IN THE COURT OF APPEALS OF IOWA
No. 14-2087 Filed March 25, 2015
IN THE INTEREST OF B.B., Minor Child,
J.B., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette L.
Boehlje, District Associate Judge.
A mother appeals the termination of her parental rights. REVERSED.
Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,
Mason City, for appellant.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney
General, Carlyle D. Dalen, County Attorney, and Nichole Benes, Assistant
County Attorney, for appellee.
Mark A. Young, Mason City, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2
TABOR, J.
A mother appeals the termination of her parental rights under Iowa Code
section 232.116(1)(f) (2013). She argues the district court violated her due
process rights by allowing the State to amend its petition at the termination
hearing. The mother also alleges the State failed to prove by clear and
convincing evidence that returning her daughter, B.B., to her care would have
resulted in harm. She also argues termination was not in B.B.’s best interest and
termination would be detrimental to B.B. given their bond. Finally, the mother
appeals the removal of the child from the father’s custody.
We conclude the State’s amendment of its petition to substitute a new
ground for termination during the hearing, over the mother’s objection, violated
the mother’s due process rights. Accordingly, we reverse the order terminating
her parental rights.
I. Background Facts and Proceedings
B.B. was eight years old at the time of the termination hearing. The family
first came to the attention of the Iowa Department of Human Services (DHS) in
late 2012 following reports that Joleen was using methamphetamine while caring
for B.B. and an older daughter. Joleen admitted using methamphetamine. The
parties stipulated B.B. should be adjudicated as a child in need of assistance
(CINA) on January 31, 2013, under Iowa Code section 232.2(6)(c)(2) based on
Joleen’s drug use.
At a contested hearing, the juvenile court ordered B.B.’s removal from
Joleen’s custody in March 2013 after Joleen failed to engage in treatment or 3
participate in services. The court granted custody to B.B.’s father and allowed
Joleen supervised visitation. On April 2, 2013, following a dispositional hearing,
the court ordered custody of B.B. to remain with her father and provided visitation
between Joleen and B.B would be at DHS discretion. The order stated: “[The
father] may supervise visitation between [B.B.] and Joleen. IDHS shall have
discretion to modify placement between B.B.’s parents.” The court also ordered
Joleen to continue random drug testing.
Joleen’s attendance at drug testing and visitation was sporadic. DHS also
believed Joleen was having unsupervised visitation with B.B. despite the court
order directing her visits with B.B. to be supervised. The court issued an order
on September 18, 2014, that read: “If [the father] allows [B.B.] into Joleen’s care
unsupervised, then she will be removed from his care.” The court removed B.B.
from the father’s custody on September 20, 2014, for violating that order. The
State filed its petition to terminate Joleen’s parental rights on September 26,
2014.
Following B.B.’s removal from the father’s custody, Joleen began to deal
with her substance abuse issues. In October 2014, Joleen entered in-patient
treatment, though she stayed only four days. But Joleen did complete extended
outpatient treatment.
The juvenile court held the termination hearing on December 1, 2014, and
issued its order terminating Joleen’s parental rights on December 2, 2014.
Joleen challenges that order in her petition on appeal. 4
We review proceedings terminating parental rights de novo. In re A.M.,
843 N.W.2d 100, 110 (Iowa 2014). Likewise, where constitutional rights are
implicated, our review is de novo. In re R.B., 832 N.W.2d 375, 378 (Iowa Ct.
App. 2013).
In its petition to terminate Joleen’s parental rights, the State alleged clear
and convincing evidence existed to support three grounds—Iowa Code sections
232.116(1)(a), (h), and (l). At the termination hearing, following the testimony of
the State’s first witness, B.B.’s guardian ad litem asked to go off the record for a
moment. When the parties came back on the record, the State moved to “amend
the petition to allege subsections E and F instead of the listed petition
allegations.” Joleen’s attorney objected citing his client’s “due process rights to
prepare for a hearing.” The attorney argued: “We can’t simply show up and then
have the bases changed. . . . [W]e prepared based on the petition which has
been sitting there for . . . well over a month . . . .”
The district court allowed the State to amend the petition to substitute
paragraph (f) to replace the three original paragraphs alleged. The court took the
motion to add paragraph (e) under advisement. The district court terminated
Joleen’s parental rights under paragraph (f) and did not rule on paragraph (e) or
any of the grounds originally alleged in the petition.
