Opinion
No. 3-694 / 03-0738.
Filed December 10, 2003.
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison (motion to dismiss) and Paul R. Huscher (trial), Judges.
A biological father appeals the juvenile court's refusal to vacate an order terminating his parental rights. Judge Hutchison affirmed; Judge Huscher affirmed in part and reversed in part. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Patrick Payton of Patrick H. Payton Assoc., P.C., Des Moines, for appellant.
Alexander Johnson, Des Moines, for mother appellee.
Chris Pose of Connolly, O'Malley, Lillis, Hansen Olson, L.L.P., Des Moines, for appellee.
Larry Blumberg of Roehrick, Krull Blumberg, P.C., Des Moines, for minor child.
Heard by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Appellant Cody, the alleged biological father of B.C., a child born to Amanda on April 4, 2002, appeals following the juvenile court's refusal to vacate an order entered on September 13, 2002 terminating his parental rights. Cody contends (1) the court erred in determining he was not a necessary party to the termination proceedings; (2) the court in the termination proceedings did not have personal jurisdiction over him; (3) the court erred in allowing the alleged adoptive parents, cross appellants John and Jane Doe, to intervene; and (4) the court erred in taxing the court costs against him. Cross appellants John and Jane Doe, who adopted the child on the premise that Cody's parental rights had been properly terminated, Amanda, Ryan A. Genest, the child's custodian, and Larry M. Blumberg, the child's guardian ad litem, contend the order should be affirmed or the appeal dismissed for lack of subject matter jurisdiction. The Does cross appeal, contending their motion to intervene in these proceedings should be granted. Blumberg contends the fees awarded him in the juvenile court should be affirmed and he should be awarded fees and expenses on appeal. We affirm in part, reverse in part, and remand Cody, then sixteen, had sexual relations with Amanda, then fifteen, in the summer of 2001. Cody and Amanda were not married to each other. Learning she was pregnant, Amanda realized Cody or another man could be the child's father. She contends she told Cody he could be the father. Cody contends she told him he was not. Amanda decided to place the child privately for adoption. She signed a release that went to custodian Genest, and the Does took the child from the hospital.
Cody was told on about April 10 that the child looked like him. Amanda was confronted and she said the child had been placed for adoption. Cody then contacted Genest telling him of his claim of paternity. Cody next contacted legal aid, who referred him to the Youth Law Center, as Cody was a minor. Cody talked by telephone with attorney Nicole Garbis at the Center. On April 11, 2002 Genest and Garbis reached an agreement whereby the child would submit to a DNA test. On May 9, 2002 the test was returned confirming that within a 99.9997 percent certainty Cody was the child's father. Cody was counseled by Garbis to release the child for adoption, and at one time he apparently verbally indicated he would do so. A meeting was scheduled to have the papers signed. Cody did not keep the appointment or contact Garbis, and she tried to contact him without success.
Genest apparently decided to petition to terminate Cody's parental rights and notify Cody of the petition through publication of notice. There is evidence that Genest sent Garbis by e-mail an affidavit of diligent search, which she did not sign. On August 28, 2002 the petition to terminate Cody's parental rights was filed. The petition alleged Cody was the child's father. On August 20, 2002 Cody's attorney was appointed as his guardian ad litem. There is no claim she either was served, accepted service of the notice, or that she filed an answer. There is a question as to whether she received a copy of the order appointing her.
She had no obligation to supply such an affidavit. Rather the responsibility to supply the affidavit lay with the party seeking to serve the notice by publication.
The petition was addressed only to Cody and not to Amanda, because apparently she intended to seek custody of the child if Cody's parental rights were not terminated.
In the order appointing Garbis as guardian ad litem for Cody, attorney Jesse Macro was appointed as guardian ad litem for Amanda, and attorney Larry M. Blumberg was appointed guardian ad litem for the child. Macro and Blumberg both accepted service and filed answers.
A notice directed to Cody informing him the petition to terminate had been filed was published on August 28, 2002 and on September 4, 2002 in the Altoona Herald-Mitchellville Index, a weekly newspaper of general circulation published in Altoona, in Polk County, Iowa. The notice was directed to Cody, stated a petition had been filed asking for the termination of his parent child relationship with a child born on April 4, 2002, and that the matter would come on for hearing before the Iowa District Court for Polk County at the courthouse in Des Moines, Iowa at 8:15 a.m. on September 13, 2002. The notice showed an incorrect Polk County juvenile court number.
