"Even if the father had participated in the underlying child in need of assistance proceedings, it is unlikely that the juvenile court would have.....

These notice requirements are jurisdictional. In re Hewit, 272 N.W.2d 852, 855 (Iowa 1978); cf. In re S.P.,672 N.W.2d 842, 846 (Iowa 2003) (stating parent had right to challenge for first time on appeal lack of notice in termination of parental rights action because "void judgment is subject to attack at any time").

The State concedes that Jerry did not receive notice of the child-in-need-of-assistance petition or subsequent child-in-need-of-assistance proceedings. Cf. In re T.C., 492 N.W.2d 425, 429 (Iowa 1992) (noting father was personally served with child in need of assistance petition). The State argues this omission was not fatal because: (1) "the father was aware that Jordan was in foster care and that there were court proceedings," (2) the father "made no effort to contact" the Department, (3) the father conceded that the Department "could not provide services to him" in the Indiana prison where he was incarcerated, and (4) "[e]ven if the father had participated in the underlying child-in-need-of-assistance proceedings, it is unlikely that the juvenile court would have entered any different orders."





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IN THE COURT OF APPEALS OF IOWA



No. 5-426 / 05-0610

Filed June 15, 2005



IN THE INTEREST OF J.R.H.,

Minor Child,



J.J.W., Father,

Appellant.





Appeal from the Iowa District Court for Floyd County, Gerald W. Magee, Associate Juvenile Judge.



J.J.W. appeals an order terminating his parental rights. REVERSED.



Rodney Mulcahy of Eggert, Erb, Frye & Mulcahy, P.L.C., Charles City, for father-appellant.

Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Marilyn Dettmer, County Attorney, for the State.

Leslie Dalen, Mason City, for the mother.

Cynthia Schuknecht of Noah, Smith & Schuknecht, P.L.C., Charles City, guardian ad litem for the child.



Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.



VAITHESWARAN, J.

Jordan, born in 2001, was removed from his mother's care and adjudicated a child in need of assistance. Jerry, Jordan's father, was incarcerated in Indiana throughout the proceedings. Although he became aware of these proceedings through the mother, the State never formally served him with process or with notices of hearing in connection with the child-in-need-of-assistance proceedings.[1]

Eventually, the State petitioned to terminate the parental rights of both parents. This time, the State served Jerry with process. Jerry moved to dismiss the petition, alleging he "never received any notice of the underlying Child in Need of Assistance proceeding." The juvenile court scheduled a hearing on the motion for the same time as a hearing on the termination petition. Following the hearing, the court denied the motion and terminated Jerry's parental rights pursuant to Iowa Code sections 232.116(1)(e) (2005) (requiring proof in pertinent part of the absence of significant and meaningful contact) and (h) (requiring proof in pertinent part that child cannot be returned to parent's custody).

On appeal, Jerry contends the State (1) violated his due process rights by failing to afford him formal notice of the underlying child in need of assistance proceedings, and (2) did not present clear and convincing evidence to support the cited grounds for termination. The two arguments are related and, accordingly, will be addressed together.

Parents must receive notice of the filing of a child in need of assistance petition. Iowa Code §§ 232.88, .37. Hearings may not take place without them except where 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. . . ." Iowa Code § 232.38.[2] These notice requirements are jurisdictional. In re Hewit, 272 N.W.2d 852, 855 (Iowa 1978); cf. In re S.P.,672 N.W.2d 842, 846 (Iowa 2003) (stating parent had right to challenge for first time on appeal lack of notice in termination of parental rights action because "void judgment is subject to attack at any time").

The State concedes that Jerry did not receive notice of the child-in-need-of-assistance petition or subsequent child-in-need-of-assistance proceedings. Cf. In re T.C., 492 N.W.2d 425, 429 (Iowa 1992) (noting father was personally served with child in need of assistance petition). The State argues this omission was not fatal because: (1) "the father was aware that Jordan was in foster care and that there were court proceedings," (2) the father "made no effort to contact" the Department, (3) the father conceded that the Department "could not provide services to him" in the Indiana prison where he was incarcerated, and (4) "[e]ven if the father had participated in the underlying child-in-need-of-assistance proceedings, it is unlikely that the juvenile court would have entered any different orders."

