In the Interest of J.B. and J.B., Minor Children ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1807
Filed December 19, 2018
IN THE INTEREST OF J.B. and J.B.,
Minor Children,
J.B., Father,
Appellant,
A.T., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Poweshiek County, Rose Anne
Mefford, District Associate Judge.
A father and a mother separately appeal the termination of their parental
rights. REVERSED AND REMANDED ON BOTH APPEALS.
Dustin D. Hite of Heslinga, Dixon & Hite, Oskaloosa, for appellant father.
Peter Stiefel, Victor, for appellant mother.
Thomas J. Miller, Attorney General, and John McCormally, Assistant
Attorney General, for appellee State.
Dusty Clements of Clements Law & Mediation, Newton, guardian ad litem
for minor children.
Considered by Danilson, C.J., and Potterfield and Doyle, JJ.
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DANILSON, Chief Judge.
A father and a mother separately appeal the termination of their parental
rights to their two children, Ja.B., born in August 2012, and Jo.B., born in February
2016. In light of the parents’ notice to the court that they were ill and their lack of
representation, the juvenile court abused its discretion in failing to continue the
combined permanency and termination hearing and proceeding to terminate the
parents’ parental rights. We reverse and remand.
Ja.B. and Jo.B. came to the attention of the department of human services
(DHS) in December 2016 due to the medical neglect of Ja.B.’s serious medical
condition, which required tube-feeding with special food, bi-weekly blood draws for
monitoring, and monthly gastrointestinal specialty appointments to ensure proper
nutritional intake. The parents had not brought the child in for blood draws on a
regular basis and had not brought him for his specialty appointments for two
months. DHS provided voluntary services, including a daily home visit from a
Family Safety, Risk, and Permanency provider to check on Ja.B.’s condition.
In April 2017, the father was arrested on controlled-substances charges.
The mother and DHS entered into a safety plan, which required the father to live
elsewhere. The hearing on the petition to find the children to be children in need
of assistance (CINA) was scheduled for April 21. Both parents attended and some
evidence was presented. However, the matter was continued because a State’s
witness was ill. The court ordered further hearing for June 14.
On May 10, law enforcement officers were called to the mother’s home and
the children were removed. An emergency removal hearing was scheduled for
May 15 but was rescheduled for May 18. Both parents attended. The matter was
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not concluded on May 18, however, and a further hearing was set. The juvenile
court issued an interim removal order, noting the parents admitted not following
the safety plan, the mother admitted marijuana use, the father admitted
methamphetamine use, and the police had found methamphetamine and
marijuana paraphernalia in the family home accessible to the children.
On June 16, 2017, following a June 14 removal and adjudicatory hearing,
the court found the children to be in need of assistance. The court noted concerns
of medical neglect, substance abuse, the father’s pending criminal charges and
absence from the state, significant developmental delays for both children, injuries
on Ja.B. that raised concerns of physical abuse, and the mother’s failure to comply
with drug testing. The mother attended the June 14 hearing; the father did not.
In August 2017, the mother sought to have new counsel appointed. On
August 11, a dispositional hearing was held and both parents were present. The
court denied the mother’s motion for new counsel and entered a dispositional order
continuing the children’s placement in foster care.
The mother attended the October 18, 2017 Foster Care Review Board
review. The father was reported to be living in Oklahoma and struggling with drug
addiction.
Both parents attended a February 8, 2018 dispositional review hearing. The
court entered an order continuing the children’s placement and ordering additional
services.
On April 11, 2018, the father filed an “emergency application for additional
services,” asking that DHS provide him with transportation to the court-required
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Iowa Domestic Abuser’s Program. After an April 12 hearing, the court denied the
application.
On April 26, 2018, neither the mother nor the father attended the scheduled
permanency hearing. At 9:18 a.m. the day of the permanency hearing, the father
called his attorney and left a message stating that they had no transportation. The
mother did not contact her attorney. The juvenile court entered an order stating,
in part:
[T]he court does not excuse [the parents’] absence. The court is
informed that the parents are contesting the recommendations
contained in the DHS report. Testimony was received and a formal
record was made. The court FINDS the hearing should be continued
to allow additional evidence to be presented.
