               IN THE SUPREME COURT OF IOWA
                               No. 18–0947

                         Filed November 30, 2018


IN THE INTEREST OF M.D., K.T., G.A., AND S.A.,
Minor Children.

vs.

K.A., Mother,
      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Ida County, Patrick H. Tott,

Judge.



      An incarcerated parent appeals an order by juvenile court

terminating her parental rights.       DECISION OF THE COURT OF

APPEALS VACATED; JUVENILE COURT DECISION REVERSED AND

REMANDED.



      Robert B. Deck of Deck Law PLC, Sioux City, for appellant.



      Thomas J. Miller, Attorney General, Kathryn K. Lang, Assistant

Attorney General, Meghann Cosgrove-Whitmer, County Attorney, and

Kristal L. Phillips, Assistant County Attorney, for appellee.

      Lesley D. Rynell, Public Defender, Sioux City, guardian ad litem for

minor children.
                                         2

CADY, Chief Justice.

       In this appeal, we must decide the extent to which an incarcerated

parent is entitled to participate from prison by telephone in a hearing to

terminate parental rights.       The juvenile court permitted the parent to

participate in the hearing by telephone but only to give testimony and

entered an order terminating parental rights following the hearing. On

appeal, the court of appeals affirmed the decision of the juvenile court.

On further review, we vacate the decision of the court of appeals, reverse

the decision of the juvenile court, and remand the case for an expedited

hearing consistent with the procedure set forth in this opinion.                 We

conclude an incarcerated parent is entitled to participate from a prison

or jail facility in the entire hearing for termination of parental rights.

       I. Background Facts and Proceedings.

       The juvenile court in Ida County terminated the parental rights of

a mother to her five children on May 22, 2018, following a hearing. The

children had been removed from the mother’s care prior to the hearing

primarily due to her chronic drug and alcohol abuse.                She had used

methamphetamines off and on for years and was convicted and

sentenced to prison in 2010 for manufacturing methamphetamine. The

mother consumed and manufactured methamphetamine in the presence

of the children, and her drug addiction adversely impacted her ability to

parent and attend to the needs and development of her children. 1 The

children were in the care of their respective fathers at the time of the

termination hearing.


       1One of the most serious consequences for young children raised by opioid and
methamphetamine addicted parents is the dramatic impact on brain development. See
Asher Ornoy et al., Developmental Outcome of School-Age Children Born to Mothers with
Heroin Dependency: Importance of Environmental Factors, 43 Developmental Med. &
Child Neurology 668, 672–73 (2001).
                                      3

       The mother was incarcerated in a jail facility in Winner,

South Dakota, at the time of the termination hearing.          She had been

arrested in South Dakota on multiple felony charges involving possession

of   controlled   substances   with   intent   to   deliver,   possession   of

methamphetamines, and other crimes alleged to have occurred in three

different counties in South Dakota. Prior to the termination hearing, the

mother moved for a continuance due to her imprisonment or,

alternatively, requested to participate in the hearing by telephone.

       The juvenile court denied the motion for a continuance.              It

concluded the resulting delay would not be in the best interests of the

children. Instead, it granted the mother’s alternative request to appear

at the hearing by telephone, but only to present her testimony and to be

cross-examined. The juvenile court, however, directed that she present

her testimony at the close of the State’s case-in-chief to allow her counsel

to inform her prior to testifying of the nature of the evidence presented by

the State in support of the termination.

       Counsel throughout the hearing represented the mother. After the

State concluded the presentation of its evidence, the mother conferred

with her counsel and then presented her testimony. At the conclusion of

the telephone call, the attorneys presented their closing arguments. The

juvenile court subsequently entered a written order terminating the

mother’s parental rights.

       On appeal, the mother claimed the process provided by the

juvenile court for her to participate in the termination hearing deprived

her of her rights to confront witnesses, assist in cross-examination of

witnesses, and hear the evidence offered by the State.         She identified

numerous findings of fact made by the juvenile court in the juvenile

order that were based on evidence submitted by the State that she
                                           4

claimed was incorrect and was unable to refute due to the limitations on

her ability to participate in the hearing.

       The State acknowledged the better practice may have been to allow

the mother to participate by telephone in the entire hearing, but argued

the procedure followed by the court satisfied the minimum requirements

of due process.      The court of appeals found the procedure was “good

enough” under its precedence, although it too acknowledged the “better

practice” would have been to do more to give the mother a greater

opportunity to participate in the hearing. 2

       The mother requested, and we granted, further review. She asks

that we establish the procedure for juvenile courts in this state to follow

in conducting hearings to terminate parental rights of parents who are

incarcerated. She requests a new hearing under a procedure that gives

her an opportunity to participate in the entire hearing.

       II. Scope of Review.

       Our review of termination of parental rights proceedings is de novo.

In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). Although we are not bound

by the juvenile court’s findings of fact, “we do give them weight,

especially in assessing the credibility of witnesses.”              In re D.W., 791

N.W.2d 703, 706 (Iowa 2010).               Constitutional claims, such as the

deprivation of due process, are also reviewed de novo. P.M. v. T.B., 907

N.W.2d 522, 530 (Iowa 2018).


       2The  court of appeals identified the issue on appeal as whether the juvenile
court violated the mother’s procedural due process rights by restricting her
participation at the hearing. The State also framed the issue in its brief on appeal as a
due process claim, and we granted further review under that framework. After we
granted further review and asked the State to file a response, the State argued for the
first time that the mother failed to preserve error specifically as a due process claim.
We decline to address this contention so late in the judicial process. Furthermore, any
sound resolution of the issue in this case necessarily requires us to rely on
considerations based on due process.
                                         5

      Moreover, our review of a district court’s denial of a motion for

continuance is for an abuse of discretion.        State v. Clark, 814 N.W.2d

551, 560 (Iowa 2012). A court abuses its discretion when “the decision is

grounded on reasons that are clearly untenable or unreasonable,” such

as “when it is based on an erroneous application of the law.” In re A.M.,

856   N.W.2d   365,    370     (Iowa    2014)   (quoting   Office    of    Citizens’

Aide/Ombudsman v. Edwards, 825 N.W.2d 8, 14 (Iowa 2012)).

      Most   importantly,      “our    fundamental   concern”       in    review   of

termination of parental right proceedings “is the child’s best interests.”

In re J.C., 857 N.W.2d 495, 500 (Iowa 2014).

