Opinion
No. 2-337 / 01-2046.
Filed November 15, 2002.
Appeal from the Iowa District Court for Scott County, MICHAEL W. LIEBBE, Associate Juvenile Judge.
Mother appeals the juvenile court's termination of her parental rights to her three minor children. AFFIRMED.
Cheryl J. Newport and Stephen W. Newport of Newport Newport, Davenport, for appellant.
Thomas J. Miller, Attorney General, Mary Pippin, Assistant Attorney General, William E. Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee-State.
James Clements, Davenport, guardian ad litem for minor children.
Brian Weiler, Bettendorf, for minor children.
Lucy Valainis, Davenport, for maternal grandmother.
Considered by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Mother appeals the juvenile court's termination of her parental rights to her three minor children contending (1) the petitioner failed to prove a statutory basis for termination, (2) the State failed to make a reasonable inquiry and provide her reasonable services, (3) termination was not in the children's best interest, and (4) she was denied her due process rights. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Shawn is the biological mother of Tina, born February 15, 1991, Christopher II, born September 27, 1992, and Cody, born August 10, 1994. The alleged biological father of Tina and Christopher II is Christopher and Ronald is the alleged biological father of Cody. The fathers did not participate in the juvenile court proceedings nor did they appeal the juvenile court's termination order.
Tina, Christopher, and Cody came to the attention of the Iowa Department of Human Services (DHS) in September of 1996 when it was reported there was an ongoing problem with the children being outside the home wandering the neighborhood, including being by a creek and in the street, unsupervised and improperly dressed. In addition, it was alleged that teenagers frequently congregated at Shawn's house to drink and use illegal drugs. The police had responded to twelve different calls to her residence between July 1 and September 27, 1996. This report of denial of critical care and improper supervision was determined to be founded, and was the third such founded report. In October 1996 Shawn was fined following charges of possession of drug paraphernalia and driving without a license. Later the same month the police were called twice to her residence for disturbances. Child in need of assistance petitions were filed by the State for all three children on October 28, 1996. The DHS prepared a case permanency plan for Shawn dated January 14, 1997, providing for the implementation of family centered services. Shawn was advised of the need to complete a substance abuse evaluation and meet with service providers on a regular basis.
Tina, Christopher, and Cody were adjudicated to be children in need of assistance (CINA) under Iowa Code section 232.2(6)(c)(2) (1997) on January 23, 1997. The basis of the adjudication was the repeated failure of Shawn to provide appropriate supervision for her children. The children were placed in Shawn's custody subject to the supervision of the DHS. In March 1997 Shawn reported that she was still unemployed and planning to live with a friend so she wanted the children to stay with her mother until she was ready to resume care. She voluntarily placed the children in the custody of her mother, Connie. In July 1997, following a review hearing the juvenile court placed custody of the children with Connie subject to DHS supervision.
In April 1997 Shawn did undergo a substance abuse evaluation at CADS and it was determined she did not need treatment at that time. However, her attendance at required meetings with service providers through the end of 1997 was sporadic and she continued to be unable to hold down a steady job or maintain a safe and stable residence. In December 1997 Shawn informed her caseworker at Family Resources that she wanted her mother to have guardianship of the children and she no longer desired to participate in services at that time.
Another case permanency plan was prepared by DHS on January 9, 1998. It recommended that guardianship be granted to Connie and services to Shawn be discontinued. A permanency hearing was held and the court entered a permanency order March 31, 1998 appointing Connie as guardian and custodian of all three children. The court also ordered that services no longer needed to be offered to the children.
Over about the next two years several additional founded abuse reports were confirmed and placed on the child abuse registry with both Connie and Shawn listed as perpetrators. The first of these founded reports was in August of 1998 against Shawn for denial of critical care when she was supervising the children and Cody burned his foot and it was left untreated. Another occurred in September of 1999 when Connie left the children with Shawn for the weekend. Shawn then went out drinking and left the children with a special-needs sixteen year old who was later that night arrested and charged with interference with official acts. A report of denial of critical care for lack of supervision was confirmed against both Connie and Shawn based on this incident.
