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May 28, 2019

Incarcerated Parents Must be Allowed to Participate in Entire TPR Hearing

By Nicole Johnson

CLP subscribers: To better connect precedential judicial decisions across the children’s law field, we are launching a project to provide summaries of key state supreme court decisions on child welfare and related topics. In addition to summarizing the court’s holding and reasoning, each case will highlight the practical significance for the field. As we advance this new project, we welcome your participation. Please share recent supreme court cases from your jurisdiction that would be valuable to summarize (Email: [email protected]). We hope these summaries help advance your practice and connect the children’s law field across jurisdictions.  


The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association. 

In re M.D. v. K.A. , 921 N.W.2d 229 (Iowa 2019).

The Iowa Supreme Court held an incarcerated parent has a constitutional due process right to participate in the entire termination of parental rights (TPR) hearing and the trial court has a responsibility to ensure the parent can respond to the state’s evidence.

Practical Significance

The Iowa Supreme Court established a clear rule for how trial courts must provide procedural due process protections in TPR cases involving incarcerated parents. Because the court analyzed other state court decisions, this case is especially useful in providing a national perspective on the issue.

Delaware, North Dakota, Missouri, Pennsylvania, Wisconsin, and New Hampshire courts stress that meaningful participation in a TPR case requires actual knowledge of the testimony and documentary evidence offered to support termination. Parents typically have exclusive and particular knowledge of the evidence, and need to hear it to understand what other evidence will be needed to demonstrate why their rights should not be terminated.

The court’s reasoning is instructive in the way it balances parents’ procedural due process rights with children’s interests in timely permanency and the state’s interest in efficient procedures as the court recognized these interests sometimes intersect. For example, the court explained that although children have a strong interest in timely permanency they also have an interest in ensuring their parents can participate effectively in TPR proceedings. Also significant  is that the protections required for incarcerated parents may apply equally to cases involving parents in immigration detention, which often involve different state jurisdictions.

Factual Background

In 2018, the child welfare agency in Iowa petitioned to terminate a mother’s parental rights to her five children while she was incarcerated in South Dakota.  The children had been removed from her care based on her chronic drug and alcohol abuse. She had been arrested in South Dakota and charged with multiple felonies involving possession and intent to deliver methamphetamines during the pendency of the child welfare case.

Before the termination hearing, the mother moved for a continuance to allow time to participate in person. Alternatively, she requested an opportunity to participate in the full hearing by phone. The juvenile court denied her motion for the continuance, concluding the delay would not be in the children’s best interests. The court granted the mother’s alternative request to participate by phone, but only to present testimony and be cross-examined at the close of the state’s case-in-chief. After the state concluded, the mother conferred with her counsel and then presented her testimony by phone. At the end of the phone call, the attorneys presented closing arguments. The juvenile court later entered a written order terminating the mother’s parental rights to her five children.  

The mother appealed the TPR decision and argued the juvenile court deprived her of her procedural due process rights to confront witnesses, assist in cross-examining witnesses, and hear the evidence offered by the state. The mother also identified several findings of fact in the juvenile court’s order that were incorrect and could have been refuted if she had been able to participate in the entire hearing. The state responded that although process could have been more complete, the procedures used were sufficient to protect the mother’s rights. The appellate court agreed with the state and found the procedures to be “good enough.” The mother sought further review and called on the Iowa Supreme Court to clarify what procedure juvenile courts must follow in TPR hearings involving incarcerated parents.

Iowa Supreme Court Decision

The Iowa Supreme Court has previously established that TPR hearings involve state action that threatens to deprive parents of their liberty interest in the care, custody, and control of their children. Thus, the court addressed the issue of how much process is due incarcerated parents who face a hearing to terminate their parental rights.  

The court reviewed the juvenile court’s denial of the mother’s motion for continuance under an abuse-of-discretion standard and found the juvenile court properly exercised its discretion to deny the continuance. The court agreed with the lower court that the delay associated with a continuance to allow an incarcerated parent to appear would not be in the children’s best interests and would run counter to U.S. policy of seeking permanent homes for children as early as possible in a case.  

The Iowa Supreme Court overturned the appellate court’s decision about the sufficiency of process provided, however, and concluded phone testimony without an opportunity to participate in the full TPR hearing is insufficient. The court cited decisions from other jurisdictions holding an incarcerated parent who is unable to physically attend a termination hearing must be given the opportunity to participate by other means. The court acknowledged the procedure followed by the juvenile court in this case provided some protections. The court explained, however, that those protections were insufficient because parents have a compelling interest to hear evidence offered in support of a termination petition and to respond effectively to that evidence.  As the court articulated, the risk of error in failing to provide such process is “too great.”

The court adopted a standard requiring juvenile courts in Iowa to give incarcerated parents an opportunity to participate from the prison facility in the entire termination hearing by phone or other similar means of communication that lets them hear testimony and arguments during the hearing. To address circumstances that may limit the parent’s ability to participate in the entire hearing by phone, such as when prison officials decline to make an incarcerated parent available for the entire hearing, trial courts must request an expedited transcript of those portions of the hearing that were closed to the parent for the parent to review before testifying by phone, along with all exhibits admitted into evidence. The court recognized the added expense and time of this requirement in completing the termination process, but found it to be no more than other existing procedural requirements to ensure fairness in hearings where so much is at stake. Significantly, the court explained although children have interests in timely permanency, it is also in children’s best interests to ensure their “parents have a full and fair opportunity to resist the termination of parental rights.”

The court established the following rule for future cases:

  1. Juvenile judges must give incarcerated parents the opportunity to participate in the entire hearing by phone or similar means;
  2. If the attorney representing the incarcerated parent cannot 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; and
  3. 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 give the incarcerated parent the opportunity to review the evidence presented by the state at the hearing before testifying.

The supreme court vacated the court of appeals’ decision, reversed the juvenile court’s termination order, and remanded the case to the juvenile court for additional expedited proceedings.

Three justices concurred in part and dissented in part.  These justices agreed with the majority’s result but argued the case did not concern a constitutional interest and should have been addressed as a matter of sound judicial administration. To support that position, the dissenting justices explained there is no need for heightened due process rights in TPR cases because juvenile courts operate under less strict procedural rules than other courts. The dissenting justices also argued the majority decision unduly favored incarcerated parents’ interests in procedural protections over children’s interests in timeliness and the state’s interest in finalizing termination cases promptly. They also suggested the new rule creates unwarranted burdens on juvenile courts that will impede the paramount goal of protecting the best interests of children who need permanent homes.

Nicole Johnson, JD, MSW, is a staff attorney at the ABA Center on Children and the Law.