      III. Analysis.

      The cornerstone of the analysis of the issue presented in this case

is due process of law. See U.S. Const. amend. XIV, § 1; Iowa Const. art.

I, § 9.   The protections provided people under the constitutional

guarantee of due process are fundamental to society. These protections

include procedural safeguards for people who face state action that

threatens a protected liberty or property interest. Bowers v. Polk Cty. Bd.

of Supervisors, 638 N.W.2d 682, 690 (Iowa 2002). Once the law finds a

protected interest to exist, the question turns to what process or

procedure the law must provide the person. In re C.M., 652 N.W.2d 204,

212 (Iowa 2002). Generally, three competing interests have shaped the

contours of this protection.

      First, the private interest . . . affected by the [proceeding];
      second, the risk of an erroneous deprivation of such interest
      through the procedures used, and the probable value, if any,
      of additional or substitute procedural safeguards; and
      [third,] the Government’s interest, including the function
      involved and the fiscal and administrative burdens that the
      additional or substitute procedural requirement would
      entail.
                                      6

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976); see In

re C.M., 652 N.W.2d at 212.        These factors identify the interests and

concerns involved and draw upon evidence and analysis to give a specific

meaning to due process.

         We have said that parental termination hearings involve state

action that threatens to deprive parents of their liberty interests in the

care, custody, and control of their children. In re C.M., 652 N.W.2d at

211.     Thus, the broad issue we address in this appeal turns on how

much process is due to incarcerated parents who face a hearing to

terminate their parental rights.

         Procedural due process plays a significant role in the overall

operation of our justice system. The way a justice system treats people

who enter it must be as just and fair as the court decisions made by its

judges.      This understanding shines greater light on the critical

importance of procedural fairness of a court system and the need for

courts to ensure fairness in the process of justice itself.

         The mother in this case asked for due process in the form of a

continuance of the termination hearing or, alternatively, an opportunity

to participate in the hearing by telephone.       This claim illustrates the

challenge in achieving procedural due process. The outcome involves a

careful balancing of the personal interest of litigants, the ability of the

court system to accommodate and provide safeguards for litigants, and

the broad interests of the government to both provide safeguards and

protect the interests of all.   The requested procedure also applies to a

final hearing on the merits of the action.         Unlike a hearing on an

application for postconviction relief, the parent has not yet had his or her

day in court. The hearing involves a final adjudication of the rights at

stake.
                                    7

      A. Continuance of the Hearing. A continuance of a termination

hearing until an incarcerated parent is able to attend may be helpful to

the parent, but the delay that accompanies such continuances may be

detrimental to the best interests of children. See In re L.L., 459 N.W.2d

489, 495 (Iowa 1990) (indicating children must not be forced to wait for

responsible parenting). The focus of child welfare in this country, and

Iowa, is now on permanency, and continuances of court hearings to

accommodate parents might offend this goal. See In re C.B., 611 N.W.2d

489, 493 (Iowa 2000) (explaining the Adoption and Safe Family Act of

1997 refocused the goals of child welfare cases by its increased emphasis

on children’s health and safety and mandate that children be placed in a

permanent home as early as possible). The juvenile court in this case

understood this potential harm and sought to strike the balance

demanded by the Due Process Clause by allowing for a telephone

appearance at the hearing.

      The State suggests a continuance is not even a procedural option

for a juvenile court in termination hearings when the parent is not

incarcerated in the same county as the court. It claims a court may only

order a person confined in a penitentiary or jail to appear in a civil case

to give testimony in a court in the county where the person is

imprisoned. See Iowa Code § 622.82 (2017). The State also points out

this statutory limitation is the foundation of the rule that has been

followed in Iowa, previously articulated by the court of appeals, and

applied by the juvenile judge in this case that incarcerated persons only

need to receive advance notice of a hearing, be represented by counsel at

a hearing, and be given an opportunity to present testimony orally by

telephone.   See Webb v. State, 555 N.W.2d 824, 826 (Iowa 1996)

(applying the rule to postconviction-relief proceedings and citing In re
                                     8

J.S., 470 N.W.2d 48, 52 (Iowa Ct. App. 1991), holding the same is true

involving the termination of parental rights).

      We find it unnecessary to address the State’s statutory argument.

Section 622.82 generally applies to persons incarcerated in this state.

The mother in this case was not confined in Iowa. Furthermore, Iowa

Code section 232.112 specifically requires parents be given “an

opportunity to be heard” in a termination hearing.     Nevertheless, the

motion for continuance made by the mother in this case did not ask the

juvenile court to order her appearance in court at a future hearing while

incarcerated. Additionally, the mother did not ask us to recognize a due

process right for incarcerated parents to be physically present at a

termination hearing. See In re Termination of Parental Rights of Heller,

669 A.2d 25, 32 (Del. 1995) (recognizing no due process right for an

incarcerated parent to be present at a hearing to terminate parental

rights); In re J.P.B., 509 S.W.3d 84, 97 (Mo. 2017) (recognizing no

constitutional right of incarcerated parents to attend a termination

hearing); St. Claire v. St. Claire, 675 N.W.2d 175, 177–78 (N.D. 2004)

(concluding an incarcerated parent has only a limited right to appear in

person at a hearing to terminate parental rights). Accordingly, we review

the juvenile court’s denial of the motion for continuance in this case

under an abuse-of-discretion standard and find ample reasons that show

the juvenile court properly exercised its discretion to deny the

continuance.     See In re Involuntary Termination of Parent–Child

Relationship of K.W., 12 N.E.3d 241, 244–47 (Ind. 2014) (identifying and

applying eleven factors, typically used in consideration of a motion to

transport an incarcerated parent, to review the exercise of discretion in

denying a motion to continue a termination hearing). The mother made

no claim that she would be unable to participate meaningfully in the
                                             9

termination hearing by telephone, with the physical presence of counsel

at the hearing.         On the other hand, the delay associated with a

continuance    of   a    hearing     until       the   physical   appearance   of    an

incarcerated parent can be achieved could very well be contrary to the

best interests of children and our nation’s policy.                  Considering all

relevant factors, the balance of the competing interests support the

mother’s   alternative     request     to    participate     by   telephone,   not    a

continuance.    The fighting issue turns on whether the limitations

imposed by the juvenile court on the mother’s participation in the

hearing by telephone comply with due process.

