In the Interest of H.R.K. and Due Process: Can a Juvenile Court Terminate Parental Rights Without an Adjudication?

Jean Z. Dickson*

ABSTRACT: In the Interest of H.R.K. the Iowa Court of Appeals upheld a decision to terminate parental rights in part on the basis of the parents' failure to comply with a court-ordered treatment program in which they were required to admit sexually abusing their children.  The parents denied the sexual abuse which was never adjudicated.  This comment proposes that the court erred in concluding that this did not violate the parents' rights to due process.
  

Over the past few decades, reports and allegations of child abuse or neglect have increased tenfold.1  Along with this increase, Iowa has developed a statutory procedure to deal with questions of child abuse and neglect.2  In addition, Congress has zealously acted to address the tremendous increase in abuse cases.3

By the very nature of the problem, reports of suspected child abuse within the family should be investigated with considerable care and caution.4  Questions of due process in parental rights termination proceedings have been examined numerous times by both state courts and the United States Supreme Court.  Iowa, like other states, has recognized the inherent constitutional rights involved in an appeal of the termination of parental rights.5

In In the Interest of H.R.K. (H.R.K.), the Iowa Court of Appeals examined the question of parents' rights to due process in a juvenile court proceeding which ultimately terminated their parental rights.6   H.R.K. specifically addressed the question of due process where the termination was based, in part, on the parents' failure to comply with a court-ordered sexual abuse treatment plan even though the allegations of sexual abuse had never been adjudicated.7  In H.R.K., the other grounds for termination of parental rights are clearly justified and in accord with due process as required in Santosky V. Kramer.8  However, the court avoided any careful analysis of the parents' rights in relation to the court-ordered sexual abuse treatment plan.9  Rather, the dicta stated that to base termination on the parents' failure to comply with this court-ordered therapy would not violate due process.10

This Comment maintains that the Iowa Court of Appeals erred when it concluded due process was not violated by terminating parental rights because the parents failed to comply with a sexual abuse treatment plan.  As long as the justice system plays an integral role in adjudicating children as abused and in modifying or terminating parental rights, the justice system cannot overlook the interests and liberties of the parents.11

This Comment will examine due process under a standard established by the Supreme Court in Santosky v. Kramer.12  In order to ascertain whether due process has been complied with in a termination proceeding, the court must determine whether there was "clear and convincing evidence" that it would be in the child's best interests to not be returned to the parents.  This evidentiary standard of clear and convincing must be identified in light of three counter-balancing interests: (1) the liberty interests of the parents; (2) the risk that an erroneous decision could be made; and (3) the state's interest on behalf of the child.

The facts of H.R.K. suggest that the court made the right decision in terminating parental rights since there were factors in addition to the parents' refusal to admit abuse and attend treatment.  However, dicta in the decision also suggest that the court could have based its decision solely on the fact that the parents failed to comply with the court-ordered sexual abuse treatment plan.  This Comment will examine the child's best interests according to the Santosky standard and propose that to terminate parental rights on this basis does indeed violate due process.
  

In re H.R.K.

The proceedings in this case span over four years between the time of the first allegations of abuse and neglect and the judicial decision to terminate the parental rights.13  In 1983, 1984, and 1985, the three children, H.R.K., R.M.A.C. and R.L.C., of the defendants (the parents) were adjudicated CHINA (children in need of assistance) by the Iowa juvenile court.14  Dating back to the 1985 CHINA adjudication, there had also been several allegations that the parents had sexually abused their children.15  However, the children were only adjudicated CHINA based on physical abuse, neglect, marital violence, evidence of instability and a lack of a consistent and caring home environment.16  Finally in March of 1987, a petition was filed by the state to terminate their parental rights based on the previous court findings of abuse and neglect.17

In a May 1987 hearing on the parents' motion for a more specific statement, sexual abuse was set out as one of the grounds upon which termination was sought.18  In September of that same year, their parental rights were terminated and it was on that decision that the parents appealed to the court in the case at hand.19  The Iowa Court of Appeals affirmed the termination of parental rights and based their decision on both the previous adjudications of physical abuse and neglect and on the parents' failure to comply with a sexual abuse treatment program which required that they must first admit that sexual abuse occurred.20  The appellate court stated that, even without the allegations of sexual abuse, the record contained sufficient evidence to terminate the parents' rights.21

As a whole, the outcome of the case is well supported as the court based the termination of parental rights on the seven substantiated reports of child abuse and neglect.22  However, the juvenile court's requirement that the parents complete a sexual abuse treatment plan where they must first admit abuse creates difficulties in terms of due process.  While the appellate court did not carefully explore the question of due process, such an analysis is imperative when tampering with a right such as the right to maintain the integrity of the family unit and the right not in incriminate oneself.  The implications of the appellate court's dicta are unclear.  While the state has been historically a strong defender of the interests of the child, the Iowa Court of Appeals would have been more accurate in its analysis had it used those factors outlined by the United States Supreme Court in Santosky v. Kramer23 to determine if penalizing the parents for such noncompliance by terminating parental rights would violate due process.

While procedural due process provides a defendant with fair notice and an opportunity to defend,24 there are substantive rights which are at stake in a termination proceeding.  An assessment of whether the parents' right to due process was violated involves an exploration of how these substantive rights might have been violated.  An assessment of whether due process was accorded is determined from an identification of those substantial interests involved.25  Due process may call then for these procedural protections as the particular situation demands.26
  

The Santosky Standard: "Clear and Convincing" Evidence

The primary case which identifies those substantive rights involved in a judicial proceeding which terminates parental rights and sets up the evidentiary standard for the termination of parental rights is Santosky v. Kramer.27  The determination of why parental rights should be terminated must be made in light of these particular substantive rights.28  In Santosky, the parents appealed on the basis of their right to due process in parental rights termination proceedings.29  Specifically, the parents challenged the constitutionality of the standard of proof used by a New York statute.30  This statute required that a finding of abuse must be supported by a "fair preponderance of the evidence."31  Before Santosky, lower courts had not reached a consensus on the applicable standard of proof in parental rights proceedings.32  The standard of proof used in a parental rights termination reflected how the state or jurisdiction viewed the parent-child relationship and how the respective interests were weighed.33

