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In re M.S.

Court of Appeals of Iowa

September 26, 2018

IN THE INTEREST OF M.S., Minor Child, S.R., Mother, Petitioner-Appellee, C.S., Father, Respondent-Appellant.

          Appeal from the Iowa District Court for Marion County, Thomas W. Mott, Judge.

         A father appeals the juvenile court's decision to terminate his parental rights in a private termination action. REVERSED AND REMANDED.

          Blake D. Lubinus of Lubinus Law Firm, PLLC, Des Moines, for appellant father.

          Mark A. Simons of Simons Law Firm, PLC, West Des Moines, for appellee mother.

          Aida E. Bogaczyk of Bogaczyk Law Firm, PLLC, Clive, guardian ad litem for minor child.

          Heard by Danilson, C.J., McDonald, J., and Scott, S.J.[*]

          SCOTT, Senior Judge.

         A father appeals the juvenile court's decision to terminate his parental rights in a private termination action. We determine the order terminating the father's parental rights must be reversed because the father was not adequately informed of his right to counsel. We remand to the juvenile court, where proper notice should be served on the father and proof of the service of notice placed in the record, prior to any rehearing on the merits of the petition to terminate his parental rights. On remand, if the father requests the assistance of counsel and is financially unable to employ counsel, then counsel should be appointed for him.

         I. Background Facts & Proceedings

         S.R., mother, and C.S., father, were previously married and are the parents of M.S., born in 2009. Under the parties' dissolution decree, they had joint legal custody of the child, with S.R. having physical care. C.S. was granted visitation with the child and ordered to pay child support.

         On April 13, 2017, S.R. filed a petition seeking to terminate C.S.'s parental rights under Iowa Code chapter 600A (2017). On April 27, the district court filed an "Order Setting Hearing," which set the hearing date for June 8. The order included the following notice:

The Court has ordered you to appear at a hearing regarding the termination of your parental rights. At the hearing, the court may terminate your parental rights. You have the right to be represented by an attorney at the hearing. If you cannot afford to hire an attorney, one may be provided to you at public expense, if you qualify. If you want to apply for a court-appointed attorney, you must complete and file with the court an affidavit of indigency (lack of funds) and personally present it to a Judge of the Marion County Courthouse before the scheduled hearing.

         The order states, "The Petitioner shall personally serve the Father with a copy of this Order."

         C.S. signed an acceptance of service the same day, stating he received the original notice and petition for termination of his parental rights. The record does not indicate C.S. was ...


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