                     IN THE COURT OF APPEALS OF IOWA

                                      No. 14-2087
                                 Filed March 25, 2015

IN THE INTEREST OF B.B.,
      Minor Child,

J.B., Mother,
       Appellant.
________________________________________________________________

         Appeal from the Iowa District Court for Cerro Gordo County, Annette L.

Boehlje, District Associate Judge.



         A mother appeals the termination of her parental rights. REVERSED.



         Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,

Mason City, for appellant.

         Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney

General, Carlyle D. Dalen, County Attorney, and Nichole Benes, Assistant

County Attorney, for appellee.

         Mark A. Young, Mason City, attorney and guardian ad litem for minor

child.



         Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, J.

       A mother appeals the termination of her parental rights under Iowa Code

section 232.116(1)(f) (2013).   She argues the district court violated her due

process rights by allowing the State to amend its petition at the termination

hearing.   The mother also alleges the State failed to prove by clear and

convincing evidence that returning her daughter, B.B., to her care would have

resulted in harm. She also argues termination was not in B.B.’s best interest and

termination would be detrimental to B.B. given their bond. Finally, the mother

appeals the removal of the child from the father’s custody.

       We conclude the State’s amendment of its petition to substitute a new

ground for termination during the hearing, over the mother’s objection, violated

the mother’s due process rights. Accordingly, we reverse the order terminating

her parental rights.

I.     Background Facts and Proceedings

       B.B. was eight years old at the time of the termination hearing. The family

first came to the attention of the Iowa Department of Human Services (DHS) in

late 2012 following reports that Joleen was using methamphetamine while caring

for B.B. and an older daughter. Joleen admitted using methamphetamine. The

parties stipulated B.B. should be adjudicated as a child in need of assistance

(CINA) on January 31, 2013, under Iowa Code section 232.2(6)(c)(2) based on

Joleen’s drug use.

       At a contested hearing, the juvenile court ordered B.B.’s removal from

Joleen’s custody in March 2013 after Joleen failed to engage in treatment or
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participate in services. The court granted custody to B.B.’s father and allowed

Joleen supervised visitation. On April 2, 2013, following a dispositional hearing,

the court ordered custody of B.B. to remain with her father and provided visitation

between Joleen and B.B would be at DHS discretion. The order stated: “[The

father] may supervise visitation between [B.B.] and Joleen.      IDHS shall have

discretion to modify placement between B.B.’s parents.” The court also ordered

Joleen to continue random drug testing.

        Joleen’s attendance at drug testing and visitation was sporadic. DHS also

believed Joleen was having unsupervised visitation with B.B. despite the court

order directing her visits with B.B. to be supervised. The court issued an order

on September 18, 2014, that read: “If [the father] allows [B.B.] into Joleen’s care

unsupervised, then she will be removed from his care.” The court removed B.B.

from the father’s custody on September 20, 2014, for violating that order. The

State filed its petition to terminate Joleen’s parental rights on September 26,

2014.

        Following B.B.’s removal from the father’s custody, Joleen began to deal

with her substance abuse issues. In October 2014, Joleen entered in-patient

treatment, though she stayed only four days. But Joleen did complete extended

outpatient treatment.

        The juvenile court held the termination hearing on December 1, 2014, and

issued its order terminating Joleen’s parental rights on December 2, 2014.

Joleen challenges that order in her petition on appeal.
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       We review proceedings terminating parental rights de novo. In re A.M.,

843 N.W.2d 100, 110 (Iowa 2014).            Likewise, where constitutional rights are

implicated, our review is de novo. In re R.B., 832 N.W.2d 375, 378 (Iowa Ct.

App. 2013).

       In its petition to terminate Joleen’s parental rights, the State alleged clear

and convincing evidence existed to support three grounds—Iowa Code sections

232.116(1)(a), (h), and (l). At the termination hearing, following the testimony of

the State’s first witness, B.B.’s guardian ad litem asked to go off the record for a

moment. When the parties came back on the record, the State moved to “amend

the petition to allege subsections E and F instead of the listed petition

allegations.” Joleen’s attorney objected citing his client’s “due process rights to

prepare for a hearing.” The attorney argued: “We can’t simply show up and then

have the bases changed. . . . [W]e prepared based on the petition which has

been sitting there for . . . well over a month . . . .”

       The district court allowed the State to amend the petition to substitute

paragraph (f) to replace the three original paragraphs alleged. The court took the

motion to add paragraph (e) under advisement. The district court terminated

Joleen’s parental rights under paragraph (f) and did not rule on paragraph (e) or

any of the grounds originally alleged in the petition.