In determining the appropriate standard of proof, the Court agreed that the nature of the process due in parental rights termination proceedings must turn on a balancing of three distinct factors.34  A determination of due process must consider the following: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards; and finally the government's interest, usually reflected in the child's best interests.35  Through the Court's examination of these three factors, the Court held in Santosky that there must be clear and convincing evidence that it would be in the best interests of the child to not be returned to the child's home and to terminate parental rights.36  Elevating this evidentiary standard from the previous "preponderance of evidence" standard, the Court rebalanced those rights of the natural parents and those concerns of the state, giving more weight to those rights of the parents.37  Santosky further held that the determination of the precise burden equal to or greater than the clear and convincing evidence standard was a matter of state law left to state legislatures and state courts.38  The clear and convincing standard has been recognized and applied in previous other parental termination cases in Iowa,39 and in the Iowa Code.40

In terminating the parental rights in H.R.K., the juvenile court followed the relevant Iowa Code provisions.41  Based on the adjudications of physical abuse and neglect found in the 1983, 1984, and 1985 proceedings, the juvenile court terminated the parental rights under Iowa Code 232.1 16.42  Section 232.116 permits the termination of such rights where there is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in 232.102.  From the facts of H.R.K., there is little dispute that the juvenile court had clear and convincing evidence that it would be in the child's best interests to terminate parental rights as ultimately the court based its decision to terminate parental rights on the existence of seven substantiated child abuse findings.43

However, the court's dicta also would not return the children to the parents unless those parents completed a sexual abuse treatment program where they would be required to admit the sexual abuse allegations.  Thus, an important determination of the court ruling is whether the fact that the parents refused to comply with this requirement, independent of the other findings of abuse, would constitute clear and convincing evidence that it would be in the best interests of the children to not be returned to custody of their parents.  The court's opinion deals with this question in less than a page of its opinion, and supports its ultimate decision to terminate rights on the other findings of abuse.44

While other state courts may have more carefully scrutinized the constitutional rights involved in requiring parents to admit abuse in such a treatment program, those parents threatened with a termination of their parental rights have focused primarily on questions of self-incrimination and not of due process.45  One other court has recognized the nexus between the failure of a parent to comply with a court-ordered treatment plan and the clear and convincing evidence requirement.  In In re L.W.K., the court based the termination of parental rights on the father's lack of compliance with the treatment plan.46  Essentially, the court held that the state met its burden of proof in termination proceedings by showing that the father did not comply with the court-ordered treatment plan and such a failure was clear and convincing evidence to terminate parental rights.47

In addition, where part of the court-ordered treatment plan involved therapy, another court held that the treatment plan had been sufficiently appropriate in relation to the parent-child relationship for purposes of terminating parental rights based on a lack of compliance.48  Again, the courts have recognized some discretion in assessing the validity of court-ordered treatment plans, which often may include therapy.  In L.W.K., the court had already adjudicated neglect and the therapy did not involve the specific mandate of admitting abuse.49  However, in re H.R.K., although the sexual abuse allegations were never actually adjudicated, the court's plan involved a requirement that the parents admit those sexual abuse allegations.50
  

The Santosky Factors

In order to determine whether due process was violated by the requirement that the parents admit sexual abuse through the court-ordered treatment program without ever having been adjudicated to have sexually abused their children, this requirement should be thoroughly examined in light of the three Santosky factors.  Furthermore, the balancing of these factors must show that, if the court was to terminate parental rights on the basis of the parents' refusal to comply with such a requirement, this refusal in itself provided clear and convincing evidence that it would be in the children's best interests to not be returned to their home.

In examining the three factors in Santosky, throughout the balancing process, the state's interest on behalf of the child is always considered the most weighty51 and must be considered as an underlying factor against the other two interests.52  However, Santosky recognizes that these other interests must also be considered in light of the seriousness of a judicial termination of parental rights.53
  

Private Interests Affected By State Action

The first factor under the Santosky standard considers those private interests affected by the proceedings.54  In a termination of parental rights case, those interests are undoubtedly those of the family and of the parents.55  The Supreme Court has recognized the importance of the family,56 and the right to raise one's own children.57  In Santosky, Justice Blackmun, writing for the majority, recognized that: "The fundamental liberty interest of natural parents in the care, custody and management of their child does not evaporate simply because they have not been model parents. ... Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. ... "58  The Court noted that "few forms of state action are both so severe and irreversible" than the termination of parental rights.59  In H.R.K., as the court terminated the parents' parental rights, the rights of the parents were most severely threatened.60

In addition to the threat of having their parental rights terminated, the stigma which accompanies such allegations may also threaten parents accused of child abuse.61  Where the Court has identified other significant individual liberties, such as civil commitment and deportation, the Court has elevated the burden of proof on the state before it can deprive the defendant of the fundamental right involved.62  In Addington v. Texas, a case involving involuntary commitment, the Court recognized that a finding of probable dangerousness to self or others ... [could] ... engender adverse social consequences to the individual."63  The court thus justified the elevated standard of proof in civil proceedings as "the interests at stake ... are deemed to be more than mere loss of money ... [and] [s]ome jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff's burden of proof."64  Specifically related to abuse, Justice Black once recognized that a defendant charged with conduct such as child abuse is charged with behavior that society has viewed as "reprehensible and morally wrong by a majority of society."65

In H.R.K. the parents have already been adjudicated to have physically abused and neglected their children.66  However, requiring the parents also to admit that they sexually abused their children would carry with it additional adverse consequences.67  Labeling a parent as abusive is, without doubt, defamatory communication where such allegations of sexual abuse have proven to be unfounded.68  The stigma created by such allegations has even been recognized by courts in defamation and libel suits in which the parents were wrongfully charged with abuse of their children.69  In general, social workers and agencies have been sued for other violations of common law, statutory, and constitutional rights of parents in abuse proceedings.  Other recognized causes of action include, in addition to defamation, the wrongful removal or withholding of children and malicious prosecution.70  In recognizing these causes of action, the courts have acknowledged the potential impact of such allegations

Also, other cases examining the constitutional implications of requiring the parents to comply with a court-ordered treatment program and admit abuse have focused on the related question of self- incrimination.71  In H.R.K., the parents argued that to require them to attend the sexual abuse treatment program violated their right to due process in that it had the effect of conditioning one constitutionally protected right upon the forfeiture of another constitutionally protected right.72  Specifically, the parents asserted that their right to maintain the integrity of the family unit was conditioned against their right against self-incrimination.73

