In the Interest of B.E., Minor Child, B.E., Father

IN THE COURT OF APPEALS OF IOWA

No. 15-0794
Filed August 5, 2015

IN THE INTEREST OF B.E.,
Minor Child,

B.E., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Winneshiek County, Alan D.

Allbee, Associate Juvenile Judge.

A father appeals from the adjudication and disposition orders in a child-in-

need-of-assistance proceeding. REVERSED.

Karl Knudson of Knudson Law Office, Decorah, for appellant.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, Andrew Van Der Maaten, County Attorney, and Barrett M. Gipp,

Assistant County Attorney, for appellee.

Laura J. Parrish of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C.,

Decorah, for mother.

Whitney L. Schiller of Shafer & Shafer, Waukon, attorney and guardian ad

litem for minor child.

Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, J.

The father appeals the adjudication and disposition orders in this child-in-

need-of-assistance (CINA) proceeding regarding his child, B.E. The father

contends the petition was constitutionally deficient and deprived him of due

process as guaranteed by the United States and Iowa Constitutions.

I.

The nature of the father’s claim requires an extensive recitation of the

procedural posture of this case. The father and the mother divorced in May

2014. Three children were born to the marriage. The mother was granted

physical care of the children, subject to the father having liberal visitation with all

three children. It is only B.E.—born in 2005 and the youngest of the three

children—who is the subject of this proceeding.

In August 2014, the Iowa Department of Human Services (“IDHS”) began

a child abuse investigation after receiving information the father caused physical

and mental injury to B.E. In September 2014, the State filed an application for

temporary removal of B.E. pursuant to Iowa Code section 232.78 (2013)

(authorizing ex parte removal of child under certain conditions). In support of the

application for removal, the State alleged removal from the father’s care was

necessary to avoid imminent danger to B.E.’s life or health. Specifically, B.E.

had been diagnosed with posttraumatic stress disorder (PTSD), ADHD,

oppositional defiant disorder, and enuresis (involuntary urination). A licensed

mental-health provider opined the PTSD and enuresis were caused by stress

associated with ongoing physical and emotional abuse by B.E.’s father. It was

reported B.E. had been physically aggressive toward others, threatened to kill
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himself or hurt his father, had nightmares regarding his father hurting him, wetted

the bed, refused to sleep alone, and expressed a desire to not affiliate with his

father. On September 12, 2014, the juvenile court granted the application for

temporary removal.

On September 15, the State filed its CINA petition, alleging B.E. was in

need of assistance pursuant to Iowa Code section 232.2(6)(c)(2). This provision

defines a child in need of assistance as one “[w]ho has suffered or is imminently

likely to suffer harmful effects as a result of . . . [t]he failure of the child’s parent

. . . to exercise a reasonable degree of care in supervising the child.” Iowa Code

§ 232.2(6)(c)(2). The petition merely quotes the statutory language without

identifying any conduct at issue. The exhibit filed with and in support of the

petition does not identify any acts or omissions relating to the father’s failure to

supervise the child. Instead, the exhibit sets forth B.E.’s mental-health conditions

and behaviors and an opinion from a mental-health professional that the

conditions were caused by the father’s abuse. The mental-health professional’s

opinion was based on history provided by the mother and obtained in several

sessions with B.E. As will be discussed in more detail below, the mental-health

professional did not conduct any independent testing prior to reaching this

conclusion and was completely unaware of significant medical-history

information.

In September 2014, IDHS concluded its abuse investigation. IDHS

concluded the allegations of physical abuse were not confirmed. IDHS founded

a child-abuse complaint for mental injury. The father filed an administrative

appeal challenging the founded complaint. On May 1, 2015, after the
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adjudication and disposition hearings were held and the corresponding orders

were filed, IDHS changed its findings in the abuse investigation, concluding the

mental injury was not confirmed. The father’s administrative appeal challenging

the finding was dismissed.

