author: McGIVERIN, Chief Justice. SNELL, Justice

text:
    Jim KELLEY, Appellant, v. STORY COUNTY SHERIFF, Story County, Appellees.
    No. 98-0030.
    Supreme Court of Iowa.
    June 1, 2000.

      Stephen Howell of Newbrough, Johnston, Brewer, Maddux & Krauth, L.L.P., Ames, for appellant.
    C. Roderick Reynolds, Assistant County Attorney,- for appellees.
   McGIVERIN, Chief Justice.

The main question here is whether damage to private property caused by law enforcement officers while executing' an arrest warrant is a taking of private property under article I, section 18 of the Iowa Constitution, triggering the 'property owner’s right to compensation. In a small claims action brought by plaintiff property owner, Jim Kelley, against defendants Story County and the Story County sheriff, the district court judge concluded that the damage caused to plaintiffs property did not amount to a taking of private property under article I, section 18 of the Iowa Constitution and that defendants were immune from tort liability under Iowa Code sections 670.4(3) and 670.12 (1997) of the Municipal Tort Claims Act.

We granted Kelley’s application for discretionary review.

Upon our review, we affirm the decision of the district court.

I. Background facts and proceedings.

Plaintiff Jim Kelley owns residential real property in Story County, Iowa. Kelley leased the property to Penny Ball.

Late in the evening of May 19, 1997, officers from the Story County sheriffs office arrived at Penny Ball’s residence to execute a warrant for the arrest of William James Vary. Vary was apparently a frequent guest or resident of that property. The officers knocked on the front door, identified themselves and demanded that they be admitted for purposes of making an arrest. When the door was not answered, the officers used force to enter, causing damage to two front-doors in the residence. The officers found Vary in the residence and arrested him. .

Thereafter, Kelley, the owner of the residence, filed an action against Story County and the Story County sheriff on the small' claims docket of district court, see Iowa Code § 631.1,-seeking compensation for the damage caused to the two doors when the officers entered the residence. The district associate judge concluded that the officers exercised due care under Iowa Code section 804.15 (authorizing law enforcement officer to use such force as is reasonably necessary to enter premises for purposes of making an arrest when officer has reasonable cause to believe that a person whom the officer is authorized to arrest is present) in entering the residence to arrest the suspect, and thus the county and sheriff were immune from liability under Iowa Code chapter 670. Kelley appealed that decision to a district court judge.

The district court judge affirmed, concluding that defendant county was immune from liability under section 670.4(3) (municipality is immune from liability for any claim based upon an act of an officer exercising due care in the execution of a statute), and that the sheriff, as an officer and employee of Story county, was not liable due to section 670.12, which removes personal liability against -officers and employees of the' county for claims which are exempted under section 670.4(3). The court also .concluded that the damage caused to Kelley’s property did not constitute a taking of private property under article I, section 18 of the Iowa Constitution and therefore Kelley was not entitled to compensation from defendants.

We granted Kglley’s application for discretionary review. See Iowa Code § 631.16.

II. Standard of review.

On discretionary review of a small claims ' action, see Iowa Code § 631.16, our standard of review depends on the nature of the case. Hyde v. Anania, 578 N.W.2d 647, 648 (Iowa 1998). If the action is a law case, we review the district judge’s ruling on error. Id. Plaintiff Kelley’s action against the county for compensation for damage caused to his property is an action at law. In such cases, we review the judgment of the district court for correction of errors at law. Iowa R.App.P. 4; Meier v. Sac & Fox Indian Tribe, 476 N.W.2d 61, 62 (Iowa 1991).

To the extent that Kelley raises constitutional claims, our review of the district court’s decision on those issues is de novo. Simonson v. Iowa State Univ., 603 N.W.2d 557, 561 (Iowa 1999).

III. Plaintiffs takings claim.

A. Preliminary matters.

The district court characterized the damage caused to Kelley’s property by the officers as tortious conduct, rather than a taking of private property under the county’s powers of eminent domain, and concluded that the county and sheriff were therefore immune from liability under Iowa Code sections 670.4(3) and 670.12 of the Municipal Tort Claims Act.

Before addressing the county and sheriffs statutory immunity under Iowa Code sections 670.4(3) and 670.12, we must first address whether the damage caused to Kelley’s property amounts to a taking of private property under article I, section 18 of the Iowa Constitution for which compensation must be paid, or whether the damage to plaintiffs property is more in the nature of tortious conduct, subject to the immunity provisions of Iowa Code chapter 670. We begin our analysis with this issue because a claim for compensation under the takings clause of article I, section 18 of the Iowa Constitution would seem to exist independent of any statutory tort immunity provisions. See Connolly v. Dallas County, 465 N.W.2d 875, 878 n. 4 (Iowa 1991) (stating that the municipal immunity provisions at issue in that case, see Iowa Code section 613A.4(7) and (8), now codified at section 670.4(7) and (8), when read with the definition of “tort,” now codified at section 670.1(4), would violate article I, section 18 of the Iowa Constitution as they would appear to exempt the county from liability for constitutional torts, i.e., a takings claim).

B. Takings law generally.

Article I, section 18 of the Iowa Constitution provides in pertinent part:

Eminent domain. Privaté property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury, who shall not take into consideration any advantages that may result to said owner on account of the improvement for which it is taken.

(Emphasis added.)

In Bormann v. Kossuth County Board of Supervisors, 584 N.W.2d 309, 315 (Iowa 1998), cert. denied, Girres v. Bormann, 525 U.S. 1172, 119 S.Ct. 1096, 143 L.Ed.2d 96 (1999), we set forth the follow^ ing analysis concerning takings claims: (1) Is there a constitutionally protected, private property interest at stake? (2) Has this private property interest been “taken” by the government for public use? and (3) If the protected property interest has been taken, has just compensation been paid to the owner?

The alleged taking of private property in this case is the physical damage caused to Kelley’s property by the officers when they entered the property to execute the arrest warrant. Thus, the facts of this case do not fit neatly within the other categories of takings cases such as the physical invasion or occupation of private property, or the regulation of the use of property by statute or ordinance. See Bormann, 584 N.W.2d at 316-17 (noting difference between physical invasion and regulation of use of property).

C. Iowa authorities concerning the power of eminent domain and the exercise of police power.

In our cases, we have explained the distinction between the government’s exercise of authority under the eminent domain and police power doctrines as follows:

“Eminent Domain” is the taking of private property for a public use for which compensation must be given. On the other hand “Police Power” controls and regulates the use of property for the public good for which no compensation need be made.

Kent v. Polk County Bd. of Supervisors, 391 N.W.2d 220, 226 (Iowa 1986) (quoting Hinrichs v. Iowa State Highway Comm’n, 260 Iowa 1115, 1126, 152 N.W.2d 248, 255 (1967)); see also Woodbury County Soil Conservation Dist. v. Ortner, 279 N.W.2d 276, 278 (Iowa 1979).

With respect to the exercise of police power for the public health and welfare, we have stated:.

While the police power is very broad, and not capable of exact definition, it is not boundless, and, as a rule, is subject to constitutional limitations. Property may be destroyed under this power, without notice or opportunity to be heard, and, without compensation to the owner, to prevent the spread of contagious diseases, to stay the progress of a devastating fire, and in other exigencies, where the public needs protection or defense. Under this power, public nuisances may sometimes be abated; but, in all such cases, the necessity for summary action must exist, and one who would justify on the ground of necessity must be able to convince a jury that the occasion was present which authorized his act....

Waud v. Crawford, 160 Iowa 432, 434, 141 N.W. 1041, 1041 (1913) (emphasis added). As one commentator has explained:

[t]he term “regulatory taking” refers to situations in which the government exercises its “police powers” to restrict the use of land or other forms of property. This is often accomplished through implementation of land use planning, zoning and building codes. In contrast, a governmental entity exercises its eminent domain power or acts in an “enterprise capacity, where it takes unto itself private resources and uses them for the common good.” Where the private landowner will not sell the land, the government entity seeks condemnation of the property and pays a fair purchase price to be determined in court. On the other hand, an inverse condemnation claim is sought by a landowner when the government fails to seek a condemnation action in court.

Bormann, 584 N.W.2d at 317 (quoting John W. Shonkwiler & Terry Morgan, Land Use Litigation § 1.02, at 6 (1986)).

The exercise of police power may, in some situations, amount to a taking of private property if it deprives a property owner of the substantial use and enjoyment of one’s property. See Iowa Coal Min. Co. v. Monroe County, 555 N.W.2d 418, 431 (Iowa 1996) (Iowa Coal II); Ortner, 279 N.W.2d at 278. The point at which police power becomes so oppressive that it results in a taking is determined on a case-by-case basis. Bormann, 584 N.W.2d at 316; Iowa Coal Min. Co. v. Monroe County, 494 N.W.2d 664, 670 (Iowa 1993) (Iowa Coal I); Ortner; 279 N.W.2d at 278. This ad hoc approach applies a balancing test that is essentially one of reasonableness, see Bormann, 584 N.W.2d at 317, which asks whether the collective benefits of the regulatory action outweigh the restraint imposed upon the property owner, see Easter Lake Estates, Inc. v. Polk County, 444 N.W.2d 72, 76 (Iowa 1989); Ortner, 279 N.W.2d at 278. Factors to be considered in applying the test include: “(1) the economic impact of the regulation on the claimant’s property; (2) the regulation’s interference with investment-backed expectations; and (3) the character of the governmental action.” Bormann, 584 N.W.2d at 316-17 (citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631, 648 (1978)).