While no Fifth Amendment question of self-incrimination even arises when a parent makes an admission of abuse in the context of voluntary treatment,74 here the parents were ordered into treatment by the juvenile court.  As such, the order implicitly threatened to terminate parental rights if the parents did not cooperate with the treatment that involved a self-incriminating admission.  Once a client is in treatment, any admission of abuse in therapy sets off a series of legal consequences in which no privilege may attach to communications made in the context of therapy.  The psychotherapist-patient privilege is not absolute, and furthermore a psychotherapist probably is mandated to report such an admission to the state.75

However, here, the Iowa Court of Appeals did not really address the relevant question of self-incrimination, but rather held that such a requirement did not violate due process, a right to which has been abidingly recognized in parental rights proceedings.76  But, despite the significance of the parents' interest, this right to due process is not absolute and must give before the child's best interests.77

Given both the finality of the termination of parental rights and the social ramifications which accompany an accusation of sexual abuse, the court's dicta clearly threaten the parents.  Most importantly, however, is that the requirement and subsequent termination of rights infringes upon the constitutional right of a parent to maintain the integrity of the family.  Against the rights of the parents, however, a determination of due process must also consider the other Santosky factors, which could outweigh those interests of the parents
  

Risk of Erroneous Deprivation

The second factor to be analyzed under Santosky in determining compliance with due process and the clear and convincing evidence standard considers the "risk that a parent will be erroneously deprived of his or her child."78  Here, the risk of an erroneous deprivation would be more significant if the failure to comply with the court-ordered therapy had been the decisive factor in terminating parental rights.79  However, as the court still recognized this failure to comply as a factor in their decision,80 there exists a high risk for those cases which address similar questions in compliance with court-ordered therapy and other treatment programs.  Yet, it is still uncertain how much weight the courts will give this factor.81

As the court recognized a necessity for the parents to comply with the court-ordered therapy without ever having actually made a judicial determination of the sexual abuse allegations, this decision poses a significant risk of an erroneous deprivation of rights.82  The Court in Santosky listed the following factors which would contribute to such a "significant risk": the state's fact finding ability, the agency's efforts to reunite the family, the insubstantiality of the parents' contacts with their children and the parents' willingness to formulate a plan for the children's future.83  Justice Blackmun also observed "the court possesse[d] unusual discretion to underweigh probative facts that might favor the parent" because those parents typically subject to termination proceedings are often poor or uneducated.84

Looking at the limited facts available in this case, it appears that the juvenile court did not attempt to lower the risks of an erroneous decision.  The court rejected the parents' requests to interview the children, to have an independent medical examination of the children, and to subpoena the oldest child to testify at the termination hearing.85  By rejecting these requests, the court further compounded the disadvantageous position in which the parents had been placed.86  By never requiring that the allegations of sexual abuse be adjudicated, there was never any judicial opportunity to defend against those allegations.87

By examining the risk of an erroneous deprivation of parental rights, some courts have set certain limits on the evidentiary basis on which parental rights are terminated.  In In re J. W., an Oklahoma court refused to recognize any evidentiary basis under either federal or state law to support termination based on the parents' noncompliance with a court-ordered service plan.88  That is, the court refused to recognize the failure to comply with a court-ordered service plan as sufficient evidence that the child's best interests would be served in not being returned to the child's home.

In addition, in L.B.A. v. H.A., a Kentucky court held that the failure to consider alternatives to the termination of parental rights violated the mother's fundamental right to care for her child and refused to terminate parental rights.89  If the court is going to require a treatment plan, one court simply required that it be "reasonable."90

Here, the argument may be made that if the court is ever going to recognize the failure to comply with such court-ordered therapy as a basis for terminating parental rights, it is only reasonable to require an actual adjudication of the allegations which the parents are required to admit.91  In H.R.K., there may be an argument made on behalf of the parents to have at least granted their request regarding interviewing the children.

Without an actual adjudication of the sexual abuse allegations, the risk of an erroneous decision is significant.  Procedurally, the risk might have been somewhat alleviated if the parents' requests to further investigate the sexual abuse allegations had been granted.  However, this risk, like the interests of the parents, cannot be fully evaluated until examined in light of the best interests of the child.
  

Parens Patriae

The final factor in assessing "clear and convincing" evidence, is that of the government, parens patriae.  The government's interest on behalf of the child is the strongest of these three factors.  In recognizing this right, however, the courts have held that there is a rebuttable presumption that the best interest of the child is with the parents.92  Therefore, any termination proceedings should begin with the assumption that the child would be best served to remain in the custody of the parents.  When there is not clear and convincing evidence, the child should remain with the child's parents.93

As the central factor in termination proceedings is the best interests of children, the termination of parental rights should be preventive in nature,94 and not simply punitive.  One state court recognized four statutory factors which identified the best interests of the child: (1) the need for stable care; (2) the health of all persons involved with the child and the child's health; (3) the quality of the interaction between the child and those involved with the child; and (4) the child's opinion, if feasible.95  As the court in H.R.K. primarily based its decision to terminate parental rights on previously substantiated findings of abuse,96 it probably took these factors into consideration.  However, the same state court later held in another case that the risk of error would be greater by terminating the parental rights than by not terminating them, based on the potential psychological costs of such termination.97  This test, while recognizing the interests of the child, should not ignore the risk of an erroneous decision.

The court's requirement that the parents attend such an abuse treatment program is not at all unusual.  In protecting the children's best interests, some sort of counseling has often been recognized by child protective services as an effective means of easing tensions of family strife.98  However, counseling and other forms of social work are "built on the client's willing participation in the therapeutic process."99  Once the parent declines to so willingly participate, further treatment must be imposed,100 ranging from the sexual abuse treatment program imposed by the court in H.R.K. to the ultimate termination of parental rights.101

In light of the best interests of the child, several courts have recognized the necessity for the parents to admit abuse before granting visitation or giving custodial rights back to the parents.102  In H.R.K., the court felt it was essential that the parents acknowledge and recognize the abuse before any meaningful change could occur.103  The court relied on a Minnesota case, Matter of Welfare of S.A.V.,104 to justify the termination of parental rights because the parents would not cooperate with counseling, and the state would then be unable to work with them toward resuming their parental duties.105  However, it is important to also consider the Fifth Amendment questions briefly discussed in looking at the interests of the parents.106

Such courts base the requirement of an actual admission of abuse on the principle that such an admission is necessary for the improvement within the home such that the children may be safely returned to their home.107  A New York family court, Dutchess County Department of Social Services v. Mr.. G. terminated parental rights where there was clear and convincing evidence that the father had failed to plan for their child's future by failing to take "genuine steps to overcome [the child's] behavioral problem."108  The failure to take these "genuine steps" was the father's refusal to admit abuse.109  Generally, other courts have recognized that the refusal to admit abuse has been a persuasive factor against the return of children and in favor of terminating their parental rights.110  Yet, in Mr. G., there had been an actual adjudication of abuse.111
  

Conclusion

Based on the substantiated findings of abuse in H.R.K., it was most likely in the best interests of the children to terminate parental rights.  Yet, an actual adjudication of the sexual abuse allegations would have assured some recognition of the parents' interests and reduced the risk of an erroneous decision.  Without an adjudication, the risk of harming the children from an erroneous allegation also increases.