      B. Participation in Hearing by Telephone.                       Generally, an

incarcerated parent who is unable physically to attend a termination

hearing must be given the opportunity to participate in the hearing by

alternative means.        In re Baby K., 722 A.2d 470, 472 (N.H. 1998)

(concluding due process does not require an incarcerated parent’s

physical presence at the termination hearing “provided the parent is

otherwise afforded procedural due process at the hearing”); In re Adoption

of J.N.F., 887 A.2d 775, 781 (Pa. Super. Ct. 2005) (holding a trial court

must give an incarcerated parent the ability to meaningfully participate

in a termination proceeding if the parent desires to contest the

termination petition). Some courts have concluded that due process is

satisfied when an incarcerated parent is afforded the opportunity to

participate in the entire termination hearing by telephone from the

prison. Orville v. Div. of Family Servs., 759 A.2d 595, 599 (Del. 2000)

(holding the family court should have afforded the incarcerated mother

an opportunity to participate by phone for the entire hearing and citing

its prior decision in Heller, 669 A.2d at 32, as concluding the same

proposition); In re Baby K., 722 A.2d at 473 (finding the incarcerated
                                    10

father’s inability to hear the proceedings via telephone “increased the risk

of an erroneous determination”).     These courts stress that meaningful

participation in a parental termination case requires actual knowledge of

the testimony and documentary evidence offered in support of the

petition for termination.   See Orville, 759 A.2d at 599.    Parents often

have exclusive and particular knowledge of the evidence offered by the

state to support the termination petition and need to hear it to

understand the evidence needed to make an effective response.         Id. at

600.   It is a concept fundamental to a system of justice.            These

observations make the parent’s interests in appearing by telephone for

the entire hearing compelling. See Santosky v. Kramer, 455 U.S. 745,

753–54, 102 S. Ct. 1388, 1394–95 (1982) (recognizing procedural

protections for parents facing termination of rights to their children are

more critical than for parents resisting state intervention into ongoing

family matters). Moreover, the full-participation standard has given rise

to a further requirement for juvenile courts to implement substitute

procedures and accommodations when circumstances surface to impugn

the ability of a parent to hear and participate in the entire hearing. See

Orville, 759 A.2d at 600.   The substitute procedures center on a brief

continuance of the hearing to provide the parent a transcript or digital

reproduction of those portions of the hearing that the parent did not hear

over the telephone prior to testifying by telephone.    See id. (offering a

variety of safeguards that can be utilized to protect an incarcerated

parent’s due process rights). They seek to give a parent the substantial

equivalence of full participation. See In re Termination of Parental Rights

to Idella W., 708 N.W.2d 698, 702–03 (Wis. Ct. App. 2005) (recognizing

alternative proceedings must be “functionally equivalent to personal

presence” (emphasis omitted)).
                                         11

      Other jurisdictions, on the other hand, are more deferential to the

limitations inherent in the authority of courts to order prisoners in other

states to be available to participate in an entire hearing. They permit

limited participation by telephone without additional safeguards if

justified by other circumstances based on a balancing of the Mathews

factors.   See In re D.C.S.H.C., 733 N.W.2d 902, 910 (N.D. 2007)

(recognizing the importance of parent’s participation in entire proceeding,

but declining to remand in part due to the court’s inability to compel the

out-of-state   correctional   facility   to   allow   incarcerated   parent   to

participate in entire hearing); see also In re Involuntary Termination of

Parent–Child Relationship of C.G., 954 N.E.2d 910, 921–23 (Ind. 2011)

(reviewing the approaches followed by courts in other jurisdictions).

      We acknowledge the process due in each case is flexible depending

on the particular circumstances.         In re A.M.H., 516 N.W.2d 867, 870

(Iowa 1994). We also acknowledge the procedure followed by the juvenile

court in this case provided some due process for the incarcerated

mother. Yet, the competing interests involved simply do not justify the

limitations imposed on full participation.

      In termination hearings, the flexibility of due process should only

work to identify a substitute procedural safeguard for incarcerated

parents who are unable to participate by telephone for the entire hearing.

It does not justify a rule that only allows a parent to participate in the

hearing to the extent of testifying. We therefore reject a rule that limits

the telephone participation of an incarcerated parent in a hearing to

terminate parental rights to giving testimony.

      Instead, we adopt the standard that juvenile courts in this state

must give incarcerated parents the opportunity to participate from the

prison facility in the entire termination hearing by telephone or other
                                     12

similar means of communication that enables the parent to hear the

testimony and arguments at the hearing. The interests of the parent, the

child, and the state support this opportunity. In particular, it serves the

compelling interest of the parent to hear the evidence offered in support

of a termination petition and to respond effectively to the evidence. We

agree with the observations by other courts that parents normally have

unique and exclusive knowledge of evidence concerning the termination.

After all, their conduct is at issue.     The risk of error is too great if a

parent does not have the opportunity to hear this evidence and to

formulate a response to it.

      The opportunity to participate by telephone means the juvenile

court must preside over the proceedings in a manner that will best meet

this standard. It will require the type of technology commonly used in

courtrooms today, with a dose of cooperation from prison officials. We,

of course, recognize that circumstances may arise that will challenge the

juvenile court’s ability to enable a parent to participate in the entire

hearing, such as restrictions imposed by prison officials limiting the

ability of the incarcerated parent to be available for the entire hearing.

See Orville, 759 A.2d at 597 (involving out-of-state prison that would not

allow incarcerated parent to participate in entire hearing); In re

D.C.S.H.C., 733 N.W.2d at 908 (explaining juvenile court could not

compel out-of-state prison to compel incarcerated parent to participate in

entire hearing); In re Baby K., 722 A.2d at 472 (remanding due to

incarcerated parent’s inability to hear proceedings via telephone

connection). The problems can be particularly acute when out-of-state

correctional officials decline to make a parent available for the entire

hearing. The authority of the juvenile court to direct out-of-court officials

to comply with the hearing process is limited. See In re D.C.S.H.C. 733
                                      13

N.W.2d at 908. This limitation, however, does not abate the continuing

role of due process.

      In   the   event   prison   officials   from   other   states,   or   other

circumstances, do not permit the standard to be met, the juvenile court

shall provide an alternative process that allows the parent to review a

transcript of the evidence offered at the hearing. In this instance, the

court must direct an expedited transcript of those portions of the hearing

that were closed to the parent be prepared and given to the parent to

review prior to testifying by telephone, along with all exhibits admitted

into evidence. This alternative means of participation not only permits

the parent to testify by telephone or teleconference after having an

opportunity to review the record, but to recall witnesses who testify for

the state for additional cross-examination and to present other testimony

and documentary evidence at the hearing. Orville, 759 A.2d at 600.