Our case law provides some examples of the distinction between the legitimate exercise of police power and the exercise of power under eminent domain. For example, we have said that the forced removal of billboards, at the owner’s cost, which are maintained in violation of Iowa Code chapter 306C (Junkyard Beautification and Billboard Control Act) is a valid exercise of police power of the state, not an exercise of the power of eminent domain for which compensation must be paid. Iowa Dep’t of Transp. v. Nebraska-Iowa Supply, 272 N.W.2d 6, 14 (Iowa 1978), overruled on other grounds by Estate of Grossman v. McCreary, 373 N.W.2d 113, 114 (Iowa 1985); see also Goodenow v. City Council, 574 N.W.2d 18, 25 (Iowa 1998) (holding that city ordinance forcing landowner to mow grass and weeds growing on city-owned property at landowner’s expense is proper exercise of police power and does not constitute a taking of private property); Kent, 391 N.W.2d at 226-27 (holding that county ordinance prohibiting persons from owning “dangerous and vicious animals” is valid exercise of police power and does not amount to a taking of private property); Ortner, 279 N.W.2d at 279 (holding that provisions of soil conservation statutes, which require landowners to terrace property at landowners’ expense is a proper exercise of police power and does not constitute a taking of private property); Walker v. Johnson County, 209 N.W.2d 137, 139 (Iowa 1973) (“[wjhere police power is properly exercised in limited situations it is well settled affected property owners are not entitled to prior notice and hearing, even where total destruction of the property is required to protect public health and public property,” stating rule in context of claim based on the due process clauses of the Iowa and United States Constitutions); Loftus v. Department of Agric., 211 Iowa 566, 581, 232 N.W. 412, 420 (1930) (concluding that statute authorizing the destruction of diseased cattle without compensation was a proper exercise of police power and did not deprive property owner of due process under Iowa and United States Constitutions).

D. Other authorities and application of law to facts.

The district court judge found that the damage caused to Kelley’s property was more in the nature' of a tort and did not constitute a taking of private property within the meaning of article I, section 18 of the Iowa Constitution.

Upon our review, we agree with the district court’s decision.

A. Through enactment of section 804.15, the legislature has articulated the public policy that law enforcement officers may use force to enter private premises for the purpose of executing an arrest warrant. The use of force authorized by section 804.15, however, is not without limitation. According to restrictions imposed bythe legislature, “such force as is reasonably necessary” may only be used when “a law enforcement officer has reasonable cause to believe that a person whom the officer is authorized to arrest is present on [the] private premises.” See Iowa Code § 804.15.

In this case, plaintiffs property was damaged by law enforcement officers, who were exercising their authority under section 804.15, in the course of performing their public duties of enforcing the criminal laws. Enforcement of the criminal laws is clearly within the county’s power to provide for the health, safety and welfare of its citizens. Plaintiffs property was therefore damaged as a consequence of the county’s exercise of police power and not as a consequence of the county’s exercise of its power under eminent domain. Thus, the more narrow question we must decide is whether the county’s exercise of police power in this case was unreasonable.

The district court judge impliedly found that the officers did not use unreasonable force to enter the premises. Based upon our review of the record, we agree with the district court’s finding. We first point out that Kelley does not allege that the amount of force used by the officers to enter the residence was unreasonable. Additionally, the record shows that the officers chose to execute the warrant in the late evening hours because of the subject’s reputation for assaultive and combative behavior. The officers also identified themselves and demanded entry before using force to enter the home. The record thus shows that the officers properly exercised their authority granted to them by Iowa Code section 804.15 when they forcibly entered .the home.

We also believe that the county’s right to provide for the safety and welfare of its citizens in enforcing the state’s criminal laws and procedures outweighs any interference or economic impact of the officers’ action on plaintiffs property as presented in this case. The damage caused to plaintiffs property in this case would seem to be more in line with those cases where property owners have been forced to bear some burden “for the public good,” but where no taking of, private property was found. See Goodenow, 574 N.W.2d at 25 (landowner forced to mow weeds and grass growing on city-owned property at landowner’s expense); Kent, 391 N.W.2d at 221 (owner forced to give up pet lion); Ortner, 279 N.W.2d at 276 (landowners forced to terrace property at landowners’ expense); Iowa Dep’t of Transp., 272 N.W.2d at 14 (owner of billboards forced to remove billboards at owner’s expense).

B. Additionally, the damage to plaintiffs property seems to be more in the nature of a tort rather than a permanent deprivation of property, or creation of a permanent property interest, as contemplated by article I, section 18. For instance, if someone other than a non-governmental employee had broken into the residence and caused the same damage to Kelley’s property as was done here, Kelley would have a private cause of action in tort for trespass and damages against that person. We will address this point further in the next division. We simply point out at this juncture that the present case can be distinguished from the inverse condemnation or permanent taking situation we found in Bormann. 584 N.W.2d at 821. This is because the property rights infringement in Bormann was more in the nature of an involuntary permanent easement on the neighbors’ land, which situation does not exist in the present case. Id.

In Bormann, a county board of supervisors had approved the application of certain landowners to place their land in an “agricultural area.” Nearby landowners challenged the board’s action. We concluded that Iowa Code section 352.11(l)(a), which grants immunity from nuisance suits for farm operations located in an agricultural area, gave the applicant landowners the right to maintain a nuisance on their property that would affect the property of the nearby landowners. Id. This right to maintain a nuisance, we found, resulted in the granting of an involuntary easement by the county board of supervisors for the benefit of the applicant property owners, who were protected by the nuisance immunity. Id. We further concluded that the granting of such an easement by the county amounted to a taking of the neighbors’ private property for public use in violation of the Fifth Amendment to the United States Constitution and in violation of article I, section 18 of the Iowa Constitution. Id. We noted that government action need not amount to a physical invasion of the surface of the land in order for a taking to be found. Id. at 317.

C. In summary, we conclude that the damage caused to the doors on plaintiffs property by the officers was a reasonable exercise of police power and therefore does not amount to a taking of plaintiffs property within the meaning of article I, section 18 of the Iowa Constitution. Plaintiff therefore has not satisfied the second step in the takings analysis and is not entitled to compensation under that theory for damage caused to his property by the officers. See id. at 315. Other authorities support our conclusion. See Patel v. United States, 823 F.Supp. 696, 699 (N.D.Cal.1993) (concluding that property damage caused to plaintiffs property by officers serving search and arrest warrants on occupants of property did not give rise to claim for inverse condemnation under California Constitution); Customer Co. v. City of Sacramento, 10 Cal.4th 368, 41 Cal. Rptr.2d 658, 895 P.2d 900, 913 (1995) (stating that efforts of law enforcement officers to apprehend a felony suspect cannot be likened to an exercise of the power of eminent domain and holding that property damage to plaintiffs liquor store and its contents caused by law enforcement officers while trying to apprehend a suspect did not amount to taking of private property under California Constitution); McCoy v. Sanders, 113 Ga.App. 565, 148 S.E.2d 902, 905 (1966) (concluding that landowner is. not entitled to damages under Georgia Constitution for fish kill and damage to pond when police drained pond on plaintiffs property in search of murder victim); Indiana State Police v. May, 469 N.E.2d 1183, 1184 (Ind.Ct.App.1984) (concluding that damage caused to homeowner’s property by police officers trying to apprehend murder suspect who took refuge in plaintiffs home was in the nature of a tort, for which state was immune under state tort claims act; damage did not amount to a taking of private property under eminent domain power and thus homeowner was not entitled to compensation); Blackman v. City of Cincinnati, 140 Ohio St. 25, 42 N.E.2d 158, 160 (1942) (holding that state statute which makes it a crime to refuse to assist law enforcement officer in apprehending a suspect did not delegate eminent domain power to police officer so as to subject city for liability for damage to plaintiffs vehicle sustained when police officer ordered plaintiff to pursue another vehicle containing a fleeing suspect; owner of vehicle not entitled to compensation under Ohio Constitution); Sullivant v. City of Oklahoma, 940 P.2d 220, 226 (Okla.1997) (concluding that damage to plaintiff-landlord’s property caused by police officers while executing search warrant of apartment in apartment' complex owned by plaintiff did not amount to a taking of private property under the Oklahoma Constitution).

We therefore affirm the decision of the district court on this issue.

IV. Defendants’ immunity under Iowa Code sections 670.4(3) and 670.12.

We concluded above that the damage caused to Kelley’s property does not amount to a taking of private property within the meaning of article I, section 18 of the Iowa Constitution for which compensation must be paid. We also noted that Kelley’s claim for compensation seems to be more in the nature of a tort. In that regard, the district court concluded, however, that the county and sheriff were immune from liability based on tort under Iowa Code chapter 670, the Municipal Tort Claims Act. Plaintiff contends this was error.

Pursuant to Iowa Code section 670.4(3), a municipality or county has no liability for

[a]ny claim based upon an act ... of an officer or employee of the municipality, exercising due care, in the execution of a statute, ... whether the statute, ... is valid, ....