If the termination had been based solely on the failure of the parents to comply with the sex abuse treatment program, the risk of an erroneous decision would have been higher.  Consequently, it might not even be in the children's best interest to be removed from the home.  Courts have recognized this risk and have even recognized the potential damage of an overzealous child protective service.  However, they have been hesitant to impose liability for such actions.112

To date, no such cases with facts sufficiently similar to those of H.R.K. have been decided.113  Those other states which have held that a parent must attend counseling where a parent will be required to admit abuse and the allegations had not yet been adjudicated have focused on the questions of self-incrimination.  Some courts have made the empty distinction that it violated the Fifth Amendment to directly require an admission of guilt, but that it did not violate the Fifth Amendment to require counseling in which abuse must be admitted.114  From H.R.K. and these other cases, the courts have basically held that "as long as an explicit order to the parents does not require admission of abuse, and as long as there is no explicit threat to use legal sanctions for not admitting abuse, a court can order treatment, and can use the failure of treatment, even if predicated on a refusal to admit to abuse, as a factor in terminating parental rights."115  The courts have created a very fine line on which to determine whether the Fifth Amendment is applicable.

Where there has been an actual adjudication of abuse related to the requirement of court-ordered therapy, other state courts have varied in its treatment of the due process question.  Some courts held that evidence of noncompliance with court-ordered therapy (where an admission not required) is sufficient to terminate parental rights,116 but one other held that such evidence is not a sufficient evidentiary basis.  Another court has required that a court-ordered treatment program must be "reasonable."117  Essentially, in light of Santosky v. Kramer, all recent state court decisions to terminate parental rights have been based upon a clear and convincing evidence standard that the children's interests would be best served by a termination of such rights.

The ramifications of the Iowa Court of Appeals' dicta in this decision are still uncertain.  In its opinion, the court treats the question of due process as related to the juvenile court's requirement that the parents attend a sexual abuse treatment program lightly.118  However, the pattern of abuse allegations suggests a significant increase119 and a growing number of child abuse cases reported have included increasing numbers of false allegations.120

In response to the significant increase in reports of child abuse, the courts have demonstrated an increasing pattern of leniency in favor of the states while increasingly infringing upon constitutional rights of the parents.  Many of the cases discussed in this Comment illustrate to what lengths the courts are willing to go in order to protect children's rights.  In addition to the outcome demonstrated in H.R.K. and to other decisions not recognizing a violation of due process, other courts have further impeded other constitutional rights in order to protect the child's interests.121

The Iowa Court of Appeals did not emphasize the importance of the parents' claim of a violation of due process in relation to the court-ordered treatment program.  Rather, the holding of the case instead focused on the clear and convincing evidence that the seven substantiated reports had provided the juvenile court.  However, the court still recognized the validity of the requirement that the parents attend a sexual abuse treatment program where they would be required to admit sexual abuse even though such allegations had never been tried.

As child abuse, and especially sexual abuse, increasingly becomes on the forefront of society's concerns, the implications of such a decision reflect a growing trend in the courts.122  As the State seeks to be the protector of children's interests, the significance of parental rights has slowly dwindled.123  H.R.K. dramatically illustrates those rights which are overlooked by the court in terminating parental rights.  The court may have had cause in its termination of parental rights based on the findings of physical abuse and neglect.  However, it simply glossed over the fact that the allegations of sexual abuse were never tried.  In doing so, H.R.K. represents a warning to the State, to protective services and to parents to carefully watch the steps taken by juvenile courts in the future.
  

Footnotes

1  H. Wakefield & R. Underwager, Child Sexual Abuse 279 (1988).  In 1963, 150,000 children were reported as suspected victims of child abuse or neglect. Id.  In 1984, 1.5 million children were reported. Id.  [Back]

2  See Iowa Code Ann. 232.61-127 (West 1985) (providing specific statutory guidelines for adjudicating a child in need of assistance (CHINA) and for terminating parental rights).  [Back]

3  Rabinowitz, From the Mouths of Babes to a Jail Cell, Harper's Magazine, May 1990, at 55.  In 1979, Congress passed the Federal Child Abuse Act, dramatically increasing funds available to states and localities for child protection agencies.  [Back]

4  D. Besharov, The Vulnerable Social Worker 78-79 (1985). "[C]hild protective investigations are, inherently, a breach of parental and family privacy."  [Back]

5  See In re K.L.C., 372 N.W.2d 223, 226 (Iowa 1985) (in identifying compliance with due process in a termination proceeding, the Iowa Supreme Court followed the guidelines set up by the Supreme Court in Santosky V. Kramer, 455 U.S. 745 (1982)).  Also, termination of the parent-child relationship means "the divestment by the court of the parent's and child's privileges, duties and powers with respect to each other." Iowa Code 232.2(52) (1991).  [Back]

6  433 N.W.2d 46 (Iowa Ct. App. 1988).  [Back]

7  433 N.W.2d at 50.  [Back]

8  Santosky V. Kramer, 455 U.S. 745 (1982).  [Back]

9  H.R.K., 433 N.W.2d at 50.  See Santosky, 455 U.S. at 745 (the Court considered the parents' interests, the risk of an erroneous decision and the children's interests in determining lower courts' accordance with due process).  In H.R.K., the court never examined these factors, and ultimately terminated parental rights based on a pattern of adjudicated findings of neglect and physical abuse. 433 N.W.2d at 50.  [Back]

10  433 N.W.2d at 50.  [Back]

11  See Stanley v. Illinois, 405 U.S. 645,651(1972) (father's interests in the "companionship, care, custody, and management" of his children is "cognizable and substantial").  [Back]

12  455 ~ 745 (1982).  [Back]

13  H.R.K., 433 N.W.2d at 48. The three children had the same mother, R.C. Id. The youngest two, R.M.C. and R.L.C. had the same father, who was H.R.K.'s stepfather.  Id.  [Back]

