R.E., In Interest of

• Decision Date: 26 September 1990
• Docket Number: No. 90-574,90-574
• Citation: 462 N.W.2d 723
• Parties: In the Interest of R.E. and T.E., Minor Children B.E., Mother, Appellant.
• Court: Iowa Court of Appeals

Page 723

462 N.W.2d 723

In the Interest of R.E. and T.E., Minor Children B.E., Mother, Appellant.

No. 90-574.

Court of Appeals of Iowa.

Sept. 26, 1990.

Karla J. Fultz, Des Moines, for appellant mother on the brief only.

Thomas J. Miller, Atty. Gen., Gordon E. Allen, Deputy Atty. Gen., and Charles K. Phillips, Asst. Atty. Gen., for appellee State.

Heard by OXBERGER, C.J., and DONIELSON and HAYDEN, JJ.

HAYDEN, Judge.

The children in question are boys born in May 1980 and July 1984. Their father is deceased. This proceeding concerns the termination of their mother's parental rights.

The facts leading to the State's termination petition are not in issue in this appeal. While in the mother's care the children suffered broken bones, sexual abuse, emotional abuse, and profound physical and emotional neglect. The mother caused the children to live in filthy conditions, with inadequate food, personal hygiene, and medical care. The mother has a history of mental illness, psychiatric hospitalization, and homelessness. The children have been in foster care for much of their lives.

After the State filed its petition to terminate the mother's parental rights under Iowa Code chapter 232, it developed that the mother could not be located. A juvenile court officer filed an affidavit stating he had made a diligent search for the mother but had been unable to locate her. The juvenile court then issued an order pursuant to Iowa Code § 232.112(1) dispensing with notice to the mother. Notice by publication was apparently never attempted.

After a hearing at which the mother appeared by counsel but not in person, the juvenile court terminated the mother's parental rights on the ground of abandonment.

The mother has appealed from the termination order. She challenges only the fact that termination was accomplished without any notice to her or personal appearance by her. She contends the juvenile court order dispensing with notice to her (1) denied her due process; (2) denied her equal protection by treating her differently than a parent whose rights are terminated under Iowa Code chapter 600A; and (3) violated § 232.112(1) because the State had not employed due diligence to locate her.

Appellate review of termination proceedings is de novo. In re W.G., 349 N.W.2d 487, 491 (Iowa 1984), cert. denied, 469 U.S. 1222, 105 S.Ct. 1212, 84 L.Ed.2d 353 (1985). We give weight to the findings of fact of the juvenile court, especially when considering the credibility of witnesses, but we are not bound by those determinations. Id. at 491-92.

The primary concern in termination proceedings is the best interest of the child. Iowa R.App.P. 14(f)(15); In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981).

We look to the child's long-range, as well as immediate, interests. We consider what the future holds for the child if returned to his or her parents. Insight for this determination can be gained from evidence of the parent's past performance, for that performance may be indicative of the quality of the future care the parent is capable of providing. Our statutory termination provisions are preventative as well as remedial. They are designed to prevent probable harm to a child.

In re R.M., 431 N.W.2d 196, 199 (Iowa App.1988) (citing to Dameron, 306 N.W.2d at 745); see also In re A.C., 415 N.W.2d 609, 613 (Iowa 1987).

I. Due Process

The sole issue on appeal is whether the mother in this case was deprived of notice of this action, thus denying her constitutional due process rights. We note the appellant mother does not attack the constitutionality of the statute itself.

The trial court dispensed with personal notice to the mother by authority of Iowa Code § 232.112(1):

Persons listed [living parents of the child, guardian, custodian, guardian ad litem, petitioner, person standing in place of the parents] shall be necessary parties to a termination of parent-child relationship proceeding and are entitled to receive notice and an opportunity to be heard, except that notice may be dispensed with in the case of any such person whose name or whereabouts the court determines is unknown and cannot be ascertained by reasonably diligent search.

Iowa Code § 232.112(1).

When any aspect of a normal service process is dispensed with, a review of the facts is required to determine the appropriate level of diligence by the state and the type of notice required. See Catholic Charities v. Zalesky, 232 N.W.2d 539, 546-47 (Iowa 1975). The notice must be reasonably calculated to apprise the parent of the pending proceeding in light of the circumstances concerning that particular parent. Id.

