In the Interest of A.L., Minor Child, J.W., Father

IN THE COURT OF APPEALS OF IOWA
No. 14-0428
Filed May 29, 2014
IN THE INTEREST OF A.L.,
Minor Child,
J.W., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Angela L. Doyle,
District Associate Judge.
A father appeals the termination of his parental rights to his child.
VACATED, REVERSED, AND REMANDED WITH DIRECTIONS.
Neven J. Conrad of Baker, Johnsen and Sandblom, Humboldt, for
appellant father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Ricki Osborn, County Attorney, and Jordan W. Brackey,
Assistant County Attorney, for appellee State.
Douglas Cook, Jewell, attorney and guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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VAITHESWARAN, P.J.
A father appeals the termination of his parental rights to his child, born in
2009. He contends (1) the department of human services did not make
reasonable reunification efforts, (2) the State failed to prove each ground for
termination by clear and convincing evidence, and (3) granting an additional six
months to prove himself is “only fair.” All his arguments are partially premised on
the State’s failure to serve him with notice of the underlying child-in-need-of-
assistance action. We find the notice issue dispositive.
I. Background Proceedings
The State filed a child-in-need-of-assistance petition in March 2012,
alleging two children would likely suffer harm at the hands of their mother and the
presumed father, to whom the mother was married. In April 2013, the court
issued a permanency order affording the mother and presumed father an
additional six months to work towards reunification. Days later, the mother filed
an “affidavit concerning paternity.” She attested that someone other than her
husband was the father of one of her children, A.L. She identified the person as
“James” and further attested, his “whereabouts are unknown to me.”
James was not served with the child-in-need-of-assistance petition, nor
does the record contain an affidavit of diligent search. Eventually, the State filed
a termination petition. The State had James served with the petition in
December 2013. Counsel was appointed for James about five weeks later, and
the termination hearing began about two weeks after the appointment. James
appeared at the hearing but did not testify.
3
Following the hearing, the district court terminated James’s parental rights
on several grounds. This appeal followed.
II. Notice
“‘Notice of the hearing and an opportunity to be heard appropriate to the
nature of the case is the most rudimentary demand of due process of law’ in
proceedings affecting parental rights to children.” In re S.P., 672 N.W.2d 842,
845 (Iowa 2003) (quoting Stubbs v. Hammond, 135 N.W.2d 540, 543 (Iowa
1965)). “Notice in child neglect and dependency proceedings is jurisdictional.” In
re Hewitt, 272 N.W.2d 852, 855 (Iowa 1978).
Notice is subject to a statutory as well as a constitutional test. S.P., 672
N.W.2d at 846. We will begin and end with the statutory test, although some
constitutional precedent bears on the analysis. See id.The child-in-need-of-assistance statute provides that the State shall serve
the child-in-need-of-assistance petition “in the same manner as for adjudicatory
hearings in cases of juvenile delinquency as provided in section 232.37.” Iowa
Code § 232.88 (2013). Section 232.37, in turn, requires service “upon the known
parents . . . of a child” and specifies that the service shall be “made personally by
the sheriff” or, if the court determines personal service is impracticable, by
certified mail. Id. § 232.37(1), (4). Hearings may not take place without a parent
except if the parent “fails to appear after reasonable notification” or “if the court
finds that a reasonably diligent effort has been made to notify the child’s parent.”
4
Id. § 232.38(1);1 see also id. § 232.112(1) (“[N]otice [of termination petitions] may
be dispensed with in the case of any such person whose name or whereabouts
the court determines is unknown and cannot be ascertained by reasonably
diligent search.”).
A diligent search “is measured not by the quantity of the search but the
quality of the search.” Qualley v. State Fed. Sav. & Loan, 487 N.W.2d 353, 355
(Iowa Ct. App. 1992).
While a reasonable search does not require the use of all possible
or conceivable means of discovery, it is an inquiry that a
reasonable person would make, and it must extend to places where
information is likely to be obtained and to persons who, in the
ordinary course of events, would be likely to have information of the
person or entity sought.