14  Id.  The family first became involved in social services in 1983 when all three children were first adjudicated to be children in need of assistance (CHINA).  Id.  The children were returned at some point in 1984 and there was testimony that, in the opinion of the social workers, there was some improvement in parenting between 1984 and 1985.  However, in December 1985, the children were removed again.  During the fall of 1985, the children had been evaluated at the Child Development Clinic in Iowa City, Iowa.  The gravamen of the Iowa City evaluations was that the children had been denied "critical emotional care" and that this constituted "emotional abuse."  Appellant's Brief, 5-6.  [Back]

15  433 N.W.2d at 49.  Following the 1985 removal, there was a report of sexual acting out on the part of one of the children in January, 1986.  This report was never substantiated, but as a result the children met with a sexual abuse therapist and alleged their parents had sexually abused them.  Following these allegations, In June 1986, one meeting between the parents and the children was held to give the children the opportunity to demonstrate (with dolls) to the parents the allegations they had made.  The parents did not bring their attorney, and this became the only opportunity they or their attorney would ever have to communicate with their children on the subject of the sexual abuse allegations.  Appellant's Brief, 8.  [Back]

In June, 1987, H.R.K, on her own initiative, called her mother and recanted the previous sexual abuse allegations that she had made.  At a subsequent meeting in July, 1987 at which the parents and H.R.K. and the sexual abuse therapist were all present, H.R.K repeated her recantations.  At a subsequent meeting of her therapy group, H.R.K. again repeated her recantation.  Appellant's Brief, 8-9.

16  Id. at 48. Under the Iowa Code (1991), a CHINA adjudication may be found under a multitude of circumstances. 232. 2(6)(a)-(n).  The juvenile court shall have exclusive jurisdiction over proceedings alleging that a child is in need of assistance. 232.61.  Such a proceeding is neither criminal nor penal in character. In re Long, 313 N.W.2d 473, 478 (Iowa 1981).  Rather, it is a special proceeding to determine the child's best interest.  Id.  This formal judicial proceeding is to be initiated by petition, which maybe filed by the department of human services, a juvenile court officer, or a county attorney. 232.87.  Following a finding of CHINA, the juvenile court then has the discretion to authorize retention of custody by parents, or to transfer the legal custody of the child. 232.101-102.  Termination of parental rights is a separate judicial proceeding.  See 232.109-119.  [Back]

17  Id.  [Back]

18  Id. at 49.  [Back]

19   Id. at 48. The parents actually appealed on three separate grounds: First, that the juvenile court erred in its "judicial notice" of certain documents from earlier CHINA proceedings, id. at 49; second, that by the juvenile court's denial of certain procedural requests, they were denied a fair opportunity to deal with the allegations of sexual abuse, id. at 49; third, that they were denied due process because none of the petitions for termination specified sexual abuse as grounds for termination and termination was based in part on their failure to complete the sexual abuse treatment program, Id. at 50.  [Back]

20  433 N.W.2d at 50.  [Back]

21  Id. at 49-50.  [Back]

22  433 N.W2d at 50.  The court ultimately terminated parental rights based on a pattern of adjudicated findings of neglect and physical abuse.  Prior to the children's removal in January 1985, there were seven substantiated child abuse reports within the family involving general neglect, denial of critical care, failure of the parents to follow through with medical needs, environmental problems and physical abuse.  Id.  [Back]

23  455 U.S. 745 (1982).  [Back]

24  Carr v. Iowa Employment Sec. Comm'n, 256 N.W.2d 211, 214 (Iowa 1977).  [Back]

25  See Santosky v. Kramer, 455 U.S.745, 754 (1982).Santosky relied on the identification in Lassiter v. Dep't of Social Services of Durham County, 452 U.S. 18 (1982) of three distinct factors to determine the nature of due process.  [Back]

26  Morrissey V. Brewer, 408 U.S. 471, 481 (1972).  [Back]

27  455 U.S. 745 (1982). See Brief Note: Santosky v. Kramer: Clear and Convincing Evidence in Actions to Terminate Parental Rights, 36 U. Miami L. Rev. 369 (1982); Recent Case: Constitutional Law Due Process of Law Family Law Burden of Proof Before a State May Sever Permanently the Rights of Parents in Their Natural Child, Due Process Requires That the State Support Its Allegations by at Least Clear and Convincing Evidence Santosky v. Kramer, 102 S. Ct. 1388 (1982), 51 U. Cm. L. Rev. 933 (1982) [hereinafter, Recent Case: Santosky V. Kramer].  [Back]

28  455 U.S. at 754.  [Back]

29  Id. at 751.  [Back]

30  Id.  See N.Y. Fam. Ct. Act 622 (McKinney 1975).  [Back]

31  Id.  [Back]

32  Recent Case: Santosky v. Kramer, supra note 27, at 935.  [Back]

33  Id. at 933.  See In re Five Minor Children, 407 A.2d 198, 200 (Del. 1978) (applying the preponderance of evidence standard as nature of proceeding to terminate parental rights is civil and not penal), rev'd 451 A.2d 832 (1982); In re Rosenbloom, 266 N.W.2d 888, 889 (Minn. 1978) (right of parent to custody is fundamental; thus apply clear and convincing standard); State v. Robert H., 118 N.H. 713, 716, 393 A.2d 1387, 1389 (1978) (proof beyond a reasonable doubt is consistent with the parents' fundamental right to rear their children).  Note that all are preSantosky cases, as Santosky was decided in 1982.  [Back]

34  Santosky, 455 U.S. at 754.  [Back]

35  455 U.S. at 745.  [Back]

36  455 U.S. at 760.  [Back]

37  Id.  [Back]

38  Id.  [Back]

39  In re K.L.C., 372 N.W.2d 223, 226 (Iowa 1985).  See also In re C. & K., 322 N.W.2d 76, 81 (Iowa 1982) (Iowa parental rights termination statutes do not violate due process on the grounds that they failed to require a showing of harms), cert. dismissed, 459 U.S. 1094 (1983).  [Back]

40  See generally Iowa Code Ann. 232.96, 232.102, 232.116 (1991).  All explicitly require a Santosky standard of clear and convincing evidence.  [Back]

232.96(1) provides the judicial procedures in which the court shall hear and adjudicate cases involving a petition alleging a child to be a child in need of assistance. 232.96(9) requires that "facts sufficient to sustain the petition [alleging the child abuse) ... [be] established by clear and convincing evidence."

