cost free.” Lile, 536 U.S. at 41, 122 S.Ct. 2017. “Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.” Id. (quotation marks and citation omitted); C.H., 652 N.W.2d at 150 (“[A] person's exercise of a constitutional right may indeed have consequences.”).

The father asserts that the court's decision to proceed with the termination hearing left him with “a false choice and a harsh result: ... the termination of parental rights or the prejudice of a pending criminal matter.” In his view, his decision to remain silent allowed the State to prove its case for termination with only “minimal evidence or a mere allegation which [was] assumed to be valid.”

We question whether the claimed easing of the State's burden by virtue of the father's exercise of his right against self-incrimination amounts to constitutional compulsion. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286–88, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (concluding pressure felt by death row inmate to speak at a clemency hearing and improve

[832 N.W.2d 379]

his chances for clemency did not constitute unconstitutional compulsion and stating, “It is difficult to see how a voluntary interview could ‘compel’ respondent to speak. He merely faces a choice quite similar to the sorts of choices that a criminal defendant must make in the course of criminal proceedings, none of which has ever been held to violate the Fifth Amendment”). We need not definitely resolve that issue because, on our de novo review, we find that the record contains more than the State's version of events.

First, the record includes a summary of an interview police conducted with the father at the time the sexual abuse allegations came to light. In that interview, the father vehemently denied the allegations and provided a detailed explanation supporting his denial. This summary placed the father's version of events before the juvenile court, mitigating the claimed harsh consequence of his election not to testify.

Second, the State's key evidence against the father was corroborated by the children's mother, who testified that she saw and heard the father sexually abuse the three oldest children over a period of years. She asserted that the abuse began when the children reached seven years of age and continued for six to eight years, until their removal in 2012. She characterized the sexual abuse as “routine” and acknowledged her failure to intervene.1

In sum, the juvenile court did not rely on “a mere allegation which [was] assumed to be valid,” but had access to both corroborating and potentially exculpatory evidence through the father's denials, together with department-generated reports and other evidence.

The father also argues that the court should have postponed the termination hearing until he was available to participate fully in a psycho/sexual examination. In C.H., the Iowa Supreme Court rejected a father's assertion that the department impinged on his right against self-incrimination by requiring him to undergo sexual offender treatment. 650 N.W.2d at 150. The court reasoned that there was no evidence the...

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20 practice notes
  • In re Interest of B.P., No. 15–1997.
    • United States
    • Court of Appeals of Iowa
    • March 23, 2016
    ...before we will reverse.” Id . We consider whether injustice will result to the party requesting the continuance. In re R.B., 832 N.W.2d 375, 378 (Iowa Ct.App.2013).The court considered the motion to continue on the record at the termination hearing. The court stated:First of all, I'm not go......
  • In re Interest of B.P., No. 15–1997.
    • United States
    • Court of Appeals of Iowa
    • March 23, 2016
    ...before we will reverse.” Id . We consider whether injustice will result to the party requesting the continuance. In re R.B., 832 N.W.2d 375, 378 (Iowa Ct.App.2013).The court considered the motion to continue on the record at the termination hearing. The court stated:First of all, I'm not go......
  • In re S.S., No. 20-1694
    • United States
    • Court of Appeals of Iowa
    • August 4, 2021
    ...the same. We agree with the mother that relative placement is preferred. See 42 U.S.C. § 671(a)(19); Iowa Code § 232.84(2); In re R.B., 832 N.W.2d 375, 381 (Iowa Ct. App. 2013). But we also agree with the juvenile court and State that declining to place the child with these relatives was re......
  • In re A.B., No. 16-1359
    • United States
    • Court of Appeals of Iowa
    • September 28, 2016
    ...review the exhibits with his attorney before the hearing. A motion to continue should not be granted, except for good cause. In re R.B., 832 N.W.2d 375, 378 (Iowa Ct. App. 2013). "We review a motion for continuance under an abuse of discretion standard and will only reverse if injustic......
  • Request a trial to view additional results
20 cases
  • In re Interest of B.P., No. 15–1997.
    • United States
    • Court of Appeals of Iowa
    • March 23, 2016
    ...before we will reverse.” Id . We consider whether injustice will result to the party requesting the continuance. In re R.B., 832 N.W.2d 375, 378 (Iowa Ct.App.2013).The court considered the motion to continue on the record at the termination hearing. The court stated:First of all, I'm not go......
  • In re Interest of B.P., No. 15–1997.
    • United States
    • Court of Appeals of Iowa
    • March 23, 2016
    ...before we will reverse.” Id . We consider whether injustice will result to the party requesting the continuance. In re R.B., 832 N.W.2d 375, 378 (Iowa Ct.App.2013).The court considered the motion to continue on the record at the termination hearing. The court stated:First of all, I'm not go......
  • In re S.S., No. 20-1694
    • United States
    • Court of Appeals of Iowa
    • August 4, 2021
    ...the same. We agree with the mother that relative placement is preferred. See 42 U.S.C. § 671(a)(19); Iowa Code § 232.84(2); In re R.B., 832 N.W.2d 375, 381 (Iowa Ct. App. 2013). But we also agree with the juvenile court and State that declining to place the child with these relatives was re......
  • In re A.B., No. 16-1359
    • United States
    • Court of Appeals of Iowa
    • September 28, 2016
    ...review the exhibits with his attorney before the hearing. A motion to continue should not be granted, except for good cause. In re R.B., 832 N.W.2d 375, 378 (Iowa Ct. App. 2013). "We review a motion for continuance under an abuse of discretion standard and will only reverse if injustic......
  • Request a trial to view additional results

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