       Joleen argues the district court violated her due process rights by allowing

the State to amend the termination petition after the termination hearing had

begun. She argues amending the petition did not allow her to fully prepare for

the hearing, because the elements are different from those originally pled.
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       The State argues the mother was aware of the elements of the amended

petition as paragraphs (h) and (f) are similar and focus on the ability to return the

child to the parent at the time of the hearing. Like the district court, the State

argues the mother knew B.B.’s age and the time the child had been out of her

custody. Therefore, the only issue in dispute was whether B.B. could be returned

to Joleen at the time of the hearing, which is the same in both (f) and (h). In

support of this argument, the State cites an unpublished case from this court, In

re J.J., No. 13-0892, 2013 WL 4009747, at *5 (Iowa Ct. App. Aug. 7, 2013). In

that case, our court found the constitutional rights of a parent were not violated

when the juvenile court allowed the State to amend its petition to add paragraph

(f), because the parent already had notice of the “return to custody” element of (f)

as (h) was already cited in the petition as it related to a different child. Id.

       As we noted in J.J., our court has long held a parent’s due process rights

are violated when the State is allowed to amend the termination petition during

the hearing when the parent has had no prior notice of the ground under which

termination was later found. Id. (citing In re D.E.D., 476 N.W.2d 737, 739-40

(Iowa Ct. App. 1991) overruled on other grounds by In re P.L., 778 N.W.2d 33,

38–39 (Iowa 2010)).

       The parent-child relationship is constitutionally protected under both the

federal and state constitutions. See In re A.M.H., 516 N.W.2d 867, 870 (Iowa

1994). Termination proceedings must meet the standards of the Due Process

Clause. Id. This includes sufficient notice of the termination grounds against the
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parent.   See D.E.D., 476 N.W.2d at 739.             J.J. distinguishes D.E.D. on the

parent’s prior notice of the elements of subsection (f) before the amendment.

2013 WL 4009747, at *5.

       The instant case is controlled by D.E.D. While it is true paragraphs (f)1

and (h)2 are similar, they present distinct grounds under which termination can be

found. Paragraph (h) only applies to children under the age of four. B.B. was

eight years old at the time of the termination hearing and six years old at the time

of the CINA adjudication. Therefore, at no time during the proceedings would (h)

have applied to B.B. Unlike In re J.J., Joleen had no notice she would have to

defend against the “return to custody” element found in (f), because she could

have simply challenged (h) on the age element. In fact, of the three grounds




1
  Iowa Code section 232.116(1)(f) reads:
               The court finds that all of the following have occurred:
               (1) The child is four years of age or older.
               (2) The child has been adjudicated a child in need of assistance
       pursuant to section 232.96.
               (3) The child has been removed from the physical custody of the
       child's parents for at least twelve of the last eighteen months, or for the
       last twelve consecutive months and any trial period at home has been
       less than thirty days.
               (4) There is clear and convincing evidence that at the present time
       the child cannot be returned to the custody of the child’s parents as
       provided in section 232.102.
2
  Iowa Code section 232.116(1)(h) states:
               The court finds that all of the following have occurred:
               (1) The child is three years of age or younger.
               (2) The child has been adjudicated a child in need of assistance
       pursuant to section 232.96.
               (3) The child has been removed from the physical custody of the
       child’s parents for at least six months of the last twelve months, or for the
       last six consecutive months and any trial period at home has been less
       than thirty days.
               (4) There is clear and convincing evidence that the child cannot be
       returned to the custody of the child’s parents as provided in section
       232.102 at the present time.
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alleged in the State’s petition, none was appropriate or could have been proved

by clear and convincing evidence. The State also alleged Joleen had voluntarily

and intelligently consented to termination under section 232.116(1)(a). But she

was contesting termination; several contested hearings had been held since the

court adjudicated B.B. as CINA in 2013.        Finally, the State alleged section

232.116(1)(l), but used statutory language no longer in effect. See In re G.B.,

No. 14-1516, 2014 WL 6682456, at *3-4 (Iowa Ct. App. Nov. 26, 2014) (holding

State is required to prove and the court is required to find grounds under the

current language).

       Termination of parental rights should not be a bait-and-switch proposition,

where a parent prepares a defense against one set of allegations and at the

hearing, over her objection, the State moves forward with a different ground for

termination. Due process requires Joleen to have notice of the grounds under

which termination was eventually decreed.       See D.E.D., 476 N.W.2d at 740.

While Joleen knew the age of her child, she did not have notice the State

intended to terminate under subsection (f) until the hearing. If the State is unable

to prove any of the elements of a statutory ground, the court cannot approve

termination on that basis.     Joleen could have expected the court to deny

termination under subsection (h) based on B.B.’s age and may not have properly

prepared on the element of the present ability of B.B. to be returned home. In

this case, Joleen’s trial preparation was hindered by the significantly flawed

original petition.   Therefore, we reverse the termination of Joleen’s parental
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rights. Because of the due process violation, we need not discuss the other

issues raised in her appeal.

      REVERSED.