Appellee contends there was an order directing publication, however we were unable to find it and the page reference provided in the brief did not contain such an order.
On September 13, 2002 the juvenile court entered an order terminating Cody's parental rights. The court found that notice of the hearing was served on Cody by publication on August 28 and September 4 of 2002 as shown by the Affidavit of Publication on file. The court found the presence of the biological mother, the biological father, and the minor child before the court was waived. The court also found:
All necessary parties have received notice of this hearing as prescribed by law, have accepted service, acknowledged receipt of notice of this hearing, and waived the all irregularities of service and have consented to the jurisdiction of the Court, and such acceptance and acknowledgement of service and consent of jurisdiction of the Court are on file herein.
The order does not specify the parties that the court found received notice.
The court further found:
The parental rights of the biological father named in the petition in this matter are hereby permanently terminated and ended and the parent/child relationship heretofore existing between Cody. and his child, B.C. is hereby permanently terminated, severed and extinguished and said Petition for Termination of Parental Rights is hereby granted, the court relying on each and all of the foregoing findings in ordering his termination.
The parental rights of Amanda were terminated in the same order.
On November 22, 2002 an adoption hearing was held and an order was entered decreeing John and Jane Doe as the child's parents.
On December 20, 2002 Cody, having engaged a new lawyer, filed a petition to vacate the judgment terminating his parental rights. He named Amanda and Genest and contended the court did not have jurisdiction because of the lack of proper service and other reasons. The court on the same day entered an order that the file previously sealed be made available to Cody and his attorney and that a hearing on the matter should be set at a time agreed upon by Genest and any other attorney or defendant interested in the proceedings.
Genest filed a motion to dismiss the petition to vacate contending it was not filed within the thirty days required by Iowa Code section 600A.9(2) (2003) and Rule of Juvenile Procedure 4.14. On January 23, 2003 the district court, Judge Hutchison, determined the petition to vacate was untimely, relying on section 600A.9(2), but overruled the motion to dismiss finding there was no showing in the court file that the court ever had personal jurisdiction over Cody. The court determined there was no publication notice in the file nor was there a showing of a diligent inquiry necessary prior to service by publication. The court further held that if there were no showing of service, then the thirty-day statutory limitation to vacate the order was inapplicable. On this basis the court overruled the motion to dismiss.
Iowa Code section 600A.9(2) provides in relevant part:
If an order is issued [terminating parental rights], the juvenile court shall retain jurisdiction to . . . allow a terminated parent or any putative biological parent to request vacation or appeal of the termination order which request must be made within thirty day of issuance of the granting of the order. The period for request by a terminated parent or by a putative biological parent for vacation or appeal shall not be waived or extended and a vacation or appeal shall not be granted after the expiration of this period. The juvenile court shall grant the vacation request only if it is in the best interest of the child.
Iowa Court Rule 4.14 provides as follows:
Any request by a biological or putative parent to vacate an order terminating parental rights pursuant to Iowa Code chapter 600A must be filed within 30 days from the entry of said order. The 30-day period for filing a motion to vacate such order shall not be waived or extended.
Apparently the notice ultimately showed up in another file because the notice showed the number of another case. There was no affidavit of diligent search filed.
The matter then came for trial before Judge Huscher. During the testimony of the first witness Judge Huscher stopped the trial. The judge then determined Cody had no standing to challenge the termination order because he was not a "necessary party" in that he was neither required to be included on the petition under section 600A.5(3)(a) nor was he a putative father who filed a declaration of paternity in accordance with section 144.12A or an unknown putative father. The judge ruled that Cody would only be entitled to receive notice if he had filed a declaration of paternity in accordance with section 144.12A. This appeal followed.
Cody first contends the court erred in ruling he was not a "necessary party" under section 600A.6. He argues the statute makes him a necessary party and the statute would be unconstitutional as interpreted by the trial court. Cody contends he is a "necessary party" and the court lacked jurisdiction to terminate his parental rights.
