FK v. Iowa Dist. Ct. for Polk Cty., 99-0095.

• Decision Date: 05 July 2001
• Docket Number: No. 99-0095.,99-0095.
• Parties: F.K., Mother, Plaintiff, v. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant.
• Court: Iowa Supreme Court

630 N.W.2d 801

F.K., Mother, Plaintiff, v. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant.

No. 99-0095.

Supreme Court of Iowa.

July 5, 2001.

As Amended on Denial of Rehearing July 27, 2001.

James A. Benzoni of Benzoni Law Office, P.L.C., Des Moines, for plaintiff.

Thomas J. Miller, Attorney General, Charles K. Phillips, Assistant Attorney General, and Cory McClure, Assistant County Attorney, for defendant.

Mike Bandstra, Des Moines, for minor child.

NEUMAN, Justice.

This certiorari action tests the legality of a juvenile court's ruling on the constitutionality of the statute governing emergency removal orders, Iowa Code section 232.78 (1997). Because we are convinced that the certiorari plaintiff cannot successfully assail the statute on Fourth Amendments grounds, nor does the statutory scheme violate the due process clauses of either the United States or Iowa Constitutions, we vacate a contrary decision of the court of appeals and annul the writ.

I. Background Facts and Proceedings.

Underlying the constitutional issues presented here was a case involving Felicia, a young mother, and Michael, her infant son. When the child was three months old, the Iowa Department of Human Services (DHS) filed a written ex parte application with the juvenile court to remove Michael from the custody of his mother. The application gave the following reasons for removal:

Two older siblings have been removed [and] parental rights terminated. The mother has a history of mental illness [and] is not med[ication] 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[ith] VNS [Visiting Nurse Services] [and] has missed at least one medical appointment for the child.

The application also asserted that immediate removal was necessary to avoid imminent danger to the child's life or health, reasonable cause existed to believe that asking Felicia for consent to remove the child would cause her to take flight, and there was insufficient time to file a child in need of assistance (CINA) petition and hold a hearing thereon prior to removal.

The application was evidently accompanied by an unreported conversation between the DHS child protection worker and the issuing judge prior to the grant of the application. Based on the information received, the court issued an ex parte removal order pursuant to Iowa Code section 232.78, which provided:

1. The juvenile court may enter an ex parte order directing a peace officer or a juvenile court officer to take custody of a child before or after the filing of a petition under this chapter provided all of the following apply:

a. The person responsible for the care of the child is absent, or though present, was asked and refused to consent to the removal of the child and was informed of an intent to apply for an order under this section, or there is reasonable cause to believe that a request for consent would further endanger the child, or there is reasonable cause to believe that a request for consent will cause the parent, guardian, or legal custodian to take flight with the child.

b. It appears that the child's immediate removal is necessary to avoid imminent danger to the child's life or health.

c. There is not enough time to file a petition and hold a hearing under section 232.95.¹

The court's order placed Michael in the temporary legal custody of the DHS pending a post-removal hearing. Peace officers directed to take custody of Michael were unable to locate him or Felicia over the weekend; the child was not removed from his mother's custody until the following Monday morning. That same day a CINA petition was filed. The petition alleged that Michael was a child in need of assistance because of Felicia's failure to "exercise a reasonable degree of care in supervising" him, see Iowa Code § 232.2(6)(c)(2), and Felicia's "mental capacity or condition," which prevented her from caring for Michael. See Iowa Code § 232.2(6)(n). DHS filed a child abuse report the same day, documenting Felicia's lack of parenting skills.

The removal hearing, scheduled in conformity with Iowa Rule of Juvenile Procedure 4.6,² was continued by agreement of the parties, and combined with the adjudication hearing on the CINA petition. Meanwhile, Felicia moved to Texas. She eventually stipulated to the CINA adjudication but reserved the right to contest Michael's initial removal. In that connection, her counsel filed the document that is the subject of these proceedings—a "Motion to Review Removal Application by Same Standard as Search Warrants." The court reserved its ruling on the motion. A dispositional order was entered in the CINA case and, based on Felicia's abandonment of the child, the case proceeded toward termination.