Joleen argues the district court violated her due process rights by allowing
the State to amend the termination petition after the termination hearing had
begun. She argues amending the petition did not allow her to fully prepare for
the hearing, because the elements are different from those originally pled. 5
The State argues the mother was aware of the elements of the amended
petition as paragraphs (h) and (f) are similar and focus on the ability to return the
child to the parent at the time of the hearing. Like the district court, the State
argues the mother knew B.B.’s age and the time the child had been out of her
custody. Therefore, the only issue in dispute was whether B.B. could be returned
to Joleen at the time of the hearing, which is the same in both (f) and (h). In
support of this argument, the State cites an unpublished case from this court, In
re J.J., No. 13-0892, 2013 WL 4009747, at *5 (Iowa Ct. App. Aug. 7, 2013). In
that case, our court found the constitutional rights of a parent were not violated
when the juvenile court allowed the State to amend its petition to add paragraph
(f), because the parent already had notice of the “return to custody” element of (f)
as (h) was already cited in the petition as it related to a different child. Id.
As we noted in J.J., our court has long held a parent’s due process rights
are violated when the State is allowed to amend the termination petition during
the hearing when the parent has had no prior notice of the ground under which
termination was later found. Id. (citing In re D.E.D., 476 N.W.2d 737, 739-40
(Iowa Ct. App. 1991) overruled on other grounds by In re P.L., 778 N.W.2d 33,
38–39 (Iowa 2010)).
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IN THE COURT OF APPEALS OF IOWA
No. 14-2087 Filed March 25, 2015
IN THE INTEREST OF B.B., Minor Child,
J.B., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette L.
Boehlje, District Associate Judge.
A mother appeals the termination of her parental rights. REVERSED.
Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,
Mason City, for appellant.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney
General, Carlyle D. Dalen, County Attorney, and Nichole Benes, Assistant
County Attorney, for appellee.
Mark A. Young, Mason City, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2
TABOR, J.
A mother appeals the termination of her parental rights under Iowa Code
section 232.116(1)(f) (2013). She argues the district court violated her due
process rights by allowing the State to amend its petition at the termination
hearing. The mother also alleges the State failed to prove by clear and
convincing evidence that returning her daughter, B.B., to her care would have
resulted in harm. She also argues termination was not in B.B.’s best interest and
termination would be detrimental to B.B. given their bond. Finally, the mother
appeals the removal of the child from the father’s custody.
We conclude the State’s amendment of its petition to substitute a new
ground for termination during the hearing, over the mother’s objection, violated
the mother’s due process rights. Accordingly, we reverse the order terminating
her parental rights.
I. Background Facts and Proceedings
B.B. was eight years old at the time of the termination hearing. The family
first came to the attention of the Iowa Department of Human Services (DHS) in
late 2012 following reports that Joleen was using methamphetamine while caring
for B.B. and an older daughter. Joleen admitted using methamphetamine. The
parties stipulated B.B. should be adjudicated as a child in need of assistance
(CINA) on January 31, 2013, under Iowa Code section 232.2(6)(c)(2) based on
Joleen’s drug use.
At a contested hearing, the juvenile court ordered B.B.’s removal from
Joleen’s custody in March 2013 after Joleen failed to engage in treatment or 3
participate in services. The court granted custody to B.B.’s father and allowed
Joleen supervised visitation. On April 2, 2013, following a dispositional hearing,
the court ordered custody of B.B. to remain with her father and provided visitation
between Joleen and B.B would be at DHS discretion. The order stated: “[The
father] may supervise visitation between [B.B.] and Joleen. IDHS shall have
discretion to modify placement between B.B.’s parents.” The court also ordered
Joleen to continue random drug testing.
Joleen’s attendance at drug testing and visitation was sporadic. DHS also
believed Joleen was having unsupervised visitation with B.B. despite the court
order directing her visits with B.B. to be supervised. The court issued an order
on September 18, 2014, that read: “If [the father] allows [B.B.] into Joleen’s care
unsupervised, then she will be removed from his care.” The court removed B.B.
from the father’s custody on September 20, 2014, for violating that order. The
State filed its petition to terminate Joleen’s parental rights on September 26,
2014.
Following B.B.’s removal from the father’s custody, Joleen began to deal
with her substance abuse issues. In October 2014, Joleen entered in-patient
treatment, though she stayed only four days. But Joleen did complete extended
outpatient treatment.
The juvenile court held the termination hearing on December 1, 2014, and
issued its order terminating Joleen’s parental rights on December 2, 2014.
Joleen challenges that order in her petition on appeal. 4
We review proceedings terminating parental rights de novo. In re A.M.,
843 N.W.2d 100, 110 (Iowa 2014). Likewise, where constitutional rights are
implicated, our review is de novo. In re R.B., 832 N.W.2d 375, 378 (Iowa Ct.
App. 2013).
In its petition to terminate Joleen’s parental rights, the State alleged clear
and convincing evidence existed to support three grounds—Iowa Code sections
232.116(1)(a), (h), and (l). At the termination hearing, following the testimony of
the State’s first witness, B.B.’s guardian ad litem asked to go off the record for a
moment. When the parties came back on the record, the State moved to “amend
the petition to allege subsections E and F instead of the listed petition
allegations.” Joleen’s attorney objected citing his client’s “due process rights to
prepare for a hearing.” The attorney argued: “We can’t simply show up and then
have the bases changed. . . . [W]e prepared based on the petition which has
been sitting there for . . . well over a month . . . .”