(Emphasis added.) Iowa Code section 670.12 extends this immunity to officers and employees of municipalities:

[a]ll officers and employees of municipalities are not personally liable for claims which are exempted under section 670.4, except claims for punitive damages, and actions permitted under section 85.20. An officer or employee of a municipality is not liable for punitive damages as a result of acts in the performance of a duty, unless actual malice or willful, wanton and reckless misconduct is proven.

The district court characterized the damage caused to Kelley’s property by the officers as tortious conduct, rather than a taking of private property under the county’s powers of eminent domain. Additionally, the court concluded that the officers exercised due care for purposes of section 670.4(3) in entering the residence pursuant to their authority under Iowa Code section 804.15 and that the county was therefore immune from liability under Iowa Code section 670.4(3).

Upon our review, we agree with the district court’s conclusion that the county is .immune under Iowa Code section 670.4(3) for any tort claim by plaintiff Kelley for compensation. As we concluded above, the officers properly exercised their authority granted to them by Iowa Code section 804.15 when they forcibly entered the residence. It therefore follows that the officers met the “exercising due care” requirement of Iowa Code section 670.4(3). Cf. May, 469 N.E.2d at 1183-84 (state was immune from liability for damage caused by state police officers to private property under state tort claims act which grants immunity to public body for torts committed while enforcing a state law).

We also point out that the language “exercising due care” found in section 670.4(3) acts as a check on the county’s exercise of police power to enforce the criminal laws. This is because a municipality cannot avail itself of the immunity provisions of sections 670.4(3) and 670.12 if the government employees do not exercise due care in executing a statute in the first instance. Thus, the possibility remains that a property owner may be entitled to compensation for damage to property when law enforcement officers fail to use due care , in performing their statutory duties, which is not the situation here.

We therefore conclude that the county, under Iowa Code section 670.4(3), and the sheriff and his employees, under section 670.12, have immunity concerning Kelley’s tort claim for compensation for damage caused by the officers to his property. The decision of the district court is affirmed on this issue.

V. Disposition.

Other issues raised by plaintiff either were not preserved in district court or have no merit.

We conclude that damage caused to plaintiffs property by defendants during the execution of the arrest warrant does not amount to a taking of private property under article I, section 18 of the Iowa Constitution for which compensation must be paid.

We further conclude that the district court properly decided that defendant Story County and its sheriff are immune under Iowa Code sections 670.4(3) and 670.12 concerning any tort claim by plaintiff for compensation for damage caused to his property. We therefore affirm the judgment of the district court.

AFFIRMED.

All justices concur except CARTER, J., who takes no part, and SNELL, J., who dissents and is joined by LAVORATO, J.

SNELL, Justice

(dissenting).

I respectfully dissent.

Large principles and far reaching consequences are sometimes born from small cases. That is the situation here. Jim Kelley, plaintiff, owned a house that he rented to Penny Ball. The police broke into the house in order to arrest William Vary, a frequent guest of Ball. In doing so, the police damaged two doors for which Kelley asks to be compensated in the amount of $1099.60 for repairs. Kelley did not live in the house and was not present at the time of the incident.

The majority holds that the Iowa Constitution does not provide for any compensation to Kelley, the owner of the house, who, though innocent of any fault, suffered damage to his house caused by the police. I believe the majority’s strictured view of the Iowa Constitution is legally unnecessary and causes an inequitable result.

Additionally, the majority holds that Kelley is barred from collecting damages from anybody because the doctrine of sovereign immunity prevents assessment of damages against the police or Story County. This vestige of the doctrine remains though government has assumed responsibility for payment of some other types of claims. The fallout from these tandem rulings is that Kelley bears the whole loss to his property apparently as the price an innocent citizen must pay for government acts legally undertaken to enforce the law.

Today, plaintiff Kelley suffers a property loss of $1099.60. Tomorrow, by a police incursion that precipitates escalating damages, the property loss could reach a hundred times Kelley’s loss or more. Should a property owner be expected, as a good citizen, to bear this loss while state and county government are shielded from paying for any of it? I think not. Yet, the principles established by this small claims court case will apply and control all future cases, small or large, to deny any compensation for property damage caused by the police under these circumstances.

Anticipating that acts of government may cause damage to the property of a private citizen, the framers of the Iowa Constitution crafted language mandating the payment of “just compensation.” Article I, section 18 of our Iowa Constitution provides as follows:

Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury, who shall not take into consideration any advantages that may result to said owner on account of the improvements for which it is taken.

This language is clearly broad enough to include Kelley’s claim for property damage. The apparent intent of the drafters of this constitutional provision was to expect government takings from time to time but to order that payment be made for the property taken.

The text of article I, section 18 of the Iowa Constitution, as I have quoted it, is from the 1885 Code of Iowa. That language has never been amended. Iowa’s first constitution, adopted in 1851, succinctly stated the legal principle:

Private property shall not be taken for public use without just compensation.

Iowa Const, art. I, § 18 (1851). It was referred to in Henry v. Dubuque & Pac. R.R., 2 Coles 288 (Iowa 1855), as follows:

That language of the constitution means that the person whose property is taken for public use shall have a fair equivalent in money for the injury done him by such taking; in other words, that he shall be made whole, so far as money is a measure of compensation, we are equally clear. This just compensation should be precisely commensurate with the injury sustained, by having the property taken; neither more nor less.

Henry, 2 Coles at 300.

The majority quotes from the present Code of Iowa that embosses as a heading to article I, section 18 the words “Eminent Domain.” Those words appear in the 1897 Code of Iowa, not by virtue of any constitutional change, but by the gratuitous captioning work of an unknown editor. The words “Eminent Domain” are not, nor have they ever been, a part of article I, section 18 of the Iowa Constitution. They do not, therefore, limit or have any bearing on our consideration of the breadth of constitutional meaning contained in section 18.

For this reason, we should not be diverted into a comparison of eminent domain cases and police power cases when the referents are not even in the constitutional language. Nor does the reliance by the majority on the rules of inverse condemnation have any application to this case. See generally Bormann v. Kossuth County Bd. of Supervisors, 584 N.W.2d 809 (Iowa 1998). The Bormann case pertained to an invasion by noxious odors from a hog confinement facility. The question was whether a “taking” could occur when there had been no physical invasion or occupancy of plaintiffs property. Bormann held that a “taking” had occurred and set up rules, relied on by the majority, to determine if a taking would occur under circumstances of this nature. Id. at 315-22.

Although appropriate in Bormann and like cases, these rules are inapt to resolve the issue in the present case.

Bormann, in its discussion of takings jurisprudence, recognized the rules that I believe should be applied in the case at bar. We said:

(1) Takings jurisprudence, generally. There are two categories of state action that must be compensated without any further inquiry into additional factors, such as the economic impact of the governmental conduct on the landowner or whether the regulation substantially advances a legitimate state interest. The two categories include regulations that (1) involve a permanent physical invasion of the property or (2) deny the owner all economically beneficial or productive use of land. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). These two categories are what the neighbors term “per se” takings. The per se rule regarding the first category — physical invasion— was firmly established in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 425, 102 S.Ct. 3164, 3171, 73 L.Ed.2d 868, 886 (1982).
(a) Trespassory invasions of private property by government enterprise.
Generally when the government has physically invaded property in carrying out a public project and has not compensated the landowner, the United States Supreme Court will find that a per se taking has occurred. See [John W.] Shonkwiler [ & Terry Morgan, Land Use Litigation ] § 10.01(1), at 369.
In a more recent case, the Court applied the same rule to a state law that authorized third parties to physically intrude upon private property. Loretto, 458 U.S. at 432 n. 9, 102 S.Ct. at 3174 n. 9, 73 L.Ed.2d at 880 n. 9 (holding that a New York statute requiring the owners of apartment buildings to permit cable television operators to install transmission facilities on their property was in violation of the Just Compensation Clause).

Id: at 316-17.

Other rules enunciated in Bormann, and relied on by the majority, apply in all cases other than a per se taking case. Those rules pertain to regulatory takings, on a case-by-case basis, balancing the property owner’s interests against the reasonableness of regulatory action. See id. at 315-22.

This is a per se taking case. The doors in Kelley’s house were damaged by the police breaking in; a physical invasion thereby resulted. A per se “taking” by the acts of government officers occurred which obviates the need to consider rules that balance a property owner’s interests against police regulatory action. To apply these balancing rules, that apply to other than per se takings, to see if a taking has occurred in the case at bar, is an after the fact analysis. The undisputed fact that Kelley’s doors were damaged legally determines that a “taking” of this property occurred.

For this same reason, cases debating the legitimate exercise of police power and eminent domain power are irrelevant. The case at bar should not even consider whether the use of force by the police was reasonable. In framing its analysis based on this point, the majority has diminished the language of article I, section 18, of the Iowa Constitution, ranking it on the same level for analysis as statutory language articulating police powers, found in Iowa Code section 804.15. By this approach the majority has strayed from focusing on, and giving primary importance to, the words of the Constitution.

The salient words of our constitution, for this case, are: “Private property shall not be taken for public use without just compensation. ...” Iowa Const, art. I, § 18.

