In re R.B.
| Decision Date | 13 March 2013 |
| Docket Number | No. 12–2260.,12–2260. |
| Citation | 832 N.W.2d 375 |
| Parties | In the Interest of R.B., G.B., and P.B., Minor Children, J.B., Father, Appellant. |
| Court | Iowa Court of Appeals |
OPINION TEXT STARTS HERE
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.
A father appeals the termination of his parental rights to his three youngest children, born in 2008, 2010, and 2011.
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.
Following the hearings, the juvenile court terminated the father's parental rights pursuant to Iowa Code section 232.116(1)(e) () 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.
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) ().
“[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 ().
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) ). 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 State required the father to complete any particular sexual offender treatment program or disapproved participation in a program that did not require an admission of guilt. Id.
In this case, there is no evidence that the department instructed the father to undergo treatment that would require an admission of guilt. Because the department did not insist on a course of action that would interfere with the father's right against self-incrimination, there was no State compulsion, and the Fifth Amendment was not implicated in the father's decision to forgo therapeutic services until his criminal charges were resolved.2
We conclude the State did not violate the father's Fifth Amendment right against self-incrimination and, accordingly, the juvenile court appropriately denied the motion to continue to the extent it was premised on this ground.
B. Notification Provision. The father next contends the juvenile court failed to notify his mother of the proceedings, as required by Iowa Code section 232.84(2). That provision states:
Within thirty days after the entry of an order under this chapter transferring custody of a child to an agency for placement, the agency shall exercise due diligence in identifying and providing notice to the child's grandparents, aunts, uncles, adult siblings, and adult relatives suggested by the child's parents, subject to exceptions due to the presence of family or domestic violence.
The notice is to include several items, including “[a] statement that the child has been or is being removed from the custody of the child's parent or parents,” and “[a]n explanation of the options the relative has under federal, state, and other law to participate in the care and placement of the child on a temporary or permanent basis.” Iowa Code § 232.84(3)(a), (b).
On appeal, the father argues that this notice provision “does not make any judgment, nor does it allow the Department to make any judgment with respect to who receives notice.” The State essentially responds that the father's cooperation with the department was a prerequisite to notification under section 232.84(2).
In attempting to resolve...
To continue reading
Request your trial
- In re Ivory W.
- In re Interest of B.P.
- In re Interest of J.C., 15–0836.
- In re Interest of A.B., 16–1359.