The first two arguments assume that the onus is on parents to avail themselves of their due process rights to notice and an opportunity for a hearing. In cases such as this, which involve the deprivation of a fundamental right, it is the State’s obligation to notify parents of pending legal proceedings involving their child. See generally Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (due process requirements applicable to dependency proceedings). Such notice is "the most rudimentary demand of due process of law." In re S.P., 672 N.W.2d at 845 (citation omitted). Notice "goes to the heart of the district court's jurisdiction" and noncompliance with this requirement renders the judgment void. Id. at 845-46. The fact that a parent may be aware of the legal proceedings through informal sources does not relieve the State of its obligation to provide formal notification of the child-in-need-of-assistance proceedings. See State v. Kaufman, 201 N.W.2d 722, 724 (Iowa 1972) (stating actual knowledge does not remove requirement for service of process); see also Coe v. Armour Fertilizer Works, 237 U.S. 413, 424, 35 S. Ct. 625, 629, 59 L. Ed. 1027, 1032 (1915) (stating “extra-official or casual notice” is not a “substantial substitute for the due process of law that the Constitution requires”). Nor does a parent’s failure to affirmatively engage in the proceedings matter for purposes of determining whether the State acquired personal jurisdiction of Jerry. See, e.g., Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S. Ct. 1322, 1327, 143 L. Ed. 2d 448 (1999) (stating a party is only “required to take action in that capacity” after service of process or acceptance of service). Jerry’s informal knowledge of the child-in-need-of-assistance action simply had no bearing on the State’s due process obligation to formally notify him of those proceedings.

In reaching this conclusion, we have considered In re J.F., 386 N.W.2d 149, 152 (Iowa Ct. App. 1986), in which our court held that the father, "through his own actions," waived his rights to have a dispositional order vacated based on lack of notice. There, the father did not challenge the validity of the order immediately after it was entered, but instead intervened in the proceedings and "acquiesced to the jurisdiction of the court for 10 months." 386 N.W.2d at 152. Here, in contrast, neither Jerry nor an attorney on his behalf appeared or participated in the child-in-need-of-assistance proceedings. Moreover, when Jerry was served with the termination petition, his attorney immediately filed a motion to dismiss, citing the State’s failure to notify him of the child-in-need-of-assistance proceedings. As Jerry did not submit to the jurisdiction of the court in those proceedings, J.F. is distinguishable.

The State's third contention concerning the State’s inability to provide reunification services is similarly unavailing. The State has an obligation to make reasonable efforts toward reunification. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). These efforts play "a critical role from the very beginning of intervention." Id. at 493. Therefore, they must be offered during the child-in-need-of-assistance proceedings and a parent desiring new or additional services must make the request during those proceedings. Cf. In re M.B., 595 N.W.2d 815, 818 (Iowa Ct. App. 1999). The State is required to establish it made such efforts as part of "its ultimate proof" of the statutory grounds at issue here. In re C.B., 611 N.W.2dat 492-93 (stating predecessor provisions to Iowa Code sections 232.116(1)(e) and (h) “contain a common element which implicates the reasonable effort requirement”). The fact that the State might have been unable to make such efforts or such efforts might have proved futile are matters of proof at trial, and do not eliminate its obligation to serve Jerry with the required notice.

In Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S. Ct. 896, 99 L. Ed. 2d 75 (1988), the Supreme Court rejected a similar argument. There, the party defending a judgment obtained without notice and hearing argued the party attacking the judgment should be required to show a “meritorious defense” before setting the judgment aside. Id. at 85, 108 S. Ct. at 899, 99 L. Ed. 2d at 81. The Court stated this harmless error theory was “untenable.” Id. Similarly Jerry’s concession at the termination hearing that the Department could not furnish services to him in Indiana did not obviate the need to initially notify him of the proceedings that triggered the reasonable efforts requirement. Id.

