Ponx, In Interest of

• Decision Date: 21 March 1979
• Docket Number: No. 62299,62299
• Citation: 276 N.W.2d 425
• Parties: In the Interest of Robert Dean PONX, Jr., a child. Appeal of Barbara Louise PONX.
• Court: Iowa Supreme Court

Page 425

276 N.W.2d 425

In the Interest of Robert Dean PONX, Jr., a child.

Appeal of Barbara Louise PONX.

No. 62299.

Supreme Court of Iowa.

March 21, 1979.

Mark C. Smith, of Stamatelos & Smith, West Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Stephen C. Robinson and Francis C. Hoyt, Jr., Asst. Attys. Gen., for appellee.

Considered by REYNOLDSON, C. J., and REES, HARRIS, McCORMICK and LARSON, JJ.

LARSON, Justice.

This is the second appeal to this court involving termination of the parent-child relationship between Barbara Louise Ponx and Robert Dean Ponx, Jr., "Bobby," her son. The earlier case, In re Lewis, 257 N.W.2d 505 (Iowa 1977), resulted in termination of the parents' rights as to two other children, and in dismissal of the termination petition as to this child because he had not previously been adjudged a "dependent" child as required by the statute under which petitioner sought the terminations. Section 232.41(2)(e), The Code 1975. We said that "(u)nder these circumstances, but not without some misgivings as to the welfare of Robert Ponx, Jr. we have no choice but to affirm, on other grounds, the Polk County Juvenile Court in dismissing the State's petition with regard to this child alone." Id. at 512-13. Bobby was to be retained in foster care for ninety days, and if no new action for termination was commenced in that time, he was to be returned to the parents. This action was commenced within that period and resulted in termination of the rights of both parents as to Bobby. The father did not appeal that order. We affirm the juvenile court on the mother's appeal.

Several issues are raised concerning the application of section 600A.8, The Code 1977, to the facts of this case. (Section 600A.8 replaced section 232.41(2), which was in effect at the time of Lewis.)

Section 600A.8 provides in relevant part:

The juvenile court shall base its findings and order under section 600A.9 on clear and convincing proof. The following shall be, either separately or jointly, grounds for ordering termination of parental rights:

4. A parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent-child relationship.

5. A parent is palpably unfit to be a party to the parent-child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent-child relationship either of which are determined by the juvenile court to be permanently detrimental to the physical or mental health of the child.

6. If, following an adjudication that the child is in need of assistance under chapter 232, reasonable efforts under the direction of the juvenile court have failed to correct the conditions giving rise to this adjudication.

7. A parent has been ordered to contribute to the support of the child or financially aid in the child's birth and has failed to do so without good cause. This subsection shall not be construed so as to state a grounds for termination of parental rights of a noncustodial parent if that parent has not been ordered to or cannot financially contribute to the support of the child or aid in the child's birth.

The petition alleged grounds for termination under subsections (4), (5) and (7). The juvenile court, in ordering termination, did not specify the grounds relied upon; however, on application of the mother for enlargement of findings under Iowa R.Civ.P. 179(b), it stated that it did not rely upon subsection (7) in making the determination. We therefore limit our consideration here to grounds under subsections (4) and (5).

The mother does not claim any facial constitutional defects in these subsections, but contends they were unconstitutionally applied to the facts of this case. She contends that this application violates (1) the ex post facto clauses of the United States and Iowa Constitutions and (2) constitutes a retrospective application of the statute not intended by the legislature. These objections arise out of the rulings of the juvenile court permitting evidence to be introduced concerning events predating the effective date of the statute, January 1, 1977.

The petition for termination was filed on November 17, 1977, alleging specific acts and omissions of the parents regarding their care of Bobby. At the hearing, which commenced on January 9, 1978, a voluminous transcript of the 1975 case involving Bobby and two other children (In re Lewis) was incorporated into the record by stipulation, the mother reserving appropriate objections on constitutional grounds. When considered as a whole, therefore, there was considerable evidence presented concerning the pre-1977 period, as well as that after January 1, 1977. The juvenile court recited much of the evidence on the conduct before 1977, and clearly relied upon it in entering the order of termination. Before determining the issue of whether the evidence requires a termination, we must decide if such prior matters may properly be considered in the face of appellant's ex post facto and retrospective application objections.