On October 8, 2014, the juvenile court issued its prehearing conference

order. The order directed the State to amend the CINA petition to include as an

additional ground for adjudication section 232.2(6)(c)(1) (defining CINA as one

“[w]ho has suffered or is imminently likely to suffer harmful effects as a result of

any . . . [m]ental injury caused by the acts of the child’s parent”). The order set

forth the adjudicatory issues as section 232.2(6)(c)(1) and (2) and provided a

definition of relevant terms. The prehearing conference order did not provide any

additional information regarding the acts or omissions at issue. The State filed

the amended petition on October 29. The amended petition included only the

statutory language without identifying any conduct at issue.

The matter came on for an adjudication hearing in February 2015. Prior to

entry of the adjudication order, the father filed a post-hearing motion to dismiss.

The father raised several issues in the motion to dismiss. The father challenged

the application for temporary removal and CINA petition on due process grounds.

Specifically, he contended the CINA petition was never amended to include

mental injury; the petition never made reference to any specific acts or omissions

alleged to have caused mental injury, thereby depriving him of notice; and the

petition did not allege any acts or omissions regarding the failure to supervise,

thereby depriving him of notice. The father also contended the State failed to

carry its burden of proof at the hearing. Finally, the father contended section
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232.2(6)(c)(1) (mental injury) was unconstitutionally vague on its face and as

applied to him.

On February 16, 2015, the juvenile court filed its adjudicatory order,

concluding the State failed to establish B.E. was in need of assistance pursuant

to section 232.2(6)(c)(1) (mental injury). The juvenile court found on July 22,

2009, while under the mother’s supervision, B.E. fell from a second story window

in his home and landed on his head on a concrete pad. As a result of the fall, the

child suffered traumatic brain injury. The parents were advised the brain injury

could “effect every area of a child’s life, including thinking, behavior, emotions,

communication, physical abilities, and personal relationships. . . . Ongoing

lifestyle and relationship adjustment may be necessary.” The juvenile court

continued,

Sadly, many of the maladies that commonly accompany a traumatic
brain injury are present in [B.E.] The attention and behavioral
issues shown by [B.E.] . . . preceded any alleged physical or
emotional abuse of the child by his father and could just as well
been the result of [B.E.’s] fall and resultant brain injury.

The juvenile court discredited the mental-health professional’s opinion that the

child’s behaviors were caused by the father’s abuse. The juvenile court noted

the mental-health professional had not done any psychological or independent

testing of B.E. and based her opinion on the medical history provided by the

mother. Significantly, the mother did not inform the professional of B.E.’s

traumatic brain injury. The mental-health professional was also unaware the

child’s bedwetting was genetic, as the father and paternal uncle suffered from the

same. The professional was also unaware of when B.E.’s behaviors began and
 6

did not know they began significantly prior to the time of the parents’ dissolution

of marriage and prior to the allegations of abuse.

The juvenile court did conclude, however, the child was in need of

assistance pursuant to section 232.2(6)(c)(2) (failure to supervise). The court

noted that visitation between the father and the older children was progressing

without any issue. Nonetheless, the juvenile court was troubled by the father’s

attitude regarding domestic violence and corporal punishment. “The court also

found problematic the cavalier manner in which the child’s father dismissed any

potential harm to the child by taking jumps on his bicycle when not wearing a

helmet.” Although the court identified certain acts of intimidation, those acts were

not identified in the petition and did not support the court’s conclusion, “As the

court’s aid is necessary to improve the child’s relationship with his father, the

court will intervene and adjudicate the child in need of assistance . . . .”

The father filed a Iowa Rule of Civil Procedure 1.904(2) motion, requesting

the district court amend, among other things, certain findings regarding the

incident involving B.E. jumping his bicycle off ramps. The father requested the

juvenile court modify its earlier ruling and end the temporary removal of the minor

child from the custody of the father. The juvenile court denied the motion but

then made an additional finding that unsupervised contact with the father would

pose an imminent risk to the child. The juvenile court did not address the father’s

post-trial motion to dismiss.

In April 2015, the matter came before the juvenile court for dispositional

hearing pursuant to Iowa Code section 232.99. The juvenile court found the

father had sought services for anxiety and depression arising out the parents’
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difficult dissolution proceedings. The court found the father and B.E. had begun

supervised visitation in a therapeutic setting, although the commencement of the

visitation had been significantly delayed since the entry of the adjudicatory order

for various reasons not attributable to the father. The juvenile court concluded

that it would be in the best interests of B.E. to remain in the custody of his mother

under the protective supervision of IDHS and that the father should continue to

have visitation with the child in a therapeutic setting subject to the approval of the

mental-health professional previously discredited.

