Opinion
No. 3-879 / 03-1705.
Filed December 10, 2003.
Appeal from the Iowa District Court for Linn County, Douglas S. Russell, Judge.
A mother appeals from a juvenile court order terminating her parental rights to two children. REVERSED AND REMANDED.
Judith A. Amsler, Cedar Rapids, for appellant-mother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Harold Denton, County Attorney, and Kelly Kaufman, Assistant County Attorney, for appellee-State.
Henry Keyes of Keyes Law Offices, Cedar Rapids, for appellee-father.
Michael Lindeman, Cedar Rapids, guardian ad litem for minor children.
Considered by Huitink, P.J., and Zimmer and Miller, J.J.
Dena is the mother of eight-year-old Denzel and three-year-old Latrell. Following a September 22, 2003 hearing the juvenile court entered a September 25 order terminating the parental rights of Dena, of Denzel's father, and of Latrell's father. Dena appeals. The fathers do not appeal. We reverse that part of the juvenile court order terminating Dena's parental rights and remand for further proceedings.
Dena raises the following three claims of error by the juvenile court:
The trial court erred in not scheduling a new trial upon the mother's rescission of her release of custody and consent to termination of parental rights.
The State did not establish by clear and convincing evidence that the children can not be returned to the mother's home at this time.
Termination of the mother's parental rights is not in the children's best interest.
Finding merit to the first of these three claims, we do not address the remaining two.
On the morning of the September 22 termination hearing Dena signed two documents of four pages each, one concerning Denzel and one concerning Latrell. In those documents Dena released custody of the children to the Department of Human Services (DHS), consented to the termination of her parental rights, stated that the purpose of the documents was to permit the children to be placed for adoption, and acknowledged that the documents provided legal grounds for termination of the parent/child relationship. The documents further provided that Dena could change her mind and revoke the release within ninety-six hours by filing with the court a petition to have the release and consent revoked. Although the releases of custody and consents to termination had not been accepted by the DHS at the commencement hearing, they were accepted that same day and were offered and admitted into evidence.
Dena did not attend the termination hearing, apparently because she had executed the described documents. Her attorney, Ms. Amsler, did attend. After the State's direct examination of its first witness, the following occurred:
THE COURT: Ms. Amsler, you may cross-examine.
MS. AMSLER: Your Honor, based on the fact that my client signed consents this morning, I have no questions at this time. However, I would like to reserve the right to recall the witness. If within the next 96 hours my client would revoke her consent, I would like the opportunity to reopen this testimony.
THE COURT: If the consent is revoked, we will have a hearing set and all counsel would have an opportunity to call and examine witnesses.
Following presentation of evidence counsel for the parties made brief closing statements and the court then made the following statement:
THE COURT: All right. Well, the matter will be submitted. I'm going to keep the record open concerning the DHS signatures on the mother's consent forms.
Also, we obviously will not enter a ruling until the 96-hour time period has been expired, and we will enter a ruling appropriate to the facts after that time has expired.
On September 24 Dena filed a document in which she stated she had "changed my mind about signing over my parental rights" and wished to proceed "to trial." On September 25 the juvenile court entered its order. The order includes the following:
Dena . . . signed consents to termination of her parental rights on September 22, 2003. On September 24, 2003, within the time period provided by the Code of Iowa she rescinded the consents. Accordingly, termination cannot be based on Section 232.116(1)(a), the Code.
The juvenile court proceeded to terminate Dena's parental rights, finding that the statutory grounds for termination pursuant to Iowa Code sections 232.116(1)(f) (2003) (Denzel) and 232.116(1)(h) (Latrell) had been proven and that termination was in the children's best interests.
Dena claims the juvenile court erred in not scheduling a new trial when she rescinded her releases and consents. The State asserts that Dena failed to preserve error on this claim. It argues there is "no evidence in the termination order that the Court was presently aware that the mother desired additional hearing on the issue of termination," and that she "waived her right to this challenge on appeal when she did not file a 1.904 motion (or similar motion) after the termination order was filed without further hearing."
We cannot agree with the State's view that the juvenile court was not aware Dena desired additional hearing. The language of the documents Dena signed allowed her to revoke her releases and consents within ninety-six hours. At the termination hearing Dena's attorney sought and secured the juvenile court's agreement and order that if Dena revoked within ninety-six hours it would set a further evidentiary hearing. Its September 25 order, which was entered substantially before the ninety-six hours expired, makes it clear the court was award of Dena's timely — filed revocation, and Dena's statement in the revocation that she wished to proceed "to trial" makes it clear she desired additional hearing.