I. The ex post facto claim. Article 1, section 9 of the United States Constitution and article 1, section 21 of the Iowa Constitution state that no ex post facto law shall be passed. These clauses prohibit application of a "new punitive measure to conduct already consummated where it operates to the detriment or material disadvantage of the accused. Accordingly, a punitive measure is ex post facto if it punishes past conduct which was not criminal when it occurred." State v. Quanrude, 222 N.W.2d 467, 469-70 (Iowa 1974). The State contends the rule is not applicable here because the termination statute is not "punitive." Ms. Ponx contends that termination of parental rights is such a serious step that we should invoke this constitutional safeguard even if the statute is not punitive in the traditional sense.

The application of the ex post facto doctrine in Iowa has been limited to cases clearly criminal in nature, I. e., those which provide for fine or imprisonment. See, e. g., State v. Taggart, 186 Iowa 247, 172 N.W. 299 (1919); Quanrude, 222 N.W.2d at 467. By contrast, our termination statute has been characterized as "preventive" or "remedial," Long v. Long, 255 N.W.2d 140, 143 (Iowa 1977), and as one not intended for "punishment" of the parents. In re Griffin, 210 N.W.2d 665, 667 (Iowa 1973).

Although there is historical authority for the application of the ex post facto clauses to civil cases, ¹ the prevailing view is that the concept does not apply to noncriminal cases, even though the consequences are of a "serious" nature. E. g., Lehmann v. United States, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122 (1957) (violation of statute providing for deportation not "penal" for this purpose); Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960) (termination of social security benefits for conduct legal at the time it occurred did not violate the ex post facto clause). The ex post facto clauses have been held inapplicable to the parental termination statutes of one state because of the civil nature of the proceeding. In re Ladewig, 34 Ill.App.3d 393, 398, 340 N.E.2d 150, 154 (App.Ct.1975).

We conclude that the ex post facto clauses do not apply; however, even if they were applicable, the termination statute in question would not violate their terms.

Whether section 600A.8, The Code, will stand scrutiny the under the ex post facto clauses depends upon whether it either (a) applied a new punitive measure to conduct already consummated in such a manner as to operate to the detriment of the parent, or (b) if it increases the "malignancy of or possible penalty for past conduct" even if it was proscribed at the time it occurred. State v. Quanrude, 222 N.W.2d 467, 469-70 (Iowa 1974). The "penalty" was not changed under the new act; an adverse determination by the juvenile court resulted in termination under both the old and new statutes. Test (b) is therefore not significant here. However, the juvenile court in entering its order clearly relied upon pre-1977 conduct of the mother as well as her conduct from January 1, 1977 to the date of the filing of the petition for termination on November 17, 1977. The pre-1977 conduct was essential to the decision because she did not have custody of Bobby during the period the new statute was in effect; therefore, the only evidence of her actual performance as a parent was before 1977. The issue then becomes: Was this conduct of the mother before the effective date of section 600A.8 proscribed at the time it occurred, or was it first declared to be a basis for termination by the new statute?

Section 232.41 of the 1975 Code, which was the forerunner to section 600A.8, provided, in relevant part, as follows:

The court may upon petition terminate the relationship between parent and child:

2. If the court finds that one or more of the following conditions exist:

B. That the parents have substantially and continuously or repeatedly refused to give the child necessary parental care and protection.

D. That the parents are unfit by reasons of debauchery, intoxication, habitual use of narcotic drugs, repeated lewd and lascivious behavior, or other conduct found by the court likely to be detrimental to the physical or mental health or morals of the child.

E. That following an adjudication of neglect or dependency, reasonable efforts under the direction of the court have failed to correct the conditions leading to the termination.

A review of these sections reveals a marked similarity in language between the provisions of the old and those of the new termination statutes. Ms. Ponx premises her ex post facto argument on the finding of a federal district court that sections 232.41(2)(b) and (d) were unconstitutionally vague. Alsager v. District Court, 406 F.Supp. 10, 17-19, Aff'd on other grounds, 545 F.2d 1137 (8th Cir. 1976)....