Opinion
No. 3-700 / 03-0949
Filed October 15, 2003
Appeal from the Iowa District Court for Scott County, John C. Mullen, District Associate Judge.
A child's guardian ad litem and the State appeal from a juvenile court order terminating the child's parents' parental rights. REVERSED AND REMANDED WITH DIRECTIONS.
Cheryl Newport of Newport Newport, Davenport, guardian ad litem for appellant-child.
Grant Gordon, Davenport, for mother and father.
William Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellant-State.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
L.C. and P.C. are respectively the mother and father of L.C., age seventeen, N.C., age fifteen, and J.C., who was born October 17, 1989. J.C.'s guardian ad litem appeals from a June 2, 2003 juvenile court order which terminated J.C.'s parents' parental rights with respect to her. Because of our view concerning applicable statutes, we consider only one issue: whether the juvenile court erred in determining parents can initiate termination proceedings under Iowa Code section 232.111(1). Our resolution of this issue requires us to reverse the juvenile court's termination order and thus reinstate L.C.'s and P.C.'s parental rights.
L.C. and P.C. adopted J.C. on October 17, 2000. No party suggested in the juvenile court or on appeal that the fact J.C. is an adopted child does or should have any bearing on our analysis or conclusion, and we similarly conclude it should not.
Just as a parent has a fundamental liberty interest in the care, custody, and control of the parent's child, the child has a reciprocal interest in the relationship. In re R.C., 649 N.W.2d 18, 20 (Iowa Ct.App. 2002). J.C.'s guardian ad litem has standing to pursue this appeal. In re A.L., 492 N.W.2d 198, 200-01 (Iowa Ct.App. 1992).
I. Background facts and proceedings.
L.C. and P.C. became interested in adoption, met with an adoption specialist to learn about the adoption process, attended required classes, and had a home study completed. Ten-year-old J.C. moved into their home in March of 2000. They were aware there would be a "testing period" during which J.C. would test them to see if they really would keep her and go through with the adoption.
Within a month or two after J.C. was in their home L.C. and P.C. became aware that J.C. had earlier been sexually abused, apparently by a foster child. J.C. was seeing a counselor when she moved into L.C. and P.C.'s home. She had been doing so for about a year, dealing with abandonment and perhaps other issues. Those sessions ended in about May 2000. Things went well during the adjustment period. Then during the summer L.C. and P.C. saw some different behaviors by J.C. They had J.C. start seeing a clinical psychologist in August 2000. The sessions continued through November 1, 2000, and dealt with past abuse, anxiety concerning adoption, and coping with loss. By the time of the November 1 session the adoption was complete and L.C. indicated things seemed to be going well.
L.C. and P.C. apparently had concerns about J.C.'s behavior again several months later, and J.C. had a second round of therapy with the clinical psychologist from early May to late June 2001. His diagnostic impression included attention deficit-hyperactivity disorder (ADHD), predominately inattentive type, and oppositional defiant disorder. Further evaluation for possible ADHD did not confirm significant ADHD difficulty. The sessions lasted one hour. J.C. attended the first forty-five minutes and L.C. joined her for the last fifteen minutes of the sessions.
L.C. and P.C. ended the sessions with the clinical psychologist because in their opinion J.C. refused to do what he was asking her to do. They contacted the Iowa Department of Human Services (DHS) which suggested contacting the Adoption Preservation Program of Family Resources. They did so and a therapist from that program, and later a therapist from Family Foundations, saw and worked with J.C.
By the summer of 2002 L.C. and P.C. believed they were unable to address J.C.'s behavior. They believed they were "incompatible" with her and she caused stress to their family. They had many complaints and concerns regarding her attitude and behavior. They decided they should no longer parent J.C., stating a belief that terminating their parental rights to her would be best for her as well as themselves.
We note the record leaves substantial questions concerning the nature, extent, and seriousness of J.C.'s behavioral problems. A foster parent who had J.C. from July 2002 to the May 15, 2003 termination hearing testified at the termination hearing that she and her husband had only "very minimal behavioral problems" with J.C. and J.C. seemed to them to be a pretty typical thirteen-year-old.
