Opinion
No. 2-287 / 02-0209
Filed April 10, 2002
Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis, District Associate Judge.
The mother appeals from an order terminating her parental rights to her four children. AFFIRMED.
W. Eric Nelson of Nelson Law Office, Coralville, for appellant.
Steven G. Klesner of Johnston Nathanson, P.C., Iowa City, for father.
Thomas J. Miller, Attorney General, Tabitha J. Gardner, Assistant Attorney General, J. Patrick White, County Attorney, and Deborah Farmer Minot, Assistant County Attorney, for appellee-State.
Kathryn E. Moreland, Iowa City, for minor children.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Jaime, the mother of Kaylynn, born in July of 1996; Joshua, born in June of 1997; Jacob, born in May of 1998; and James, born in June of 2001, appeals from a January 24, 2002 order terminating her parental rights to the four children. Jaime contends that (1) reasonable efforts were not made to reunite her with the children, and (2) the juvenile court erred in denying her pro se motion for a continuance to allow her to obtain a new attorney. She asks that the order of the juvenile court be reversed or that this court enter an order setting the matter for full briefing. We affirm.
The three older children were born during Jaime's marriage to Rodney. Rodney is not appealing the termination order. Jaime identified the father of the last child, but he could not be located. The Iowa Paternity Registry was checked, and no one had claimed paternity. Publication preceded the termination proceedings, but the named father did not appear or participate.
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 Jaime raises on appeal. Further briefing is not necessary and would only delay disposition of this case.
See Iowa R. App. P. 6.151.
This family initially came to the attention of the Department of Human Services after Jaime asked for assistance. She was living alone with three children in a trailer in Oxford, Iowa. The fourth child had not yet been born. Rodney, the father of the three older children and Jaime's common law husband, had left in the fall of the prior year. He apparently was paying some child support and returned home on occasion. Jaime was living on a limited income and food stamps. There was concern that the children were not adequately fed and that the family was being evicted from their home. There also were concerns that the father of the three older children had engaged in inappropriate sexual contact with the oldest child. Services were authorized to be delivered to the family on August 23, 2000. Attempts were made to contact Jaime, and provision was made to put the children in protective day care. A worker called Jaime on September 12, 2000, and Jaime told the worker she was fired. The agency did not terminate the case. The children were removed from Jaime's care on September 20, 2000 because the children showed signs of injuries, including those from a knife apparently wielded by one of the other children, and because it was determined the children had not been properly fed.
On October 2, 2000, Jaime was scheduled for one-hour weekly visits with the children. In addition, she was provided transportation for the visits. Jaime was consistently present for the visits; however, bad weather and holiday schedules did require some of the visits to be rescheduled.
A petition was filed seeking to have the children found to be children in need of assistance. A pretrial conference was set for November 15, 2000. Jaime was asked to stipulate to the children being found to be in need of assistance. She asked for a trial but in February did stipulate, and an order was entered.
James was born in July. Although Jaime's original intention was to place him for adoption so she could focus her efforts on having her older child returned, she changed her mind after James's birth. An order was entered finding him to be a child in need of assistance and when released from the hospital he was placed in foster care where he has remained. Jaime was granted visitation with him, and she has exercised it.
Jaime first contends reasonable efforts were not made to preserve her family. There is a requirement that reasonable services be offered to preserve the family unit. See In re A.L., 492 N.W.2d 198, 201 (Iowa Ct.App. 1992); In re B.L., 491 N.W.2d 789, 791-93 (Iowa Ct.App. 1992); In re A.W., 464 N.W.2d 475, 478 (Iowa Ct.App. 1990); In re M.H., 444 N.W.2d 110, 113 (Iowa Ct.App. 1989).
The State had the obligation to make reasonable efforts, but it is the parent's responsibility to demand services if they are not offered prior to the termination hearing. In re C.D., 508 N.W.2d 97, 101 (Iowa Ct.App. 1993). There is evidence Jaime asked for a different caseworker. The core of the reasonable efforts mandate is that the child welfare agency must make reasonable efforts to prevent placement or to reunify families in each case. In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App. 1997).
Jaime contends that she asked for a different agency worker to be assigned to her case, but it did not happen. We recognize that from the inception of the agency's involvement there was conflict between the assigned worker and Jaime. There is evidence Jaime asked for another worker to be assigned. However, in assessing Jaime's complaint we note that the family was provided or offered psychological/psychiatric evaluation and treatment, substance abuse evaluation and treatment, treatment and education regarding domestic violence, AEA educational services, play therapy, family-centered services and parent-skill development, protective daycare, transportation assistance, mental health counseling, and supervised visits.
Jamie's contention that reasonable efforts were not made to reunify her with her family is without merit, and we affirm on this ground.
Jaime next contends that the juvenile court should have allowed her continuance to obtain a new attorney. We review a motion for continuance under an abuse of discretion standard and will only reverse if injustice will result to the party desiring the continuance. In re Estate of Lovell, 344 N.W.2d 576, 578 (Iowa Ct.App. 1983). Denial of a motion to continue must be unreasonable under the circumstances before we will reverse. Michael v. Harrison County Rural Elec. Coop., 292 N.W.2d 417, 419 (Iowa 1980).
Jaime's attorney was appointed to represent her in September of 2000. She first made a motion for new counsel on the date of the hearing. All parties had been notified of the hearing, and the witnesses were available. The attorneys for Jaime and Rodney were present as well as the guardian ad litem for the children and their attorney. The juvenile court did not abuse its discretion in refusing to grant a continuance.
Jaime's due process rights were not violated by the juvenile court's refusal to allow her a different attorney at this late date. A birth parent has due process rights at parental termination proceedings. See In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994). Generally, the fundamental requirement of due process is an opportunity to be heard. See id. (citing Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287, 299 (1970)). This may include, among other things, the right to be represented by counsel. Goldberg, 397 U.S. at 268-72, 90 S.Ct. at 1020-22, 25 L.Ed.2d at 299-301. The nature of the process due in parental rights termination proceedings turns on a balancing of three factors: ". . . the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions." A.M.H., 516 N.W.2d at 870 (citing Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 649 (1981) (Blackmun, J., dissenting)).
Where a parent receives notice of the petition and hearing and is represented by counsel, counsel is present at the termination hearing, and the parent has an opportunity to present testimony by deposition, we cannot say the parent has been deprived of fundamental fairness. In re J.S., 470 N.W.2d 48, 52 (Iowa Ct.App. 1991).
A review of the trial record reflects that Jaime's attorney vigorously represented her. No claim of ineffective assistance of counsel at the hearing has been made. In making this statement this court is aware that the attorney filing the petition for Jaime is the same one who appeared with her at trial. There is nothing in the record that would convince us that Jaime's due process rights were violated at the termination hearing. We affirm on this issue.
While not relevant to the termination, the attorney unsuccessfully attempted to contact Jaime for a period after the termination order was filed. He filed a notice of appeal without her signature and outlined his attempts to contact her. Then on February 4, 2002, the attorney, after stating that he had made numerous attempts to contact Jaime but was unable to do so, requested to withdraw. This motion was sustained by the juvenile court on the same day. The petition the attorney filed on Jaime's behalf was filed on February 21, 2002.
AFFIRMED.