Jerry was not notified of and did not participate in the child-in-need-of-assistance proceedings. That adjudication and disposition was void as to him. In re S.P., 672 N.W.2d at 845. It follows that the State could not prove it made reasonable efforts toward reunification of Jerry with Jordan. As this was a key element of the statutory grounds on which the district court relied, those grounds were not proven. See Iowa Code § 232.116(1)(e), (h).

This brings us to the State’s fourth and final contention: "Even if the father had participated in the underlying child in need of assistance proceedings, it is unlikely that the juvenile court would have entered any different orders." As noted, the child-in-need-of-assistance orders were void as to Jerry for lack of notice. In re S.P., 672 N.W.2d at 846. In addition, the merits of the child-in-need-of-assistance dispute are irrelevant to determining whether the State acquired jurisdiction to enter any orders that would bind Jerry. Peralta, 485 U.S. at 85, 108 S. Ct. at 899, 99 L. Ed. 2d at 81. Therefore, the State failed in another element of proof, the element that requires a finding that the child has been adjudicated in need of assistance. See Iowa Code § 232.116(1)(e)(1), 232.116(1)(h)(2). The court was deprived of jurisdiction over Terry in that proceeding and subsequent proceedings could not cure the jurisdictional defect. See generally Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965) (stating providing hearing to a father on his motion to set aside a default decree of adoption did not cure the constitutional defect caused by failing to serve the father with notice of adoption proceedings). For the same reason, it is immaterial that the court might have entered the same orders even if Jerry had participated.

In sum, the State’s failure to notify Jerry of the child-in-need-of-assistance proceedings meant that the State could not prove two key elements of its case: (1) reasonable efforts were made to reunify Jerry with his child, and (2) the child had previously been adjudicated a child in need of assistance.

This brings us to the remedy. In In re M.L.M., 464 N.W.2d 688, 690-91 (Iowa Ct. App. 1990), we concluded the State’s failure to notify a father of the child-in-need-of-assistance proceedings did not require reversal of the termination ruling. We based this opinion in part on the fact that the grounds on which the district court relied did not require “a previous child in need of assistance proceeding or offering of services to assist with parenting.” 464 N.W.2d at 691. The grounds at issue here contain both elements. As those elements were not proven, we conclude reversal is mandated.

We reverse the order terminating Jerry’s parental rights to Jordan.

REVERSED.

[1] Paternity was not established until late 2004, but the Department of Human Services knew of Jerry and his possible relationship to Jordan well before that time.

[2] 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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Mariner
Posts: 1052

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Does the world hate us? Your are currently viewing this message
12/21/2006 7:41:47 PM
This is a common theme of debate. So a couple of questions to ponder...

1. Does the world hate us? and...
2. Why?

My Thoughts on the subject.

1. Does the world hate us? Well this is a big question, and I guess it depends on who you ask, and how you define hate. Many countries/peoples of the world seem to like us. Eastern Europe loves us. Most of Western Europe (except maybe for France) like us at the very least. Most of Latin America likes or loves us. Japan, India, S. Korea, Taiwan, Australia, and New Zealand like us. As far as I can see most of the countries in the Middle East hate us, and many Africans are indifferent.

2. Why? First and foremost is jealousy followed perhaps by the fact that we have supported so many corrupt governments around the world over the years. For instance Egypt, and Saudi Arabia are counted as our "Allies" both have governments that are immensely unpopular with the populace. Many in Iran want to be like us, and want to get rid of their government, but feel let down by us, because we let them down by letting their present government come to power in the first place. Over the years, the US has supported many governments that we shouldn't have. This was most likely done for political reasons, not principled ones. Our politicians have always looked for easy ways out rather than taking principled stands. Other reasons that I see from various other regions and countries around the world:

* We have a death penalty
* We do not have universal health care and education
* We refuse to get on board with the Global Warming crowd
* We put our own interests first and refuse to bend to the will of the United Nations
* Religious differences
* And again.... Jealousy. They hate us because of our success and for their own failures to achieve the same. Hence they would like to see us fail so as to elevate their own status.

I'm sure some of you can think of more or feel free to disagree and suggest others.