The father again filed a rule 1.904(2) motion. The father requested the

juvenile court rule on his pending motion to dismiss, arguing the failure of the

petition to include any factual allegations regarding the failure to supervise

deprived him of fair notice prior to the adjudicatory hearing. The father requested

the court amend and enlarge certain findings in the disposition order. The

juvenile court denied the motion:

In the second rule 1.904(2) motion, the child’s father now raises
issues of lack of adequate notice in the application for removal . . .
and the CINA petition filed by the State. These issues should have
been raised within 15 day[s] of the entry of the adjudication order,
but were not, are not timely, and no good cause has been shown to
extend the time to make that challenge.

(Emphasis added.) The father timely filed this appeal.

II.

Both the federal and state constitutions provide no person shall be

deprived of life, liberty, or property without due process of law. See U.S. Const.

amends. V, XIV, § 1; Iowa Const. art. I, § 9. “[F]reedom of personal choice in

matters of family life is a fundamental liberty interest protected by the Fourteenth
 8

Amendment.” Santosky v. Kramer, 455 U.S. 745, 753 (1982). A natural parent

has due process rights relating to a CINA proceeding. See In re A.M.H., 516

N.W.2d 867, 870 (Iowa 1994). The father contends his rights to due process

were violated by insufficient notice. Specifically, the CINA petition failed to set

forth the acts or omissions regarding the father’s failure to exercise reasonable

care in supervising the child.

A.

We first address the issue of whether the issue is preserved for our

review. The State contends the father failed to preserve error on the issue. As a

general rule, parties to a child-welfare proceeding have an obligation to preserve

error for appeal, even error of constitutional dimension. See In re K.C., 660

N.W.2d 29, 38 (Iowa 2003) (finding parents waived due process challenge

because they “did not lodge an objection alerting the juvenile court to their

complaints”). This requires presentation of the constitutional question to the

district court when the ground or grounds for objection become apparent. See id.

Additionally, generally, the district court must rule upon the issue raised at some

point prior to appeal. See State v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008).

We conclude the father preserved the issue for appeal. The father filed a

motion to dismiss prior to the filing of the adjudicatory order. In the motion to

dismiss, the father argued the “failure of the petition to include any factual

allegations concerning the ‘failure to supervise’ deprived the father of fair notice

of any such allegations against him prior to the adjudicatory hearing” and

deprived him of due process under the federal and state constitutions. The

juvenile court did not address the motion in the adjudicatory order. Following
 9

entry of the disposition order, the father requested the juvenile court rule on the

pending motion. The juvenile court denied the motion on the ground the issues

“should have been raised within 15 day[s] of the entry of the adjudication order,

but were not.” This appears to be a misstatement of the posture of the case.

The issue was in fact raised prior to the entry of the adjudication order. While the

father should have brought the motion to the attention of the court sooner, see

Iowa Ct. R. 8.4 (“Any motion filed with the juvenile court shall be promptly

brought to the attention of the judge or referee by the moving party.”), the father

ultimately sought and obtained a ruling on the issue, which is all the father was

required to do for error preservation purposes. See Mitchell, 757 N.W.2d at 435

(noting that when the district court fails to address a constitutional argument

raised by the defendant, the defendant must “file a motion to enlarge the trial

court’s findings or in any other manner have the district court address th[e]

issue”).

We disagree with the State’s contention that entry of the disposition order

renders the matter moot. Cf. In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994)

(“Any error committed in granting the temporary ex parte order cannot now be

remedied. We cannot go back in time and restore custody based on alleged

errors in the initial removal order.”). The A.M.H. case, on which the State relies,

is distinguishable from this case. Here, the father timely moved to dismiss the

matter prior to the filing of the adjudication order. In A.M.H., the parent raised

procedural issues after the fact. Id. Also, at issue in A.M.H. was the State’s

alleged failure to comply with certain non-jurisdictional statutory procedures in

seeking removal of the child. Id. “Notice in child neglect and dependency
 10

proceedings is jurisdictional.” In re Hewitt, 272 N.W.2d 852, 855 (Iowa 1978)

(collecting cases).