Another child abuse investigation was completed on April 28, 2000 based on incidents which occurred April 1 and 2, 2000, where both Connie and her husband Wayne were intoxicated and Wayne was arrested for domestic assault. Connie was unable to care for the children and they were temporarily placed with another relative. An investigation revealed a history of domestic violence in Connie's home, some of which occurred in the presence of the children. A restraining order was entered against Wayne. Following a substance abuse evaluation Connie was referred for extended outpatient treatment. A report of denial of critical care for lack of supervision was confirmed against Connie and Wayne and placed on the child abuse registry. The children returned to Connie's home after approximately two weeks. Allegations of physical abuse of the children by Connie, and allegations Connie denied the children critical care by failing to provide adequate shelter, were confirmed and placed on the child abuse registry for incidents occurring in June and July 2000.
On July 25, 2000, the juvenile court ordered the children temporarily removed from Connie's custody due to yet another report of denial of critical care for failing to provide adequate supervision, a report that was subsequently founded and placed on the child abuse registry with Connie as the perpetrator. Connie had improperly left the children in Shawn's care, after which Shawn was arrested on outstanding warrants. The juvenile court ordered the children placed in the temporary custody of DHS. It was necessary for police officers to come to Connie's residence to assist with the removal of the children.
The removal of the children was confirmed by the court on August 8, 2000. Shawn was convicted and sentenced for operating while intoxicated on August 30, 2000. She met with both Lutheran Social Services (LSS) and her DHS case worker in September of 2000. She requested visitation with the children. Based on her history Shawn was told she would have to complete a substance abuse evaluation prior to any visitation. Shawn agreed to call CADS for an evaluation but failed to contact either DHS or LSS after the September meeting. Shawn was convicted of fourth-degree theft on November 8, 2000.
A placement hearing was held on December 21, 2000. Summarizing more detailed findings it had made on the record at the time of hearing, in its written order the juvenile court found Shawn continued to be uninvolved and "does not participate in remedial services so that she might be an option for placement of her children." The court further found that Shawn continued to be substance abusive and to live an unstable, dependent lifestyle. Based on her continued behavior the court concluded "[t]he Department under the circumstances has no obligation to provide reunification services to the mother." The court ordered continued custody of the children with DHS and approved the current foster care placements in the December 2000 order. It further ordered continued services be provided to Connie but that the DHS should make concurrent plans for permanency in the event the children could not safely be returned to Connie's care.
In January 2001 Tina disclosed to her foster parents, therapist, and DHS worker that she had been sexually abused by teenage boys who frequented her grandmother's home while she resided there. It was also reported that Christopher and Cody had been sexually abused when Connie and Shawn left them in the care of baby sitters.
Connie ultimately requested her guardianship be ended. Connie and the children's guardian ad litem (GAL) stipulated to an order terminating her guardianship of Tina, Christopher, and Cody, which was entered by the court on February 6, 2001. Shawn filed a motion to set aside the stipulated order terminating the guardianship because she was not given notice that such an order was being presented to the court and she did not stipulate to such termination. Shawn also filed a motion for approval of additional services and efforts in February 2001. In order to insure due process and fairness to Shawn, the court set aside the stipulated order and scheduled a hearing on Connie's request to terminate her guardianship. Shawn was present with counsel for this hearing. Connie was also present and testified she could not handle the children anymore and requested her guardianship be ended and the children be returned to Shawn.
After hearing on the matter the juvenile court entered a written order on March 23, 2001 finding,
The risk of adjudicatory harm cannot be managed sufficiently to maintain the children in the custody of the grandmother because of her inability to provide appropriate care, supervision and shelter for the children. Nor can they be placed with the mother. Her past failure to appreciate the risk of harm presented to the children, as well as her past abusive and neglectful conduct serves as a reasonable basis to request her to participate in an evaluation.