Id.The department conducted no search for James, diligent or otherwise,
during the child-in-need-of-assistance proceeding. While the department was
notified that James was the father of A.L. more than seven months before the
termination petition was filed, its employee was unaware of any action that was
taken to locate him while the child-in-need-of-assistance-proceeding was
pending. Notably, the mother testified that James and his family had always
lived in Fort Dodge, the same town she lived in and the same town in which the
child-in-need-of-assistance action was pending. Even more notably, the Sheriff’s
office found James on the second try when it came time to serve him with the
termination petition.
1
Although this language does not appear in section 232.88 or 232.37, we believe the
legislature’s intent was to apply all notice requirements used in delinquency proceedings
to child-in-need-of-assistance proceedings. See Iowa Code § 232.88.
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The agency’s inaction precluded James from being heard in the child-in-
need-of-assistance proceeding and rendered the proceeding void as to him. See
S.P., 672 N.W.2d at 848.
James’s appearance at the termination proceeding does not alter our
conclusion. The appearance cannot be construed as a waiver of his right to
notice of the underlying child-in-need-of-assistance action because he was not
aware of that action. See In re J.S., 386 N.W.2d 149, 152 (Iowa Ct. App. 1986)
(noting father intervened in child-in-need-of-assistance proceedings and
“acquiesced to the jurisdiction of the court for ten months”). James’s lack of
knowledge was verified by the district court in a colloquy with the mother. The
court specifically asked her whether James indicated he “had any knowledge
about the [child-in-need-of-assistance] proceeding.” She responded, “[N]o, he
just asked how his son was doing and if he could ever see his son.”
Even if James had actual notice of the child-in-need-of-assistance
proceeding, that fact did not obviate the need to provide formal notice, absent
some participation by James in the proceeding. See State v. Kaufman, 201
N.W.2d 722, 724 (Iowa 1972) (“Actual notice . . . is no substitute for service of
notice according to statute.”); see also Coe v. Armour Fertilizer Works, 237 U.S.
413, 424 (1915) (“Nor can extra-official or casual notice, or a hearing granted as
a matter of favor or discretion, be deemed a substantial substitute for the due
process of law that the Constitution requires.”). It is conceded that James did not
participate in the child-in-need-of-assistance proceeding.
This brings us to In re M.L.M., 464 N.W.2d 688, 690–91 (Iowa Ct. App.
1990), in which this court held that a father was entitled to notice of a child-in-
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need-of-assistance action, but failure to provide notice did not mandate reversal
where the father knew the whereabouts of the children, had abandoned or
deserted them, and could not assume care of them in the reasonable future. If
M.L.M. is read to require a parental showing that the termination petition likely
would have been denied on the merits, we believe such a showing is inconsistent
with due process precedent. In particular, the United States Supreme Court has
rejected the notion that a person deprived of notice has to establish the existence
of a meritorious defense. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86
(1988); see also Coe, 237 U.S. at 424 (“To one who protests against the taking
of his property without due process of law, it is no answer to say that in his
particular case due process of law would have led to the same result because he
had no adequate defense upon the merits.”). Such a showing is also
inconsistent with the allocation to the State of the burden of proving the grounds
for termination. Because James did not receive notice of the child-in-need-of-
assistance proceeding, that proceeding was void as to him irrespective of
whether he knew he had a child and had contact with the child. This is as true
under the statutory notice test as it is under the constitutional notice test. See
S.P., 672 N.W.2d at 848.
For the same reason, James’s failure to file a paternity action and seek
custody of the child has no bearing on the notice issue. The State filed the child-
in-need-of-assistance petition, and the State had the obligation to formally notify
James of that filing once it received the affidavit of paternity, even if James
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expressed no interest in the child and took no action to establish a relationship
with the child. 2 Absent such notice, the proceeding was void as to him. Id.While we are not convinced the merits should have been reached in
M.L.M., we recognize that they were. Accordingly, we will briefly address the
merits in this case.
III. Grounds for Termination
The district court concluded that James abandoned his child. James
contends abandonment was not proven. On our de novo review, we agree.
Abandonment requires proof of “both the intention to abandon and the
acts by which the intention is evidenced.” Iowa Code § 232.2(1). Although
James was aware he had a child, his paternity was not established, an order of
support was not entered, and the child’s mother testified she actively tried to
keep James from her child. She stated that he tried messaging her and she did
not respond. She also stated, “I have not wanted him in my son’s life since he
has been born.” In M.L.M., in contrast, the father’s paternity was established
through legal procedures, and he was ordered to contribute to the support of the
children—an order that he did not comply with. 464 N.W.2d at 689–90. We
conclude an intent to abandon the child was not established.
