Opinion
No. 3-663 / 03-0868
Filed September 10, 2003
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
The father of two children appeals a district court order terminating his parental rights. REVERSED AND REMANDED.
Tiffany Koenig, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Michelle Chenoweth, Assistant Polk County Attorney, for appellee State.
David Pargulski, Des Moines, for mother.
Jason Hauser, Des Moines, guardian ad litem for children.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Michael is the father of Samantha and Karley. The State began child-in-need-of assistance and termination proceedings based on conduct of the mother and another man. Both proceedings were initiated without notice to Michael. Nineteen months after the CINA proceedings began and eight days before the scheduled termination hearing, the State filed an "affidavit of diligent search" stating it was unable to locate Michael. The district court entered an order terminating Michael's parental rights.
After the order was entered, Michael appeared and applied for appointed counsel. A day later, he filed an expedited appeal of the termination order. His subsequently filed appeal papers included an affidavit not filed with the district court.
Michael asserts the lack of notice violated his constitutional right to due process. The State responds that Michael did not preserve error by seeking a motion for new trial or by filing a motion to set aside the termination order.
I. Error Preservation.
We must first decide whether Michael was required to file a post-hearing motion to preserve his challenge to the lack of notice. We conclude he did not need to do so.
Michael timely appealed the termination order. That order contained the following finding of fact: "[Michael] is the biological father of Samantha and Karley and resides at an unknown location." The order further found:
Proofs of Service, affidavits of diligent search and entries of appearance executed by the parents and their respective counsel show that all necessary parties have been given notice of the time, place and purpose of this hearing in accordance with the requirements of Iowa Code Section 232.112 and have been fully advised that unless they appear and defend at such time and place, the parental rights of the biological parents of the children will be terminated.
On appeal, Michael essentially challenges the sufficiency of the evidence supporting these findings. It is established that a person need not file a post-trial motion to preserve error on a sufficiency-of-the-evidence challenge. In re A.R., 316 N.W.2d 887, 889 (Iowa 1982); In re R.E., 462 N.W.2d 723, 724 (Iowa Ct.App. 1990) (considering a lack-of-notice challenge on appeal from a termination order). For this reason we proceed to the merits.
Our highest court has also held "notice in child neglect and dependency proceedings is jurisdictional." In re Hewitt, 272 N.W.2d 852, 855 (Iowa 1978).
II. Merits.
Iowa Code sections 232.88 and 232.112(1) generally require the State to notify parents of CINA and termination proceedings. There are, however, exceptions. For CINA proceedings, our legislature has incorporated the notice procedures applicable to delinquency cases. See Iowa Code § 232.88 (referring to Iowa Code section 232.37). Those procedures allow the State to dispense with notice if "the court finds that a reasonably diligent effort has been made to notify the child's parent, guardian, or custodian, and the effort was unavailing." Iowa Code § 232.38. For terminations, the State may forego parental notification "in the case of any such person whose name or whereabouts the court determines is unknown and cannot be ascertained by reasonably diligent search." Iowa Code § 232.112(1).
We recognize that the notice provision pertaining to CINA proceedings does not make reference to this language. SeeIowa Code § 232.88. However, we believe section 232.88 incorporates all the notice procedures applicable to delinquency proceedings, including those contained in Iowa Code section 232.38.
Michael did not receive notice of the CINA petition filed in July 2001 or of subsequent CINA proceedings. See In re A.C., 415 N.W.2d 609, 612 n. 2 (Iowa 1987) (noting a final CINA disposition needed to accommodate the father's rights). The question then becomes whether the State made "a reasonably diligent effort" to find Michael at the commencement of these proceedings or thereafter. See Iowa Code § 232.38. Although the court found in adjudicatory and dispositional orders that such an effort was made, our record contains no affidavit or transcript of testimony confirming this fact. Nor is there any indication that Michael independently knew of the proceedings. Cf. In re J.F., 386 N.W.2d 149, 151-152 (Iowa Ct.App. 1986) (noting father who learned of CINA proceedings and intervened waived right to later have dispositional order vacated). Under these circumstances, we conclude the notice provisions governing CINA proceedings were not followed as to Michael.
Exacerbating the problem is the fact that Michael also received no notice of the termination proceeding. Cf. In re M.L.M., 464 N.W.2d 688, 689 (Iowa Ct.App. 1990) (upholding termination where father received notice of termination proceeding but not of prior CINA proceeding). There is no record that the State attempted to serve Michael with the petition on or after March 6, 2003, the date on which it was filed. Additionally, the affidavit of diligent search filed eight days before the termination hearing does not reveal when the State's investigator began his efforts to locate Michael. On this record, we find the evidence insufficient to support the district court's findings that Michael's whereabouts were unknown at the time of the termination hearing and that a "reasonably diligent search" was accomplished to find him. See Iowa Code § 232.112(1); Qualley v. State Federal Sav. Loan, 487 N.W.2d 353, 355 (Iowa Ct.App. 1992) (noting whether search was diligent has to be determined by the circumstances of each particular case). Having resolved the issue on statutory grounds, we find it unnecessary to reach Michael's constitutional arguments.
In reaching this conclusion, we have not considered the affidavit Michael attached to his appeal papers.
We note reversal will not adversely affect the children, who have remained with the father of their half-siblings throughout these proceedings. See In re E.C.G., 345 N.W.2d 138, 142 (Iowa 1984) (noting that interests of natural parents may justify vacating a termination order where such action is not adverse to a child's best interests).
We reverse the termination order and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.