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IN THE COURT OF APPEALS OF IOWA No. 3-123 / 12-2260 Filed March 13, 2013

IN THE INTEREST OF R.B., G.B., AND P.B Minor Children, J.B., Father, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge.

A father appeals the termination of his parental rights to three of his children. AFFIRMED.

Jacob L. Mason, Ankeny, for appellant father. Thomas J. Miller, Attorney General, Katherine S. Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Andrea Vitzthum, Assistant County Attorney, for appellee State. Laura Lockwood, Des Moines, for appellee mother. Kathy Miller of the Juvenile Public Defender Office, Des Moines, attorney for minor children. Mike Bandstra, Des Moines, guardian ad litem for minor children.

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

2 VAITHESWARAN, P.J. A father appeals the termination of his parental rights to his three youngest children, born in 2008, 2010, and 2011. I. Background Facts and Proceedings The father's children were removed from his care in February 2012 based on allegations that the three oldest sustained long-term sexual and physical abuse. The youngest three were placed in foster care, and the father had no further contact with them. Meanwhile, the father fled. The State charged him with sexual abuse and began a nationwide search for him. He was apprehended at his mother's home in Chicago and was returned to Iowa to face charges. At the time of two

termination hearings in November 2012, the father was in jail and had yet to stand trial. On the eve of the first termination hearing, the father filed a motion to continue the hearing on the ground that the termination proceeding impinged upon his Fifth Amendment right against self-incrimination. U.S. Const. amend. V. The father also alleged as grounds for continuance the Department of Human Services' failure to notify his mother of the proceedings, as required by Iowa Code section 232.84(2) (2011). At the first termination hearing, the juvenile court denied the motion to continue. On the advice of counsel, the father asserted his Fifth Amendment right against self-incrimination and declined to answer any questions. The

father's attorney was allowed to make a record concerning the department's failure to notify the father's mother of the proceedings.

3 Following the hearings, the juvenile court terminated the father's parental rights pursuant to Iowa Code section 232.116(1)(e) (requiring proof of several elements, including proof that parent has not maintained significant and meaningful contact with the child) and (h) (requiring proof of several elements, including proof that a child three or younger cannot be returned to the parent's custody). This appeal followed. II. Continuance Motion The father does not contest the grounds for termination. He focuses on the court's disposition of his motion to continue, arguing: (A) his constitutional "right to be free from self-incrimination was violated when the court denied the motion to continue the termination proceedings until such time the father could testify without the prejudicial effect on the pending criminal prosecution" and (B) the juvenile court should have granted his motion based on the department's failure to notify his mother that the children were removed from his care. Motions to continue "shall not be granted except for good cause." Iowa Ct. R. 8.5. Our review of the court's denial of the motion on a non-constitutional ground is for an abuse of discretion, and we will reverse only "if injustice will result to the party desiring the continuance." In re C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996). The concept of justice incorporates a prejudice

component, which must be viewed in a pragmatic fashion. Ragan v. Petersen, 569 N.W.2d 390, 394 (Iowa Ct. App. 1997). Where constitutional rights are

implicated, our review is de novo. See In re N.N.E., 752 N.W.2d 1, 6 (Iowa 2008).

4 A. Fifth Amendment. "The Fifth Amendment Self-Incrimination Clause, which applies to the States via the Fourteenth Amendment, provides that no person `shall be compelled in any criminal case to be a witness against himself.'" McKune v. Lile, 536 U.S. 24, 35 (2002) (citation omitted). This provision prohibits a State from imposing substantial penalties "because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself." Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977); accord In re C.H., 652 N.W.2d 144, 150 (Iowa 2002) ("The State may not penalize [a father] for noncompliance with a court order impinging on his right against selfincrimination."). "[T]he government need not make the exercise of the Fifth Amendment privilege cost free." Lile, 536 U.S. at 41. "Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." Id. (quotation marks and citation omitted); C.H., 652 N.W.2d at 150 ("[A] person's exercise of a constitutional right may indeed have consequences."). The father asserts that the court's decision to proceed with the termination hearing left him with "a false choice and a harsh result: . . . the termination of parental rights or the prejudice of a pending criminal matter." In his view, his decision to remain silent allowed the State to prove its case for termination with only "minimal evidence or a mere allegation which [was] assumed to be valid." We question whether the claimed easing of the State's burden by virtue of the father's exercise of his right against self-incrimination amounts to constitutional compulsion. See Ohio Adult Parole Auth. v. Woodward, 523 U.S.

5 272, 286

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