Opinion
No. 1-794 / 01-0041.
Filed January 28, 2002.
Appeal from the Iowa District Court for Cerro Gordo County, GERALD W. MAGEE, District Associate Judge.
A mother challenges various juvenile court rulings concerning her daughter. AFFIRMED.
Mark A. Newman, of Newman Law office, Forest City, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Gregg Rosenbladt, Assistant County Attorney, for appellees State.
Timothy Lapointe of Lapointe Lapointe, P.C., Mason City, for minor child.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Jodi, the mother of Jenni, appeals from various juvenile court rulings concerning her daughter. She claims the court should have allowed her to proceed pro se, ordered visitation or other contact with Jenni, and ordered a hearing on prohibiting what Jodi claims is hearsay testimony that she has a mental condition. We affirm.
I. Background facts and proceedings.
In October 2000 Jenni was found to be both a child in need of assistance (CINA) and a delinquent child. The juvenile court placed Jenni in the temporary guardianship and custody of Iowa Department of Human Services (DHS) for placement in the Iowa Juvenile Home. Subsequent acts by Jodi during visitation with her daughter led to visitation being suspended.
On December 12 Jodi requested a review hearing on the suspension of her visitation. The court set the motion for hearing on December 27. On December 20 Jodi filed a handwritten motion for a hearing to consider removal of alleged hearsay statements in the record. The court set the motion for hearing on December 27 with the visitation motion. At the December 27 hearing, Jodi asked to have her court-appointed counsel removed based on a conflict of interest and to represent herself. The court permitted Jodi to explain her position directly to the court. Her attorney testified he believed he and Jodi had a conflict, but he did not believe that they had a legal conflict of interest.
On January 2, 2001, the court issued an order on Jodi's request to proceed pro se in the CINA proceedings. The court denied her request to remove her legal counsel, noting she would be permitted to speak on her own behalf and her attorney would be present for consultation purposes. Jodi then filed a motion requesting that the judge recuse himself because he was not upholding, acknowledging what is right in court, his not acknowledging motions filed for hearings to be held — with legitimate pleas. His pride in himself and not putting the best interest of mother, child, situation first. (His duty first).
The court noted the Jodi had been granted numerous hearings on her or her attorney's requests. The judge found no compelling reason to recuse himself. On January 3 the court issued its ruling on the visitation issue. The court found the Iowa Juvenile Home director was well within his authority, under Iowa Administrative Code rule 441-101, to suspend Jodi's communication with her daughter. The court found the director acted reasonably in suspending communication because Jodi had not cooperated with the Iowa Juvenile Home and had acted in ways that were detrimental to Jenni and her treatment.
II. Claims on appeal.
Jodi raises three claims on appeal. First, she claims the court should have removed her court-appointed counsel and allowed her to proceed pro se in the delinquency and/or the CINA case. Second, she claims the court erred in "delegating the agency the complete discretion to bar communication" with Jenni. Third, Jodi claims she should have been given a hearing on removing certain testimony from the record. The State contends Jodi did not preserve the third issue for review.
III. Discussion.
A. Scope of review. Our review is de novo. In re A.H., 549 N.W.2d 824, 826 (Iowa 1996). We review the facts and law, and adjudicate anew those issues properly preserved and presented. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001).
B. Pro se representation. Iowa Code chapter 232 provides for appointment of counsel for parents in CINA, termination, and family in need of assistance (FINA) proceedings, but not delinquency proceedings. Iowa Code §§ 232.89, 232.113, 232.126 (1999). Such proceedings are civil, not criminal, in nature; therefore no Sixth Amendment constitutional protections are implicated. In re D.W., 385 N.W.2d 570, 579 (Iowa 1986).
Jodi filed a motion asking to be allowed to represent herself. The court held a hearing on the motion and provided her with every opportunity to present whatever testimony or other evidence she desired. Jodi has made the same request in earlier proceedings. As it did in those proceedings, the court allowed Jodi to act in her own behalf, but retained counsel for consultation. The court did not require Jodi to consult with counsel or to have any dealings with counsel. Jodi's subsequent filings were accepted by the court and appropriate action taken on requests, even though they were not in a traditional pleading format and were not couched in accurate legal terms. We find no merit in Jodi's claim. The court allowed her all the privileges of self-representation with the additional benefit of counsel available if she wanted any help. Her passing reference in her brief, "[t]o force her to have a court appointed attorney places her property in jeopardy [because of the potential to have to repay fees and costs]" was not raised in the juvenile court and is not preserved for our review. We affirm the juvenile court on this issue.
C. Restrictions on visitation and communication. The record reveals disputes between Jodi and certain staff at the Iowa Youth Home. The director suspended Jodi's visitation and other communication with Jenni in the interest of not hindering Jenni's treatment. Jodi claims the court's refusal to order the resumption of her visitation, mail, and telephone communication is an unconstitutional delegation of power to the agency.
Iowa Code section 232.52(1) provides the court with authority to place custody of a child with an "individual, agency, department, or facility." Iowa Code § 232.52(1) (2001); s ee In re L.A.J., 495 N.W.2d 128, 129 (Iowa 1992). There is statutory and case law to support the juvenile court's delegation of visitation and other custodial discretion to a supervising agency. See Iowa Code § 232.52(2)(d); In re A.M.H., 516 N.W.2d 867, 869 (Iowa 1994); In re M.M., 483 N.W.2d 812, 813 (Iowa 1992); In re D.S., 563 N.W.2d 12, 13 (Iowa Ct.App. 1997). The director has the authority to suspend visitation and other communication. Iowa Admin. Code r. 441-101.2 and 441-101.4 (1988). Although we recognize Jodi's concern with not having any communication with Jenni, continued contact between Jodi and Jenni would have been detrimental to Jenni's treatment. Accordingly, we affirm the juvenile court on this issue.
D. Striking hearsay in the record. Jodi's final claim is that the court should have granted her requests for a hearing on whether or not to remove hearsay from court documents. Particularly, she objects to the sentence, "It is essential that Jodi participate in an out-patient psychological evaluation to assess her for major psychological dysfunction, personality patterns, and parenting knowledge and skills." Jodi claims this is a diagnosis made of her without ever meeting her. This issue was not ruled on by the juvenile court. Jodi did not file a motion under Iowa Rule of Civil Procedure 179(b). We do not address claims not preserved for our review. Even if it had been preserved, we would find no merit in this claim. The sentence complained of clearly is not a diagnosis, but rather merely a recommendation Jodi be evaluated. We affirm on this issue.
AFFIRMED.