To return the children to the guardianship of the mother now creates an adjudicatory harm or the risk of the same. Nothing has been demonstrated by the mother of her ability to provide appropriate care, supervision and shelter for the children or any willingness to cooperate to achieve those goals.
Shawn filed what she referred to as an "Application for Interlocutory Appeal and Motion for Stay" challenging the juvenile court's denial of her request for additional services and alleging several due process violations. Our supreme court summarily denied Shawn's application and motion on June 25, 2001.
Tina had been refusing all visitation with the family since September 22, 2000, so Connie wrote a letter to her explaining her decision to end the guardianship and asking for a final visit. As Tina's therapist was reading the letter to Tina she became very excited and stated, "I get to be adopted!" When asked by her therapist about the idea of returning to Shawn's care Tina stated she thought it was a very bad idea, "Because [Shawn] will be drunk all day. She was mean to me and she didn't take care of me." Tina did agree to a good-bye visit with Connie and with her brothers but continued to refuse visitations with Shawn. After the final visit with Connie neither of the boys requested any visitation with Shawn nor did they mention her in therapy. According to the GAL all three children were strongly opposed to being returned to Shawn and all of them desired adoption.
The GAL filed a petition to terminate parental rights on June 27, 2001, requesting the parental rights of all three parents be terminated pursuant to Iowa Code sections 232.116(1)(b), (d), and (e). Hearing was held on the matter on October 5, 2001. The juvenile court terminated all three parents' rights to the children pursuant to sections 232.116(1)(c), (e), and (f). The court further found continued contact with the parents would be contrary to the children's best interests and that reasonable efforts had been made to prevent or eliminate the removal of the children from the parental home. Shawn appeals from the termination of her parental rights to Tina, Christopher, and Cody.
An April 24, 2001 amendment to section 232.116(1) added a new paragraph "c" and re-lettered existing paragraphs "c" through "m" as "d" through "n" respectively. See 1997 Iowa Acts ch. 67, §§ 9, 13; Iowa Code § 232.116(1) (Supp. 2001). The petition for termination did not specify whether the statutory provisions relied on were the pre-amendment versions appearing in the 2001 Code or the post-amendment versions appearing in the 2001 Code Supplement. However, the facts alleged and language used in the petition in conjunction with the cited statutory provisions make clear that the guardian ad litem was relying on pre-amendment sections 232.116(1)(b), (d), and (e) as they appear in the 2001 Code.
The juvenile court did not state whether it was ordering termination pursuant to the versions of those provisions appearing in the 2001 Code or the 2001 Code Supplement. However, the 2001 Code Supplement version of section 232.116(1)(c) allows termination if the child is a newborn infant whose parent has voluntarily released custody of the child in accordance with chapter 233. The petition alleges no such facts and the evidence supports no such ground. Further, in its ruling terminating parental rights the juvenile court expressly relied on sections 232.116(1)(e)(4) and 232.116(1)(f)(3), (4). Post-amendment section 232.116(1)(e) contains no subparagraph (4), only subparagraphs (1)-(3). We therefore conclude the provisions relied on by the juvenile court had to be the pre-amendment versions.
II. STANDARD OF REVIEW
We review termination proceedings de novo. Iowa R.App.P. 6.4; In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999). Accordingly, we review both the facts and the law and adjudicate rights anew. In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993). We give weight to the factual determinations of the juvenile court, especially when considering the credibility of witnesses, but are not bound by them. Id. The grounds for termination must be proven by the State by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 831 (Iowa Ct.App. 1997). The children's rights and needs are paramount in termination proceedings and our primary concern is always the best interests of the children. In re A.B., 554 N.W.2d 291, 293 (Iowa Ct.App. 1996).
III. MERITS
The controlling standard applied in cases involving the termination of parental rights is the best interest of the children involved. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981).