These words convey a broad meaning and are all inclusive. Our construction of them should not reduce their universal application simply because of the brevity of language. While the constitutions of other states may include additional words to specify compensable property rights, that fact does not change the meaning and application of the words in the Iowa Constitution.

I believe the proper rationale for deciding the meaning of the words “taken for public use” in the Iowa Constitution is set out by the Minnesota Supreme Court in the case of Wegner v. Milwaukee Mutual Insurance Co., 479 N.W.2d 88 (Minn.1992). With facts remarkably similar to those in our present case, the Minnesota court held that. its constitution mandated that compensation be paid for a taking of property by the government. Wegner, 479 N.W.2d at 42.

In Wegner, the Minneapolis Police Department severely damaged a house while attempting to apprehend an armed suspect. Article I, section 13, of the Minnesota Constitution provides: “Private property shall not be taken, destroyed or damaged for public use without justification, first paid or secured.”

The Minnesota court viewed this provision with the following rationale:

This provision “imposes a condition on the exercise of the state’s inherent supremacy over private rights.”
This type of constitutional inhibition “was designed to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960).

Id. at 40.

In Wegner, the city made exactly the same argument as is made in the present case, where Kelley is denied compensation. The city of Minneapolis contended that there was not a taking for public use because the actions of the police constituted a legitimate exercise of the police power. To this argument the court answered:

The police power in its nature is indefinable. However, simply labeling the actions of the police as an exercise of the police power “cannot justify the disregard of the constitutional inhibition.”
Consequently, the issue in this case is not the reasonableness of the use of chemical munitions to extricate the barricaded suspect but rather whether the exercise of the city’s admittedly legitimate police power resulted in a “taking.”

Id. (citations omitted).

The munitions used by the Minneapolis police were flash-bang grenades that broke every window in the house, went through walls, and covered walls and furniture with a pink film from tear gas. The estimated damages were $71,000.

The city of Minneapolis also argued that no compensation was owed based on the doctrine of public necessity. Rejecting this argument, the Minnesota Supreme Court reasoned:

Once a “taking” is found, compensation is required by operation of law. Thus, if the doctrine of public necessity were to apply to a given fact situation, no taking could be found under Minn. Const, art. I, § 13.
We are not inclined to allow the city to defend its actions on the grounds of public necessity under the facts of this case. We believe the better rule, in situations where an innocent third party’s property is taken, damaged or destroyed by the police in the course of apprehending a suspect, is for the municipality to compensate the innocent party for the resulting damages. The policy considerations in this case center around the basic notions of fairness and justice. At its most basic level, the issue is whether it is fair to allocate the entire risk of loss to an innocent homeowner for the good of the public. We do not believe the imposition of such a burden on the innocent citizens of this state would square with the underlying principles of our system of justice. Therefore, the City must reimburse Wegner for the losses sustained.

Id. at 42 (citations omitted).

The Texas Supreme Court agrees with the rationale of the Minnesota Supreme Court and has held that compensation is provided under. the. Texas Constitution. See Steele v. City of Houston, 603 S.W.2d 786 (Tex.1980). In Steele, a group of escaped prisoners took refuge in a home, not then occupied by the owner or his renters. When the police discovered the prisoner’s location, they discharged incendiaries into the home in order to burn out the prisoners. On arriving at the scene, the fire department was prevented by the police from stopping the fire. The police action resulted in the destruction of the house and all of the personal property of the renters. The owner and renters sued the City of Houston claiming damages under the Texas Constitution.

The Texas Constitution provides for the payment of compensation to' a person whose property is “taken, damaged or destroyed for or applied to public use.” Texas Const, art. I, § 17. Commenting on these words, the Texas Supreme Court said:

The taking, the damaging, or the destruction of property are often treated, more or less, as synonyms, ‘but the terms are different and have different historical origins. The underlying basis for compensating one whose property is taken, damaged or destroyed for public use, may, however, be the same, for the prohibition against uncompensated takings “was designed to bar government from forcing some people alone to bear, public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554. (1960); Y.M.C.A. v. United States, 395 U.S. 85, 89, 89 S.Ct. 1511, 23 L.Ed.2d 117 (1969).

Steele, 603 S.W.2d at 789.

The Texas Supreme Court then observed that, through its cases, the court had moved “beyond the earlier notion that the government’s duty to pay for taking property rights is excused by labeling the taking as an exercise of police powers.” Id. at 789. Further reaching back in history, the court recalled that uncompensated governmental taking of property was unlawful before the Magna Carta. Id. In concluding, the Texas court said:

The City argues that the destruction of the property as a means to apprehend escapees is a classic instance of police power exercise for the safety of the public. We do not hold .that the police officers wrongfully ordered the destruction of the dwelling; we hold that the innocent third parties are entitled by the Constitution to compensation for their property.

Id. at 793.

In Wallace v. City of Atlantic City, 257 N.J.Super. 404, 608 A.2d 480 (Law Div. 1992), the Atlantic City police damaged three doors while breaking into a residence to execute a search warrant. The total cost of labor and materials necessary to repair the doors was $900.97. The Superior Court held that this act by police constituted a “taking” under the United States and New Jersey Constitutions that entitled the property owner to just compensation in the amount of the damages. Wallace, 608 A.2d at 483.

I do not believe that the words “damaged or destroyed” used in the Minnesota and Texas Constitutions are of any distinguishing legal significance from the word “taken” contained in article I, section 18 of the Iowa Constitution. Any property damaged or destroyed has been taken from its owner whether in whole or in part by virtue of the owner’s immediate diminished use of it.

The framers of the Iowa Constitution said it all by providing for “just compensation” to be paid when property is “taken for public use.” Additional words like “damaged” or “destroyed,” are nothing but a redundancy, conceptually and legally.

Nor should constitutional language be parsed to cover Kelley’s doors for compensation as a “taking” if the police hauled them away, but not as a “taking,” if the damaged doors were left hanging on their hinges. Logic, equitable principles, and constitutional law support compensating Kelley for his property loss, taken through government acts envisioned by the framers of our constitution.

I would reverse and remand this case for entry of judgment against Story County in favor of plaintiff Kelley as commanded by the law of our Iowa Constitution, article I, section 18.

LAVORATO, J., joins this dissent.

      . We will refer to defendants collectively as the county unless otherwise indicated.

      . Cases from other jurisdictions have held that takings claims are not barred by statutory immunity provisions. This rule is based on the idea that the right to sue for the alleged taking of private property arises directly from the state constitution and is independent of any right to sue under traditional tort theories. See Rose v. City of Coalinga, 236 Cal. Rptr. 124, 127, 190 Cal.App.3d 1627, 1633 (1987) ("The right to sue in inverse condemnation is 'fundamentally rooted' in [the California] Constitution, and the extent of a public entity’s liability is fixed by the Constitution and not by rules of statutory or common law rights and responsibilities between private parties.”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980) (stating that Texas Constitution authorizes compensation for destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use); Wisconsin Retired Teachers Ass'n v. Employe Trust Funds Bd., 207 Wis.2d 1, 558 N.W.2d 83, 95 (1997) ("[S]overeign immunity will not bar recovery for a taking, because just compensation following a taking is a 'constitutional necessity rather than a legislative dole.' ”) (citations and quotations omitted); Zinn v. State, 112 Wis.2d 417, 334 N.W.2d 67, 76 (1983) (stating doctrine of sovereign immunity cannot bar a takings claim because just compensation clause of Wisconsin Constitution amounts to waiver of sovereign immunity); Restatement (Second) of Torts § 985B cmt. a (1977) (stating that constitutional provisions prohibiting the taking of property for public use without just compensation have usually been held to be self-executing and to constitute a consent to suit); 26 Am.Jur.2d Eminent Domain § 169, at 592 (1996) ("doctrine of governmental immunity from liability does not apply where the injury complained of is the taking or damaging of private property for public use. without compensation”); 57 Am.Jur.2d Municipal, County, School, and State Tort Liability § 18, at 45 (1988) (state constitutional prohibition against taking or damaging of private property for public use without just compensation overrides sovereign immunity of county).

      . For example, the construction of public improvements or other government action may interfere with private property interests even though formal eminent domain proceedings under Iowa Code chapters 6A and 6B have not been instituted. In such cases, a property owner may seek compensation for an alleged taking of private property under inverse condemnation. See Phelps v. Board of Supervisors, 211 N.W.2d 274, 276 (Iowa 1973) (construction of bridge and causeway over river which caused greater flooding over adjacent property than previously existed was a taking within the meaning of Iowa Constitution).

      . Iowa Code section 804.15 states:
      If a law enforcement officer has reasonable cause to believe that a person whom the officer is authorized to arrest is present on any private premises, the officer may upon identifying the officer as such, demand that the officer be admitted to such premises for the purpose of making the arrest. If such demand is not promptly complied with, the officer may thereupon enter such premises to make the arrest, using such force as is reasonably necessary.

      (Emphasis added.)