Further, because “[t]he parent-child relationship is constitutionally

protected,” State v. Iowa Dist. Ct., 828 N.W.2d 607, 615 (Iowa 2013), we often

bypass our error preservation rules in child welfare proceedings because of the

important interests at stake. See, e.g., In re Q.E., No. 14–0783, 2014 WL

3939918, at *5 n.2 (Iowa Ct. App. Aug. 13, 2014); In re M.B., No. 14–0562, 2014

WL 2600364, at *1 (Iowa Ct. App. June 11, 2014); In re K.C., No. 14–0253, 2014

WL 1999187, at *2 (Iowa Ct. App. May 14, 2014). The right of a parent to

companionship, care, custody, and management of his or her children has been

recognized as far more precious than property rights and more significant and

priceless than “liberties which derive merely from shifting economic

arrangements.” Stanley v. Illinois, 405 U.S. 645, 651 (1972). Even if error were

not preserved, we elect to bypass our error preservation rules and proceed to the

merits of the father’s claims. See In re S.P., 672 N.W.2d 842, 845 (Iowa 2003)

(stating the court of appeal was “required” to address a lack-of-notice issue

raised by the father for the first time on appeal because it goes to the heart of the

district court’s jurisdiction; an order entered without notice is void and therefore

subject to attack at any time); see also State v. Taylor, 596 N.W.2d 55, 56 (Iowa

1999) (bypassing error preservation problem and proceeding to the merits of the

issue raised on appeal).

B.

“The State has a duty to assure that every child within its borders receives

proper care and treatment, and must intercede when parents fail to provide it.” In
 11

re A.M., 856 N.W.2d 365, 376 (Iowa 2014) (internal quotation marks omitted).

Nevertheless, the intervention of the State in the family’s affairs through initiation

of CINA proceedings “‘must be accomplished by procedures meeting the

requisites of the Due Process Clause.’” A.M.H., 516 N.W.2d at 870 (quoting

Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 37 (1981) (Blackmun, J.,

dissenting)). “Notice of the hearing and an opportunity to be heard appropriate to

the nature of the case is the most rudimentary demand of due process of law in

proceedings affecting parental rights to children.” S.P., 672 N.W.2d at 845

(internal quotation marks omitted). To allow the parent to prepare for the hearing

and defend against the allegations, due process requires “‘the child and his

parents or guardian be notified, in writing, of the specific charge or factual

allegations to be considered at the hearing, and that such written notice be given

at the earliest practicable time, and in any event sufficiently in advance of the

hearing to permit preparation.’” Hewitt, 272 N.W.2d at 856 (quoting In re Gault,

387 U.S. 1, 32 (1967)).

The petition in this case failed to identify the specific acts or omissions

regarding the failure to exercise reasonable care in supervising the child in

support of adjudication pursuant to section 232.2(6)(c)(2). Indeed, it would be

fair to state the petition in this case did not identify any acts or omissions

regarding the failure to exercise reasonable care in supervising the child. The

face of the petition sets forth only the statutory text without identifying any

conduct at issue. “A bare recital of the conclusionary words of the statute does

not suffice as notice.” In re Jeremy C., 167 Cal. Rptr. 283, 292 (Cal. Ct. App.

1980) (reversing judgment and remanding “to the trial court to either dismiss the
 12

petition or to require the filing of a new amended petition which sets forth specific

allegations of alleged neglect and abuse”).

