Hewitt, In Interest of

• Decision Date: 20 December 1978
• Docket Number: No. 61946,61946
• Citation: 272 N.W.2d 852
• Parties: In the Interest of Daniel Ray HEWITT, a Child.
• Court: Iowa Supreme Court

Page 852

272 N.W.2d 852

In the Interest of Daniel Ray HEWITT, a Child.

No. 61946.

Supreme Court of Iowa.

Dec. 20, 1978.

Critelli & Pille by Jerry R. Foxhoven, Des Moines, for Carol Hewitt.

Richard C. Turner, Atty. Gen., Stephen C. Robinson, Sp. Asst. Atty. Gen., and Francis C. Hoyt, Jr., Asst. Atty. Gen., for the State.

Campbell & Campbell by Roger D. Vos, Newton, for Daniel Ray Hewitt.

Salisbury, Fleck & Walker, Newton, for Donald and Dorothy Hewitt.

Considered by REES, P. J., and UHLENHOPP, HARRIS, McGIVERIN, and LARSON, JJ.

UHLENHOPP Justice.

Carol Hewitt, natural mother of four-year-old Daniel Ray Hewitt, appeals from a juvenile court determination that Daniel is a child in need of assistance under § 232.2(13)(f) and (h), Code 1977. Daniel's father, Donald Hewitt, is deceased.

Carol argues that the notice she received of the pendency of the action was so defective that it did not give the juvenile court jurisdiction. We conclude that this issue controls the appeal.

I. The following statutes dealing with children who are delinquent or in need of assistance are relevant to the appeal. Section 232.2(13) of the Code provides:

13. "Child in need of assistance" means a child: . . .

f. Who is without proper parental care because of the emotional, mental, or physical disability, or state of immaturity of his parents, guardian, or other custodian.

g. Who is without proper parental care because of the faults or habits of his parents, guardian, or other custodian.

h. Who is living under conditions injurious to his mental or physical health or welfare. . . .

Section 232.3 provides:

Whenever the court or any of its officers are informed by any competent person that a minor is within the purview of this chapter, an inquiry shall be made of the facts presented which bring the minor under this chapter to determine whether the interests of the public or of the minor require that further action be taken. After such an inquiry the judge, probation officer, or county attorney may authorize the filing of a petition with the clerk of the court by any informed person without payment of a filing fee. . . .

The petition shall be verified and any statements may be made upon information and belief. The petition Shall set forth plainly:

1. The facts which bring the child within the purview of this chapter.

2. The name, age, and residence of the child.

3. The names and residences of the parents of the child.

4. The name and residence of the legal guardian of the child if there be one, of the person or persons having custody or control of the child, or of the nearest known relative of the child if no parent or guardian can be found.

If any of the facts herein required are not known by the petitioner the petition shall so state. . . . (Italics added.)

Chapter 232 contains two notice provisions, § 232.4 and § 232.5. The substantive requirements of the two sections are identical, except that § 232.4 summons a party to appear with the child while § 232.5 requires notice to a party not summoned. Carol was served with a summons but since she was not required to bring Daniel with her the parties assumed that service was under § 232.5. The result, however, is the same under both provisions. Section 232.4 provides:

After a petition has been filed and unless the parties named in section 232.5 voluntarily appear, the court shall set a time for hearing and Shall issue a summons requiring the person who has custody or control of the child to appear with the child before the court at a time and place stated. The summons Shall recite briefly the substance of the petition or Shall have attached a copy of the petition and Shall give notification of the right to counsel provided for in section 232.28 and of the right to request the court to appoint counsel. (Italics added.)

Section 232.5 provides:

The court Shall have notice of the pendency of the case and of the time and place of the hearing and all subsequent hearings served upon the acknowledged parents upon the guardian or legal custodian of a child and the child if they are not summoned to appear as provided in section 232.4. The notice Shall recite briefly the substance of the petition or Shall have attached a copy of the petition and Shall give notification of the right to counsel provided for in section 232.28 of the right to request the court to appoint counsel. (Italics added.)

Section 232.28 provides:

The child, parents, guardian, or custodian Shall have the right to legal counsel. If the minor, parents, guardian, or custodian desire but are unable to employ counsel, such counsel Shall be appointed by the court. (Italics added.)

II. On March 9, 1978, the Iowa Department of Social Services received a complaint regarding the care provided Daniel Hewitt. Social Worker Helen Gibbs, after conducting a preliminary investigation, filed a petition alleging that Daniel was a child in need of assistance. Judicial Magistrate A. C. Omer thereupon issued a temporary custody order requiring the immediate removal of Daniel from his mother's custody. Early the next morning Gibbs and two police officers took Daniel from his mother.