      . Additionally, even though specific reference to "damage to property” is found in the takings clauses of the California, see Cal. Const, art. I, § 19, Georgia, see Ga. Const, art. I, § 3, para. 1, and Oklahoma Constitutions, see Okla. Const, art. II, § 24, courts in those states have concluded that damage to private property caused by law enforcement officers while performing their official duties does not constitute a taking of private property. See Customer Co., 41 Cal.Rptr.2d 658, 895 P.2d at 913; McCoy, 148 S.E.2d at 905; Sullivant, 940 P.2d at 226.
      Cases from some jurisdictions have reached a contrary result. See Wegner v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38, 41-42 (Minn.1991) (holding that damage caused to property by police in the course of apprehending a suspect is damage within the language of Minnesota Constitution for which compensation must be paid); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980) (holding that plaintiffs stated a claim for compensation under Texas Constitution for damage caused by police officers to property while trying to capture escaped prisoners who took refuge in plaintiff's home); Wallace v. City of Atlantic City, 257 N.J.Super. 404, 608 A.2d 480, 483 (Law Div.1992) (holding that landlord whose property was destroyed during the execution of a search warrant was entitled to compensation under New Jersey Constitution). The Wegner and Steele cases can be distinguished from the present case, however, based on the fact that the Minnesota and Texas Constitutions contain language different from our Iowa Constitution.- See Wegner, 479 N.W.2d at 40 (Article I, section 13 of Minnesota Constitution states "[p]rivate property shall not be taken, destroyed or damaged for public use without just compensation first paid or secured.”); Steele, 603 S.W.2d at 791 (Article I, section 17 of the Texas Constitution states ”[n]o person’s property shall be taken, damaged or destroyed ... without adequate compensation being made,....").


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    In the Interest of C.B. and G.L., Minor Children, H.W., Mother, Appellant.
    No. 98-1719.
    Supreme Court of Iowa.
    June 1, 2000.

      Martha M. McMinn, Sioux City, for ap.-pellant.
    Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant Attorney General, for appellee-State.
    Joseph Kertels, Sioux City, guardian ad litem for minor children.
   CADY, Justice.

The State seeks further review of a decision by the court of appeals reversing an order by the juvenile court terminating, a mother’s ■ parental' rights. We vacate the decision of the court of appeals, and affirm the decision of the juvenile court.

I. Background Facts and Proceedings.

’ :H.W. has six children. Each child has a different father. Two of the children are C.B., a boy, and G.L., a girl. C.B. was born on February 11, 1992, and G.L. was born -on August 19, 1995. They were removed from H.W.’s care in August 1996, after H.W. assaulted an older child with a belt. She was intoxicated at the time and threatened to kill the child. H.W. has a long history of alcohol and drug abuse. G.L. tested positive for cocaine when she was born.

H.W. was convicted of child endangerment as a result of the incident which led to the removal of C.B. and G.L. She was placed on probation. Both C.B. and G.L. were adjudicated children in need of assistance pursuant to Iowa Code section 232.2(6)(a), (b), (j), and (n) (1995) in October 1996. G.L. was placed with her maternal grandmother in Louisiana, C.B. was placed with his maternal aunt in Sioux City.

The dispositional hearing was continued until March 1997 so an evaluation of H.W. and an Interstate Compact home study of the maternal grandmother in Louisiana could be completed. Visitation between H.W. and the children, C.B. and G.L., was permitted under the supervision of the Iowa Department of Human Services (DHS), or its designee, which included the children’s maternal aunt. H.W., however, failed to cooperate and eventually left Iowa to avoid facing a probation revocation hearing. Consequently, she failed to maintain appointments, failed to complete a chemical dependency assessment, failed to submit to urinalysis drug screening, and failed to cooperate with the parent-skill development services. The court ordered H.W. to have no. contact with C.B. or G.L. until she contacted the DHS. The home study recommended all of H.W.’s children be placed in the custody of the maternal grandmother in Louisiana.

H.W. was located by social service officials in Louisiana in September 1997. She was found in the home of the maternal grandmother caring for some of the children, including G.L. She exhibited signs of intoxication at the time. Louisiana officials subsequently returned the children to Iowa for foster care placement, but not before H.W. attempted to abscond with G.L. She was stopped by law enforcement officials in a visibly intoxicated condition. She was also eight months pregnant.

H.W. returned to Iowa shortly before a review hearing in March 1998. She was unemployed, but claimed she had not used drugs for some time. In light of the probation revocation hearing she faced later in the month, the juvenile court found it was not in the best interests of C.B. and G.L. to permit visitation until after the conclusion of the probation hearing.

A permanency hearing was held in May 1998. By this time, H.W. had entered a relapse program. She was also attending Alcoholics and Narcotics Anonymous meetings, and had filed for divorce from her abusive husband. She was also employed. Nevertheless, an evaluator determined she was not a likely candidate for successful therapy with her children. She only attended one of her last five individual therapy sessions. H.W. completed a psychological evaluation which showed symptoms of a schizoid personality disorder and chemical dependency. The State filed a petition for termination of H.W.’s parental rights on the day of the permanency hearing. The court found it was not in the best interest of the children to resume visitation until the completion of the termination hearing.

The termination hearing was held in early July 1998. H.W. had maintained employment for over a month, been separated from her abusive husband for over three months, obtained separate living arrangements within the week preceding the hearing, and made progress in her chemical dependency treatment. Nevertheless, her chemical dependency counselor felt C.B. and G.L. should not be returned to H.W. unless under a highly structured setting.

The court found the circumstances which led to the adjudication of C.B. and G.L. as children in need of assistance continued to remain and that they could not be returned in a reasonable amount of time, stating

With [HW.’s] history, the Court strongly believes that should the children be returned to her anytime in the near future, the stress of having to care for them would make it extremely likely that she would relapse. The events of the last couple months give reason to have hope for [H.W.’s] future, however, a couple months of sobriety weighed against 15 years of dependency makes that hope be cautious at best. These children deserve more than cautious hope, especially in light of the fact that they have been involved in the system for over two years already.

Furthermore, the court found H.W. failed to maintain significant and meaningful contact with C.B. for the fourteen months prior to the termination hearing, or with G.L. for the preceding eight months. Additionally, the court found H.W. never attempted to make reasonable efforts to resume caring for her children. The court terminated H.W.’s parental rights of C.B. and G.L. pursuant to Iowa Code section 232.116(l)(c), (d), (e), (g), and (k) (1997). H.W. appealed, and the case was transferred to the court of appeals.

H.W. claimed there was insufficient evidence to support termination of her parental rights under “all elements” of each ground for termination because the DHS did not use reasonable efforts to correct the problems which led to the removal of the children. H.W. specifically claimed the DHS failed to provide reasonable efforts, including visitation, during those three critical months preceding the termination hearing after she started to turn her life around.

The court of appeals found the record was insufficient to support termination of H.W.’s parental rights and remanded the case to the district court for determination of whether further unification services could be implemented. The court of appeals found that the DHS did not use reasonable efforts to facilitate visitation and further found the recent lifestyle changes by H.W. made unification possible. The State filed application for further review.

II. Scope of Review.

We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). Although we are not bound by them, we give weight to the trial court’s findings of fact, especially when considering credibility of witnesses. Iowa R.App.P. 14(f)(7); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993). The primary interest in termination proceedings is the best interests of the child. Iowa R.App.P. 14(f)(15); In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence. See Iowa Code § 232.116. “Clear and convincing evidence” means there are no serious or substantial doubts as to the correctness or conclusions of law drawn from the evidence. See Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa App.1983).

III. Waiver.

The State first claims H.W. waived any challenge to the sufficiency of the evidence by failing to set forth the specific elements of the grounds for termination which lacked sufficient evidence due to the lack of reasonable efforts. The State claims this is required by Iowa Rule of Appellate Procedure 14(a)(3). • We disagree.

We have long recognized an appellant must identify alleged error on appeal. See Bennett v. MC No. 619, Inc., 586 N.W.2d 512, 521 (Iowa 1998); City of Des Moines v. Geller Glass & Upholstery, Inc., 319 N.W.2d 239, 244 n. 3 (Iowa 1982). This concept is reflected in Iowa Rule of Appellate Procedure 14(a)(3), which requires the appellant to separately list all issues for appeal. A broad, all encompassing argument is insufficient to identify error in cases of de novo review. Hyler v. Gamer, 548 N.W.2d 864, 870 (Iowa 1996).

In this case, the juvenile court terminated parental rights under Iowa Code section 232.116(l)(c), (d), (e), (g), and (k). All five grounds for termination generally contain the dual elements of parental unfitness and the failure of the parent to become minimally fit to parent the child within a specific period of time in which our legislature has determined a child needs a permanent home. Although each is a separate ground for termination, they all contain a common element which implicates the reasonable effort requirement. In section 232.116(l)(e), the State must prove the parent was offered or received services to correct the circumstances which led to a CINA adjudication and that those circumstances still exist. In section 232.116(l)(d), the State must show the parent has not maintained significant and meaningful contact with the child, nor attempted to resume care of the children despite the opportunity to do so. In Iowa Code sections 232.116(1)(e), (g), and (k), the State must show the child cannot be returned to the custody of the parent.

H.W. challenged the sufficiency of evidence on appeal in terms of the reasonableness of the efforts of the DHS to achieve reunification of parent and child. She did not challenge the basis for the removal of the children. Thus, H.W. clearly implicated those elements of the grounds for termination dealing with the evidence to show the child cannot be returned home because the parent has not improved enough to justify reunification. Consequently, we find H.W. has adequately raised the issue on appeal without targeting the reasonable efforts argument to each specific subsection.