      We recognize this requirement will likely add additional expense

and require additional time to complete the termination process, but not

more than other existing procedural requirements needed to ensure

fairness in hearings where so much is at stake. It is in the best interests

of children for the court process to proceed without delay, but it is also in

the best interests of children that their parents have a full and fair

opportunity to resist the termination of parental rights. The potential for

error is enhanced if a parent is not informed of the evidence presented in

support of the termination.       Furthermore, time needed for courts to

complete a hearing consistent with the notions of due process is not the

type of delay that is contrary to the best interests of children. This same

understanding applies to any expenses associated with the process of

providing parents with a transcript. Transcripts are commonly prepared

and used in our justice system, and using them as an alternative
                                            14

safeguard in a termination hearing is not an administrative burden for

the state. A true and accurate record has always been a fundamental

component of justice and can be used in many ways to promote

confidence in a justice system. Additionally, time expended to prepare a

transcript for an incarcerated parent during a termination hearing will

reduce     the   time     needed     to   file   the   transcript      for   the   appeal.

Furthermore, technology now allows transcripts to be prepared much

faster than in the past, and some juvenile courts are now equipped with

digital recording. Finally, the expense of producing a transcript or other

record can be assessed as court costs.

       In the end, the standard now established in this opinion for

juvenile courts to follow in termination hearings involving incarcerated

parents is compatible with what a justice system should do for all

litigants who need a reasonable accommodation. More importantly, the

role of the juvenile judge will continue to be the important driver of

procedural fairness expected of courts.

       Judges who preside over parent termination hearings must first

seek to arrange for the incarcerated parent to participate in the entire

hearing by telephone, teleconference, or other similar means, and only

need to resort to the alternative procedure in response to uncooperative

out-of-state prison officials after first seeking their cooperation. 3 Thus,

the role of a juvenile judge to seek cooperation in managing the hearing

becomes part of due process.              Judges are leaders and must at times

exercise leadership to help achieve justice.                  This leadership means

juvenile judges may need to confer with prison officials prior to

        3The burden remains with the attorney for incarcerated parents to coordinate

their telephonic participation at the hearing. See Iowa Ct. R. 61(10). Nevertheless, our
judges are facilitators of justice for all who utilize our court system. In that sense, it is
important that they aid in ensuring parents are provided the appropriate due process.
                                        15

termination hearings to explain the importance of the court procedures

and the need for their cooperation to help assure procedural justice. The

authority of a court does not just come from the issuance of an order. It

also can be found by creating an understanding of justice for others to

see and respond. Justice, in the end, is not just for courts to give people.

It is for all, and for all to give.

       Upon review of the current procedure, we conclude juvenile court

judges must follow a different procedure moving forward. First, what has

been acknowledged as the better practice over the years will now be the

standard practice. Juvenile judges must give incarcerated parents the

opportunity to participate by telephone in the entire hearing. Second, if

the attorney representing the incarcerated parent is unable to obtain the

cooperation of prison officials to make the incarcerated parent available

for the entire hearing, the juvenile court must communicate with the

prison officials to explain the importance of participation by the parent

and the benefits of avoiding the alternative procedure.      Finally, if the

efforts of the juvenile court are unsuccessful in giving the parent an

opportunity to participate in the entire hearing, the juvenile judge must

follow the alternative procedure that gives the incarcerated parent the

opportunity to review the record of the evidence presented by the state at

the hearing before testifying.        In the end, the new procedure simply

means that the juvenile judge or court staff may need to make a phone

call or send a communication, a court reporter may need to prepare a

transcript, and the termination hearing may need to be bifurcated.

       IV. Conclusion.

       We vacate the decision of the court of appeals and reverse the

termination order of the juvenile court.        We remand the case to the
                                   16

juvenile court for additional expedited proceedings in accordance with

this opinion.

      DECISION OF THE COURT OF APPEALS VACATED; JUVENILE

COURT DECISION REVERSED AND REMANDED.

      All justices concur except Christensen, Waterman, and Mansfield,

JJ., who concur in part and dissent in part.
                                    17
                                                 #18–0947, Interest of M.D.
CHRISTENSEN, Justice (concurring in part and dissenting in part).

      I agree with the majority’s holding that the juvenile court did not

abuse its discretion in denying the mother’s motion for continuance. I

also agree this court should vacate the decision of the court of appeals,

reverse the decision of the juvenile court, and remand the case for an

expedited hearing.     But, I cannot agree to the majority’s onerous

mandates for juvenile court judges and their effects on court reporters.

As a matter of sound judicial administration, incarcerated parents

generally should be permitted to participate by phone in the entire

termination hearing as long as it is arranged by the parent’s attorney and

allowed by prison officials. Contrary to the majority’s holding, failure to

do so in this case was simply a lack of sound judicial administration, not

a matter of constitutional due process. This case is about what is in the

best interest of a child and achieving permanency. However, the majority

unduly favors incarcerated parents by creating new, unwarranted

burdens on the juvenile courts that will impede the paramount goal of

protecting the best interests of children who so desperately need a

permanent home.

      I. Error Preservation. First, we should not decide an important

constitutional matter on appeal when the mother failed to preserve her

due process argument for appeal.      By ignoring our error preservation

rules, the majority is reversing the juvenile court for failing to credit an

argument that the mother never made. While the mother did move to

continue and appear by telephone, she did not raise due process

arguments in juvenile court or her petition for appeal.        The motion

argues that “it would be unfair and unjust to hold a hearing regarding

the placement” without her presence, but that is the closest the record
                                     18

comes to any form of due process argument. It is not close enough. See

Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental

doctrine of appellate review that issues must ordinarily be both raised

and decided by the district court before we will decide them on appeal.”).

Due process claims obviously implicate constitutional issues, but neither

the petition on appeal nor application for further review so much as cites

the due process provision of the Iowa Constitution or the United States

Constitution. Therefore, I would not leap to either constitution to decide

this issue on constitutional grounds.

