Opinion
No. 2-631 / 01-1978
Filed September 25, 2002
Appeal from the Iowa District Court for Scott County, Michael Liebbe, Associate Juvenile Judge.
Mother appeals the termination of her parental rights to her three minor children. AFFIRMED.
Robert Phelps, Davenport, for appellant.
James Clements, Davenport, for father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, William Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee-State.
Stephen Newport of Newport Newport, P.L.C., Davenport, for minor children.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Mother appeals the termination of her parental rights to her three minor children, contending (1) the juvenile court did not have jurisdiction of her because she was not personally served with notice of the termination proceeding, (2) she was denied her constitutional right to due process of law, and (3) her counsel was ineffective on several grounds. We affirm.
Karla and Albert, Sr. are the biological parents of Albert, Jr., born October 16, 1988, Roy, born December 25, 1989, and Byron, born September 21, 1994. In November 1999 the children were removed from Karla's care due to her chronic substance abuse, abuse of crack cocaine, which prohibited her from properly supervising the children and providing for their needs. The children were adjudicated children in need of assistance (CINA) under Iowa Code sections 232.2(6)(b), (c)(2), and (n) (1999) on December 6, 1999. Karla was subsequently convicted of a charge relating to maintaining a crack house, by virtue of a guilty plea, in July 2000 and was sentenced to a five-year prison term. She appealed the decision and the service of her prison time was stayed pending appeal.
A review hearing was held on February 7, 2001, and the juvenile court filed a written review order on February 8, 2001. The court found that Karla had received treatment for her substance abuse problems, was sober, had established a stable lifestyle, and her visitations with the children were going well. The court also noted the impending prison sentence based on her felony conviction, but because it was found Karla could competently care for the children at the time, the court ordered the children returned to Karla's custody under the supervision of the Iowa Department of Human Services (DHS).
Unfortunately, in June 2001 Karla relapsed and began using crack cocaine once again. The children once again had to be removed from her care because she was using crack in their presence, leaving them unsupervised for long periods of time, failing to provide them with adequate food, failing to get them to school, and leaving them with inappropriate supervisors. After the ex parte order removing the children from Karla's home on June 7, 2001, she disappeared and did not show up for the removal hearing on June 13, 2001. She thereafter had no contact with the service provider, her attorney, or the DHS until she contacted the DHS in early November 2001.
On September 14, 2001, the State filed petitions to terminate both parents' parental rights to the three children. Karla was represented by counsel. In an October 5 "Stipulation and Record of Pre-Hearing Conference" the parties by counsel agreed the termination hearing would be held November 29, 2001, at 1:30 p.m. and waived personal service of further notice of hearings. The State nevertheless served Karla with notice of the termination petitions and termination hearing by publications of October 17, 24, and 31, 2001.
Karla surrendered to the police in early November 2001 to serve her prison term, as her conviction had apparently earlier been affirmed on appeal. She called the DHS from the Scott County Jail on November 7. She informed the DHS that her sister was going to adopt the children and would be calling. In discussing the children's status she said she was glad they were safe and maybe they should stay where they were. She stated she had not contacted the DHS earlier because she felt the children needed a better place to live. She asked for pictures and letters from the foster parents and was informed that once her parental rights had been terminated she would not have contact with the children. It thus appears clear the pending termination proceeding and impending hearing were discussed with Karla and that she was aware of them.
The termination hearing was held November 29, 2001. Karla was not present but was represented by counsel. At the hearing, Karla's counsel informed the court she had been notified by DHS that Karla had turned herself in because her appeal had been denied and she was going to be arrested. Karla had not called her to inform her of this. Counsel stated she had not had contact with Karla prior to the hearing because by the time she found out Karla had been incarcerated and went to the jail to see her Karla had already been transferred to Oakdale. The court asked if Karla had been notified of the termination hearing and her counsel stated that she had been. The hearing went forward. Following hearing the juvenile court terminated both parents' parental rights to the children under Iowa Code sections 232.116(1)(b), (c), (d), (e), (h), (j), and (k) (2001). The court found Karla had been notified of the petition and hearing by publication.
Karla appeals the termination of her parental rights alleging (1) the court did not have jurisdiction of her because she was not personally served, (2) she was denied her constitutional right to due process of law, and (3) her counsel was ineffective on several grounds. The termination of Albert, Sr.'s parental rights is not at issue in this appeal. Karla does not claim the evidence against her was insufficient to support termination, and only appeals on procedural grounds. We review termination proceedings de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Both the State and the guardian ad litem for the children argue error was not preserved on the issues of lack of personal jurisdiction and denial of Karla's due process rights. Generally an issue must be presented to and passeduponby the trial court before it may be raised and adjudicated on appeal. Benavides v. J.C. Penney Life Ins. Co. 539 N.W.2d 352, 356 (Iowa 1995). This is true even if the issue is constitutional in nature. State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982). A motion pursuant to Iowa Rule of Civil Procedure 1.904(2) seeking to enlarge or amend findings and conclusions of the trial court is essential to preservation of error when a trial court fails to resolve an issue, claim, defense, or legal theory properly submitted for adjudication. State Farm Mut. Auto Ins. Co., v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984). This rule has been held to apply to termination proceedings. In re A.R., 316 N.W.2d 887, 889 (Iowa 1982).
