In the Interest of R.C., No. 3-1002/03-0993 (Iowa App. 1/28/2004), 3-1002/03-0993
| Decision Date | 28 January 2004 |
| Docket Number | No. 3-1002/03-0993,3-1002/03-0993 |
| Parties | IN THE INTEREST OF R.C., J.T.M., AND J.M. III, Minor Children, E.A., Grandmother, Appellant. |
| Court | Court of Appeals of Iowa |
Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge.
A grandmother appeals the juvenile court decision removing her grandchildren from her care. AFFIRMED.
Jesse Macro Jr. of Kuntz, Laughlin & Macro, Des Moines, for appellant-grandmother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Jon Anderson and William Sales III, Assistant County Attorneys, for appellee.
Rachael Seymore, Des Moines, guardian ad litem for minor child.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
During child in need of assistance proceedings, Elizabeth became the caretaker of two of her grandchildren, J'Tasha and Johnny. She also became the caretaker of another child, Raya, to whom she was not biologically related. The parents had substance abuse problems, and they were to have only supervised visitation with the children. The parents did not cooperate with services, and the State filed a petition seeking to terminate the parents' rights.
On April 7, 2003, the juvenile court held a termination hearing, which the parents and Elizabeth did not attend. The guardian ad litem raised concerns that Elizabeth had been allowing the parents to have extended unsupervised contact with the children, even though the parents had unresolved substance abuse issues. She recommended that the children be placed in a different home. The maternal grandfather, Donald, testified the mother admitted to him that at times she would have the children when Elizabeth was not present.
The juvenile court determined a hearing needed to be held on the issue of the proper placement for the children. On April 8, 2003, Elizabeth received notice of a placement hearing scheduled for the next day. On the morning of April 9, 2003, the juvenile court entered an order terminating the parent's rights to the children.1
Later on April 9, 2003, the juvenile court held a hearing on the placement issue. The parents were not permitted to participate because their rights had already been terminated. The court permitted Elizabeth to intervene, and the mother's attorney, Bryan Tingle, volunteered to represent her on a pro bono basis. The State introduced evidence that Elizabeth had permitted the children to have unsupervised visitation with the parents. Elizabeth admitted to an incident in March 2003 but testified she did not think the contact was inappropriate. Tingle cross-examined the State's witnesses. The juvenile court ordered the children removed from Elizabeth's care and placed in foster care.
Elizabeth then obtained another attorney and filed a motion to vacate the court's order which removed the children from her care. She claimed she was denied due process because she did not receive sufficient time to prepare for the placement hearing. The juvenile court denied the motion to vacate. Elizabeth now appeals.
In a case involving the placement of children after termination of parental rights, our review is de novo. See In re J.M.W., 492 N.W.2d 686, 689 (Iowa 1992). Our paramount concern is the best interests of the children. In re D.S., 437 N.W.2d 587, 588 (Iowa Ct. App. 1989).
Elizabeth contends she was denied due process because she did not receive notice until the day before the placement hearing. She claims she did not have enough time to prepare or to hire an attorney. She also claims she was unable to cross-examine or challenge the evidence presented at the termination hearing.
As the State points out, a parent has due process rights at parental termination proceedings because the Due Process Clause protects a parent's interest in maintaining family integrity. In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994) (citing Alsager v. Iowa Dist. Ct., 406 F. Supp. 10, 22 (S.D. Iowa 1975)). Elizabeth does not have the same rights as a parent, or even as a grandparent. Once the parents' rights are terminated, the grandparent-grandchild relationship is "substantially diminished." J.M.W., 492 N.W.2d at 690. "[W]hen the rights of natural parents are legally terminated `the rights of natural grandparents likewise end.'" Id. (quoting In re Gardiner, 287 N.W.2d 555, 558 (Iowa 1980)).
Even if Elizabeth were to receive the same due process rights as a parent, however, we determine she was not denied due process in the proceedings in this case. The basic elements of due process are notice and a meaningful opportunity to be heard. In re K.M., 653 N.W.2d 602, 607 (Iowa 2002). We have also determined:
Where a parent receives notice of the petition and hearing, is represented by counsel, counsel is present at the termination hearing, and the parent has an opportunity to present testimony by deposition, we cannot say the parent has been deprived of fundamental fairness.
In re J.S., 470 N.W.2d 48, 52 (Iowa Ct. App. 1991).
Elizabeth received notice of the placement hearing. She was represented by counsel. Counsel was present at the placement hearing. We note Elizabeth's counsel was fully knowledgeable about the issues in the case prior to his involvement with Elizabeth and that he was present at the termination hearing when the issue of placement was first raised. Elizabeth had the opportunity to present evidence, and to cross-examine the witnesses presented by the guardian ad litem. Although Elizabeth did not cross-examine Donald, who had testified at the termination hearing, nothing prohibited her from calling him as a witness for the purpose of questioning him. The record shows Donald was present at the placement hearing. We conclude Elizabeth was not deprived of fundamental fairness.
Elizabeth claims her trial counsel should have requested a continuance so that he could adequately prepare for the placement hearing. Elizabeth was not entitled to court-appointed counsel under Iowa Code section 232.89(1) (2003) because she was not a "parent, guardian, or custodian identified in the petition . . . ." The juvenile court specifically told Tingle that if he represented Elizabeth it would be pro bono.
Where counsel is appointed under a statutory directive, that counsel must provide effective assistance. In re S.D., 671 N.W.2d 522, 529 (Iowa Ct. App. 2003). Because Elizabeth did not receive court-appointed counsel she is not entitled to bring a claim of ineffective assistance of counsel. The general rule in civil cases is a claim of inadequate representation is not a sufficient basis for granting relief. In re...
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