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Author Replys
Uriel
Posts: 798


Re: Does the world hate us?
12/23/2006 3:19:17 PM
From what I read and hear in the news media, it makes me feel as if the world can''t stand US.
You don''t know how good it is to read your asessment as to how many countries actually do like US.
Its heartwarming to read, Mariner.
:)

MarkyDeSod
Posts: 75


Re: Does the world hate us?
12/24/2006 10:11:42 AM
Here is why they hate us:
1) We go around saying we are the most powerful nation on earth (yet, we cannot even defeat Iraq or Iran, and Saddam is STILL alive!)
2) We show how stupid we are by wasting money on nations that are lead by dictators that steal the money instead of helping the people.
3) Our leaders interfere with the affairs of other countries way too much. Almost 24/7 we are in someone else''s business overseas when we don''t need to be.

This country needs to get a grip and understand that our own political system is not strong, it is very young and weak, and it could self destruct any time now. The US Constitution has holes in it, massive weaknesses and problems. We are not the most powerful nation on earth. If we were powerful, we would have the best schools for our kids, our people would not be fat, we would be having better population growth, we would have secure borders. I could go on and on, but to me this country is obviously getting more screwed up day by day. Things are not getting better right now. New generations are not coming up knowing more than the old. We still do not have a president who understands terrorism, even after all these years(democrat or republican). We keep sending our 18 year olds off to wars concerning philosophical issues we don''t understand. Man, it amazes me how ignorant the people in the United States are becoming. They couldn''t even identify the key reasons the United States has been such a success so far. (Just a hint, it isn''t because we are a Judeo Christian nation). Our nation is teatering between religionism and socialism, and 95% of the people don''t even realize that it is the Capitalist political system that makes this country great. They think the founding fathers are passe, that the constitution says in there ""for the public good"", which they think gives them the right to throw out Capitalism and replace it with Socialism. That sucks, and it is totally totally WRONG. Socialism is dead, just like Communism. I''m sorry but it is. You cannot fix health care with some idiot five-year plan! But you can, by getting the government to stay out of it! These are the same people that brought us the food pyramid, you know, the one that farmers use to fatten cows! Idiots abound.

This country is becoming a cavalcade of Bimbos. The middle ages are not over. The enlightenment never took root.

That being said, the rest of the world is no bed of roses either.
Mariner
Posts: 1052

Click here to email Mariner Talk to Mariner on Yahoo! Messenger

Re: Re: Does the world hate us?
12/24/2006 3:50:50 PM
Here is why they hate us:

1) We go around saying we are the most powerful nation on earth (yet, we cannot even defeat Iraq or Iran, and Saddam is STILL alive!)

We can easily defeat either, or both if we decided that that''s what we really wanted to do. It''s kind of hard to win when one won''t go out and kill the bad guys.

2) We show how stupid we are by wasting money on nations that are lead by dictators that steal the money instead of helping the people.

That was pretty much where I was going with my assertion that our leaders like to take the easy way out rather than making a principled stand. hence in the past we have supported some pretty shady characters. Hopefully some at least are coming to the realization that this is not in our best LONG TERM interest.

3) Our leaders interfere with the affairs of other countries way too much. Almost 24/7 we are in someone else''s business overseas when we don''t need to be.

Well your being way too general here. It''s always been a fact that there are many factions vying for dominance in the world whether that be military, economic, cultural or whatever. If you don''t get out there and play the field uou will be swept under the rug. And, in the cases where others mean to do us harm ourleaders would be negligent in their duties if they did not get involved. that''s life!

This country needs to get a grip and understand that our own political system is not strong, it is very young and weak, and it could self destruct any time now.

I guess that''s a matter of opinion. But the only way we could self destruct is if we lose sight of our core values.

The US Constitution has holes in it, massive weaknesses and problems.

While it''s not a perfect document. we do allow for it to be amended when we find errors. So far though it is one of the most masterful works of governance in mankind''s history. the big problems that I see are that we have created such a free society that there are those out there who would use our freedoms to destroy the system that allows them to exist in the first place. The Founding Fathers probably never envisioned that such a thing was possible. That is why we, those who inherited this system of governance from our ancestors must take the necessary steps to see that this does not happen.