Neither Karla's claim that the juvenile court lacked jurisdiction of her person because notice of the proceeding and hearing was served on her by publication nor the issue of any alleged violation of her right to due process of law was presented to or passed upon by the trial court. Nor did Karla file a motion pursuant to rule 1.904(2) asking the court to address these issues. Accordingly, we find that error was not preserved on these issues. See In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (holding, in CINA proceeding, that constitutional and statutory challenges were not preserved by failing to file a rule 1.904(2) motion).
Karla also argues on appeal that her counsel was ineffective for (1) failing to advise the court there had not been personal service upon her, (2) failing to move for a continuance so she could be personally present for the hearing and confront witnesses against her, and (3) failing to cross-examine the State's witnesses. We properly address these claims pursuant to In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988) finding "Since there is no procedural equivalent to postconviction relief for proceedings to terminate parental rights . . . direct appeal is the only way for appellants to raise the issue." In re J.P.B., 419 N.W.2d at 390.
The juvenile court's finding that Karla was given notice by publication strongly suggests it was well aware of the fact she had not been personally served. It would serve no useful purpose for counsel to advise the court of that of which the court was already aware.
Termination proceedings are civil, not criminal, and thus no Sixth Amendment constitutional protections are implicated. Id. (citing In re D.W., 385 N.W.2d 570, 579 (Iowa 1986)). Therefore, there is no constitutional right to effective assistance of counsel in such proceedings. Nevertheless, because due process requires counsel appointed under a statutory directive to provide effective assistance, we have applied the same standards adopted for counsel appointed in a criminal proceeding to termination counsel. Id. Accordingly, in order to establish an ineffective assistance claim Karla must prove that her counsel's performance was deficient and actual prejudice resulted from this deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); In re D.W., 385 N.W.2d 570, 580 (Iowa 1986).
It is not necessary to determine whether counsel's performance was deficient before examining the prejudice component of an ineffective assistance claim. See In re D.P., 465 N.W.2d 313, 316 (Iowa Ct. App. 1990) (finding that because court had affirmed termination of mother's parental rights on other grounds she could not show she was prejudiced even if her counsel breached an essential duty). Therefore, we may affirm the termination based on a failure to prove prejudice without deciding whether counsel failed to perform an essential duty. Id. The test for prejudice is whether counsel's failures worked to Karla's actual and substantial disadvantage. State v. Kraus, 397 N.W.2d 671, 673 (Iowa 1986). Karla must show a reasonable probability exists that but for her trial attorney's unprofessional errors the result would have been different. Strickland, 456 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. A reasonable probability is one sufficient to undermine our confidence in the outcome. Id.
We find Karla has failed to prove prejudice stemming from her counsel not advising the court she did not receive personal service, not securing her presence at the trial, or not cross-examining witnesses. The record contains overwhelming evidence justifying termination of Karla's parental rights and she does not contend otherwise on appeal. The juvenile court noted seven separate grounds warranting termination, all conclusively demonstrative of Karla's inability to properly care for her children due to her serious, long-term substance abuse problems. Karla makes no suggestion as to how her presence would have in any manner affected the evidentiary record or the outcome. Karla has failed to carry her burden to prove, by a preponderance of the evidence, that but for her counsel's alleged errors the result of the termination proceeding would have been different.
Furthermore, Karla has failed to allege with any specificity what additional testimony or evidence she would have presented if she had been present at trial, or what her attorney should have presented through cross-examination of State's witnesses to detract from the State's strong case for termination or change the result of the trial. In complaining of the adequacy of an attorney's representation, it is not enough to simply claim that counsel should have done a better job. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (citing State v. White, 337 N.W.2d 517, 519-20 (Iowa 1983)). An applicant must not only state specific ways in which counsel's performance was inadequate, but also how competent representation probably would have changed the outcome. Id. Karla's claims of ineffective assistance are simply too general in nature for us to address. Id.; see also State v. White, 337 N.W.2d 517, 519-20 (Iowa 1983) (same).
We note that the State in fact did not present witnesses, but rather presented only documentary evidence.
Based on our de novo review of the record and for all of the reasons set forth above, we conclude Karla has failed to prove that but for her counsel's alleged failures there exists a reasonable probability the outcome of the termination proceeding would have been different. She has not preserved error on the remaining issues. The juvenile court's termination of Karla's parental rights to her three minor children is affirmed.