The guardian ad litem responds that the court did not have subject matter jurisdiction to vacate the order terminating parental rights because it was not filed within thirty days of the order and the thirty day provision in section 600A.9(2) is controlling on this issue. Section 600A.9(2) was intended to preserve juvenile court jurisdiction. In re B.G.C., 496 N.W.2d 239, 242 (Iowa 1992). We find nothing in section 600A.9(2) that confers personal jurisdiction where there was none or that precludes a necessary party from seeking to vacate an order in a termination entered without personal jurisdiction. A judgment entered without jurisdiction is void and a judgment void because of lack of service can be challenged at any time. Rosenberg v. Jackson, 247 N.W.2d 216, 218 (Iowa 1976).
Appellee contends we cannot address the issue of sufficiency of service on Cody because error on that issue was not preserved. He reasons this is true because the trial court did not rule on this issue. Actually the trial court did rule on the issue. Judge Hutchison specifically found in ruling on appellee's motion to dismiss `there is no showing in the court file that the Court ever had personal jurisdiction over Cody." He further found "if there was no personal jurisdiction over Cody, the order terminating his parental rights is void." The trial court clearly ruled on the issue and decided it in Cody's favor. While appellee has challenged Judge Hutchison's ruling on his motion to dismiss, he does not appear to contend the judge incorrectly decided the jurisdictional issue nor does he contend that the service was proper.
We agree with Judge Hutchison and affirm his finding that the juvenile court did not have personal jurisdiction over Cody at the time the termination order was entered and, consequently, as to Cody the order is void.
In notifying Cody, Genest apparently chose to serve Cody by publication in accord with section 600A.6 as a "necessary party whose identity is known but whose location or address is unknown." As such, service on Cody was required to be "according to the rules of civil procedure relating to an original notice where not inconsistent with the provisions of this section." Iowa Code § 600A.6(4). Iowa Rule of Civil Procedure 1.313, with reference to known defendants, provides for three publications, while section 600A.6(5) provides for only two publications. Also, the length of time given to respond to the notice is much shorter in section 600A.6(5) than in the Iowa Rules. There appear to be no other inconsistencies between the statute and the rule.
Iowa Rule of Civil Procedure 1.311 provides that the notice shall either be mailed to the party served by publication or an affidavit be made by the party or the party's attorney stating "that no mailing address is known and that diligent inquiry has been made to ascertain it." Furthermore section 600A.6(6) provides that "[p]roof of service of notice in the manner prescribed shall be filed with the juvenile court prior to the hearing on termination of parental rights." (Emphasis supplied).
The affidavit that the notice was published twice, standing alone, did not confer personal jurisdiction of the court over Cody. We also note, but find it unnecessary to address because we reverse on other grounds, the impact of the fact Cody was a minor and the guardian ad litem appointed for him did not answer.
There being no clear evidence the guardian ad litem consented to being appointed, was actually aware she was appointed, or received the notice or a copy of the petition, she cannot be faulted for not answering.
Having decided the termination order is void for lack of personal jurisdiction as to Cody, we need to address his challenge to the district court's finding he was not a "necessary party" and was not entitled to notice. We also address his claim that if the juvenile court's interpretation of the statute is correct, it is unconstitutional.
Error on this issue was preserved. The court raised the "necessary party" issue on its own motion. Cody filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(b) seeking to have the court expand its ruling on the constitutional issues, which motion was summarily denied.
Cody argues the court incorrectly found his failure to register negates the need to give him notice. Cody contends the purpose of the registry was not to eliminate notice to a recognized biological father who had not registered with the paternity registry. He points out that after the blood tests and before the petition to terminate his parental rights was filed, it was well known that he was the father of Amanda's child. He further advances that the petition to terminate clearly named him as the biological father and he was named in the published notice.
Basically section 600A.6(1) provides in relevant part that in a termination the necessary parties are anyone whose name is required to be included in the petition under section 600A.5, any putative father who files a declaration of paternity, or any unknown putative father. Section 600A.5 requires the living parents of the child be named in the petition. Section 600A.2 provides definitions. Section 600A.2(13) provides: "`Parent' means a father or mother of a child, whether by birth or adoption." Section 600A.2(15) provides: "`Putative father' means a man who is alleged to be or who claims to be the biological father of a child born to a woman to whom the man is not married at the time of birth of the child."
600A.2(1) also provides "Biological parent" means a parent who has been a biological party to the procreation of the child.