We also do not agree with the State's assertion that Dena was required to file a Iowa Rule of Civil Procedure 1.904 or similar motion to preserve error on her present claim. Issues must of course ordinarily be raised and decided by the district court before we will decide them on appeal Meier v. Senecaut III, 641 N.W.2d 532, 537 (Iowa 2002). When the district court fails to rule on an issue properly raised by a party the party must file a motion requesting ruling in order to preserve error for appeal. Id. Although the claim or issue does not actually need to be used as the basis for the trial court's decision in order to be preserved, the record must at least reveal the court was aware of the claim or issue and litigated it. Id. at 540.
Dena properly raised the issue of a further hearing in the event she revoked her release and consent by presenting the issue during the termination hearing. The juvenile court in fact addressed the issue and decided it, ruling that if Dena timely revoked her consent and release it would set a further evidentiary hearing. The issue was thus raised, the juvenile court was aware of it, and the juvenile court decided it. Dena does not seek reversal on an issue that was not raised, was not considered, or was not decided by the trial court. Rather, she seeks reversal on the basis that the juvenile court's action in ordering termination without scheduling a further hearing directly conflicted with and contravened a decision and ruling it in fact made on an issue that she had raised and the trial court had decided. We conclude Dena was not required to file a motion after the juvenile court's September 25 ruling in order to preserve the asserted error.
Although a motion was not necessary, we strongly suggest that counsel always consider an immediate motion asking the trial judge for appropriate relief to correct a purported error such as the one at issue here. Appeals that may well be unnecessary in cases such as this no doubt significantly increase the costs of litigation, including the time and expense incurred by the Attorney General and by privately retained or court-appointed attorneys and guardians ad litem. Interests of judicial economy are also far better served by giving the trial court the opportunity to correct a purported error such as the one at issue here, an error that was in all likelihood the result of mere oversight by a busy trial judge attempting to promptly rule on a submitted matter.
As noted above, Dena claims the juvenile court erred in not scheduling a new trial when she rescinded her releases and consents. She asserts that under the facts of this case the juvenile court's failure to reschedule trial violated her rights to due process of law. She asserts a new trial should be set on the merits. We believe that if the juvenile court erred as Dena claims, her request to "reopen the testimony" in the event of her revocation, together with the juvenile court's ruling that it would "have a hearing set" in that event, call for a continuation of the hearing that was started rather than calling for a "new trial." For the reasons that follow we conclude that the juvenile court erred as Dena claims.
A parent has a fundamental liberty interest in the care, custody, and control of his or her child, and the child has a reciprocal interest in the relationship. In re R.K., 649 N.W.2d 18, 20 (Iowa Ct.App. 2002). The State has the right to terminate a parent/child relationship, but must meet due process requirements in doing so. In re D.E.D., 476 N.W.2d 737, 739 (Iowa Ct.App. 1991).
[P]ersons faced with forced dissolution of their parental rights have a more critical need for procedural protection than do those resisting State intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
In re S.R., 548 N.W.2d 176, 177-78 (Iowa Ct.App. 1996) (quoting Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606 (1982)). "Notice of the hearing and an opportunity to be heard appropriate to the nature of the case is the most rudimentary demand of due process of law." Stubbs v. Hammond, 135 N.W.2d 540, 543 (Iowa 1965).
[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976) (citation omitted). The private interests that will be affected, the interest of both Dena and her children in their parent/child relationship, are fundamental interests of utmost importance. A large risk of an erroneous deprivation of those interests will exist if a decision is made without presentation of evidence by Dena, and, conversely, the probable value of a full evidentiary hearing to a correct decision is high. Finally, the State would appear to have a two-fold interest. First, it has an interest in minimizing the time and expenses required in the case. Although continuation of the hearing entails additional time and expense, it would not seem that the total time and expense of a combined initial and further hearing should be substantially greater than if Dena had appeared and contested termination at the initial, September 22 hearing. Second, the State itself, just as Dena and the children, has a substantial interest in a correct decision, which will be greatly facilitated by a full hearing on the merits.
Dena requested that if she revoked her release and consent within the specified ninety-six hours the record be reopened to allow her to present evidence. The juvenile court agreed to her request and stated on the record that in the event of such a revocation it would set a hearing at which all parties could present additional evidence. Dena timely revoked her release and consent. We conclude the juvenile court's action in proceeding to terminate her parental rights without providing her the opportunity for the agreed-to and promised additional hearing was fundamentally unfair and thus deprived her of due process of law.
We reverse the part of the juvenile court's September 25, 2003 order that terminates Dena's parental rights, and remand for further proceedings consistent with this opinion.