On July 10, 2002 L.C. dropped J.C. off at the DHS office, indicating she and P.C. no longer wanted J.C. in their home. DHS workers attempted to dissuade L.C., but were unsuccessful. J.C. was placed in shelter care. On July 17, 2002, the juvenile court entered an order temporarily removing J.C. from L.C. and P.C.'s home and placing her in the temporary custody of the DHS. On July 18, 2002, the State filed a petition seeking to have J.C. adjudicated a child in need of assistance (CINA) and the juvenile court appointed a guardian ad litem for her. A July 29 order placed J.C. in DHS custody for placement in foster care. The juvenile court adjudicated J.C. a CINA on August 26, 2002, pursuant to Iowa Code section 232.2(6)(c)(2) (Supp. 2001) (failure of parents to exercise a reasonable degree of care in supervising the child). The August 26 order continued J.C. in DHS custody. An October 10, 2002 dispositional order continued her in DHS custody for placement in family foster care, as did an April 10, 2003 dispositional review order. The April 10 order scheduled a September 15, 2003 dispositional review and permanency hearing. The CINA case remained open and the CINA orders were in force and effect at all relevant times during the termination of parental rights proceeding discussed hereafter.
On August 15, 2002, even before the juvenile court held an adjudication hearing in the CINA case, L.C. and P.C. filed a petition to terminate their parental rights to J.C. On August 16, 2003, the juvenile court appointed a guardian ad litem for J.C. in the termination case. The State, by the county attorney, filed a motion to dismiss the petition. The motion asserted, among other things, that the parents lacked standing to file the termination petition because "[p]arents are not one of the parties authorized to file for termination pursuant to Iowa Code section 232.111(c)(1) [sic]." J.C.'s guardian ad litem joined in the motion. L.C. and P.C. resisted the motion. The juvenile court summarily denied the motion, stating, "The court determines that [the parents] have a right to file a petition."
L.C. and P.C. declined to have contact or communication with J.C. They refused to participate in offered and available services designed to unify them with J.C. L.C. and P.C. later amended their petition to specify that they were seeking termination pursuant to Iowa Code sections 232.116(1)(a) (parents consent to termination and for good cause desire termination) and 232.116(1)(e) (child adjudicated CINA, removed from home for at least six months, parents have not maintained significant and meaningful contact with the child) (2003). Following a May 15 hearing the juvenile court entered an order on June 2, 2003, terminating L.C.'s and P.C.'s parental rights to J.C. pursuant to those provisions.
J.C. opposed termination and appeals through her guardian ad litem. The State, by the county attorney, joined in and adopted the guardian ad litem's petition on appeal. The State was later allowed to withdraw its appearance and has not further participated in the appeal. L.C. and P.C. have not filed a response to the guardian ad litem's and State's appeal, and have not in any manner participated in the appeal.
II. Scope of review.
We ordinarily review termination proceedings de novo. In re C.D., 611 N.W.2d 489, 492 (Iowa 2000). However, the sole issue we find it necessary to address and decide concerns the juvenile court's interpretation and application of Iowa Code section 232.111(1) (2003). We review issues of interpretation and application of statutes for errors at law. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000). Our review in this case is thus for errors at law.
III. Analysis.
J.C.'s guardian ad litem and the State contend on appeal, as they did in the juvenile court, that L.C. and P.C. were not persons authorized by statute to file the petition seeking termination of their parental rights. Our supreme court has noted that the Iowa Code contains two provisions for the termination of parental rights, chapter 600A and chapter 232, which create separate and distinct causes of action having different applicability based upon the facts, with chapter 600A providing for voluntary termination of parental rights. See In re H.J.E., 359 N.W.2d 471, 473-74 (Iowa 1984). Chapter 232 is the exclusive means for termination when a CINA proceeding is in progress. See id. at 474 (citing and quoting Iowa Code sections 232.109 and 600A.5(2)). Because the CINA case involving J.C. remained open and the CINA orders were in force at all relevant times, chapter 232 was the exclusive means for termination of L.C.'s and P.C.'s parental rights to J.C. if such were to occur.
Iowa Code section 232.111 (2003) provides in relevant part:
1. A child's guardian, guardian ad litem, or custodian, the department of human services, a juvenile court officer, or the county attorney may file a petition for termination of the parent-child relationship and parental rights with respect to a child.
. . . .
3. The department, juvenile court officer, county attorney or judge may authorize any competent person having knowledge of the circumstances to file a termination petition with the clerk of the court without the payment of a filing fee.