The arrival of Gibbs and the officers was the first knowledge Carol received that the State was concerned about the care provided Daniel. She had no previous contact with any representative of the Jasper County Department of Social Services.

Carol was served with the following papers:

1. A summons dated March 15, 1978, directed to Carol Hewitt, informing her that a preliminary information had been filed "making complaint against you, charging the commission of Child in need of Assistance, Chapter 232.2(13) 1975 Code of Iowa, See attached Petition," and directing her to appear in the magistrate's court on April 5, 1978, at 3:00.

2. The order for temporary custody signed by Judicial Magistrate Omer informing Carol Hewitt that Daniel Hewitt was to be taken into immediate custody by the peace officer who served the summons. The order stated that "Daniel Ray Hewitt . . . is in such conditions and surroundings that it would be in the best interests and welfare of said child that custody of said child be immediately assumed by the Court . . . "

3. The petition filed by Gibbs which stated the name, age, and residence of Daniel and the name and residence of his mother, as required by § 232.3(2), (3), and (4) of the Code. The petition alleged that Daniel was a child in need of assistance, and set forth § 232.2(13)(f), (g), and (h) of the Code. (The petition charged a violation of § 232.2(13) of the Code of 1977, while the summons referred to § 232.2(13) of the Code of 1975. Section 232.2(13) of the Code of 1975 did not contain paragraph (f), (g), and (h).) The petition further stated that "(a) copy of this petitioner's report of investigation is marked exhibit "A" attached hereto, and by this reference fully made a part hereof." The exhibit was not attached.

Sections 232.4 and 232.5 contain three requirements:

1. Notice must be given as to the time and place of the hearing. (The summons adequately satisfied this requirement.)

2. Notice must either recite briefly the substance of the petition or attach a copy of the petition. Section 232.3 requires a petition to set forth the facts which bring the child within Chapter 232. (This requirement was not satisfied since Carol was given a portion of the petition devoid of any facts. The wording of the child-in-need-of-assistance statute was the only "factual" notice given Carol.)

3. Notice of the right to counsel and of the right to have counsel appointed. (No such notice was given Carol and the third requirement was not satisfied.)

Carol contacted an attorney to help her retrieve her son. The attorney obtained a copy of Exhibit A from the court clerk, and asked for a prompt hearing. In the meantime, Carol attempted to visit her son but was not permitted to do so.

The juvenile court held a hearing. At the hearing Carol's attorney moved at the outset to dismiss the petition for failure to notify Carol of her right to counsel and failure to serve her with a copy of Exhibit A. All parties and the court agreed that the notice was defective in these two particulars, but the State contended that Carol was not prejudiced since she did contact an attorney and the attorney obtained a copy of Exhibit A from the clerk. The court overruled the motion to dismiss but offered Carol a continuance. Her attorney declined this offer, stating:

This mother is desperate to see her child. She tried to see her child yesterday while it was in the custody at the Jasper County Home and was denied the right to see her child. We cannot take another continuance, Your Honor, in fairness to my client.

The court held a hearing on the merits, adjudged Daniel a child in need of assistance, and placed him in foster care. The child has been returned to Carol under conditions, but the court's order on the merits remains in effect.

III. Was the notice on Carol sufficient? The notice had to satisfy the Iowa statutory test as well as the test of due process under the Fourteenth Amendment. Sparrow v. Goodman, 376 F.Supp. 1268, 1270 (W.D.N.C.).

Notice in child neglect and dependency proceedings is jurisdictional. In re Interest of Herron, 212 N.W.2d 474, 476 (Iowa). See also De Kay v. Oliver, 161 Iowa 550, 554, 143 N.W. 508, 509 (delinquency proceedings). The courts agree that notice to the parents in a child custody case is a jurisdictional requirement. In re Moilanen, 104 Cal.App.2d 835, 842, 233 P.2d 91, 95 (no notice given to mother in delinquency proceeding child returned to mother); In re B. G., 11 Cal.3d 679, 688-689, 114 Cal.Rptr. 444, 450, 523 P.2d 244, 250 (notice required before court could determine temporary custody of child in abandonment case, notice waived); People v. Harris, 343 Ill.App. 462, 99 N.E.2d 390 (Abstract of Decision) (delinquency proceedings); People ex rel. Houghland v. Leonard, 415 Ill. 135, 146, 112 N.E.2d 697, 702 (notice under...