We look to the child's long-range, as well as immediate, interests. We consider what the future holds for the child if returned to his or her parents. Insight for this determination can be gained from evidence of the parent's past performance, for that performance may be indicative of the quality of the future care the parent is capable of providing. Our statutory termination provisions are preventative as well as remedial. They are designed to prevent probable harm to a child.
In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998) (quoting In re C.M.W., 503 N.W.2d 874, 875 (Iowa Ct.App. 1993)). It is well established there exists a parental interest in maintaining the integrity of the family unit. Dameron, 306 N.W.2d at 745. This interest, however, is not absolute and may be forfeited by certain parental conduct. Id. The State has a duty to assure that every child within its borders receives proper care and treatment and it must intercede when parents abdicate that responsibility. Id. A good prediction of the future conduct of a parent is to look at their past conduct. In re N.F., 579 N.W.2d 338, 341 (Iowa Ct.App. 1998). The parent's past performance may indicate the quality of care the parent is capable of providing in the future. In re C.K., 558 N.W.2d 170, 172 (Iowa 1997).
Shawn appeals from the termination of her parental rights alleging, (1) the petitioner failed to prove a statutory basis for termination, (2) the State failed make reasonable inquiry as to what services were necessary or to provide her reasonable services in order to prevent the removal of the children, (3) termination was not in the children's best interest, and (4) there were numerous violations of her due process rights. We address these issues separately.
A. Statutory Grounds for Termination
The juvenile court terminated Shawn's parental rights under Iowa Code sections 232.116(1)(c), (e), and (f) (2001). When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds for termination under one of the provisions relied upon by the court to affirm the termination. In re S.R., 600 N.W.2d at 64. We find the record contains clear and convincing evidence supporting termination under section 232.116(1)(e) (children four years or older, adjudicated CINA, removed from home for twelve of last eighteen months or last twelve consecutive months, and cannot be returned home). Accordingly, we need not address the remaining Code provisions relied upon by the juvenile court.
Shawn is correct that the petition did not urge as grounds for termination section 232.116(1)(c) or section 232.116(1)(f). The juvenile court's reliance upon them as grounds for termination was therefore improper and upon our de novo review we give them no further consideration as bases for termination.
Now Iowa Code § 232.116(1)(f) (Supp. 2001).
As the juvenile court stated in its findings of fact, all three children were four years of age or older and the children were all previously adjudicated children in need of assistance in 1997. Therefore, the first two requirements under this subsection are clearly met and not in dispute. Shawn argues on appeal that both subsections (3) and (4) have not been met. We disagree.
Shawn correctly notes that the juvenile court specified section 232.116(1)(e)(4) as a ground for termination, while not only subparagraph (4) must be proved but also subparagraphs (1)-(3) must be proved. However, not only was there no dispute regarding subparagraph (1) and (2), there was very little reasonable dispute concerning subparagraph 3. We find all four elements were proved by clear and convincing evidence.
Under subsection (3) the petitioner must prove by clear and convincing evidence that the children have been "removed from the physical custody of the child[ren]'s parents for at least twelve of the last eighteen months, or for the last twelve consecutive months." Iowa Code § 232.116(1)(e)(3) (2001) (emphasis added). Accordingly, based on the language of the statute, if either of these two time periods is met the petitioner has met its burden. We find the children had been out of Shawn's custody since, at the latest, their removal from Connie's home in early August of 2000. This was approximately fourteen months before the termination hearing, as Shawn apparently concedes in her brief by stating, "Fourteen months had expired at the time of the termination hearing from the time the children were removed from the home in which Mother resided." Therefore, the required time period under section 232.116(1)(e)(3), that the children have been out of the parent's physical custody for the last twelve consecutive months, has been met.
