F.K., Mother v Ia Dist Ct for Polk County
| Decision Date | 25 October 2000 |
| Docket Number | 99-0095 |
| Parties | NOTICE! No decision has been made on publication of this opinion. The opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed. An unpublished opinion of the court of appeals MAY NOT BE CITED by a court or by a party in any other action. The official published opinions of the Iowa Court of Appeals are those published in the North Western Reporter published by West Group. F.K., Mother, Plaintiff, vs. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant./ 99-0095 IN THE COURT OF APPEALS OF IOWA Filed |
| Court | Court of Appeals of Iowa |
Writ of certiorari directed to the Iowa District Court for Polk County, Constance Cohen, District Associate Judge.
A mother whose child was the subject of an emergency removal action claims due process requires that applications for an ex parte removal must be supported by oath or affirmation, and that removal orders must be supported by a sworn written record. WRIT SUSTAINED IN PART AND ANNULLED IN PART.
James A. Benzoni of Benzoni Law Office, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Charles K. Phillips, Assistant Attorney General, and Cory McClure, Assistant County Attorney, for appellee State.
Persons responsible for investigating and taking action concerning allegations of child abuse or neglect are acutely aware of the potentially tragic consequences when a child is not removed from an abusive home. On the other hand, the consequences are just as troubling when a child is removed after an inadequate investigation of allegations of child abuse, allegations later found to be unsupported by the facts. See, e.g., Wallis v. Spencer, 202 F.3d 1126, 1134 (9th Cir. 2000) (). This conflict between the legitimate role of the state in protecting children, and the rights of children and parents to be free from arbitrary and undue governmental interference is occurring with increasing frequency as society recognizes that the problem of child abuse is no longer a private family matter. Id. at 1130.
This case highlights the fact that no matter how important the State's interest in protecting the children within its borders from parental abuse, any action taken by the State is nonetheless constrained by the United States and Iowa Constitutions. The Id. at 1142 n.14. The fact that allegations of child abuse may be most distressing to all cannot justify the State ignoring the Constitutional rights of the parents or children.
The questions that arise in this case are whether an applicant for an ex parte removal order pursuant to Iowa Code section 232.78 (1997) must swear to or affirm allegations supporting removal, and whether the allegations must be reduced to writing before a court may grant an ex parte order to remove a child or children from their parental home. The Iowa Supreme Court directed a writ of certiorari to the Iowa Juvenile Court for Polk County, then transferred this case to this court pursuant to Iowa R. App. P. 401(a) and Supreme Court Rule 4(b), to determine whether the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and article one, sections eight and nine of the Iowa Constitution, require an application for ex parte removal pursuant to Iowa Code section 232.78 (1997) to be supported by oath or affirmation, and whether those constitutional provisions require that the facts supporting the application be reduced to writing. These issues are raised by a mother's challenge to the constitutionality of section 232.78.
It is not enough to note that the plaintiff relies on the Due Process Clause of the Fourteenth Amendment, for that Clause is the source of three different kinds of constitutional protection. Daniels v. Williams, 474 U.S. 327, 337, 106 S. Ct. 677, 677, 88 L. Ed. 2d 662, 672 (1986) (Stevens, J., concurring). The plaintiff herein relies on two of the three prongs of the due process protection afforded by the Fourteenth Amendment, procedural due process and incorporation of the specific Fourth Amendment warrant requirements. The plaintiff also contends that the similar protections found in the Iowa Constitution, article one, sections eight and nine, also demand an application for removal pursuant to section 232.78 be on oath or affirmation, and be in writing.
The plaintiff contends section 232.78 (1997), on its face, does not comport with the federal and state constitutional protections noted above. The State contends the Fourth Amendment does not apply to the removal of children pursuant to Iowa Code section 232.78 (1997). The guardian ad litem contends procedural due process does not require an application for ex parte removal be reduced to writing, or on oath or affirmation.
Reasons for our careful consideration of the constitutionality of statutes affecting fundamental rights or interests were well stated in a case involving a federal statute found to violate Fourth and Fifth Amendment rights:
[I]llegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.
Boyd v. United States, 116 U.S. 616, 635, 6 S. Ct. 524, 535, 29 L. Ed. 746, 752 (1886). We sustain the writ in part, and annul the writ in part.
Michael was born to Felicia on January 9, 1998. On Friday, April 2, 1998, the Iowa Department of Human Services (hereinafter "DHS") filed an ex parte removal application with the Polk County Juvenile Court for the removal of Michael from the custody of his mother. The reasons given in the application were
Two older siblings have been removed & parental rights terminated. The mother has a history of mental illness & is not med. compliant. She is not able to care for her children. Michael is on an apnea monitor subsequent to an apnea episode during which he stopped breathing. The mother has not been compliant w/ VNS & has missed at least one medical appointment for the child.
No affidavit or sworn testimony was presented in support of the allegations in the application. It also is alleged, though by its nature not in the record, that the DHS worker had an unreported conversation with the issuing judge prior to the grant of the application. Upon this information the court ordered the immediate removal of Michael and placed him in the temporary legal custody of the DHS pending hearing pursuant to Iowa Code section 232.95 (1997) to be held eleven days later. The order also directed that a peace officer take custody of Michael forthwith to effectuate the order.
The DHS contacted the police on April 2 to serve the order, but the police were unable to locate anyone at the family residence. There is no record of any efforts to serve the order over the weekend. The child was removed from his mother's custody on the morning of Monday, April 6.
A child in need of assistance (CINA) petition was filed the following day. The April removal hearing was continued by agreement of the parties until June 1, 1998, to be held in conjunction with the CINA adjudicatory hearing. At the June hearing, the mother stipulated to the CINA petition but reserved her right to contest the removal, which was granted by the court. Felicia then filed a "Motion to Review Removal Applications by Same Standard as Search Warrants." After several continuances, the CINA adjudication and dispositional orders were entered. On November 25, 1998, the State filed a petition to terminate the parent-child relationship between Felicia and Michael.
On December 16, 1998, the juvenile court overruled the "Motion to Review Removal Applications by Same Standard as Search Warrants." The juvenile court found that
to justify a removal, a Juvenile Court Judge must review an Application filed by an authorized person and find, in pertinent part, that there is substantial evidence the child's life or health is in imminent danger. Iowa Code Sections 232.78(1)(b) and 232.95 (1997).
Therefore, the juvenile court concluded, because search warrants only require probable cause, the parent's procedural due process rights were better protected. It stated, "In fact, to impose the same standard on removals as are imposed on search warrant applications would reduce the test to which the Juvenile Court presently holds applicants and lessen the scrutiny applied to them." The plaintiff filed a motion pursuant to Iowa Rule of Civil Procedure 179(b), asking the juvenile court to find the warrant requirement as incorporated by the Due Process Clause demands that the facts supporting an ex parte application for removal be reduced to writing and supported by oath or affirmation. The juvenile court summarily denied the motion. Notice of appeal from this order was filed in the Supreme Court on January 11, 1999, three days after the termination hearing. On February 11, 1999, the juvenile court entered its order terminating Felicia's parental rights. This order was separately appealed, and this court affirmed. See In re M.L., No. 99-0362 (Iowa App. June 14, 2000).
The State and guardian ad litem (GAL) each filed a motion to dismiss the appeal from the denial of...
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