The district court allowed the State to amend the petition to substitute
paragraph (f) to replace the three original paragraphs alleged. The court took the
motion to add paragraph (e) under advisement. The district court terminated
Joleen’s parental rights under paragraph (f) and did not rule on paragraph (e) or
any of the grounds originally alleged in the petition.
Joleen argues the district court violated her due process rights by allowing
the State to amend the termination petition after the termination hearing had
begun. She argues amending the petition did not allow her to fully prepare for
the hearing, because the elements are different from those originally pled. 5
The State argues the mother was aware of the elements of the amended
petition as paragraphs (h) and (f) are similar and focus on the ability to return the
child to the parent at the time of the hearing. Like the district court, the State
argues the mother knew B.B.’s age and the time the child had been out of her
custody. Therefore, the only issue in dispute was whether B.B. could be returned
to Joleen at the time of the hearing, which is the same in both (f) and (h). In
support of this argument, the State cites an unpublished case from this court, In
re J.J., No. 13-0892, 2013 WL 4009747, at *5 (Iowa Ct. App. Aug. 7, 2013). In
that case, our court found the constitutional rights of a parent were not violated
when the juvenile court allowed the State to amend its petition to add paragraph
(f), because the parent already had notice of the “return to custody” element of (f)
as (h) was already cited in the petition as it related to a different child. Id.
As we noted in J.J., our court has long held a parent’s due process rights
are violated when the State is allowed to amend the termination petition during
the hearing when the parent has had no prior notice of the ground under which
termination was later found. Id. (citing In re D.E.D., 476 N.W.2d 737, 739-40
(Iowa Ct. App. 1991) overruled on other grounds by In re P.L., 778 N.W.2d 33,
38–39 (Iowa 2010)).
The parent-child relationship is constitutionally protected under both the
federal and state constitutions. See In re A.M.H., 516 N.W.2d 867, 870 (Iowa
1994). Termination proceedings must meet the standards of the Due Process
Clause. Id. This includes sufficient notice of the termination grounds against the 6
parent. See D.E.D., 476 N.W.2d at 739. J.J. distinguishes D.E.D. on the
parent’s prior notice of the elements of subsection (f) before the amendment.
2013 WL 4009747, at *5.
The instant case is controlled by D.E.D. While it is true paragraphs (f)1
and (h)2 are similar, they present distinct grounds under which termination can be
found. Paragraph (h) only applies to children under the age of four. B.B. was
eight years old at the time of the termination hearing and six years old at the time
of the CINA adjudication. Therefore, at no time during the proceedings would (h)
have applied to B.B. Unlike In re J.J., Joleen had no notice she would have to
defend against the “return to custody” element found in (f), because she could
have simply challenged (h) on the age element. In fact, of the three grounds
1 Iowa Code section 232.116(1)(f) reads: The court finds that all of the following have occurred: (1) The child is four years of age or older. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child's parents for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child’s parents as provided in section 232.102. 2 Iowa Code section 232.116(1)(h) states: The court finds that all of the following have occurred: (1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time. 7
alleged in the State’s petition, none was appropriate or could have been proved
by clear and convincing evidence. The State also alleged Joleen had voluntarily
and intelligently consented to termination under section 232.116(1)(a). But she
was contesting termination; several contested hearings had been held since the
court adjudicated B.B. as CINA in 2013. Finally, the State alleged section
232.116(1)(l), but used statutory language no longer in effect. See In re G.B.,
No. 14-1516, 2014 WL 6682456, at *3-4 (Iowa Ct. App. Nov. 26, 2014) (holding
State is required to prove and the court is required to find grounds under the
current language).
Termination of parental rights should not be a bait-and-switch proposition,
where a parent prepares a defense against one set of allegations and at the
hearing, over her objection, the State moves forward with a different ground for
termination. Due process requires Joleen to have notice of the grounds under
which termination was eventually decreed. See D.E.D., 476 N.W.2d at 740.
While Joleen knew the age of her child, she did not have notice the State
intended to terminate under subsection (f) until the hearing. If the State is unable
to prove any of the elements of a statutory ground, the court cannot approve
termination on that basis. Joleen could have expected the court to deny
termination under subsection (h) based on B.B.’s age and may not have properly
prepared on the element of the present ability of B.B. to be returned home. In
this case, Joleen’s trial preparation was hindered by the significantly flawed
original petition. Therefore, we reverse the termination of Joleen’s parental 8
rights. Because of the due process violation, we need not discuss the other
issues raised in her appeal.
REVERSED.