Section 232.116(1)(e)(4) provides there must be clear and convincing evidence that at the present time the children cannot be returned to the custody of their parents as provided in section 232.102. Iowa Code § 232.116(1)(e)(4) (2001). This requirement is met when it can be shown by clear and convincing evidence that the children cannot be returned to the parent because they remain in need of assistance as defined by Iowa Code section 232.2(6). In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct.App. 1995). The threat of probable harm will justify termination of parental rights, and the perceived harm need not be the one that supported the children's initial removal from the home. In re M.M., 483 N.W.2d 812, 814 (Iowa 1992).
Shawn alleges she has made lifestyle changes and the children can now be safely returned to her care, but that the DHS and GAL were unaware of such changes because they did not attempt to obtain any current information regarding her situation. The children were originally adjudicated to be in need of assistance in 1997 due to Shawn's failure to exercise a reasonable degree of care in supervising them. We find little evidence in the record to show a change in Shawn's lifestyle and behaviors over the next four years, despite numerous attempts by the DHS to provide her services from September of 1996 until March of 1998 when permanency was established and custody was transferred to Connie.
In the juvenile court's placement order of December 22, 2000, the court found Shawn continued to be uninvolved, she did not participate in remedial services, she continued to be substance abusive and live an unstable, dependent lifestyle. This determination was based in part on the additional founded abuse reports against Shawn and her convictions for OWI and fourth-degree theft. In the March 2001 "Order on Change of Guardianship" the court found the children could not be placed with Shawn at that time because she had not demonstrated any ability to provide appropriate care, supervision, or shelter for the children or any willingness to cooperate to achieve these goals. The court found that placing the children with Shawn at that point in time would put the children at the same risk of harm which predicated the initial CINA adjudication. In addition, the court agreed with the DHS and LSS that it was reasonable to require Shawn to participate in a substance abuse evaluation before any additional services might be provided to her or supervised visitation allowed.
In the court's order terminating Shawn's parental rights, filed November 27, 2001, the court found that Shawn had done little during the four year period services were provided to her to protect, train, or discipline her children, or provide for even their most basic needs of food, clothing, housing, or medical care. Instead, the court found Shawn was content to let Connie assume all of these responsibilities while she lead her own life without concern for the children's needs.
Based on our de novo review of the entire record, we agree with the findings made by the juvenile court noted above and adopt then as our own. A good prediction of the future conduct of a parent is to look at their past conduct. In re N.F., 579 N.W.2d at 341. The parent's past performance may indicate the quality of care the parent is capable of providing in the future. In re C.K., 558 N.W.2d at 172. The record shows a continuing pattern by Shawn of failing to adequately supervise and provide for her children as well as a failure to follow through on necessary services. She has a history of alcohol abuse, neglect of her children's needs, and failure to appreciate the harm and risk of harm her behavior creates for her children.
There is little indication Shawn has adequately addressed the issues raised at the time of the CINA adjudication, or those that have come to light in the nearly four years since, regarding the neglect and abuse of these children. Therefore, we conclude the children cannot be returned to Shawn's care at the present time because many of the same harms which prompted the court to initially remove them from her care and adjudicate them in need of assistance still exist at the present time. Shawn's parental rights were properly terminated under section 232.116(1)(e).
B. Reasonable Inquiry and Services
Shawn argues the DHS failed to make reasonable inquiry, develop a case plan, or offer her reasonable services toward reunification. Her argument covers the period of time from the entry of the order establishing the guardianship in March of 1998 through the termination hearing in October of 2001. Although the arguments are somewhat unclear and overlapping, we read Shawn's brief as essentially making two separate arguments within this issue regarding two different time frames. First, she argues that following the establishment of the guardianship in March 1998 the DHS and GAL failed to make reasonable inquiry, pursuant to Iowa Code section 232.104(6). Second, Shawn alleges that following the transfer of custody to DHS in July of 2000 the DHS was required to prepare a new case plan and begin providing her additional services pursuant to section 232.102(7). For the following reasons, we find these arguments to be both barred by the doctrine of res judicata and without merit.
