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In re J.C.

Court of Appeals of Iowa

December 19, 2018

IN THE INTEREST OF J.C., Minor Child, M.S., Father, Appellant.

          Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.

         A father appeals the termination of his parental rights to his child. REVERSED.

          Jeremy Feitelson of Nelsen & Feitelson Law Group, PLC, West Des Moines, for appellant father.

          Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney General, for appellee State.

          Kayla Stratton of Des Moines Public Defender Office, Des Moines, guardian ad litem for minor child.

          Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.

          VAITHESWARAN, JUDGE.

         A father appeals the termination of his parental rights to his child, born in mid-January 2018.[1] He contends (1) the State failed to prove he abandoned the child, (2) termination was not in the child's best interests, and (3) the district court should have granted him an additional six months to facilitate reunification. There is a more fundamental problem: the State failed to serve the father with notice of the child-in-need-of-assistance petition.

         I. Background Proceedings

         The child was born with methamphetamine in her system. Twelve days after the birth, the mother consented to temporary removal of the child. The child was placed with maternal relatives, where she remained throughout the proceedings.

         On the date of removal, the State also filed a child-in-need-of-assistance petition. The petition alleged the mother was uncertain about the father's identity but had "narrowed it to one of two people." The petition named the two people and made reference to their criminal histories. One of the people turned out to be the biological father.

         Two hours after the State filed the child-in-need-of-assistance petition, it also filed the biological father's criminal history. The document listed his offender number; birth date; and temporary discharge date, which was six months later.

         In time, the State filed an amended and substituted petition, repeating the names of the two people believed to be the child's father. Shortly thereafter, the district court entered an order confirming the child's removal from the mother's custody. The mother received a copy of the order; the father did not. Nor did the father receive a copy of an adjudication order entered five weeks after the child's removal.[2] There is no indication the child-in-need-of-assistance petition or amended petition was served on the biological father.

         Two months after the child's removal, the department of human services filed a report listing the father's full name as "unknown," notwithstanding its prior identification of the putative fathers. Two-and-a-half months after the removal, the district court filed an order directing the biological father to undergo a paternity test. The test was not administered until mid-June 2018, five months after the child's birth.

         About ten days later, the State filed a petition to terminate parental rights. The father was served with the termination petition, although he had yet to receive confirmation of the paternity test result. On July 6, the department formally notified him of the result, which established him as the child's father. The termination hearing was held on August 3, less than a month after the father learned he was indeed the father. Following the hearing, the district court granted the petition. The father appealed.

         II. Notice

         Many of the pertinent principles governing notice to a parent in a child-in-need-of-assistance proceeding were summarized in a prior unpublished opinion of this court. See In re A.L., No. 14-0428, 2014 WL 2432421, at *1-2 (Iowa Ct. App. May 29, 2014). As we stated, "'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." Id. at *1 (quoting In re S.P., 672 N.W.2d 842, 845 (Iowa 2003)); see also Callender v. Skiles, 591 N.W.2d 182, 189 (Iowa 1999) ("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."). "Notice in child neglect and dependency proceedings is jurisdictional." S.P., 672 N.W.2d at 845 (quoting In re Hewitt, 272 N.W.2d 852, 855 (Iowa 1978)). Without notice to a parent, a judgment is void. Id. at 846.

         "A void judgment is subject to attack at any time." Id. Error preservation concerns are not an impediment. Id. We may consider jurisdictional issues on our own motion. See Osage Conservation Club v. Bd. of Supervisors, 611 N.W.2d 294, 298-99 (Iowa 2000) (stating failure to raise issue of void agency decision on certiorari did not preclude appellate court from considering issue on its own motion).

         On our de novo review of the record, we raise and address the question of whether the father received notice of the child-in-need-of-assistance action on our own motion. Although the issue implicates due process ...


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