Opinion
No. 2-296 / 02-0306.
Filed April 24, 2002.
Appeal from the Iowa District Court for Polk County, CONSTANCE COHEN, District Associate Judge.
The father appeals a juvenile court order terminating his parental rights to both of his children. AFFIRMED.
Jeffrey T. Mains of Benzoni Mains, P.L.C., Des Moines, for appellant.
Aaron Hubbard of Critelli Hubbard, P.C., Des Moines, for mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd and N. Elise Pippin, Assistant Attorneys General, John Sarcone, County Attorney and Martha Johnson, Assistant County Attorney, for appellee-State.
Nicole Garbis-Nolan, Des Moines, for minor children.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Robert, the father of Melissa, born in December of 1993, and Courtney, born in March of 1996, appeals a juvenile court order terminating his parental rights to both children. The children at the time of the custody hearing were in the custody of their mother, Robert's former wife, Shelly. The State did not seek termination of Shelly's parental rights. Robert contends that (1) the juvenile court erred in excluding the testimony of a number of witnesses who sought to testify as to his character; (2) the juvenile court erred in failing to find that compelling circumstances justified not terminating his parental rights; and (3) he received ineffective assistance of counsel in the adjudication phase of the proceedings.
This case involves the application of well-settled rules of law. The petition on appeal, together with the transcript of proceedings and copies of exhibits, is sufficient for us to address adequately the issues Robert raises on appeal. Further briefing is not necessary and would only delay the disposition of this case.
See Iowa R. App. P. 6.154.
We review de novo. In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct.App. 1997); In re A.Y.H., 508 N.W.2d 92, 94 (Iowa Ct.App. 1993). The State has the burden of proving the grounds for termination by clear and convincing evidence. In re T.A.L., 505 N.W.2d 480, 483 (Iowa 1993). A parent has the right to due process and a fair trial when the State seeks to terminate parental rights. In re R.B., 493 N.W.2d 897, 898 (Iowa Ct.App. 1992); see also Alsager v. Iowa Dist. Ct., 406 F. Supp. 10, 22 (S.D.Iowa 1975), aff'd in part 545 F.2d 1137 (8th Cir. 1976). A parent's right to have custody of his or her child should be terminated only with the utilization of the required constitutional safeguards. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923); In re T.R., 460 N.W.2d 873, 875 (Iowa Ct.App. 1990). The parent-child relationship is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15, 35 (1972).
The juvenile court tried the matter as a law action ruling on objections and excluding evidence. No objection was made to the case being tried in that manner. Despite this fact we feel obligated to review this case de novo.
Robert and Shelly separated in 1997. The couple divorced in July of 1998. The decree awarded Robert primary physical care of the children. The dissolution court appointed Dr. Anna Lopez-Dawson, a Ph.D. in clinical psychology, to evaluate the parties and make a custody recommendation. Lopez-Dawson conducted psychological testing on the parents and the children, as well as interviews of both parties and observations of the interaction between each parent and the children. At trial Lopez-Dawson testified that both parties had the ability to care for the children. Lopez-Dawson further said Robert, who did not want the dissolution, did not say anything negative about Shelly. The court found it unusual given the allegations Shelly made against him. The district court made Robert the primary physical custodian. In doing so it found Shelly harbored resentment against Robert and that the anger was not reciprocated even though she filed an unfounded child abuse report against him. The court found Robert more willing to cooperate with Shelly and more stable both emotionally and financially than Shelly.
It appears that the Department of Human Services followed up on two reports of abuse made by Shelly in September of 1997 and April of 1998, finding them unfounded. Shelly made another report in November of 1999, and again the department considered the charges unfounded. In May of 2000, in response to another report, the department determined the allegations were founded. This led to the filing of a petition asking that the children be found children in need of assistance and the filing of criminal charges against Robert.
The children were found to be children in need of assistance based on a finding that the children had been or were imminently likely to be sexually abused. The matter was appealed to this court, and the finding was affirmed. In re M.P. and C.P., No. 1-895/00-1990 (Iowa Ct.App. December 28, 2001). Robert sought further review before the Iowa Supreme Court. Further review was denied on March 15, 2002.
Robert was also convicted of sexual abuse on December 18, 2000, and sentenced to twenty-five years in prison. That conviction is on appeal.
On September 30, 2001 a petition to terminate Robert's parental rights was filed. A hearing was held on December 4, 2001 and on January 3, 2002. The termination order was filed February 7, 2002. The juvenile court found the State had established by clear and convincing evidence the parental rights of Robert to the children should be terminated within the meaning of Iowa Code sections 232.116(1)(c), 232.116(1)(e), and 232.116(1)(l) (2001). The court further found there was not clear and convincing evidence of compelling reasons to maintain the parent-child relationship, termination was in the children's best interest, and it was less detrimental than the harm caused to the children by continuing the parent-child relationship.
