Patten v. Patrick

• Decision Date: 21 March 1979
• Docket Number: No. 61736,61736
• Citation: 276 N.W.2d 390
• Parties: Baby Boy "Guber" PATTEN, by his Parent and Next Friend, Larry D. Patten, Appellant, v. Mary Roberta PATRICK, Appellee.
• Court: Iowa Supreme Court

Page 390

276 N.W.2d 390

Baby Boy "Guber" PATTEN, by his Parent and Next Friend, Larry D. Patten, Appellant, v. Mary Roberta PATRICK, Appellee.

No. 61736.

Supreme Court of Iowa.

March 21, 1979.

Lowell H. Forte of Terpstra, Wilkinson & Van Horne, Cedar Rapids, for appellant.

L. Vern Robinson, Iowa City, for appellee.

Emmit J. George, Jr., Iowa City, for minor child.

Considered by REYNOLDSON, C. J., and REES, McCORMICK, McGIVERIN and LARSON, JJ.

McGIVERIN, Justice.

This is a child custody case in which both the natural father, Larry D. Patten, and the legal guardian and maternal grandmother, Mary Roberta Patrick (Roberta), desire custody of Baby Boy Patten, who is also known as "Guber" and Patrick. In Larry's absence Roberta was appointed Patrick's legal guardian. Upon Larry's subsequent effort to regain custody, the trial court left custody with the grandmother, subject to visitation by the father. We modify and affirm.

Patrick was born April 11, 1971 to the marriage of Larry and Mary Elizabeth, the daughter of Roberta. He lived with his parents for approximately one year before they separated. Patrick then lived with his mother. Later the child lived for about three months with Larry and another woman in Burlington in early 1973. At that time, Larry became involved in a felonious truck hijacking incident in which he was paid to aid in unloading merchandise from a stolen supply truck. Subsequently, he learned that federal law enforcement officers were looking for him. Accompanied by another person involved in the crime, Larry fled the state.

Larry left Patrick in Burlington with the woman with whom he had been living and gave her instructions to "take good care of" the child until Larry could return. The woman had no apparent source of income; she was neither employed nor receiving public assistance. After a short time, the mother, Mary Elizabeth, brought Patrick to Iowa City to live with Roberta. Mary Elizabeth had neither the finances nor the desire to cope with the care of a child. Roberta, however, provided a good home for the boy.

On November 9, 1973 in equity no. 1449 Mary Elizabeth filed a petition for dissolution of marriage in Johnson County district court. The petition asked for custody of the child.

On November 20, 1973 in the same court in probate no. 14979 she joined with Roberta in a petition for appointment of Roberta as guardian of Patrick. The petition alleged Roberta had the care, custody and control of the proposed minor ward. An order entered the same day appointed Roberta as guardian. No notice of the proceeding was afforded Larry. The order noted "the whereabouts of the proposed ward's father is unknown."

After seven months of flight, Larry was apprehended in Colorado, returned to Iowa for trial, and found guilty of the federal hijacking charge. He was sentenced to three years in prison and placed on probation.

In February 1974, Larry returned to Iowa City and moved into Roberta's home. Although the child continued to live in the grandmother's home, Larry claims he did not discover the guardianship had been established until April or May 1974. By that time Larry had moved into a boarding house and Mary Elizabeth was planning to leave for New Mexico.

Throughout the period of her guardianship Roberta has permitted Larry regular visitation with his son, although there was no court order on visitation in effect.

By counsel, Larry filed a counterclaim in the dissolution case on December 5, 1975 stating the child was "not affected by the controversy inasmuch as the custody and guardianship of said minor has been previously determined by Order of this court dated November 20, 1973."

A written stipulation filed December 12 in the dissolution action by Larry and Mary Elizabeth stated no provision for custody of the child would be made because of the guardianship.

Larry appeared in court, proved up on his counterclaim and obtained a dissolution decree, filed December 19, 1975, which stated:

THE COURT FURTHER FINDS that inasmuch as the custody and guardianship of the Parties' minor child, Guber Patten, has been previously determined by Order of this Court dated November 20, 1973, and the guardian not appearing nor being a party of this action, the Court makes no findings or decree concerning the custody and support of said minor child; . . .