We are not the most powerful nation on earth. If we were powerful, we would have the best schools for our kids

This has nothing to do with power and everything to do with the breakdown of values. I think that you will find a direct correlation to places that have strong core values and the education provided for their children. In localities where broken families are the norm, so are the schools. Likewise a place that has strong family units probably supports their educational system better.


but to me this country is obviously getting more screwed up day by day. Things are not getting better right now.

This once again brings us full circle to values and beliefs. The whole secular progressive liberal agenda is all about the abandonment of traditional values. It is this abandonment of core values that this country was founded on that will if unchecked cause it''s downfall.

Man, it amazes me how ignorant the people in the United States are becoming.

See the preceding statement on values. Our parents and grandparents would not have as much of a problem figuring out what to do in the world today. They faced hardships and were not afraid to take on challenges to do the right thing, because they had a taste of the alternative. many today have never endured hardship. Hell, Hardship for some is not being able to see the latest American Idol this week. They are oblivious to the fact that if hey do not stand up for things their comfy little lifestyle could one day evaporate... Gone, disappeared, perhaps never in their lifetime to come back..

it is the Capitalist political system that makes this country great. They think the founding fathers are passe, that the constitution says in there ""for the public good"", which they think gives them the right to throw out Capitalism and replace it with Socialism.

The old socialists or communists never went away they just re-invented themselves with new names. Whether it be the ACLU, Code Pink, LULAC, Not in our Name, or militant environmentalists. the goal is still the same they just try to sugar coat things now hoping people won''t notice.

You cannot fix health care with some idiot five-year plan! But you can, by getting the government to stay out of it!

Here I part company with you sort of. Our health care system is out of control because of a runaway legal legal system. I have no problem with someone who is injured being compensated reasonably when they have been wronged. I do however have a BIG problem with people (and lawyers) who regard our legal system as the equivalent of a lottery system to expand their bank accounts. this is wrong and we all pay for allowing this to happen. I''m rather pessimistic that we''ll ever see any reasonable change in this as most politicians are lawyers so the system has built in lobby system tha requires no outside means of support. they are not going to shoot themselves in the foot anytime soon morally responsible or not.
MarkyDeSod
Posts: 75


Re: Re: Re: Does the world hate us?
12/25/2006 12:33:08 AM
but that''s the whole point! We won''t go kill the bad guys! Duh-Duhhh!
STHUYM
Posts: 5


Re: Does the world hate us?
12/24/2006 2:08:24 PM
1. Probably.
2. Who cares?
Mariner
Posts: 1052

Click here to email Mariner Talk to Mariner on Yahoo! Messenger

Re: Re: Does the world hate us?
12/24/2006 3:08:53 PM
1. Probably.
2. Who cares?

Don''t be such a grouch! Just trying to stimulate a little thought and debate here.
STHUYM
Posts: 5


Re: Re: Re: Does the world hate us?
12/24/2006 3:19:12 PM
Not being a grouch, and I appreciate your efforts. Sometimes saying less...is more. Merry Christmas.

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Re: Re: Re: Re: Re: Re: Re: Re: COME ON ERIC!
6/26/2006 1:51 PM

--------------------------------------------------------------------------------
Your response Fishon, is indicative of the problem I wish to avoid in that you can't seem to precieve where to draw the line between appropriate and inappropriate behavior when the paramaters are not rigidly defined for you. I can assure you, this has nothing to do with being "afraid" or "chicken" as you put it but more of what I will do to those who take such liberties because they have no better sense and are apparently unable to predict the real world consequences.
=====================================================================================
"I can assure you, this has nothing to do with being "afraid" or "chicken" as you put it but more of what I will do to those who take such liberties because they have no better sense and are apparently unable to predict the real world consequences."-evw
-------------------------------------------------------------------------------------
is that a threat or what? IRL, i assure you -and- your liberty with IRL predictions might reaquaint you with IRL, "real world consequences"!


and i will not have to do a thing!

tsk tsk

=poor you=

Now that is something to woo hoo about

that is just plain common sense?