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 quasicriminal 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.