Shawn's arguments essentially represent challenges to the March 1998 permanency order and July and August 2000 removal and temporary placement orders. Shawn was represented by counsel at both hearings and was aware of both orders. However, no appeal was taken from either the March 1998 or the July/August 2000 orders. The appeal now before us is not an appeal of any of these orders but an appeal of the order terminating Shawn's parental rights.
Therefore, we conclude the principles of res judicata bar these claims on appeal. In re D.S., 563 N.W.2d 12, 15 (Iowa Ct.App. 1997). Furthermore, Shawn has an obligation to timely challenge the services offered, or the lack thereof, in previous proceedings. Id.; In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994).
Moreover, we are mindful that to allow a party to make untimely challenges to prior CINA proceedings would needlessly delay permanency for the children. We view cases in which the statutory period for patience with a parent has expired with urgency.
In re J.D.B., 584 N.W.2d 577, 581 (Iowa Ct.App. 1998). We find Shawn did not appeal from any of the CINA proceedings and the time for appeal has passed. She cannot challenge deficiencies in the CINA proceedings in this appeal. See id.
However, were we to deal with the substance of Shawn's challenges to the reasonableness of the inquiry and services provided we would find them to be without merit. First, although the GAL clearly could have done a better job of completing his own, independent investigation following the establishment of the guardianship, the DHS did make an adequate investigation as to the status and progress of the children and the GAL conferred with the DHS and reviewed reports by the DHS during this time period. Annual reviews were held by the juvenile court in April of 1999 and 2000 pursuant to section 232.104(6) to ascertain if the best interests of the children were being served. The DHS provided the court with written reports and a case permanency plan at the review hearings. Thus, we find Shawn's contention that reasonable inquiry was not made by the GAL and DHS to be without merit. Furthermore, Shawn's contention that the DHS failed to make any inquiry as to her current status following the establishment of permanency misses the point of the statute and the annual reports, which is to determine the status and progress of the children and to ensure the children's best interest is being served. See Iowa Code § 232.104(6). After the establishment of permanency by appointment of a guardian and custodian the DHS had no further obligation under section 232.104(6) to inquire as to Shawn's status or progress, only the status and progress of the children.
Second, Shawn is correct that Iowa Code section 232.102(7) requires that following the transfer of custody to DHS for placement, the DHS "shall submit a case permanency plan to the court and shall make every reasonable effort to return the child to the child's home as quickly as possible consistent with the best interest of the child." Iowa Code § 232.102(7). That occurred. After the children were removed from Connie's custody and placed with the DHS for placement in foster care in July/August of 2000, the DHS completed a case permanency plan dated August 30, 2000 with the goal of returning the children to the home and placement from which they were removed, placement with Connie. At the placement hearing in December 2000, the court found the DHS was under no obligation to provide reunification services to Shawn due to her continued lack of participation in services, unstable lifestyle, and substance abuse issues. However, services were continued for Connie because the goal, pursuant to section 232.102(7), continued to be to restore placement with Connie.
We conclude the DHS met its statutory obligations to provide reasonable investigation and services to Shawn. Between 1996 and 1998 the DHS provided reasonable efforts to reunify the children with Shawn. After permanency was established with Connie the DHS was no longer required to provide services to Shawn. The DHS made adequate investigation and provided annual reports to the court on the children's progress and well being during Connie's guardianship pursuant to section 232.104(6). Once the children were removed from Connie's custody and custody was transferred to DHS, a new case permanency plan was completed by DHS and every reasonable effort was made to return the children to their relative placement with Connie. Because permanency had earlier been established with Connie, and efforts were being made to return the children to her home and re-establish permanency with her, the DHS was not required at that period of time to also offer or provide services to Shawn designed to facilitate reunification of the children with her.
C. Best Interests
Shawn further claims the juvenile court erred in determining the children's best interests required termination of her parental rights. She alleges she had maintained substantial and meaningful contact with the children and has made lifestyle changes which now make it in the children's best interest for the court not to terminate her parental rights but instead provide her with additional services.