232.102 gives the court the discretion to transfer the legal custody of the child.  232.102(5) provides that "the custody of the child should not be transferred unless the court finds there is clear and convincing evidence that:

a. the child cannot be protected from physical abuse without transfer of custody, or;

b. the child cannot be protected from some harm which would justify the adjudication of the child as a child in need of assistance and an adequate placement is available."

However, rather than transferring the custody of the children, the court in H.R.K. sought to terminate the parental rights.  433 N.W.2d 46.232.116 provides for several grounds on which the court may order the termination of both parental rights.  Here, the applicable code was 232.116(5) (1987), which provides that the court may terminate parental rights where "[t]he court finds that:

a. The child has been adjudicated a child in need of assistance pursuant to section 232.96 (see above); and

b. The custody of the child has been transferred from the child's parents for placement pursuant to section 232.102 for at least of the last twelve of the eighteen months; and

c. 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" (emphasis added).  Id.

41  H.R.K., 433 N.W.21 at 48.  Iowa Code 232.116(5) (1987) permitted the juvenile court to terminate parental rights if the child has been adjudicated in need of assistance, has been placed out of the parents' custody for more than twelve of the last eighteen months and there is clear and convincing evidence that the child will suffer harm if returned to parent.  [Back]

42  H.R.K., 433 N.W.2d at 48.  [Back]

43  H.R.K., 433 N.W.2d at 50. See also In re R.E.M., 431 N.W.2d 196, 200 (Iowa 1988) (clear and convincing evidence from problems in supervision, inadequate medical care and general unwillingness to provide for basic needs of two children).  [Back]

44  H.R.K., 433 N.W.2d at 50.  The court addressed this issue in three paragraphs.  [Back]

45  See In re M.C.P., 153 Vt. 275, 300-01,571 A.2d 627, 641 (1990) (The court held that the trial court could not require the parents to specifically admit criminal misconduct.  However, the parents must demonstrate to the court that it is in the juvenile's best interest to return custody to the parents.  Thus, they must find a way to show that they have become good parents without admitting misconduct and that a restoration of custody of the juvenile is in the best interest of the child.); In re Jessica B., 207 Ca. App. 2d 504, 521, 254 Cal. Rptr. 883, 893-94 (1989) (because immunity is granted in concurrent criminal and civil abuse cases, such an admission cannot be used against defendant in the criminal case and fifth amendment protection not impaired); In re S.A.V., 392 N.W.2d 260, 264 (Minn. Ct. App. 1986) (Where termination of parental rights is not a "penalty" for invoking the fifth amendment and therefore gives parents the option to waive their right.  The court does not see loss of parental rights as a "penalty.").  [Back]

46  In re L.W.K., 236 Mont 14, 20, 767 P.21 1338, 1342 (1989). Father showed general lack of interest in attending meeting with therapist, attending only 23 of 35 scheduled meetings.  Id.  [Back]

47  Id. The court further held that "a parent has the responsibility to comply with the treatment plan." Id. at 19. See also In re R.H., 219 Neb. 904,905, 367 N.W.2d 145, 146(1985) (termination of parental rights based on failure to comply, even minimally, with court ordered rehabilitation plans).  [Back]

48  L.W.K., 236 Mont. at 19.  [Back]

49  Id. at 16. Cf. D. Richardson, The Effects of a False Allegations of Child Sexual Abuse on an Intact Middle Class Family 25 (Nov. 1988) (unpublished manuscript), where therapist approval contingent on admitting the offense.  Here, such approval was withheld as long has the offender had a "denial" position.  A revised version of this paper was published in Issues in Child Abuse Accusations, 226 (1990).  [Back]

50  H.R.K., 433 N.W.21 at 47, 49.  [Back]

51  See In re D.T.,418 N.W.2d 355, 356 (Iowa Ct. App. 1987) (central to a determination of child abuse are the best interests of the child).  [Back]

52  For an identification of the other two factors, see Santosky, 455 U.S. at 754.  [Back]

53  Id.  [Back]

54  Id at 745.  [Back]

55  Id at 751-60 (recognizing the fundamental liberty interests of the parents).  [Back]

56  Stanley v. Illinois, 405 U.S. 645, 651(1972).  [Back]

57  Meyer v. Nebraska, 262 U.S. 390, 399 (1923).  [Back]

58  Santosky, 455 U.S. at 753.  [Back]

59  Id. at 759.  [Back]

60  Id. at 753.  Justice Blackmun further recognizes: "If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs." (emphasis added).  Id.  [Back]

61  Meltzer v. C. Buck LeCraw & Co., 402 U.S. 954, 959 (1971), cert. denied (Black, J. dissenting).  [Back]

62  Santosky, 455 U.S. 759.  See Addington v. Tex., 441 U.S. 418,433 (1979) (court required clear and convincing evidence standard in a civil proceeding brought understate law to commit an individual involuntarily for an indefinite period to a state mental hospital); Woodby v. INS, 385 U.S. 276, 286 (1966) (no deportation order may be entered unless it is found by clear and convincing evidence that the facts alleged as grounds for deportation are true).  [Back]

63  Addington, 441 U.S. at 426.  [Back]

64  Id.  [Back]

65  Meltzer, 402 U.S. at 959.  [Back]

66  H.R.K., 433 N.W2d at 48.  The courts adjudicated the children CHINA in 1983, 1984 and 1985.  [Back]

67  See Pitz, Convicted molester's life is cramped, solitary, Pittsburgh Post-Gazette, May 31, 1989 at 1, ("the stigma of child molesting places Michaels (convicted sexual abuser) in this hostile netherworld's cast of untouchables").  Also, one study has shown that convicted sexual abusers often receive harsher sentences compared with other felons, even for crimes such as attempted murder.  Champion, Child Sexual Abusers and Sentencing Severity, Fed. Prob. 53 (March 1988).  The child sexual abuser, regardless of whether it is a first time offense, is more likely to receive incarceration than probation.  Id.  The study noted that prosecutors were adamant about incarcerating child sexual abusers.  Id. at 55.  Such sentences may reflect society's opinions that such crimes by adults against children are especially heinous.  Id. at 56.