IV. Reasonable Efforts.

Our laws relating to the welfare of children have been driven for the last twenty-five years by policies and laws generally developed at the national level. Under the Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272, 94 Statutes 500 (codified as amended in scattered sections of 42 U.S.C.), the concept of family preservation was established with a goal of reuniting children with their families after reasonable efforts by social services. See In re Lilley, 719 A.2d 327, 332 (Pa.Super.Ct.1998). Congress mandated services for families and children under the threat of ineligibility for federal matching funds to accomplish this goal. See id. The reasonableness effort was conceived by Congress in part to ensure that prior to the expenditure of federal funds on foster care, reasonable efforts would be made to prevent out-of-home placement, and reasonable efforts would be made for unification following out-of-home placement. See Debra Ratterman et al., Reasonable Efforts to Prevent Foster Placement 1 (2d ed.1987). The requirement of reasonable efforts exists both to protect rights of parents and children, and provide financial incentive for states. Id. at 1-2; see also 42 U.S.C. § 671(a)(15), (16).

Iowa responded with its own scheme of reasonable efforts by requiring the DHS to “make every reasonable effort to return the child to the child’s home as quickly as possible consistent with the best interests of the child.” Iowa Code § 232.102(7); see also In re M.B., 553 N.W.2d 343, 345 (Iowa App.1996); In re A.Y.H., 508 N.W.2d 92, 95 (Iowa App.1993). The concept covers both the efforts to prevent and eliminate the need for removal. -Iowa Code § 232.102(10)(a). The focus is on services to improve parenting. In re T.A.L., 505 N.W.2d 480, 485 (Iowa 1993). However, it also includes visitation designed to facilitate reunification while providing adequate protection for the child. M.B., 553 N.W.2d at 345.

Recently, the reasonable efforts requirement has undergone some transformation. This is because the family preservation concept which guided our general national policy for the last two decades was found to be detrimental to children in some cases. See Lilley, 719 A.2d at 332. Consequently, the Adoption and Safe Families Act of 1997, Public Law 105-89, 111 Statutes 2115 (codified as amended in scattered sections of 42 U.S.C.), now broadens the focus of reunification to place greater emphasis on the health and safety of the child, and mandates a permanent home for a child as early as possible. See 42 U.S.C. § 675(5)(C); Lilley, 719 A.2d at 333. It also eliminates the reasonable effort requirement for certain types of parental behavior. See 42 U.S.C. § 675(5)(C). In response, our legislature recently enacted amendments to our comprehensive juvenile justice act to permit waiver of reasonable efforts when aggravating circumstances exist. See 1998 Iowa Acts ch. 1190, § 17 (codified at Iowa Code § 232.102(12) (1999)). These amendments not only reflect the critical role of reasonable efforts from the very beginning of intervention, but recognize a child’s right to appropriate custodial care and the important element of time.

At the same time, the reasonable efforts requirement is not viewed as a strict substantive requirement of termination. Instead, the scope of the efforts by the DHS to reunify parent and child after removal impacts the burden of proving those elements of termination which require reunification efforts. See In re B.K.K., 500 N.W.2d 54, 57 (Iowa 1993); In re L.H., 480 N.W.2d 43, 46 (Iowa 1992). The State must show reasonable efforts as a part of its ultimate proof the child cannot be safely returned to the care of a parent.

In this case, H.W. objected to the lack of visitation after she returned to Iowa, but did not' object to other reunification efforts by the DHS until the termination proceeding. We have repeatedly emphasized the importance for a parent to object to services early in the process so appropriate changes can be made. See B.K.K., 500 N.W.2d at 57; see also In re J.L.W., 570 N.W.2d 778, 781 (Iowa App.1997). Thus, in considering the sufficiency of evidence to support termination, our focus is on the services provided by the state and the response by H.W., not on services H.W. now claims the DHS failed to provide.

V. Sufficiency of Evidence.

The children were removed from the care of H.W. in August 1996. A case plan was entered and services were outlined to achieve the goal of reunification. However, H.W. was not responsive to services until April 1998. Her life was plagued with a variety of problems, including troubled dependent relationships, and a debilitating drug addiction. Consequently, her interest in her children waned. At the dispositional hearing in March 1998, H.W. had not seen G.L. since October 1997, and had not seen C.B. since May 1997. She had left Iowa for nearly a year without any services.

After eighteen months of almost complete lack of cooperation with the DHS, H.W. began to show positive signs in her lifestyle. In April 1998, shortly before the permanency hearing in May, she entered' a drug relapse program. She expressed interest in establishing visitation with her children and obtained employment. She also secured her own apartment about a week prior to the termination hearing in July 1998.

While H.W. took positive steps to turn her life around in the months prior to the termination hearing, these steps do not eliminate her past, including her absence from the lives of the children and her failure to utilize services. The problems encountered by H.W. which led to the removal of the children are significant. Even though she entered a relapse pro-, gram a couple months prior to the termination hearing, she only attended one of five individual therapy sessions prior to the termination hearing. The employment she secured in the months prior to the termination hearing was short term.

While we recognize the law requires a “full measure of patience with troubled parents who attempt to remedy a lack of parenting skills,” Iowa has built this patience into the statutory scheme of Iowa Code chapter 282. See In re D.A., Jr., 506 N.W.2d 478, 479 (Iowa App.1993) (quoting In re AC., 415 N.W.2d 609, 613-14 (Iowa 1987)). As we noted in AC., “[t]he crucial days of childhood cannot be suspended while parents experiment with ways to face up to. their own problems.” AC., 415 N.W.2d at 613; see also In re D.W., 385 N.W.2d 570, 578 (Iowa 1986) (“we cannot gamble with the children’s future[, t]hey must not be made to await their mother’s maturity”). Thus, the legislature incorporated a twelve-month limitation for children in need of assistance aged four and up,- and a six-month limitation for children in need of assistance aged three and below. See Iowa Code § 232.116(l)(e), (g). If a parent ceases to have contact with his or her child for these limitation periods, and the other requirements are met, “the legislature ... has made a categorical determination that the needs of a child are promoted by termination of parental rights” in cases meeting the conditions of section 232.116(1)(e). In re M.W., 458 N.W.2d 847, 850 (Iowa 1990). The purpose of these limitations “is to prevent children from being perpetually kept in foster care and to see that some type of permanent situation is'provided for the children.” In re J.P., 499 N.W.2d 334, 339 (Iowa App.1993) (discussing the limitation found in section 232.116(l)(e)).

Once the limitation period lapses, termination proceedings must be viewed with a sense of urgency. In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). Insight for the determination of the child’s long-range best interests can be gleaned from “evidence of the parent’s past performance for that performance may be indicative of the quality of the future care that parent is capable of providing.” In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981).

In this case, H.W.’s efforts are simply too late. The changes in the two or three months before the termination hearing, in light of the preceding eighteen months, are insufficient. H.W. has severe problems which have rendered her unfit to care for her children for nearly two years. There was testimony that it would be another year from the termination hearing before the children could be returned to her. H.W. would need to remain drug-free during this time, and continue to earnestly participate in services. Considering all of the circumstances and the long history of this case, there is no reasonable basis to conclude this could even be done. H.W. needed to begin her efforts to pull her life together and resume care for her children much earlier.

This case emphasizes the critical need for services to be implemented by the DHS early in the intervention process and for the parents to actively and promptly respond to those services, as well as to voice any problems with services so changes or corrections in the case plan can be made. Time is a critical element. A parent cannot wait until the eve of termination, after the statutory time periods for reunification have expired, to begin to express an interest in parenting. See In re C.K., 558 N.W.2d 170, 175 (Iowa 1997) (after statutory time, the patience with parents must yield to needs of the child). In this case, the DHS performed its role of providing services. The problem, however, was not with the services but was with H.W.’s response to those services. She waited too long to respond, and the underlying problems which adversely affected her ability to effectively parent were too serious to be overcome in the short period of time' prior to the termination hearing. Moreover, the failure of the DHS to provide visitation in the last months before the termination hearing did not impact the outcome of the case. At the time of the termination hearing, there was clear and convincing evidence the children could not be returned to the care of H.W. We find substantial evidence to support all grounds for termination.

VI. Conclusion.

We vacate the court of appeals decision and affirm the decision by the juvenile court to terminate the parental rights of H.W.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

      . Iowa Code section 232.99(2A), as amended by 1998 Iowa Acts chapter 1190, section 10, now provides that at the beginning of each dispositional and subsequent hearing the juvenile court shall “advise the parties” that the failure to identify a deficiency in services or to request additional services may preclude the party from challenging the sufficiency of the services in a termination proceeding.

      . Iowa Code section 232.102(7A), as amended by 1998 Iowa Acts chapter 1190, section 14, now provides that an order transferring custody to the DHS or another agency shall include a statement informing the parents that the consequences of removal may include termination of parental rights.


author: LAVORATO, Justice.

text:
    HOLLAND BROS. CONSTRUCTION CO., INC., Appellant, v. IOWA STATE BOARD OF TAX REVIEW, Appellee.
    No. 98-2029.
    Supreme Court of Iowa.
    June 1, 2000.