Further hearing was scheduled for May 30 at 9:00 a.m.
The continued permanency hearing was scheduled with the termination
trial. At 7:07 a.m. on May 30, the mother emailed her CINA attorney, stating she
was sick and not able to make it to the hearing. The father contacted the clerk of
court and stated he had food poisoning and was unable to attend. The mother’s
attorney stated to the court:
[The mother] has made attempts to convey that she won’t be
here this morning, so given that she’s in contact with parties in the
case, it’s reasonable to assume that she would be able to be present
at a continued hearing. So on those grounds, I would move to
continue the permanency hearing in the two CINA files. Regarding
my involvement or lack of involvement in the [termination of parental
rights] TPR files, I believe my appointment as [the mother’s] attorney
was subject to her filing a financial affidavit and application for
counsel. Given that one of those is not on file, I, at least, am
operating under the assumption this morning that I am only
representing her in the permanency hearings for the CINA files this
morning.
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The father’s attorney also noted he represented the father “solely” in the
CINA proceedings. The attorney asked that the permanency hearing be continued
due to the father’s illness.
The juvenile court acknowledged that neither attorney was representing the
parents at the termination-of-parental-rights hearing. However, the court denied
the motions to continue, stating:
Mother and Father’s absences today are not excused. Mother and
Father’s motions to continue today are denied. Historically, Mother
and Father have been absent without any excuse from these CINA
proceedings. They weren’t here on 4-26-18 for the start of the
permanency hearing. The court disbelieves the food poisoning
excuse, and we’ll proceed today on both the termination and the
permanency hearing in both children’s cases.
On October 7, the court entered its findings and conclusions, terminating
both parents’ parental rights on a number of grounds and the parents now appeal.
Both parents argue the juvenile court erred in failing to continue the
combined permanency and termination hearing.
Our review of a ruling on a motion for a continuance is for an abuse of
discretion. In re R.B., 832 N.W.2d 375, 378 (Iowa Ct. App. 2013); see also In re
M.D., ___ N.W.2d ___, ___, 2018 WL 6259488, at *4 (Iowa 2018). Motions to
continue are not to be granted except for good cause. R.B., 832 N.W.2d at 378.
We conclude the juvenile court abused its discretion in not continuing the
permanency and termination hearing under the unique circumstances presented
here. A parent or any layperson would have difficulties understanding the inability
of counsel to represent them for all proceedings. Moreover, in the petition for
termination of parental rights, the State alleged both parents were represented by
the same counsel representing them in the CINA proceedings. The order filed May
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12, 2018, and served on the parties, set the hearing but also identified the same
counsel as appointed to represent the parents, but also required the parents to file
an Affidavit and Financial Statement to show they were indigent. A subsequent
order filed May 24, 2018, stated, “The court FINDS the appointment of Attorneys
Dustin D. Hite and Peter Stiefel is subject to the parents filing an affidavit of
financial status.” There is no indication the parents ever received this second
order.
Both counsel made a motion to continue the permanency hearing. There
was no effort made to accommodate the parents by letting them participate by
phone, if possible, or allowing them to testify at a later date. The juvenile court
simply found it disbelieved the parents’ proffered excuse; noted their absence on
the April 26, 2018, hearing; and denied the motions to continue.
We understand a continuance “may be detrimental to the best interests of
children.” M.D., ___ N.W.2d at ___, 2018 WL 6259488, at *3. Moreover, the
juvenile court could properly question the authenticity of the parents’ excuse.
However, under the circumstances here, the juvenile court abused its discretion in
plowing forward in the termination proceeding without appointing counsel, at least,
to assist the parents on a temporary basis in explaining the need to again apply
for court-appointed counsel or considering any accommodations for their
participation. We note that counsel in the CINA proceedings for both the mother
and father were appointed as counsel for the parents in the appeal in all
proceedings, including the termination proceeding.
Because the permanency hearing should have been continued, the order
terminating parental rights must be reversed. Even if we could conclude it was not
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proper to grant the continuance of the permanency hearing, going forward with the
termination hearing in the absence of the parties and counsel under this record
cannot withstand our obligation to ensure procedural fairness. See id. (discussing
due process).
REVERSED AND REMANDED ON BOTH APPEALS.