      II. Procedural Due Process.         Second, the juvenile court did not

deprive the mother of her due process rights.            The United States

Constitution and the Iowa Constitution both provide Iowans with due

process protections so that the state shall not “deprive any person of life,

liberty, or property without due process of law.” U.S. Const. amend. XIV,

§ 1; see Iowa Const. art. I, § 9. Procedural due process mandates “notice

and opportunity to be heard in a proceeding that is ‘adequate to

safeguard the right for which the constitutional protection is invoked,’ ”

before the government can deprive anyone of a protected interest. In re

C.M., 652 N.W.2d 204, 211 (Iowa 2002) (quoting Bowers v. Polk Cty. Bd.

of Supervisors, 638 N.W.2d 682, 691 (Iowa 2002)).

      In the past, we have recognized that termination proceedings

“threaten[] to deprive the [parent] of [a] liberty interest in the care,

custody, and control of [his or] her child.”        Id. at 211.   Given the

protected interest implicated in termination proceedings, we balance

three competing interests to determine the constitutional requisites of

the procedure. Id. at 212. These interests are

      (1) the private interest affected by the proceeding; (2) the risk
      of error created by the procedures used, and the ability to
      avoid such error through additional or different procedural
                                      19
      safeguards; and (3) the countervailing governmental
      interests supporting use of the challenged procedures.

Id.
      We examined these competing interests involved in termination

proceedings in In re C.M., in which we held that a parent’s due process

rights were not violated when the parent was limited to raising her claims

of error on appeal in a petition rather than in a brief. Id. at 207, 211–12.

In doing so, we noted the importance of the presence of counsel as a

safeguard for the parent’s due process rights. Id. at 212. Regarding the

first factor, we concluded, “A parent has an interest in the custody of his

or her child.” Id. Regarding the third factor, we explained that it is in

the state’s interest to finalize the termination expediently “so as to meet

the child’s emotional and psychological need for a permanent home, as

well as to control the financial drain on the State caused by needlessly

protracted proceedings.” Id. We also found the parent has an interest

“in a speedy conclusion because of the potential of regaining custody.”

Id. Despite these competing interests, we cannot forget the paramount

interest in termination proceedings is always the best interests of the

child. See, e.g., In re J.C., 857 N.W.2d 495, 500 (Iowa 2014); see also

Iowa Code § 232.1 (2017) (“This chapter shall be liberally construed to

the end that each child under the jurisdiction of the court shall receive,

preferably in the child’s own home, the care, guidance and control that

will best serve the child’s welfare and the best interest of the state.”).

      This case hinges on the second factor, which is “the risk of error

created by the procedures used, and the ability to avoid such error

through additional or different procedural safeguards.” In re C.M., 652

N.W.2d at 212. We have previously held that “[b]iological parents have a

due process right to notice and a hearing before termination of their
                                      20

parental rights may occur.”         In re J.C., 857 N.W.2d at 506.     This

requirement “serves the best interests of the child by ensuring that

subsequent placements are not later upset, to the detriment of the child.”

Id. at 507. Nevertheless, a parent’s right to notice and hearing does not

mean the parent has a due process right to attend the termination

hearing.   Cf. Webb v. State, 555 N.W.2d 824, 826 (Iowa 1996) (per

curiam) (citing In re J.S., 470 N.W.2d 48, 52 (Iowa Ct. App. 1991)).

      A termination of parental rights (TPR) proceeding is a civil matter.

In re D.J.R., 454 N.W.2d 838, 846 (Iowa 1990). In In re J.S., a father

argued the juvenile court violated his due process rights when it denied

his request to be transported from prison to attend the termination

hearing in person, claiming he had the “right to know the charges,

allegations, and evidence presented against him, as well as a right to

have the State present its case first.” 470 N.W.2d at 51. The parent’s

counsel attended the hearing, and the parent’s testimony was presented

by deposition. Id.

      The court of appeals concluded in a published opinion that a

parent is not “deprived of fundamental fairness” so long as the “parent

receives notice of the petition and hearing, is represented by counsel,

counsel is present at the termination hearing, and the parent has an

opportunity to present testimony by deposition.” Id. at 52. In reaching

this conclusion, the court of appeals noted the parent “mistakenly

assert[ed] [S]ixth [A]mendment rights granted to a criminal defendant in

a criminal case. The termination of parental rights is a civil case.” Id. at

51–52.

      In Webb, we cited In re J.S. to support our holding that a

defendant’s due process rights “did not include attendance at the

[postconviction-relief] hearing.”    555 N.W.2d 824, 826 (Iowa 1996). In
                                      21

Webb, the defendant seeking postconviction relief received notice of the

hearing and telephone conference, was represented at the hearing by

counsel, and was provided the opportunity to present his testimony by

telephone.    Id. at 826.    We determined these safeguards adequately

“accorded the fundamental fairness due to him.”        Id. (citing In re J.S.,

470 N.W.2d at 52).

        In this matter, similar to the father in In re J.S. and the defendant

in Webb, the juvenile court provided the mother with procedural

safeguards necessary to afford her fundamental fairness to protect

against the risk of erroneous deprivation of her parental rights. Although

the mother did not participate telephonically for the entirety of the

hearing, her attorney was present on her behalf for the entirety.

Moreover, much of the evidence presented against the mother was well

documented due to her criminal charges and record, as well as her past

interactions with the department of human services due to the children’s

child-in-need-of-assistance (CINA) adjudications.       At the termination

hearing, the State asked the juvenile court to take judicial notice of many

of the same exhibits used in the CINA adjudications. Thus, not only did

the mother have access to the CINA transcripts, but she also had access

to the CINA exhibits, which were the same exhibits used in her

termination hearing. The mother was aware of the claims being made

against her, and many of the facts she disputes on appeal boil down to

credibility determinations the juvenile court was within its discretion to

make.

        At the time the juvenile court issued its TPR order in May, the

mother in this case was facing several criminal charges in the State of

South Dakota, including (1) possession of a controlled substance with

intent to deliver (class 3 felony), (2) possession of a controlled substance
                                       22

(class 5 felony), (3) three counts of possession of drug paraphernalia

(class 2 misdemeanor), (4) possession with intent to deliver a controlled

substance—methamphetamine         (class    4   felony),   (5) two   counts   of

possession of a controlled substance—methamphetamine (class 5 felony),

(6) possession of a controlled substance—clonazepam/klonopin (class 6

felony), (7) distribution of a controlled substance—methamphetamine

(class 4 felony), (8) unauthorized ingestion of a controlled substance—

methamphetamine (class 5 felony), (9) ingesting marijuana (class 1

misdemeanor), and (10) possession of two ounces or less of marijuana

(class 1 misdemeanor).        She also pled guilty to conspiracy to

manufacture in the State of Iowa, a class C felony, and served time in

prison from 2008 to 2010.