      Bruce W. Baker and Angela L. Watson of Nyemaster, Goode, Voigts, West, Han-sell & O’Brien, P.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Harry M. Griger, Special Assistant Attorney General, and James D. Miller, Assistant Attorney General, for appellee.
   LAVORATO, Justice.

In this appeal, we must decide which of two casual sales exemption provisions apply to a protester’s auction sale of capital assets of the protester’s road construction business. The agency determined that the exemption provision relating to liquidation sales applied, found that the protester did not meet the requirements of the provision, assessed a tax, and imposed a penalty. On the protester’s petition for judicial review, the district court agreed with the agency. We reverse and remand with directions.

I. Background Facts and Proceedings.

The facts in this case are essentially undisputed. Holland Bros. Construction was liquidated in 1992 after forty-two years of operation. The company was primarily engaged in the business of road building for governmental entities.

For its road building business, Holland purchased heavy equipment, road construction machinery, vehicles and various parts, materials, and supplies (Purchased Equipment). Holland also acquired scrap material reclaimed from its work on roadways (Reclaimed Material). The Reclaimed Material consisted of culverts, corrugated metal drainage pipe, and other materials. The governmental entities did not require Holland to pay for the Reclaimed Material.

From January 1, 1988, to December 18, 1992, Holland made sales of Purchased Equipment and Reclaimed Material to individuals and businesses. Holland never advertised for sale of the Purchased Equipment or Reclaimed Material. Nor did the company maintain retail display or sales space or keep inventory on hand for sale at its business premises. Holland sold these items as a matter of courtesy when an individual or business was unable to purchase the items elsewhere.

The sales of Reclaimed Material amounted to less than one percent of Holland’s gross revenues during the years 1988 through 1992. Holland’s gross revenues from its road construction business averaged about six million dollars per year for the same period.

During the years 1988 through 1992, Holland made 183 sales of noncapital assets and services. During this period, Holland also made machine and motor repairs for Northeast Leasing, Ltd., a related corporation, which was engaged in the business of leasing heavy road construction equipment. Holland also leased some of its purchased equipment to other road construction companies.

In 1992, after an auditor for the Iowa Department of Revenue and Finance brought the matter to Holland’s attention, Holland reported and remitted sales tax to the department on all but $291.10 of these transactions. Holland concedes that it owed sales tax on the noncapital asset and service transactions during these years. Holland had a retail sales tax permit since 1971 and had been remitting sales tax for years.

During 1988 through 1991, Holland made seven sales of capital assets. Holland contends (1) it made these sales outside of the regular course of its business as a road construction contractor, and (2) for that reason, the transactions were not subject to sales tax.

In 1992, Holland decided to sell most of the assets used in its road construction business. Holland employed two auctioneers, one to sell its heavy equipment, machinery, and vehicles, and the other to sell its parts, tools, and smaller items. The auction of the heavy equipment, machinery, and vehicles generated gross receipts of $2,825,470, of which $2,096,320 belonged to Holland and the remainder belonged to Northeast Leasing, The other auction generated gross receipts of $108,422.70 for Holland. The items were sold to various individuals, and no Reclaimed Material was sold.

Holland ceased its road construction business following the auction. However, Holland’s corporate existence continued so that it could (1) collect payments on its prior construction contracts and (2) wind down its road construction business.

During 1993, the department audited Holland for the period from January 1, 1988, through December 31, 1992. The audit resulted in a sales tax assessment of $115,483.94. The department also assessed $20,044.51 in penalties and interest. The department assessed sales tax on (1) the seven nonauction sales of capital assets previously mentioned and (2) the auction sales.

Holland filed a protest to this assessment. See Iowa AdmimCode r. 701-7.8 (1995). The department reassessed Holland’s tax liability and ultimately reduced the assessment to $75,931.14, plus penalty and interest. In the reassessment, the department determined that no sales tax was due on the seven nonauction sales of capital assets previously mentioned.

The department filed an answer to the protest, following which an administrative law judge (ALJ) conducted a contested case hearing. Before the hearing, the parties filed a stipulation of facts. Holland conceded that its noncapital, nonauction sales and services during the audit period (1988 through 1992) were subject to Iowa sales tax. The parties presented a number of issues to the ALJ, only two of which are decisive of this dispute: (1) whether the auction sale of Holland’s equipment in 1992 qualifies for the casual sales exemption in Iowa Code section 422.45(6) (1991) and (2) whether the penalty was properly imposed.

The ALJ concluded the auction sale did qualify for the casual sales exemption. Its conclusion rendered the penalty issue moot. ,. .

The department appealed to the director of the department, who, contrary to the ALJ’s decision, concluded that the auction sale did not qualify for the casual sales exemption. The director also concluded the tax penalty was properly imposed.

- Holland appealed to the State Board of Tax Review, contending that the director had erred in concluding that, the auction sale did not qualify for the casual sales exemption. Holland also contended the tax penalty was improperly imposed. The board disagreed with Holland, concluding that (1) the auction sale did not qualify for the casual sales exemption and (2) the. tax penalty was properly imposed.

On Holland’s petition for judicial review, the district court agreed with the board, concluding that (1) the auction sale did not qualify for the casual sales exemption and (2) the tax penalty was properly imposed.

On appeal from the district court decir sion, Holland again asserts that (1) the auction sale qualified for the casual sales exemption and (2) the tax penalty was improperly imposed..

II. Scope of Review.

A district court engaged in judicial review under Iowa Code section 17A.19(8) acts in an appellate, capacity to correct errors of law on the part of the agency. IBP v. Al-Gharib, 604 N.W.2d 621, 627 (Iowa 2000). When we review a district court’s judicial review decision, we apply the standards of section 17A.19(8) to the agency action to determine whether this court’s conclusions are the same as those of the district court. Here, the issue involves a matter of statutory construction. Therefore, the standard we apply is whether the agency’s action is in violation of statutory provisions. See Iowa Code § 17A.19(8)(a) (1999). If we determine that the agency’s action was contrary to relevant statutory provisions, we must reverse the district court’s decision. See Iowa Code § 17A.19(8).

III. Casual Sales Exemption.

Iowa Code section 422.43(1) (1991) imposes a sales tax upon gross receipts of tangible personal property. Holland contends, however, that its auction sale was a casual sale as defined in Iowa Code section 422.42(12)(a) (1991) and therefore exempt from sales tax pursuant to Iowa Code section 422.45(6) (1991) and Iowa Administrative Code rule 701-18.28(1) (1990). The board contends that Holland cannot have a casual sales exemption for its auction sale unless it satisfies the requirements of section 422.42(12)(b).

• The issue this dispute presents therefore is which part of the casual sales exemption in section 422.42(12) controls. ' The board argues that Holland cannot claim a casual sales exemption under section 422.42(12)(a) because section 422.42(12)(b) is the only casual sales exemption applicable to liquidation sales. The board further argues that Holland has not satisfied the requirements of section 422.42(12)(b) and therefore cannot claim the exemption.

In contrast, Holland contends it need not satisfy the requirements of section 422.42(12)(b) because that subsection does not apply when, as here, the seller is not a retailer of the capital assets actually liquidated. Holland therefore claims that it can have a casual sales exemption if it meets the requirements of section 422.42(12)(a). Holland asserts that as a matter of law it meets the requirements of section 422.42(12)(a). For reasons that follow, we agree.

A. Applicable statute. Iowa Code section 422.42(12) (1991) (now located at Iowa Code section 422.42(3) (1999)) defines casual sales:

a. Sales or the rendering, furnishing or performing of a nonrecurring nature of tangible personal property or services by the owner, if the seller, at the time of the sale, is not engaged for profit in the business of selling tangible personal property or services taxed under section 422.43.
b. The sale of all or substantially all of the tangible personal property or services held or used by a retailer in the course of the retailer’s trade or business for which the retailer is required to hold a sales tax permit when the retailer sells or otherwise transfers the trade or business to another person who shall engage in a similar trade or business.

B. Analysis.

1. Exemption in section 422.42(12)(a). Iowa Administrative Code rule 701-18:28(1) pertains to section 422.42(12)(a), and it provides in relevant part:

In order for a casual sale to qualify for exemption, two conditions must be present: (1) the sale of tangible personal property or taxable services must be of a nonrecurring nature, and (2) the seller, at the time of the sale, must not be engaged for profit in the business of selling tangible goods or services taxed under Iowa Code section 422.43 or, if so engaged, the sale must be outside the regular course of the seller’s business ....
If either of the conditions above are lacking, no casual sale occurs.
Sales of capital assets such as equipment, machinery, and furnishings which are not sold as inventory shall be deemed outside the regular course of business and the casual sales exemption shall apply as long as such sales are nonrecurring....
Two separate selling events outside the regular course of business within a 12-month period shall be considered nonrecurring. Three such separate selling events within a 12-month period shall be considered as recurring. Tax shall only apply commencing with the third separate selling event. However, in the event that a sale event occurs consistently over a span of years, such sale is recurring and not casual, even though only one sales event occurs each year.

