"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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