Another study by Richardson, supra note 49, at 12, investigated the personal effects of simply being accused of child sexual abuse.  Of one group of men accused of sexual abuse, 33% lost their jobs, 60% were forced to move, and 33% reported humiliation stemming from a public announcement of the abuse.  Id.  See also A. Tyler & M. Brassard, Abuse in the Investigation and Treatment of Intrafamilial Child Sexual Abuse, 8 Child Abuse & Neglect 47, 50 (1984), showing the effects on the accused after an investigation of child sexual abuse allegations.  [Back]

68  D. Besharov, The Vulnerable Social Worker 87 (1985) ("[C]hild protective workers can defame parents in two ways: (1) by what they write in letters, reports and case records (libel), and (2) by what they say to others in the course of investigation, treatment, or casual conversation.").  [Back]

69  Id.  Besharov also refers to one father who alleged that social workers "maliciously and falsely addressed remarks (regarding abuse) to third persons" and settled out of court for $4000.  Id at 79.  [Back]

70  Id. at 76-107.  [Back]

71   See supra note 45; See generally Patton, W., The World Where Parallel Lines Converge: The Privilege Against Self-Incrimination in Concurrent Civil and Criminal Child Abuse Proceedings. 24 Ga. L. Rev. 473 (1990).  [Back]

72  H.R.K., 433 N.W.2d at 50.  [Back]

73  Id.  [Back]

74  Levine and Doherty, Professional Issues: The Fifth Amendment and Therapeutic Requirements to Admit Abuse, 18 Criminal Justice and Behavior 99, 104 (March 1991).  [Back]

75  Levine and Doherty at 101.  [Back]

76 Santosky, 455 U.S. at 753.  [Back]

77  In re Adoption of J.S.R., 374 A.2d 860, 863 (D.C. 1977) ("[T]he state's legitimate interest in the child's welfare may be implemented by separating the child from the parent.").  [Back]

78  Santosky, 455 U.S. at 761.  [Back]

79  Again, note that in H.R.K., the court terminated the parental rights based on seven substantiated findings of child abuse and neglect.  433 N.W.2d at 50.  [Back]

80  Id.  The court never states that the failure of the parents to comply with the requirement in itself is clear and convincing evidence that it would be in the best interests of the children to terminate parental rights.  Rather, it just holds that such a requirement does not violate due process and that there were sufficient grounds for termination.  However, the court does acknowledge that it would not violate due process to use the parents' failure to complete the treatment program as a permissible factor in the termination decision.  Id.  [Back]

81  See In re K.M.R., 455 N.W.2d 690, 691 (Iowa Ct. App. 1988) (court held, relying partially on H.R.K., that the state's requirement that the parents acknowledge past abusive behavior toward children as a condition to retention of their parental rights did not constitute a due process violation).  However, in K.M.R., the abusive behavior which the parents were required to admit had already been adjudicated upon.  [Back]

82  Also, in H.R.K., the parents questioned those procedural rights accorded to them by the juvenile court.  433 N.W.2d at 49.  An additional part of the parents' appeal was that the juvenile court erred by refusing to allow their attorney to interview the children, refusing their request for an independent medical examination of the children, and refusing to allow them to subpoena one of their children to testify at the termination.  Id.  While the court agreed with the trial court that, in light of the children's best interests, to grant such requests would subject the children to undue trauma, the parents' contentions understandably indicate a concern that the allegations of sexual abuse were also never well substantiated, in addition to never having been adjudicated upon.  Id. at 49.  [Back]

83  Santosky, 455 U.S. at 762.  [Back]

84  Id.  [Back]

85  433 N.W.2d 46, 49.  This is not at all uncommon in child abuse proceedings.  Courts adhere to numerous procedural protections for the best interest of the child.  For a discussion of how the court has modified other constitutional rights, see infra note 121.  [Back]

86  See Santosky, 455 U.S. at 762 ("[T]he State's ability to assemble its case almost inevitably dwarfs the parents' ability to mount a defense" as the State has a tremendous advantage in terms of inexhaustible funds and resources by which to prosecute.).  [Back]

87  Also consider the significance of the risk in light of the permanent and final nature of the termination of parental rights.  See supra text accompanying notes 79-80.  See also Carr v. Iowa Employment Sec. Comm'n, 256 N.W.2d 211, 214 (Iowa 1977) ("[B]asic purpose of due process is to allow the defendant fair notice and opportunity to defend").  [Back]

88  In re J.W., 742 P.2d 1171, 1174 (Okla. 1987) (lower court's determination based on Indian mother's failure to comply with treatment demand that she continue education or employment or both even though she was going to school and was seeking employment).  Note that a "court-ordered service plan" is much broader than the order to attend a sexual abuse treatment program where the parents must admit abuse.  Counseling or other similar treatment programs are often part of the court-ordered treatment plan.  But see In re R.B.S., 717 P.2d 1004, 1005-06 (Colo. 1986) (Court held that evidence of noncompliance with treatment plan justified the termination of mother's rights.  Evidence showed that the mother showed no reasonable effort to comply with the treatment plan which required psychiatric care, preventive courses and securing of income and housing.)  [Back]

89  L.B.A v. H.A., 731 S.W.2d 834, 836 (Ky. 1987).  The court reversed trial court ruling that mother unintentionally abandoned or neglected child by reason of her severe mental deficiency.  Id. at 835.  Parental rights were terminated upon the child's birth.  Id.  [Back]

90  In re L.J., 220 Neb. 102, 110, 368 N.W.2d 474, 480 (1985)  "While there is no requirement that a juvenile court must institute a plan for rehabilitation of a parent, where the failure of a parent to comply with the rehabilitation plan is an independent ground for termination of parental rights, the rehabilitation plan must be reasonable and conducted under the direction of the juvenile court."  [Back]

91 Cf. In re K.M.R, 455 N.W.2d 690 (Iowa Ct. App. 1990), where the court upheld a termination of parental rights partially based on evidence of the parents' failure to comply with court-ordered therapy where an admission was required.  However, in this case, the actual abuse had already been adjudicated upon.  [Back]

92  In re McDonald, 201 N.W.2d 447,453 (Iowa 1972).  [Back]

93  In re Chad, 318 N.W.2d 213,219 (Iowa 1982).  [Back]

94  In re D.T., 418 N.W.2d 355, 356 (Iowa Ct. App. 1987).  The court will look to the child's long-range and immediate interest and consider what the future could hold for the child if returned to the parent.  The Iowa statutes, as preventive as well as remedial, therefore mandate action to prevent probable harm to a child and do not require delay until after harm has occurred.  Id.  [Back]

95  In re K.A., 484 A.2d 992, 995 (D.C. 1984).  [Back]

96  H.R.K., 433 N.W.2d at 50.  [Back]

97  In re A.B.E., 564 A.2d 751, 757 (D.C. 1989) (the court balanced "the minimal possibilities of adoptive placement against the stabilizing influence, and the sense of identity that some continuing legal relationship with natural relatives would bring.")  [Back]