1. The Ingraham Test.

In Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), the Supreme Court restated the three factors long considered to constitute the analytic framework for determining the procedural safeguards required by due process. The analysis requires consideration of [F]irst, the private interest that will be affected ...: second, the risk of an erroneous deprivation of such interest ... and the probable value, if any, of additional or substitute procedural safeguards; and finally the (state) interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 675, 97 S.Ct. at 1414-15, 51 L.Ed.2d at 733, citing to Mathews v. Eldridge, 424 U.S. [319,] 335, 96 S.Ct. [893,] 903, 47 L.Ed.2d [18,] 33 [ (1976) ].

Patten v. Patrick, 276 N.W.2d 390, 394 (Iowa 1979).

Utilizing the criteria outlined in Ingraham, and Patten, we turn to the present case.

The first factor is obvious: the mother's parental interest will be affected if her parental rights are terminated. The third factor in Ingraham, the state interest involved and the fiscal and administrative burden imposed, is not a material issue in this case.

The second factor is the risk of error and the probable value of additional or substitute procedural safeguards. In this case, there was little risk of error. Neither party disputes the egregious underlying problems and abuses in this case. The children have been subjected to sexual and physical abuse. They have suffered broken bones, filthy living conditions, and apparent prolonged abandonment by the mother. They have already endured three years of out-of-home placement in Texas, including two years in foster homes. A Texas case concerning the children had been underway for at least five years before the children came to Iowa. The father appears to be deceased at the time of this proceeding.

The probable value of additional or substitute safeguards in this case is negligible. The alternatives in this case to the reasonable search are notice by certified mail, and notice by publication. "Briefly stated, a notice by publication to an identity or address unknown putative father, within the ambit of adoptions, would ordinarily be an exercise in futility." Catholic Charities, 232 N.W.2d at 548 (citing to General River Dam Authority v. Going, 29 F.Supp. 316, 325 (N.D.Okl.1939).

The rationale in Catholic Charities directly applies to this case. The mother in the present case disappeared after the initial hearings in the prior child in need of assistance (CHINA) case. She failed to come to any of the later hearings, although she obviously had notice of the continuing nature of the CHINA proceedings, at least until disposition.

In reality, this termination proceeding merely constituted a continuation of the CHINA proceeding. Because the mother can be reasonably expected to know of the continuing nature of the CHINA proceeding, she should be on notice of this termination proceeding as well.

This case is analogous to In re H.R.K. There the Iowa Supreme Court rejected allegations the petition involved did not adequately apprise the parents of the factual basis of the allegations against them.

In view of the lengthy case history and the many court proceedings which preceded the termination petitions in this case, we are convinced that the parents were sufficiently apprised of the factual basis upon which termination was being sought.

In re H.R.K., 433 N.W.2d 46, 49 (Iowa App.1988).

In the Catholic Charities case, the putative father claimed denial of due process because of lack of notice concerning termination of his parental rights. In that case, the Iowa Supreme Court quoted with approval:

"The impending birth of an illegitimate child carries the potential for warning the putative father of the possibility of forthcoming proceedings which will affect his rights.... Given this opportunity for knowledge, it is reasonable to permit self-information as the unknown putative father's sole means of notice."

Catholic Charities, 232 N.W.2d at 548 (quoting Note, The "Strange Boundaries" of Stanley: Providing Notice of Adoption

to the Unknown Putative Father, 59 Va.L.Rev. 517, 530 (1973)).

The mother in this case had notice of the ongoing CHINA action. Indeed, she was initially present at that proceeding. In the middle of that proceeding, she chose to disappear. She knew some dispositional action would be taken by the trial court in the CHINA action. The termination proceeding followed immediately after the CHINA action. The CHINA actions constituted the underlying basis for the termination. The termination was in effect merely the continuation and disposition of the CHINA action.

2. Notice to Attorney.

The mother's attorney, who was also acting as her guardian ad litem, had notice of the termination. The attorney filed a motion to dismiss for failure to personally serve the mother. The trial court overruled the motion.

At the beginning of the termination hearing, the trial judge questioned the mother's attorney concerning the attorney's contacts with the mother:

THE COURT: Have you had any contact with your client?

MS. FULTZ: Your Honor, I believe that's privileged.

THE COURT: When was the last time you actually saw her?

MS. FULTZ: Your Honor, I...