Basically, appellee's argument is Cody had to come under the definition of (1) known putative father who registered, (2) unknown putative father, or (3) parent, in order to be entitled to notice. He claims Cody was none of the three, rather he was a known putative father who had not registered. Despite being well aware before the termination petition was filed that Cody had fathered the child and naming Cody as a living parent in the petition to terminate his rights, Appellee now contends he did not need to notify Cody of the termination because he was not a necessary party to the termination proceedings. His argument centers on a contention that, because there is no paternity decree establishing Cody as the father, he is not a living parent.
Cody contends the statute makes him a necessary party as he is a living parent and his relationship to the child was known to appellee before the termination petition was filed. He further contends the trial court's interpretation of the statutes violates the constitution. In making his argument he relies in part on the language in Catholic Charities of Archdiocese of Dubuque v. Zalesky, a case decided before the putative father statute was enacted. There the court said:
[W]e are satisfied an effective adjudication cannot hereafter be entered in any proceeding involving either (1) direct adoption to designated adoptive parents or (2) adoption of a child through a child-placement agency, premised upon parental release of the child for such purpose, unless an identity and address known nonconsenting putative father is accorded appropriate timely notice and opportunity to be heard. This means, absent consent to any release for or adoption of a child born out of wedlock, such known father must be accorded meaningful opportunity to show he has significantly provided for the wants of his child and is ready, willing and able to thus provide for future wants of said child before a court can effectively terminate his parental rights. See Cedar Rapids, Etc. v. Cedar Rapids Commun. Sch., 222 N.W.2d 391, 401-02 (Iowa 1974); Iowa Code § 600.4; 16 Am.Jur.2d, Constitutional Law, § 569; 16A C.J.S. Constitutional Law §§ 619, 622; see also fn. 9 in Stanley v. Illinois, 405 U.S. at 657, 92 S.Ct. at 1216; Iowa Code § 600.3.
Catholic Charities of Archdiocese of Dubuque v. Zalesky, 232 N.W.2d 539, 546 (Iowa 1975) (emphasis added).
Appellee appears to contend Cody is not a parent because no court has established paternity. He contends his position is supported by the holding in Callender v. Skiles, an action brought by a biological father to overcome the paternity of the birth mother's husband at the time of the child's conception. Callender says:
Although the term "established father" is not expressly defined by our legislature, companion statutes make it clear it refers to paternity which has been established by some means authorized by law. See id.; § 600B.41A(1); Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996). The law deems Rick [husband] to be Samantha's father by virtue of his marriage to Rebecca. [mother] We acknowledge blood tests can lead to the establishment of paternity, but they do not establish paternity without a court order. See id.; § 600B.41. Thus, Charles [biological father] does not become the established father by virtue of the blood tests that have been taken in this case. Rick, [husband] not Charles, [biological father] is the established father of Samantha.
Callender v. Skiles, 591 N.W.2d 182, 185 (Iowa 1999) (emphasis added). In Callender the statute the biological father was attempting to utilize used the term "established father." Id. There are factors in Callender that differ from the situation here. First, the term "established father" is not used in the termination statute, and second, this is not a case of a biological father competing for fatherhood with the mother's husband who by virtue of the marriage at time of conception was presumed to be the child's father.
Cody, too, looks to Callender as further support for his position that to treat him differently than an established father or a registered or unknown putative father would violate the state constitution. See id. at 192. In Callender the court essentially held section 600B.41A unconstitutional under our state constitution to the extent it denies the biological father not specified in the statute standing to overcome paternity of the mother's husband See id. Callender would support Cody's argument that it is not constitutional to treat him differently than an unknown putative father for purposes of notice.
Cody was a necessary party to the termination as he was, at the time the petition was filed, a known, living parent of the child. We therefore reverse the order of the district court to the contrary and we remand for further proceedings including a resumption of the termination hearing that the trial court terminated on its own motion.
We reverse the trial court's determination and hold that the Does should be allowed to intervene in the termination action. We affirm the trial court's ruling they be allowed to intervene in the trial on the petition to vacate should a hearing on this issue be held.
Cody also contends he should not have been ordered to pay the guardian ad litem's fees which were taxed to him as court costs. The issue of apportionment of court costs and guardian ad litem fees should be determined after the matter is resolved in the trial court. The costs shall include $1,000 appellate fees for the guardian ad litem. Costs on appeal are assessed one-third to appellant, one-third to appellee, and one-third to intervenors.