      The mother’s failure to maintain a meaningful and significant

relationship with the children is a further indicator of her inability to

prioritize what is in their best interest. She had not had any authorized

contact with her children in the five months preceding her termination

and stopped visiting the children on her own prior to her arrest, though

she did text M.D. from jail. M.D. subsequently attempted suicide and

explained that her mother’s text messages contributed to her suicide

attempt.

      The evidence shows the other children have also sustained

significant emotional harm related to contact with their mother, as K.T.,

G.A., and E.A. have all participated in therapy to address behavioral

concerns. K.T. has reported struggles with her emotions regarding her

mother, and G.A.’s negative behaviors increased when her mother

stopped visiting in January 2018.           The only child who was not

undergoing therapy at the time of the TPR hearing was S.A., who was

less than two years old at the time.
                                     23

       The mother has failed to address her substance abuse issues and

other mental health issues by refusing services offered to her to treat

these issues. Though the mother claimed to have been sober for sixty

days at her TPR hearing, she was also incarcerated during this time.

There is a significant difference between remaining sober in the

structured, monitored prison setting and maintaining sobriety outside of

prison.

       She previously had her parental rights terminated to two other

children due in large part to her substance abuse.       The evidence also

shows the mother engaged in drug use and criminal activity before the

children in this case were removed from her care, and she exposed at

least some of these children to the various men she was using drugs with

before the children’s removal from her care.      Nevertheless, the mother

continues to deny her role in the abuse, claiming the children’s

emotional trauma is the result of her inability to be with them. See In re

L.H., 904 N.W.2d 145, 153 (Iowa 2017) (“An important aspect of a

parent’s care for his or her child is to address his or her role in the abuse

of the child.”).

       Moreover,    the   mother   continued     to   maintain    unhealthy

relationships with a number of men involved with drugs in the past while

the CINA adjudication was pending in this case. Since 2015, she has

relapsed with five different men. She began a relationship with one of

these men in December 2017 and married him the month before the TPR

hearing.

       Notably, once the children were removed from the mother’s care,

all of them were placed with their respective biological fathers in stable

homes.     The fathers continue to participate in services to assist their

children in receiving the treatment they need, and they have been
                                    24

working together to ensure the children spend quality time together as

siblings. The juvenile court correctly found that these placements were

in the best interests of the children and that clear and convincing

evidence supported terminating the mother’s rights. See In re D.W., 791

N.W.2d 703, 706 (Iowa 2010) (“We will uphold an order terminating

parental rights if there is clear and convincing evidence of grounds for

termination under Iowa Code section 232.116.       Evidence is ‘clear and

convincing’ when there are no ‘serious or substantial doubts as to the

correctness or conclusions of law drawn from the evidence.’ ” (quoting In

re C.B., 611 N.W.2d 489, 492 (Iowa 2000)).

      The majority’s holding that the juvenile court violated the mother’s

due process rights because due process “give[s] incarcerated parents the

opportunity to participate from the prison facility in the entire

[termination] hearing” goes too far and ignores settled law that has been

followed for decades in termination proceedings. The majority’s decision

that mandatory participation in the entire hearing provides the parent

with the opportunity to “recall witnesses who testifi[ed] for the state for

additional cross-examination and to present other testimony and

documentary evidence at the hearing,” conflates the rights granted to a

criminal defendant with those afforded to a parent in a civil termination

hearing.   Not only does this threaten the validity of Webb, but the

majority’s decision to provide parents with heightened due process rights

in civil termination hearings also calls into question the validity of our

juvenile rules of procedure.

      Generally, the juvenile court operates under less strict procedural

rules than other courts.       “The tasks of the juvenile court and the

procedures developed are somewhat akin to the tasks and procedures

developed in administrative law.” In re Delaney, 185 N.W.2d 726, 737
                                    25

(Iowa 1971) (Becker, J., concurring specially). For example, rule 8.19 of

our juvenile rules allows the use of hearsay evidence “in whole or in part”

in child-in-need-of-assistance and termination proceedings as long as

“there is a substantial basis for believing the source of the hearsay to be

credible and for believing the information furnished.” Iowa Ct. R. 8.19;

see also Iowa Code § 232.96(4)–(6). However, the majority’s decision to

transform the termination hearing procedures from civil to quasi-

criminal and prioritize the rights of a parent over the best interest of a

child serves only to thwart this court’s commitment to putting the

welfare of Iowa’s children first.

      A number of courts provide juvenile court judges with discretion

on this issue, “while finding that representation by counsel and the

opportunity to appear via deposition are the two key components

required in a due process analysis of a parent who is not in attendance

at a proceeding” to terminate parental rights.          In re Involuntary

Termination of Parent–Child Relationship of C.G., 954 N.E.2d 910, 921–22

(Ind. 2011) (surveying the procedural due process requirements of other

states with regard to a parent’s presence at a termination hearing).

Other states that have departed from this procedure to enhance the

rights of parents have at least provided guidance to aid juvenile courts in

their determination of whether a parent’s attendance is allowed at the

entire termination hearing. For example, the Supreme Court of Nebraska

provides the juvenile court with discretion on this issue but requires the

juvenile court to make its determination after considering the following

factors:

      the delay resulting from prospective parental attendance, the
      need for disposition of the proceeding within the immediate
      future, the elapsed time during which the proceeding has
      been pending before the juvenile court, the expense to the
                                     26
      State if the State will be required to provide transportation
      for the parent, the inconvenience or detriment to parties or
      witnesses, the potential danger or security risk which may
      occur as a result of the parent’s release from custody or
      confinement       to     attend      the     hearing,     the
      reasonable availability of the parent’s testimony through a
      means other than parental attendance at the hearing, and
      the best interests of the parent’s child or children in
      reference to the parent’s prospective physical attendance at
      the termination hearing.
In re L.V., 482 N.W.2d 250, 258–59 (Neb. 1992). Not only is Nebraska in

the same federal circuit as us, but it also has similar statutes governing

children in need of assistance and the termination of parental rights.

Compare Neb. Rev. Stat. Ann. § 43-283 (West, Westlaw through 2d Reg.