Robert first contends that the juvenile court should have received evidence from certain witness that he contended supported his position that compelling circumstances showed termination was not in the children's best interests. The State objected to the evidence contending it went to the issue already litigated as to whether Robert had abused his daughters. The juvenile court found that a finding of abuse had been made both in the child in need of assistance proceedings and in the criminal case and said it could not find the evidence Robert sought to admit would be helpful in any way other than to buttress Robert's denial of the allegations in the petition. The State's objection to the evidence was sustained. Robert made an offer of proof on the record after the judge left the courtroom. Robert contends it was erroneous for the juvenile court to sustain the objection and not receive the evidence.
Trial judges should ordinarily reserve ruling on objections in equity cases.
Answers are received subject to objection. In re Marriage of Ralston, 242 N.W.2d 269, 271 (Iowa 1976). This procedure facilitates de novo review of the record in this court. Id.; Leo v. Leo, 213 N.W.2d 495, 497-98 (Iowa 1973). The fact the juvenile court may not consider the evidence relevant does not mean that we may not consider it relevant. Though Robert made an offer of proof after the juvenile court's refusal to hear the evidence, we are deprived of the juvenile court's fact-finding with regard to the proffered evidence.
While we understand a juvenile court's reluctance to unduly lengthen a trial with a large number of witnesses the juvenile court made no effort to hear any of the evidence.
In his offer of proof Robert's attorney gave the names of a number of witness he said would testify to one or more of the following things: (1) they were acquaintances of Robert, (2), they had seen Robert with his daughters, (3) their children had played with Robert's daughters, (4) they had taken care of Robert's daughters, and (5) they had been Robert's daughters' teachers or worked with them in school.
In an effort to resolve this proceeding without further delay, we have reviewed de novo the offer of proof for purposes of this opinion and consider the facts to be true. Therefore, we need not address the juvenile court's refusal to hear this evidence. We therefore find no reason to reverse on this issue.
Robert next contends that compelling circumstances justify not terminating his parental rights. Robert was an involved caretaker and had a strong relationship with his daughters prior to being charged with sexual abuse of them. The allegations of abuse are denied by Robert, who contends they were manufactured to allow Shelly to gain custody. We recognize from our review of the record that the evidence as to whether the abuse took place is conflicting. However, the question before us now is not whether Robert sexually abused the children. Two prior fact finders have decided that issue, the juvenile court in the adjudication proceeding and the jury in the criminal proceedings. The juvenile court's finding has been affirmed on appeal and as such is binding on us. In re M.P., No. 1-189/00-1990 (Iowa Ct.App. December 28, 2001). Even after having considered Robert's offer of proof, we cannot disagree with the juvenile court's finding that there are no compelling circumstances that justify not terminating Robert's parental rights. We affirm on this issue.
Robert's last contention is that he was not adequately represented during the adjudication phase of the proceeding. The test for ineffective assistance of counsel in termination cases is generally the same as in criminal proceedings. In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992); In re D.W., 385 N.W.2d 570, 579 (Iowa 1986). In order to establish an ineffective assistance claim, it must be shown that (1) counsel's performance is deficient, and (2) actual prejudice resulted. A.R.S., 480 N.W.2d at 891; D.W., 385 N.W.2d at 580; Hall v. State, 360 N.W.2d 836, 838 (Iowa 1985); see Strickland v. Washington, 466 U.S. 668, 687-98, 104 S.Ct. 2052, 2064-70, 80 L.Ed.2d 674, 693-700 (1984). We presume that counsel's conduct falls within the range of reasonable professional competency. D.W., 385 N.W.2d at 580. The burden of proving ineffectiveness is on the claimant. In re J.P.B., 419 N.W.2d 387, 392 (Iowa 1988).
Robert contends the juvenile court in the adjudicative phase ignored all possible evidence that would have supported his position. He contends that his attorney failed to present a number of character witnesses, noting that these witnesses were included in the offer of proof made at the termination hearing. There was sufficient clear and convincing evidence at the adjudication hearing to support the juvenile court's finding that Robert sexually abused the children. The fact that there was other evidence that may have supported a different conclusion does not support a finding that trial counsel at this stage of the proceedings was not effective.
We have reviewed the offer of proof made at the termination hearing de novo. Robert has not shown that if this evidence had been admitted at the adjudication hearing that the juvenile judge and this court on de novo review would have reached a different result. We affirm.
AFFIRMED.