A seller claiming the exemption in section 422.42(12)(a) must satisfy two conditions: (1) the sale must be nonrecurring, and (2) the seller must not be engaged for profit in the business of selling goods taxed under section 422.43. The evidence is undisputed that Holland had only one capital asset sale during the twelve months immediately preceding the liquidation sale. Therefore, the liquidation sale was “nonrecurring” as defined by the three separate-selling-events language under rule 701-18.28(1). (The two-part auction sale here is considered as one sale for purposes of the casual sale exemption).

Holland, however, did have seven sales of capital assets over a five-year period. Despite this fact, Holland still meets the nonrecurring condition because those sales did not occur as a result of a planned periodic event conducted consistently over a span of years. See Iowa Admin. Code r. 701-18.28(1), example I (stating casual exemption not available when corporation has one sales event every year whereby it auctions off capital assets that it has no use for or desire to replace, and the event is a planned function of the corporation that is conducted regularly and consistently over a span of years).

Holland also meets the second condition: the seller is not engaged in the business of selling goods taxed under section 422.43. Rule 701-18.28(1) leaves little doubt that the capital assets sold at the auction sale meet the second condition:

Sales of capital assets such as equipment, machinery and furnishings which are not sold as inventory shall be deemed outside the regular course of business....

Iowa Admin.Code r. 701-18.28(1).

Holland’s regular course of business was road construction. It was not in the business of selling its capital assets from an inventory of such assets.

2. Exemption in section 422.42(12)(b). Significantly, the board does not dispute that Holland meets both conditions in section 422.42(12)(a). Nevertheless, the board insists that, because a liquidation sale is involved, the only exemption available is the one in section 422.42(12)(b), which defines a casual sale for liquidation purposes to mean

[t]he sale of all or substantially all of the tangible personal property or services held or used by a retailer in the course of the retailer’s trade or business for which the retailer is required to hold a sales tax permit when the retailer sells or otherwise transfers the trade or business to another person who shall engage in a similar trade or business.

To support its position, the board relies heavily on Iowa Administrative Code rule 701-18.28(2), which pertains to section 422 .42(12)(b) and is entitled “Special rules for casual sales involving the liquidation of a trade or business.” The rule provides that

[w]hen retailers sell all or substantially all of the tangible personal property held or used in the course of the trade or business for which retailers are required to hold a sales tax permit, the casual sale exemption will apply to exempt those sales only when the following circumstances exist: (1) the trade or business must be transferred to another person, and (2) the transferee must engage in a similar trade or business. The trade or business transferred refers to the place where the business is located since each taxable retail business must have a sales tax permit at each location. For purposes of this casual sale circumstance, it is irrelevant' whether the retailer actually has a sales tax permit or not; rather the relevant circumstance is that the retailer was required to have a sales tax permit. The exemption contained in this subrule is the only casual sale .exemption applicable to the liquidation of a trade or business.

Iowa Admin.Code r. 701-18.28(2) (Emphasis added.)

The board points out that the two-part definition of casual sales in section 422.42(12) was enacted in 1978. See 1978 Iowa Acts ch. 1142. Before the enactment, the definition of “casual sales” only included the nonrecurring nature of the sale provision as found in section 422.42(12)(a). See Iowa Code § 422.42(12) (1977). The legislature struck the former “casual sales” definition and enacted section 422.42(12)(a) and (b). See 1978 Iowa Acts ch. 1142, § 1.

The board argues that, by enacting both subsections (a) and (b) together, the legislature did not indicate an intent to have subsection (a) prevail over subsection (b) in the event that the sales are made in the course of liquidation of the retailer’s business. Instead, the board further argues, it is reasonable to assume that, the legislature intended to have the specific instance of a liquidation of a retailer’s business evaluated under subsection (b) and to have other situations evaluated under subsection (a) for purposes of the casual sales exemption.

There are several flaws in this reasoning. Subsection (b) contains no words of limitation or exclusion that suggest one subsection should prevail over or otherwise limit the other. There is no hint in the legislative history of the 1978 amendment that suggests the legislature intended such a limitation. If the legislature intended to make section 422.42(12)(b) the only available exemption in cases of liquidation, it could easily have said so. In determining what the legislature meant, we look to what the legislature said rather than to what it should or might have said. State v. Haberer, 532 N.W.2d 757, 759 (Iowa 1995).

Additionally, section 422.42(12)(b) talks exclusively about a retailer:

The sale of all or substantially all of the tangible personal property or services held or used by a retailer-in the course of the retailer’s trade or business for ■which the retailer is required to hold a sales tax permit when the retailer sells or otherwise transfers the trade or business to another person who shall engage in a similar trade or business.

(Emphasis added.)

The board argues, as it must, that Holland was a retailer because it engaged in the retail sale of tangible personal property associated with its road building business such as its Reclaimed Materials and retail sales of some of its capital assets. Additionally;' the board argues that Holland rented its equipment, and the rental was a “service” subject to tax. As to the sale and rental of tangible personal property, the board asserts Holland was a “retailer” as defined under Iowa Code section 422.42(5) (1991) and, as such, was required to have a. retail sales tax permit under Iowa Code section 422.53(1) (1991).

In making this argument, the board relies heavily" on the broad definitions of retailer: a “person engaged in the business of selling tangible goods, wares, merchandise or taxable services at retail....” Iowa Code § 422.42(5). It also relies on the broad definition of “business”: “any activity engaged in by any person ... with the object of gain, benefit, or advantage.” Iowa Code § 422.42(4) (1991).

The board’s argument therefore boils down to this: The nonauction sale and rental of tangible personal property, which amounted to a minute percentage of Holland’s total revenues, made Holland a retailer of all of its assets. And, of course, those assets would include capital assets used in Holland’s road construction business even though'they were not offered for sale on a recurring basis.

Despite the broad definitions of “retailer” and “business,” we think the board’s interpretation is strained and tortured. The interpretation would bar anyone engaged in any business activity from qualifying for the casual sales tax exemption on the sale of capital assets to individual purchasers at a liquidation sale even though that person was not engaged in selling those assets on a recurring basis. See American Home Prods. Corp. v. Iowa State Bd. of Tax Review, 302 N.W.2d 140, 142-43 (Iowa 1981) (holding that, in interpreting tax statutes, courts should avoid strained, impractical, or absurd results). We doubt the legislature ever had that purpose in mind when it enacted the cashal sales exemption.

Additionally, we think the board’s interpretation is illogical and not supported by the casual sales exemption statute. For example, if correct, the board’s interpretation would allow a retailer to sell its capital assets tax-free in a nonliquidation context, but not in a liquidation sale of its business when the sale is to individual purchasers, as here.

We therefore hold that Iowa Code section 422.42(12)(b) is not the exclusive casual sales exemption applicable to the liquidation of a trade or business. A liquidation sale may therefore qualify for a casual sales exemption under section 422.42(12)(a) when, as here, the sale is nonrecurring and the sale is outside the regular course of the seller’s business. A liquidation sale is deemed to be outside the regular course of the seller’s business when it involves assets such as equipment, machinery, and furnishings that are not sold as inventory.

To the extent that Iowa Administrative Code rule 701-18.28 is inconsistent with our holding that section 422.42(12)(b) is not the exclusive casual sales exemption for liquidation sales, it is invalid and therefore unenforceable. Although we give weight to an agency interpretation of a statute, the interpretation is not binding on us because interpretation of Iowa statutes is a matter of law for this court to decide. Sorg v. Iowa Dep’t of Revenue, 269 N.W.2d 129, 131 (Iowa 1978).

Contrary to the board’s contention, our interpretation does not render section 422.42(12)(b) meaningless as to a retailer’s liquidation sale that involves capital assets or other noninventory assets. As the board itself points out, a retailer in those circumstances, who has made more than two sales of capital assets within a twelvemonth period preceding the liquidation, would fail the nonrecurring sale requirement of section 422.42(12)(a). The only way for the retailer to sell these assets tax-free would be to satisfy the requirements of section 422.42(12)(b).

We agree with Holland that the legislature designed section 422.42(12)(b) to provide relief to a retailer who sells an ongoing retail business to another retailer who will continue the business. At the same time, section 422.42(12)(b) does not allow the retailer to sell inventory tax-free at a liquidation sale, while a competitor has to charge sales tax on its sales. For example, a retailer who decides to hold a going-out-of-business sale will not qualify for the section 422.42(12)(b) exemption unless the retailer sells the inventory to another- retailer who will carry on a similar trade or business. The liquidating retailer cannot dispose of its inventory tax-free by merely disposing of it through a liquidation sale to individual purchasers. We also agree with Holland that the liquidating retailer who otherwise complies with the provisions of section 422.42(12)(b) would also be able to sell its capital or other noninventory assets to the buyer tax-free without regard to the number of previous transfers of such assets.

IV. Disposition.

Contrary to the district court’s decision, we conclude that section 422.42(12)(a) rather than section 422.42(12)(b) applies to Holland’s auction sale. We further conclude that the auction sale was — as a matter of law — a casual sale under Iowa Code section 422.42(12)(a) and therefore exempt from Iowa sales tax. Our decision means there is no audit deficiency to support the tax assessment and penalty in this case. We reverse and remand this case to the district court for remand to the board with directions to cancel the assessment and penalty.

REVERSED AND REMANDED WITH DIRECTIONS.

All justices concur except LARSON and CADY, JJ., who take no part.