Opinion
No. 2-766 / 02-0031.
Filed December 11, 2002.
Appeal from the Iowa District Court for Polk County, DONNA PAULSEN, Judge.
Mother appeals from the juvenile court order terminating her parental rights to the three children. AFFIRMED.
Tiffany Koenig and Christopher Kragnes, Sr., Des Moines, for appellant-mother.
J. Michael Mayer, Des Moines for father.
Thomas J. Miller, Attorney General, Mary Pippin, Assistant Attorney General, John Sarcone, County Attorney, and Celene Coffman, Assistant County Attorney, for appellee.
Joseph Renzo of Babich, Goldman, Cashatt and Renzo, P.C., Des Moines, for minor child.
Considered by SACKETT, C.J., and VOGEL and MAHAN, JJ.
Charlene, the mother of David, born in January of 1988, Debra, born in March of 1989, and Douglas, born in May of 1992, appeals from the juvenile court order terminating her parental rights to the three children. Charlene contends on appeal that (1) she received ineffective assistance of counsel at the termination hearing, and (2) the termination is not in the children's best interests. We affirm.
The scope of review in termination of parental rights cases is de novo. See In re M.N.W., 577 N.W.2d 874, 875 (Iowa Ct.App. 1998). The grounds for termination must be proven by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 830 (Iowa Ct.App. 1997).
Charlene contended she did not receive effective representation at the termination hearing. She contended her trial attorney failed to file a witness list or subpoena witnesses for trial. Though termination of parental rights proceedings are civil, not criminal, no Sixth Amendment constitutional protections were implicated. But because due process requires counsel appointed under a statutory directive to provide effective assistance, the Iowa Supreme Court has applied the same standards adopted for counsel appointed in a criminal proceeding. In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988); In re D.W., 385 N.W.2d 570, 579 (Iowa 1986). Since there is no procedural equivalent to postconviction relief for proceedings to terminate parental rights, and because counsel's failure to object might in itself constitute ineffective assistance, direct appeal is the only way for appellants to raise the issue. J.P.B., 419 N.W.2d at 390.
We found the record before us insufficient to allow us to address this claim and remanded to the juvenile court for the purpose of taking further evidence on the issue. On remand the juvenile court scheduled a hearing as directed by this court for November 1, 2002. At the time of the hearing Charlene appeared with counsel who requested a continuance because she had only been able to communicate with Charlene by mailing to her mother a letter on October 12 and October 18 of 2002. She further related that Charlene did not communicate with her until the day of the hearing. The juvenile court denied the request for continuance. Charlene was allowed to testify though no witness list had been filed. She also was allowed to testify without objection as to the witnesses she would call and the nature of their testimony. At the conclusion of the hearing the juvenile court found that its December 2001 order terminating parental rights should be affirmed. That order and a transcript of the November 1, 2001 hearing have been delivered to the court. The record made on remand is sufficient for us to now address Charlene's claim of ineffective assistance of trial counsel. We find no need to ask for further briefing.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984) requires the party claiming ineffective assistance of counsel to show (1) that counsel's performance was deficient, and (2) that actual prejudice resulted. Unless both showings are made, the claim must fail. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; J.P.B., 419 N.W.2d at 389. Our scrutiny of the trial attorney's performance must "be highly deferential," see id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694, and must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [party] must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689, 104 S.Ct. at 2066, 80 L.Ed.2d at 694-95; J.P.B., 419 N.W.2d at 389; D.W., 385 N.W.2d at 579-80.
After a review of Charlene's testimony as to the witnesses she would have called and her statements as to the areas on which they would give testimony we find she has failed to prove her trial attorney was ineffective in not calling them, and furthermore she suffered no prejudice by their not testifying at the termination hearing. We affirm on this issue.
Charlene does not challenge the finding that the grounds for termination were proved by clear and convincing evidence. She does contend that it is not in her children's best interest to terminate their parental rights. Charlene correctly advances there is a bond between her and her children. At the time of the termination hearing they were thirteen, twelve and nine. They were protective of and loyal to their mother. We operate under no false conception that termination of parental rights necessarily means that the children will suddenly find themselves in a perfect adoptive home and that the problems heretofore associated with their unhappy childhood will immediately vanish. Nor do we fail to recognize that the children will carry the scars of the separation from their mother as well as from the unfortunate things that happen to them that resulted in their being removed from her care.
That said, we find that termination is in the children's interest. They were removed from Charlene's care in April of 2000. At the time Charlene had a serious problem with the use of illegal substances and particularly methamphetamine. She was given at least two opportunities for treatment and was unable to complete either. She had used methamphetamine just prior to the termination hearing, and at the hearing on remand the juvenile judge was of the opinion that she was high, and from our review of her testimony we are inclined to agree with this conclusion. There is no evidence that she is equipped to care for the children. In fact, a review of the record causes concern as to whether she is able to care for herself. Weighing all factors it is clear that the children's interests are better served by termination, and we find no reason to reverse the juvenile court's order directing that Charlene's parental rights to the three children be terminated.