98  D. Besharov, supra note 68, at 76. Nationwide, fewer than 5% of substantiated cases actually result in a criminal prosecution.  Services provided by social services include: day care, financial assistance, and homemaker care to relieve the pressures of parenting.  Id.  [Back]

99  Id. at 77.  [Back]

100  Id.  [Back]

101  Id.  [Back]

102  In re K.M.R., 455 N.W.2d 690 (Iowa Ct. App. 1990); Dutchess County Dep't of Social Services v. Mr. G., 141 Misc.2d 641, 534 N.Y.S.2d 64 (Fam. Ct. 1988); In re S.A.V., 392 N.W.2d 260 (Minn. Ct. App. 1986).  See Richardson, supra note 49, at 25.  But See In re A.W., 464 N.W.3d 475 (Iowa Ct. App. 1990).  The court held it was not reasonable to require a father to admit abuse where the trial judges had not found the father was the perpetrator.  Judge Sackett, of the Iowa Court of Appeals, stated "While we recognize and respect the school of thought advanced by the department (of human services) that a sexual abuser can only be helped if he or she admits the abuse, we also recognize it is not necessarily the province of a proceeding such as this to require an admission.  First, if the father did not abuse the child, requiring the father to make an admission would be asking the father to lie and possibly commit perjury.  Secondly, the father has constitutional rights against self-incrimination."  [Back]

103  H.R.K., 433 N.W.2d at 50.  [Back]

104  S.A.V., 392 N.W.2d 260, 264 (Minn. Ct. App. 1986). "[T]he best interests of a child in any termination proceeding are of utmost importance ... and the requirement that the parents acknowledge and recognize the abuse before any meaningful change can occur is essential in meeting the child's needs." 433 N.W.2d at 50.  [Back]

105  433 N.W.2d at 50.  [Back]

106  See discussion on "Private interests," supra notes 54-77.  [Back]

107  See Dutchess, 641 Misc.2d at 649-50 (where refusal to admit abuse was clear and convincing evidence that parents were unwilling to take genuine steps towards improvement and justified termination of parental rights).  [Back]

108  Id.  [Back]

109  Id.  [Back]

110  Id. at 70.  The failure to admit abuse has also been a significant factor against according parents any leniency in such proceedings.  See In re Y.H., 412 N.W.2d 389 (Minn. Ct. App. 1987) (modification of custody based, in part, on mother's refusal to admit to or deal with her sexual abuse of her daughter).  But see In re M.H., 367 N.W.2d 275, 279 (Iowa Ct. App. 1985) (court recognized that an admission of abuse may be a positive sign, but in light of the child's long range and future interests, it was still in the best interest of the child to terminate parental rights).  [Back]

111  Dutchess, 141 Misc.2d at 642 (court finding of permanent neglect).  [Back]

112  See Doe v. Hennepin County, 858F.2d 1325, 1330 (8th Cir. 1988).  While the court recognized the mistakes of the child protection services, it held that the parents were not entitled to a civil rights action against the county welfare agency.  The Does' children were taken from their home for sixteen days and were returned after the allegations of abuse proved to be unfounded.  Id. at 1326.  Here, the city and county agencies failed to follow investigative procedures appropriately by failing to: First, immediately investigate the first report of sexual abuse within twenty four hours; second, offer the parents an opportunity to place the children voluntarily; and third, offer protective services before removing the children from the home.  Id. at 1328.  [Back]

113  See In re K.M.R., 455 N.W.2d 690. Here, the court addressed this similar issue, but the allegations of abuse had already been adjudicated.  [Back]

114  See In re J.G.W., 433 N.W.2d. 885, 886 (Minn. 1989) ("[T]he privilege does not protect the parent from the consequences of any failure to succeed in court-ordered treatment plan.")  [Back]

115  Levine and Doherty, supra note 74 at 106.  [Back]

116  See In re R.B.S., 717 P.2d 1004, 1006 (Colo. 1986) (evidence that mother showed no reasonable effort to comply with treatment plan, along with evidence that she was an unfit parent and was unlikely to change within a reasonable time justified the termination of rights.); In re R.H., 219 Neb. 904, 905, 367 N.W.2d 145, 146 (1985) (court recognizing such grounds for termination as common: "[t]he familiar litany of review hearings, counseling, and failure to comply, even minimally, with court-ordered rehabilitation plans").  [Back]

117  See supra note 90.  [Back]

118  The Iowa Court of Appeals dealt with this issue in just three paragraphs of its decision; rather it focused instead on the substantiated findings of abuse.  H.R.K., 433 N.W.2d at 50.  [Back]

119  See supra note 1.  [Back]

120  Richardson, supra note xx, at 2.  "The National Study of Abuse estimated that 1.1 million child abuse and neglect reports have been filed with Child Protective Agencies each year and that more than 600,000 of these probably cannot be substantiated even using the broad definitions of child abuse and neglect often used by the protective service agencies."  Id.  [Back]

121  See Maryland v. Craig, 110 S.Ct. 3157, 3159 (1990) ("a state's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accuser in court"); In re D.J.R., 454 N.W.2d 838, 846 (Iowa 1990) (a parent has no sixth amendment right to confront a child-witness at a civil termination of parental rights hearing).  Both cases show the court's willingness to tamper with sixth amendment rights.  For a rebalancing of fifth amendment concerns, see supra note 45.  [Back]

In addition to the courts' responses in these cases, there has also been some argument to switch the burden of proof in such termination proceedings.  One analysis of the legal system's treatment of abuse allegations, asserted that the parents should be required to show by clear and convincing evidence that they are fit and that the children should be returned to their home.  Horowitz, Tighten Standards for Termination of Parental Rights, 18 Children Today 9 (May-June (1989).  This indicates a further tendency to move away from the protection of parents' rights, especially in light of the unequal bargaining position the parents and the state have to begin with.

122  See Rabinowitz, supra note 3, at 53.  Rabinowitz suggests that if "Kelly Michaels (convicted abuser) was unjustly convicted, it is because we live in an age of trial by accusation."  [Back]

123  Note Justice Scalia's dissent in Maryland v. Craig, 110 S.Ct. at 3171 (Scalia, J. dissenting).  "Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion."  Id.  [Back]

* Jean Z. Dickson is a law student at the University of Iowa in Iowa City, Iowa.   [Back]

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