Section 232.111(3) has no application to the facts of this case, as L.C. and P.C. did not seek or secure authorization, pursuant to that provision, to file a termination petition. L.C. and P.C. are clearly not the Department of Human Services, a juvenile court officer, or the county attorney, and thus do not qualify to file a petition in any one or more of those capacities. The question that remains is whether L.C. and P.C. were J.C.'s "guardian," "guardian ad litem," or "custodian," as those terms appear in section 232.111(1). Section 232.2 provides definitions for all three terms, "[a]s used in this chapter unless the context otherwise requires."
Section 232.2(21) (2003) provides in relevant part: "` Guardian' means a person who is not the parent of a child . . . ." We readily conclude this definition of "guardian" excludes J.C.'s parents, L.C. and P.C.
In relevant part section 232.2(22) (Supp. 2001) provides: "` Guardian ad litem" means a person appointed by the court to represent the interests of a child in any judicial proceeding to which the child is a party . . . ." Neither L.C. nor P.C. were appointed as J.C.'s guardian ad litem in either the CINA case or the termination of parental rights case. A practicing attorney was appointed as her guardian ad litem in each case. We readily conclude that neither L.C. nor P.C. was J.C.'s guardian ad litem.
Section 232.2(11) (2003) provides:
" Custodian" means a stepparent or a relative within the fourth degree of consanguinity to a child who has assumed responsibility for that child, a person who has accepted a release of custody pursuant to division IV, or a person appointed by a court or juvenile court having jurisdiction over a child. The rights and duties of a custodian with respect to a child are as follows:
a. To maintain or transfer to another the physical possession of that child.
b. To protect, train, and discipline that child.
c. To provide food, clothing, housing, and medical care for that child.
d. To consent to emergency medical care, including surgery.
e. To sign a release of medical information to a health professional.
All rights and duties of a custodian shall be subject to any residual rights and duties remaining in a parent or guardian.
For two reasons we conclude that neither L.C. nor P.C. was a custodian of J.C. First, they do not fit within the list of possible custodians. Chapter 232 does not define the term "stepparent," so we turn to the common meaning of the word. A "stepparent" is "the husband or wife of one's mother or father by a subsequent marriage." Webster's Third New International Dictionary 2237 (1993). Neither L.C. nor P.C. qualifies as J.C.'s "stepparent." "Consanguinity" means: "Kinship; blood relationship; the connection or relation of persons descended from the same stock or common ancestor." Black's Law Dictionary 375 (rev. 4th ed. 1968). Neither L.C. nor P.C. is related to J.C. by consanguinity. Neither L.C. nor P.C. is a person who "accepted a release of custody pursuant to division IV" of chapter 232, which deals with termination of parent-child relationship proceedings. Neither was "appointed by a court or juvenile court having jurisdiction over a child" in either the CINA or the termination proceeding.
Second, the language of the last unlettered paragraph of section 232.2(11) provides in part that the rights and duties of a "custodian" shall be subject to any residual rights and duties remaining in a "parent." This provision distinguishes a "custodian" from a "parent," clearly implying that a "parent" is not a "custodian" unless the parent has been appointed as a custodian under the first unlettered paragraph of section 232.2(11).
We conclude L.C. and P.C. were not among the individuals or entities which section 232.111(1) permitted to file a petition to terminate their parental rights to J.C. and the juvenile court erred in denying the State's and guardian ad litem's motion to dismiss and thereafter proceeding to terminate L.C.'s and P.C.'s parental rights to J.C. We therefore conclude the juvenile court's June 2, 2003 order terminating L.C.'s and P.C.'s parental rights to J.C. must be reversed and the case remanded to the juvenile court with directions to dismiss their petition.
We note that in H.J.E. our supreme court, in analyzing section 232.111, stated that "a parent cannot initiate termination proceedings under chapter 232." H.J.E., 359 N.W.2d at 474. This language in H.J.E. is arguably dicta, as the court affirmed dismissal of a father's chapter 600A termination petition on the ground a CINA case was in progress and under that circumstance chapter 232 was the exclusive means of termination. Our analysis and conclusion in this case is nevertheless fully supported by and consistent with language quoted from H.J.E., as well as the analysis and result in that case.
Section 232.111(3) as it appears in the 2003 Code did not appear in the 1983 Code Supplement which was applied in H.J.E., and thus was not considered by the court in deciding that case. However, as discussed earlier in this opinion, section 232.111(3) has no application to our facts because L.C. and P.C. did not seek or secure authorization to file a termination petition.