Thereafter, Larry remarried and has attempted to obtain custody of Patrick. On August 31, 1976, Larry filed a petition to terminate the guardianship pursuant to section 633.675(4), The Code 1975, and an application for modification of the dissolution decree. After consolidated trial, the court granted Larry visitation with the child but otherwise denied both the petition and the application.

Larry appeals denial of his petition and application and Roberta cross-appeals the visitation terms.

The parties present the following issues for review:

(1) Whether the guardianship proceedings conducted without notice to the father violate due process and equal protection;

(2) Whether the continuation of the guardianship and custody in the grandmother is in the best interests of the minor child; and

(3) Whether the provision giving visitation rights to the father every weekend during the summer should be modified.

The scope of our review is de novo in the guardianship proceeding and the dissolution modification action, both of which are in equity. Iowa R.App.P. 4; Matter of Guardianship of Sams, 256 N.W.2d 570, 572 (Iowa 1977).

I. The constitutional attacks on the guardianship proceedings. Larry contends the guardianship proceedings denied him due process and equal protection of the law in failing to include notice to him of the filing of the guardianship petition. If we determine the guardianship proceedings were violative of due process or equal protection, the proceedings must be held not binding on Larry.

A. The due process attack. The petition for appointment of Roberta as guardian for Patrick was filed under section 633.552.

Relating to notice when a minor is the proposed ward, section 633.553 provides:

No notice of the filing of such petition need be given when the proposed ward is a minor and such petition is filed by the person having custody of the proposed ward.

Section 633.554, which otherwise applies, states:

In all other cases, notice of the filing of such petition, shall be served upon the proposed award in the manner of an original notice and the Rules of Civil Procedure governing original notices shall also govern such notice as to content.

Chapter 633 makes no provision for notice of guardianship proceedings to the natural parent of a minor child under the facts of the present case. Therefore, we must determine the constitutional due process rights applicable to Larry, as a parent.

Due process analysis is composed of a two-step inquiry: Does due process apply? What process is due? See Mathews v. Eldridge, 424 U.S. 319, 332-333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18, 31-32 (1976). The two-step analytic framework may be applied in a variety of circumstances to determine the requisite due process rights. In applying it to initiation of guardianship proceedings, therefore, we turn, first, to a determination of whether due process applies, and next to a determination of what process is due.

The right of parents to the custody of their children was acknowledged in May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), where the Supreme Court reviewed the impact of the full faith and credit doctrine on an ex parte divorce decree awarding custody of children to their father. Although May was not purely a due process case, the court acknowledged that parental right to custody of their children "is a personal right entitled to at least as much protection as (the) right of alimony." Id. at 534, 73 S.Ct. at 843, 97 L.Ed. at 1227.

Subsequently, in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the Supreme Court made clear that court appointment of guardians to remove children from the care of unwed fathers required that due process protection be extended before parental rights were extinguished. Id. at 649, 92 S.Ct. at 1211, 31 L.Ed.2d at 557.

Stanley has been applied in this jurisdiction to the context of adoption in Catholic Charities of the Archdiocese of Dubuque v. Zalesky, 232 N.W.2d 539 (Iowa 1975). In Catholic Charities we held that a putative, known father must be accorded:

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. Id. at 546.

The application of the Stanley due process guaranties to the guardianship context was presented in Matter of Guardianship of Sams. In Sams, however, this issue had not been presented in the trial court and we did not entertain the issue on appeal. 256 N.W.2d at 572.

In 39 C.J.S. Guardian & Ward § 23 at 52-53 we find the following discussion of the parental due process rights in a guardianship proceeding:

Statutes usually require that notice of an application for the appointment of a guardian be given to the parents of the infant. Even in the absence of an express provision requiring notice, it has been held that due process mandates that notice be given to the parents. . . .

. . . An order appointing a guardian, without due notice to the father or mother of the infant, may be attacked by the parent by petition or other proceeding in the court by which such order was made.

An examination of case law confirms that in many jurisdictions the right of notice of the natural parents upon petition for a guardian for their children has been upheld. In some cases the right to notice of guardianship proceedings rests upon statutory requirement and is regarded as a jurisdictional prerequisite. Cf. In Interest of Hewitt, 272 N.W.2d 852, 855 (Iowa 1978) (jurisdictional requirement of notice in child...