Even if the statutory requirements for termination of parental rights are met, the decision to terminate must still be in the best interest of the children. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). In determining the best interest of the children, the court looks to their long range and immediate interests. In re C.K., 558 N.W.2d at 172. The court must consider the physical, mental, and emotional needs of the children in deciding to terminate parental rights. In re C.W., 554 N.W.2d 279, 282 (Iowa Ct.App. 1996).
For all of the same reasons set forth above we find termination of Shawn's parental rights to be in the best interests of these children. We cannot force them to wait interminably for Shawn to become responsible or stable enough to parent them. "The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems." In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). "Children simply cannot wait for responsible parenting. Parenting cannot be turned off and on like a spigot. It must be constant, responsible, and reliable." In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). A child should not be forced to endlessly suffer the parentless limbo of foster care. In re D.J.R., 454 N.W.2d 838, 845 (Iowa 1990). Children need the stability of permanency and based on the evidence in the record the only way these children can achieve this is to terminate Shawn's parental rights. We find it is in the children's best interest to terminate Shawn's parental rights in order to allow them to achieve the stability, security, and permanency they so deserve.
D. Due Process
Shawn alleges she was denied due process of law because, (1) she was not provided notice of the stipulated, ex parte order terminating Connie's guardianship, (2) the order transferring custody to the DHS did not include a statement informing her that a consequence of the children's removal may include termination of her parental rights, and (3) the court did not continue the termination hearing to allow the children's attorney more time to prepare. We find these arguments to be unpersuasive and without merit.
First, the juvenile court did grant the stipulated order terminating Connie's guardianship without Shawn's presence or any notice to her that the guardianship was being terminated. However, the court later granted Shawn's motion to set aside the stipulated order terminating guardianship and set the matter for hearing. The court then conducted a hearing on the matter on March 21, 2001, at which Shawn was present and represented by counsel. In its March 23, 2001 "Order on Change of Guardianship" the court specifically stated that it had set aside the previous order and set the matter for hearing to insure due process and fairness to Shawn on this issue. Therefore, any possible error or violation of Shawn's due process rights by the court in granting the stipulated, ex parte order was cured by its grant of the motion to set aside such order and the later full-blown hearing on the matter.
Second, Shawn alleges that upon the transfer of custody of the children from Connie to the DHS for foster care placement the court failed to notify her that the consequences of such removal may include termination of her parental rights as required by Iowa Code section 232.102(8). This is simply not the case. The court's "Removal Order/Order Setting Shelter Hearing" of July 25, 2000, when the court removed the children from Connie's home and placed custody with the DHS, states in plain language: "NOTICE TO THE PARENT(S): THE CONSEQUENCES OF A PERMANENT REMOVAL MAY INCLUDE TERMINATION OF PARENTAL RIGHTS WITH RESPECT TO THE CHILD(REN)." Shawn was present and represented by counsel at the August 4, 2000 hearing confirming this removal order. She was also present at the hearing on the change of guardianship on March 21, 2001. The court's order based on this hearing specifically directed that a petition for termination be filed within thirty days. In addition, the March 15, 2001 "Ruling on Motions" ordered that the GAL file a termination of parental rights. Therefore, Shawn was in fact given notice by the court that one possible consequence following the transfer of custody of the children to the DHS was termination of her parental rights. Accordingly, the statutory requirements of section 232.102(8) were met and there was no violation of Shawn's due process rights.
Finally, Shawn argues the children's attorney should have been given more time to prepare for the March 21 hearing. At the March 14, 2001 hearing all of the parties agreed to, and the court approved, Shawn's request to bifurcate the role of GAL and attorney for the children and appoint a separate attorney for the children. At the March 21 hearing Shawn's attorney moved for continuance, asserting the children's attorney had not had time to prepare. The court overruled the motion after questioning Shawn's standing to make the motion on behalf of the attorney for the children.