Sess. of the 105th Leg.(2018)), with Iowa Code § 600A.7.

      The majority points to a case in Delaware as an example in

support of its position that incarcerated parents should be afforded the

opportunity to participate in the entire termination hearing by telephone

from prison. See, e.g., Orville v. Div. of Family Servs., 759 A.2d 595, 599

(Del. 2000).   However, the majority should not rely on the Delaware

court’s   interpretation   of   Delaware’s    statutes   when     they   are

fundamentally different from Iowa’s statutes on the termination of

parental rights. For example, when a child in Delaware has attained the

age of one year, notice of termination must be given to every alleged

father, whether or not he has registered with the Office of Vital Statistics.

Del. Code Ann. tit. 13, § 8-405 (West, Westlaw through 81 Laws 2018,

chs. 200–453). On the other hand, when a child has not attained the age

of one year, the Delaware Code allows for the termination of parental

rights “of a man who may be the father of a child” without notice if “[t]he

man did not register timely with the Office of Vital Statistics; and [t]he

man is not exempt from registration under § 8-402.”         Del. Code Ann.

tit.13, § 8-404.
                                    27

      In contrast, Iowa does not treat the father of a six-month-old child

any differently than the father of a six-year-old child. They are going to

both receive notice of termination proceedings. Perhaps Orville requires

telephonic participation for the entire termination hearing to make up for

other procedural shortcomings such as notice.         Overall, whatever the

reason, Iowa does not need to have such a hard-and-fast rule. We have

procedural safeguards in our CINA and TPR statutes to adequately

accord fundamental fairness to parents. See, e.g., Iowa Code § 232.88

(requiring reasonable notice be provided to parents, guardians, and legal

custodians when a CINA petition has been filed); id. § 232.89 (providing

the parent, guardian, or custodian identified in the CINA petition with a

right to counsel for all CINA hearings and proceedings); id. § 232.113

(providing the parent identified in a TPR petition with the right to counsel

for all TPR hearings and proceedings); id. § 232.112(1) (entitling parents,

guardians, and legal custodians to receive notice of TPR proceedings).

      Notably, Iowa law authorizes the juvenile court to temporarily

excuse the presence of a parent “when the court deems it in the best

interests of the child.”   Id. § 232.38(2).     This confirms that the best

interests of the child ought to prevail in the event of any conflict with a

parent’s asserted right of attendance.        Does the majority believe this

statute is unconstitutional?

      Finally, the majority’s holding is detached from reality, as it creates

substantial practical problems and provides no guidance to resolve them.

For example, termination hearings often times take several days to

complete and involve numerous witnesses and voluminous exhibits to

review. The Iowa Department of Corrections (DOC) is a state agency that

operates within the executive branch of the government.             Yet, the

majority expects juvenile court judges to exert authority over the DOC’s
                                          28

prison facilities by directing the facilities to divert their resources to

ensure an incarcerated parent participates in the entire hearing by

telephone or a similar means of communication. The problems merely

increase if the parent is in federal prison.                Despite the majority’s

emphasis on the ability of judicial leadership to persuade out-of-state

correctional officials to make the parent available for the entire hearing,

even the best leadership from juvenile judges may not be enough to

ensure this cooperation.

       In those situations when arrangements cannot be made for an

incarcerated parent to participate in the hearing, the majority mandates

juvenile courts to order an expedited transcript of those portions of the

hearing that the parent could not attend prior to testifying by telephone,

along with all exhibits in evidence. The cost of a several-day transcript is

certainly significant. Requiring court reporters to expedite a several-day

trial even more than what is expected in an already expedited proceeding

is unrealistic. 4

       Significantly, attorneys for parents routinely have to prepare their

petitions on appeal without the benefit of a transcript. We have approved

that procedure recognizing the importance of the expedited deadlines for
processing juvenile cases.        See In re L.M., 654 N.W.2d 502, 506 (Iowa

2002). It is not realistic to put chapter 232 procedures on hold while

transcripts are prepared.

       The majority seems to turn a blind eye to the overarching directive

of Iowa Code chapter 232 to achieve permanency for the child in a timely


       4Iowa  is already experiencing a significant shortage of official court reporters.
See, e.g., Iowa Judicial Branch FY 19 Budget Request, https://www.iowa
courts.gov/static/media/cms/2019_budgetrevenues_76551E67392EF.pdf (“There are
6 court reporter positions that have been vacant for over one year and 12 total current
court reporter vacancies.”).
                                          29

fashion and to always place the child’s best interest first. The majority

must be reminded that this is a child welfare proceeding—the

termination of a parent’s rights happens to be the vehicle by which a

child’s permanency is achieved when reunification has not been

successful.     An incarcerated parent’s procedural due process rights

cannot hinder the timely permanency for a child, and they cannot trump

what is in the best interest of a child.

       The facts in termination proceedings change frequently.                This is

especially the case when the juvenile court is dealing with parents who

have a severe substance-related disorder and frequently participate in

drug testing throughout the course of their termination proceedings.

Even a delay of a few weeks could require the state to come back after it

presented its case before the delay and present more evidence.                   This

risks getting into a timely back-and-forth presentation of evidence

between the parties that only delays the proceedings to the detriment of

the children involved. 5

       In any event, if the majority is going to require an incarcerated

parent’s telephonic attendance through the entire termination hearing,

the burden should be on the parent’s attorney—not the presiding judge—
to see that the parent’s right to attend the hearing is being fulfilled. This

aligns with our court-approved standards of practice for attorneys

representing parents in juvenile court.              Specifically, our standards

include the following: “Take reasonable steps to communicate with

        5It also represents a step backward from the vision and principles adopted by

the Child Welfare Advisory Committee and Children’s Justice State Council, which
emphasize the urgency required to provide children with permanency. See Children’s
Justice State Council & Iowa Dep’t of Human Servs., Child Welfare Advisory Comm.,
Iowa’s          Blueprint       for      Forever        Families       1        (2011),
https://idph.iowa.gov/Portals/1/Files/Substance              Abuse/forever_families.pdf
(“Permanence is treated with a sense of urgency as if the child were our own or a child
of a family member.”).
                                       30

incarcerated clients and to locate clients who become absent. Develop

representation strategies. Establish a plan for the client’s participation

in case-related events.”      Iowa Ct. R. 61(10).      These standards also

acknowledge the issues an incarcerated parent’s participation raises and

explains,    “[T]he   attorney    should    make    arrangements    with    the

incarcerated client’s prison counselor to have the parent appear by

telephone” if the parent wishes to participate in the hearing. Id. r. 61(10)

cmt. [5].