After the CINA case, but before the termination hearing, the juvenile court ruled on Felicia's motion. It rejected Felicia's constitutional claim that removal applications must be made on oath or affirmation, and that the court—just as in the case of a search warrant—must base its decision solely on the facts contained within the "four corners" of the written document.³ Instead the court reasoned that section 232.78, and the accompanying statutes and rules governing emergency removals, require greater scrutiny and a higher level of proof than warrants based solely on probable cause. Accordingly the court found that section 232.78 violated neither the Warrant Clause of the Fourth Amendment of the United States Constitution nor article I, section 8 of the Iowa Constitution, or the Due Process Clause of either constitution.

Felicia appealed both the court's ruling on the motion as well as the decree terminating her parental rights that followed shortly thereafter. Termination of her parental rights was affirmed in an unpublished opinion by our court of appeals. See In re M.L., No. 99-0362, 2000 WL 766121 (Iowa Ct.App.2000). The State, along with Michael's guardian ad litem, then moved to dismiss the other appeal (from the motion ruling) as moot. Although the dismissal was initially granted, a three-judge panel of this court determined on reconsideration that a challenge to the constitutionality of section 232.78 was a justiciable issue of public importance that would otherwise evade appellate review. See Am. Dog Owners Ass'n v. City of Des Moines, 469 N.W.2d 416, 417 (Iowa 1991)

. We treated the appeal as an original petition for writ of certiorari and transferred it to the court of appeals.

The court of appeals sustained the writ in part, and annulled it in part. Finding emergency removals under section 232.78 are subject to the Warrant Clause of the Fourth Amendment, it sustained that part of the writ which alleged the juvenile court acted illegally by not requiring an application for such order to be made on oath or affirmation. The court annulled the writ, however, to the extent it sought a finding that the juvenile court acted illegally when it held the underlying facts supporting the application need not be reduced to writing.

Both Felicia and the State sought further review. We granted their petitions, and the case is now before us.

II. Scope of Review.

Certiorari is a procedure used to test whether a court has exceeded its jurisdiction or otherwise acted illegally. Wyciskalla v. Iowa Dist. Ct., 588 N.W.2d 403, 404 (Iowa 1998). When a constitutional issue is raised, we ordinarily review de novo the evidence bearing on the claim. Lewis v. Iowa Dist. Ct., 555 N.W.2d 216, 218 (Iowa 1996). Here, however, plaintiff contends that Iowa Code section 232.78 is unconstitutional on its face because it authorizes the removal or "seizure" of a child without the issuance of a warrant based on oath or affirmation. See U.S. Const. amend. IV; Iowa Const. art. I, § 8. By its nature, a facial challenge asserts that the statute is void for every purpose and cannot be constitutionally applied to any set of facts. City of Des Moines v. Lavigne, 257 N.W.2d 485, 486 (Iowa 1977). Thus the specific facts underlying the removal are essentially irrelevant.

Because statutes enjoy a strong presumption of constitutionality, a party mounting such a challenge may prevail "only upon proof that the act clearly infringes constitutional rights and then only if every reasonable basis for support is negated." Seeman v. Iowa Dep't of Human Servs., 604 N.W.2d 53, 60 (Iowa 1999).

III. Issues on Appeal.

A. Applicability of Warrant Clause. We are confronted with a threshold question concerning Felicia's assertion of a Fourth Amendment claim contesting Michael's removal.⁴ The State readily concedes that Felicia's relationship with Michael is a constitutionally protected liberty interest secured by the Due Process Clause of the Fourteenth Amendment. It insists, however, that Felicia can claim no legitimate expectation of privacy rooted in the Fourth Amendment because she was not personally subjected to search or seizure. Nor has she brought this suit in a representative capacity on behalf of her son. Throughout these proceedings Michael has been represented by a guardian ad litem who has advocated removal and opposed Felicia's position.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The United States Supreme Court has long held that the right to be protected from unreasonable searches and seizures is a personal one and cannot be asserted vicariously. Minnesota v. Carter, 525 U.S. 83, 87-88, 119 S.Ct. 469, 472, 142 L.Ed.2d 373, 379 (1998); Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176, 187 (1969); accord State v. Ortiz, 618 N.W.2d 556, 559, (Iowa...