Opinion
No. 5-802 / 05-1459
Filed November 9, 2005
Appeal from the Iowa District Court for Calhoun County, James A. McGlynn, Associate Juvenile Judge.
A mother appeals the juvenile court order terminating her parental rights. AFFIRMED.
Christopher O'Brien of O'Brien Law Office, Fort Dodge, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Cynthia Voorde, County Attorney, and Tina Meth-Farrington, Assistant County Attorney, for appellee State.
Joseph Tilley, Fort Dodge, for minor child.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Tonya appeals the termination of her parental rights to her child, D.J.B. We affirm.
I. Background Facts Proceedings
Tonya and James are the parents of D.J.B., born in September 2001. Tonya has a history of mental illness and substance abuse. In February 2003 Tonya contacted the Department of Human Services (DHS) and requested that D.J.B. be placed in family foster care because she was unable to care for him. D.J.B. was adjudicated a child in need of assistance (CINA) in May 2003. He returned to Tonya's care in January 2004. In January 2005 Tonya placed D.J.B. in foster care until she could get her medications adjusted and be able to care for him. D.J.B. returned to Tonya's care in February 2005, but was removed in March 2005 after Tonya admitted smoking crack cocaine and requested that he return to foster care. In a written document signed by Tonya on April 4, 2005, Tonya indicated her desire to terminate her parental rights.
The State filed a petition to terminate Tonya's and James's parental rights on April 25. Tonya was personally served with notice of the petition. On July 21, the date scheduled for the termination hearing, Tonya's court-appointed attorney appeared on her behalf. The court, in an order rescheduling the hearing, noted that the father and mother had each filed a written consent to terminate parental rights. However, the court continued the hearing "so that the mother's attorney may consult with the mother. That way the court will be sure that the mother's decision has been made freely and voluntarily and for good cause." The hearing was rescheduled for August 25.
The juvenile court terminated James's parental rights. He is not a party to this appeal.
A copy of the order rescheduling the termination hearing was mailed to Tonya, but returned as undeliverable. However, Tonya had an in-person conversation with a DHS worker on August 3. She acknowledged the upcoming termination hearing, advised the worker she did not wish to attend and expressed her continued desire to voluntarily terminate her parental rights. Tonya did not show up for a meeting scheduled with the worker the following day. On August 15 the DHS worker mailed Tonya a certified letter regarding the termination hearing. As of the date of the hearing, the worker had no further contact with Tonya. Despite repeated attempts by Tonya's appointed legal counsel, she did not contact him or set up an appointment with him to discuss the termination hearing.
At the August 25 hearing, Tonya's attorney appeared and explained to the court his attempts to contact Tonya, to no avail. When asked by the court if the hearing should be continued, her attorney indicated Tonya "has made herself clear to [the DHS worker] as far as her desires go."
In an order filed August 29, the court noted the handwritten consent to termination signed by Tonya, the attempts by Tonya's court-appointed attorney to contact her, and the conversation between Tonya and the DHS worker and concluded "the mother is resolute in her decision to give up her rights to the child." The juvenile court terminated Tonya's parental rights pursuant to Iowa Code sections 232.116(1)(a) (2005) (parents consent to termination); (b) (abandonment); (k) (child CINA, parent has chronic mental illness, child cannot be returned within a reasonable time); and (l) (child CINA, parent has substance abuse problem, child cannot be returned within a reasonable time). Tonya appeals.
II. Standard of Review
Our review in termination of parental rights cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Due Process
On appeal, Tonya argues she was not afforded due process because she did not receive notice of the termination hearing. The State argues Tonya failed to preserve error by raising the due process issue in the trial court. Even if error was preserved, the State argues, Tonya received adequate notice.
Generally, even issues implicating constitutional rights must be presented to and ruled upon by the district court in order to preserve error for appeal. In re K.C., 660 N.W.2d 29, 38 (Iowa 2003); see also In re C.D., 508 N.W.2d 97, 100 (Iowa Ct.App. 1993) ("Matters not raised in the trial court, including constitutional questions, cannot be asserted for the first time on appeal."). However, an order is void as to the parent who has no notice of the proceeding. Stubbs v. Hammond, 257 Iowa 1071, 1076-77, 135 N.W.2d 540, 544 (1965); see also In re Hewitt, 272 N.W.2d 852, 855 (Iowa 1978) (notice in child neglect and dependency proceedings is jurisdictional). Because a void judgment is subject to attack at any time, Tonya "had every right to challenge the termination order even though she filed no posttrial motions and waited until [she] appealed to do so." In re S.P., 672 N.W.2d 842, 846 (Iowa 2003) (father's contention that lack of notice of termination proceedings violated his due process rights "goes to the heart of the district court's jurisdiction"; therefore, the appellate court would "proceed to decide the case on the merits").
Due process requires "fundamental fairness" in judicial proceedings. In re J.S., 470 N.W.2d 48, 52 (Iowa Ct.App. 1991). Tonya received personal notice of the termination proceedings and knew the date of the termination hearing. Her court-appointed counsel was present at the termination hearing. Statements of material fact made in her petition on appeal that relate to her whereabouts during the time she was notified of the termination proceedings are not supported by the record. We conclude the requirements of due process were met in this case.