      If the prison facility is unwilling to make accommodations for the

client to participate telephonically, or if the client is ineligible for

telephonic    participation      because    of   behavior   infractions    while

incarcerated, then the attorney should make a record of such barriers so

that the juvenile court has an opportunity to address them accordingly.

Nevertheless, it is unrealistic and improper to expect a juvenile court

judge to use his or her judicial authority to advocate for arrangements to

be made for an incarcerated parent to participate in the entire telephone

hearing by telephone.         It is the attorney’s responsibility—not the

court’s—to make arrangements for meaningful participation in court

hearings.

      Further, the court’s decision is certainly creating a slippery slope.

It provides incarcerated parents with greater due process rights than

nonincarcerated parents. While the majority expects our juvenile courts

to make special arrangements and exceptions to accommodate the needs

of incarcerated parents so they can be telephonically present for the

entire termination hearing, it ignores the needs of nonincarcerated

parents.     What happens when a nonincarcerated father is unable to

attend the termination hearing because his employer will not provide him
                                            31

with time off work?6 Is the juvenile court judge now expected to contact

the father’s employer and throw his or her weight around in an effort to

excuse the parent’s absence from work to attend the termination

hearing? Similarly, what happens when the case involves a parent who

is incarcerated and another parent who is not incarcerated and the

juvenile court cannot accommodate both the prison facility’s schedule

and that of the nonincarcerated parent?

       Will this case provide legal authority for an incarcerated parent to

demand the same services by a district court judge and court reporter in

a dissolution, child custody, or paternity action? 7                 If the majority is

saying that an incarcerated parent in a civil matter is entitled to a judge

becoming actively involved in making telephonic arrangements or, in the

alternative, ordering an expedited transcript for the entire hearing, then

it is not a stretch to answer that question with a yes.

       Overall, I agree that the preferable practice in termination

proceedings is to allow the parent to participate telephonically for the

entire termination proceeding if allowed by prison officials.                      Absent



       6In  Iowa, an employee who appears as a witness in obedience to a subpoena “in
any public or private litigation in which the employee is not a party to the proceedings” is
“entitled to time off during regularly scheduled work hours with regular compensation,
provided the employee gives to the appointing authority any payments received for court
appearance or jury service, other than reimbursement for necessary travel or personal
expenses.” Iowa Admin. Code r. 11—63.12 (emphasis added). However, this rule does
not require employers to provide employees with time off and compensation to appear in
obedience to a subpoena in a civil proceeding in which the employee is a party to the
proceedings. Thus, even the power of a subpoena is not enough to prevent a
nonincarcerated parent from being penalized at work for time off resulting from the
parent’s obedience to a subpoena to attend a TPR hearing.
       7Cf.  Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060 (2000) (“[We have
recognized the fundamental right of parents to make decisions concerning the care,
custody, and control of their children. In light of this extensive precedent, it cannot
now be doubted that the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and
control of their children.” (Citations omitted.)).
                                      32

juvenile court findings to support its decision not to allow the parent to

participate telephonically for the entire termination hearing—findings

that do not exist in this case—the juvenile court should have allowed the

mother in this case to participate telephonically for the entire

termination as a matter of sound judicial administration. My agreement

to remand notwithstanding, the majority’s decision to remand this case

to the juvenile court should have stemmed from our supervisory

authority rather than a constitutional mandate.

       This court has inherent supervisory authority to direct the

procedures to be followed in Iowa courts, and “our cases have

consistently recognized the inherent common-law power of the courts to

adopt rules for the management of cases on their dockets in the absence

of statute.” Iowa Civil Liberties Union v. Critelli, 244 N.W.2d 564, 568–69

(Iowa 1976); see also Iowa Const. art. V, § 4 (stating that the supreme

court “shall exercise a supervisory and administrative control over all

inferior judicial tribunals throughout the state”). This allows us to order

what is best without constitutionalizing the matter.      For example, we

have used our supervisory authority to adopt the Pew Commission report

that discussed “Fostering Judicial Leadership” and recommended “that

courts use best practice approaches” to better “the lives of children in

foster care and their families.” Pew Comm’n, Progress on Court Reforms:

Implementation of Recommendations from the Pew Commission on

Children in Foster Care 4, 10 (2009), https://www.pewtrusts.org/-

/media/legacy/uploadedfiles/

phg/content_level_pages/reports/kawcourtsassessmentoctober2009pdf.

pdf;   see   Iowa   Supreme     Ct.    Resolution,   In   Support   of   the

Recommendations of the Pew Commission on Children in Foster Care

(Sept. 10, 2007).     We have also regularly exercised our inherent
                                     33

authority to allow delayed appeals in criminal cases where the defendant

can document that he or she attempted to initiate an appeal before the

deadline, without ever finding that a due process violation actually

occurred. This is done “to prevent unnecessary challenges,” and on the

theory that a valid due process argument “might” be advanced.          See

Swanson v. State, 406 N.W.2d 792, 793 (Iowa 1987).          We have also

“exercised our supervisory authority over the rules of procedure and

evidence to prohibit the use of unstipulated polygraph examinations in

Iowa courts,” although this holding “was not based on due process

grounds.”   See Dykstra v. Iowa Dist. Ct., 783 N.W.2d 473, 485 (Iowa

2010).

      Instead of following settled law or using our supervisory authority

to provide procedural direction, the majority throws a stick of dynamite

into the juvenile court system by adopting a hard and fast approach

holding incarcerated parents are entitled to participate telephonically for

the entire termination hearing or, in the alternative, delaying the child’s

permanency by stopping the trial so that expedited full transcripts can

be prepared. The majority is altering the constitutional landscape in our

state based on an unpreserved constitutional claim without providing a

cogent analysis of controlling constitutional precedent.    “No particular

procedure violates [due process] merely because another method may

seem fairer or wiser.”      In re C.M., 652 N.W.2d at 212 (alteration in

original) (quoting Bowers, 638 N.W.2d at 691). Yet, this appears to be

the basis for the majority’s holding today. For these reasons, I concur in

part and dissent in part.

      Waterman and Mansfield, JJ., join this concurrence in part and

dissent in part.