We also seriously question Shawn's standing, both to make the motion for the children or their attorney in the district court and to assert on appeal what is in effect a claim that the children's due process rights were violated by the court's denial of a continuance. The children's attorney did not move for continuance, only Shawn's attorney did. Assuming, without deciding, that Shawn has standing to make such an argument on appeal, for the following reasons we find the court's denial of a continuance was not prejudicial to the children and was not an abuse of the juvenile court's discretion.
There is no statutory requirement that the court appoint a separate attorney and GAL for the children in termination proceedings. The same person may serve in both capacities. Iowa Code § 232.113(2). However, when the juvenile court is made aware of a potential conflict between the children's best interests, represented by the GAL, and their legal interests, the court may appoint separate counsel for the children to represent their legal interests. In re G.Y., 486 N.W.2d 288, 289 (Iowa 1992); In re J.P.B., 419 N.W.2d 387, 391-92 (Iowa 1988). The potential conflict of interest here stems from the fact the GAL appointed to the children was the person who brought the petition for termination of Shawn's parental rights. Shawn presumably was and is alleging the children were opposed to termination of her parental rights.
Our supreme court has recognized there is some conflict between the role of a GAL and that of an attorney in an ordinary lawyer-client relationship. In re J.P.B., 419 N.W.2d at 391-92. However, the paramount goal of discerning the children's best interests, when the children are not mature enough to make such a determination for themselves, is always controlling in such cases. Id. The children's personal objectives are not controlling. Id. Thus, the apparent conflict can be resolved if the GAL represents the children's best interests while also making the court aware of the wishes of the children. Id. at 392.
While all of the parties agreed to appointment of separate counsel for the children, and the juvenile court appointed counsel, there is little evidence in the record to show that the appointment of counsel for the children was based on any conflict between the children's wishes and the GAL's action in filing the termination petition. In fact, the only evidence concerning the children's feelings about going back to live with Shawn was either negative (Tina stating to her counselor she thought it was a bad idea), or indifferent (the two boys not requesting any visitation with, or talking about, Shawn after their placement in foster care.) We find no evidence in the record that might be seen as suggesting any one or more of the children had desires at odds with the GAL's view of their best interest. Therefore, we conclude the children could not have been prejudiced by the juvenile court denying Shawn's motion for continuance as they were already duly represented by the GAL.
We note further that 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 C.W., 554 N.W.2d at 281. Denial of a continuance will not be reversed on appeal unless it is unreasonable under the circumstances. Id. Additionally, we view termination cases with a sense of urgency due to the importance of stability in a child's life. In re L.L., 459 N.W.2d at 495; In re C.W., 554 N.W.2d at 281. Due to this urgency, a trial court is not obligated to grant a parent's motion for continuance because children simply cannot wait for responsible parenting. Id.
Evidence regarding any alleged conflict of interest was presented to the juvenile court, as demonstrated by the fact it granted bifurcation. However, the court in its sound discretion determined no continuance was necessary. Based on the urgency with which such cases as this are viewed and the fact any evidence of the alleged conflict was apparently before the juvenile court, we find it was not unreasonable under these circumstances for the court to deny the continuance and the court did not abuse its discretion in doing so.
IV. CONCLUSION
For all of the reasons set forth above, based on our de novo review of the entire record, we conclude there is clear and convincing evidence in the record to support the juvenile court's termination of Shawn's parental rights under Iowa Code section 232.116(1)(e) and that termination was in the children's best interests. We further find that the DHS made reasonable inquiry and afforded Shawn reasonable services and efforts toward reunification during the time period the DHS was obligated to provide such services. Finally, we conclude Shawn was not denied her constitutional rights to due process of law. We have considered all issues and arguments presented by Shawn, whether specifically discussed herein or not, and find them to be without merit. We affirm the juvenile court's termination of Shawn's parental rights.