Section 232.116(1)(b) also provides that a court may order termination if
there is clear and convincing evidence the child has been deserted. Desertion is
2
We recognize that parents may waive their constitutional liberty interests in a
relationship with their child if they wait too long to assert them. See Huisman v.
Miedema, 644 N.W.2d 321, 326 (Iowa 2002); see also Callender v. Skiles, 591 N.W.2d
182, 192 (Iowa 1999). The issue here, however, is one of notice to a putative parent in a
State-initiated action that may ultimately lead to the termination of his fundamental right
to parent the child. As the Iowa Supreme Court stated in Callender, “Due process must
be afforded when an individual is threatened by state action which will deprive the
individual of a protected liberty or property interest.” Callender, 591 N.W.2d at 189.
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defined as “the relinquishment or surrender for a period in excess of six months
of the parental rights, duties, or privileges inherent in the parent-child
relationship.” Iowa Code § 232.2(14). Proof of intent to desert is not required.
Id. The district court did not address desertion but, even if it had, we would
conclude this ground was not proven. After being served with the termination
petition, James contacted the department, sought counsel, and appeared at the
termination hearing. Although he did not follow up with the department in the two
months between service and the termination hearing, his appearance at the
termination hearing belies the State’s assertion that he “relinquished” his parental
rights, duties, or privileges.
The district court also concluded James did not maintain significant and
meaningful contact with the child. See id. § 232.116(1)(e). The district court
found he only had seen his child “three or four times since” the child’s birth in
2009, did not demonstrate “a genuine interest in the child or perform[ ] the duties
expected of a parent,” was told he needed to start complying with services
immediately after being served with the termination petition but “cancelled a
meeting with the DHS worker, and was not heard from again,” “never contributed
to” the child’s “financial support,” and “made no effort to legally establish
paternity, or establish custody and visitation.” Again, James contends this
ground was not proven and, again, we agree.
Iowa Code section 232.116(1)(e) requires the State to prove that James
did not maintain significant and meaningful contact with the child “during the
previous six consecutive months” and “made no reasonable efforts to resume
care of the child despite being given the opportunity to do so.” The State failed to
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prove James was “given the opportunity to do so” because no reunification
services were provided while the child-in-need-of-assistance action was pending.
The State’s focus on services offered after the filing of the termination petition is
off the mark, because the department’s obligation to make reasonable
reunification efforts began at the time the child’s custody was transferred to the
department, well over a year earlier. See id. § 232.102(5), (7); In re C.B., 611
N.W.2d 489, 493 (Iowa 2000) (noting the “critical role of reasonable efforts from
the very beginning of intervention”). This ground for termination was not
satisfied.
For the same reason, the final ground for termination, Iowa Code section
232.116(1)(f), also was not satisfied. This provision requires proof that the child
cannot be returned to the parent’s custody. Like paragraph (e), this ground
“implicates the reasonable effort requirement.” See C.B., 611 N.W.2d at 492. As
discussed, the requirement was not established.
In sum, assuming we are obligated to reach the merits of the termination
decision where there is an absence of notice, we conclude the grounds for
termination cited by the district court are not supported by clear and convincing
evidence.3
IV. Disposition
We vacate—and in the alternative, reverse— the termination decision as
to James. Because the other parents did not appeal the termination decision, the
3
The grounds for termination under section 232.116(1)(e) and (f) each include an
element that the child has been adjudicated in need of assistance. We conclude that
element of paragraphs (e) and (f) was also not satisfied as to James in light of our earlier
conclusion that the child-in-need-of-assistance proceeding is void as to him.
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ruling is final as to them. We remand with directions to reopen the child-in-need-
of-assistance proceeding as to James so that he may engage in reunification
services. We acknowledge that this disposition will delay permanency for the
children but note that they were placed with relatives, which we trust will
minimize the resulting disruption.
VACATED, REVERSED, AND REMANDED WITH DIRECTIONS.