The exhibit attached to the petition—and incorporated by reference to the

same—failed to remedy the defect. Cf. In re Hochmuth, 251 N.W.2d 484, 488-89

(Iowa 1977) (holding the challenged statute was not impermissibly vague “as

applied” where the necessary conditions to avoid termination of parental rights

were communicated and explained to both verbally and in writing). The exhibit

discusses the child’s mental-health conditions and behaviors and contains a

conclusion the conditions and behaviors were caused by the father. Nowhere

does the document identify the alleged acts or omissions of the father relating to

the State’s contention the father failed to exercise a reasonable degree of care in

supervising the child. The lack of notice regarding the acts or omissions at issue

is demonstrated, to some extent, by the paucity of findings supporting

adjudication. In adjudicating the child in need of assistance under section

232.2(6)(c)(2), the juvenile court did not identify any act or omission evidencing

the father’s failure to supervise the child. Instead, the juvenile court noted the

father’s attitude regarding domestic abuse and corporal punishment and the

father’s “cavalier attitude” regarding bicycle jumping. Of note, there is no finding

the bicycle jumping actually occurred under the father’s supervision. Instead, it

appears the incident occurred while under the supervision of the mother.

Regardless, the petition fails to identify the conduct at issue.

Despite the lack of specific allegations, the State contends the petition

was sufficient because it notified the father of the statute at issue and the time of

the hearing. For this proposition, the State relies on In re D.E.D., 476 N.W.2d
 13

737 (Iowa Ct. App. 1991), overruled on other grounds by In re P.L., 778 N.W.2d

33 (Iowa 2010). The State’s reliance is misplaced. In that case, the juvenile

court allowed the State to amend its petition to terminate parental rights during

the hearing on the same to assert a new ground not previously pleaded. D.E.D.,

476 N.W.2d at 739. Our court vacated the termination order on the ground the

“father had no notice prior to the hearing of the grounds under which termination

was decreed.” Id. at 740. D.E.D. is actually analogous to this case, in which the

State failed to identify at all any of the factual grounds upon which it was going to

rely. In both cases, the parent was unaware of the issues to be litigated. The

State’s reliance on D.E.D. is misplaced for a second reason. D.E.D. states “[d]ue

process requires sufficient notice,” id. at 739, but the opinion does not discuss at

all the content that must be included in the petition to constitute “sufficient

notice.” The case thus provides no guidance on the issue before us—the

sufficiency of the content in the petition.

The issue of the content that must be included in a petition to comport with

due process has been addressed in numerous cases. In Gault, the Supreme

Court held notice sufficient to meet the standards of due process “must be given

sufficiently in advance of scheduled court proceedings so that reasonable

opportunity to prepare will be afforded, and it must set forth the alleged

misconduct with particularity.” 387 U.S. at 33-34 (internal quotation marks

omitted). The Iowa Supreme Court reiterated the same standard, holding, in a

CINA proceeding, the petition must contain “a general statement of the facts

relied on to support the petition.” Hewitt, 272 N.W.2d at 857. A California case is

directly on point:
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While this is probably the mildest case of child abuse that
will come before this court, it is unnecessary for us to determine if
the conclusionary allegations of the petition and purported findings
were established by a preponderance of evidence as we find
reversible error in the form of the petition. The charging allegations
of the petition were so deficient as to violate the notice
requirements of due process. Though not distinctly raised as an
issue in this appeal, the issue is of sufficient significance that this
court should and does address it. The point was preserved in the
court below when Janet’s counsel objected at the detention hearing
to the lack of specific factual allegations in the petition. Section
332, subdivision (f) requires “A concise statement of facts,
separately stated, to support the conclusion that the minor upon
whose behalf the petition is brought is a person within the definition
. . . of the (section) under which the proceedings are being
instituted.” The petition simply recited in the words of section 300,
subdivision (d) that “his (Jeremy’s) home is an unfit place for him by
reason of neglect, cruelty, depravity or physical abuse of either of
his parents, or of his guardians or other persons in whose custody
or care he is.”
Notice of the specific facts upon which removal of a child
from parental custody is predicated is fundamental to due process.
(In re Gault (1967) 387 U.S. 1, 30-31, 87 S. Ct. 1428, 1445-1446,
18 L. Ed. 2d 527, 547-548; In re Neal D. (1972) 23 Cal. App. 3d
1045, 1048, 100 Cal. Rptr. 706.) Notice of the specific facts upon
which the petition is based is necessary to enable the parties to
properly meet the charges. The requirement of specific facts
derives from the recognition that “the statutory criterion of improper
and ineffective parental care denotes a fairly extreme case. A
dominant parental right to custody of the child pervades our law.
Thus before (the law) authorizes the drastic step of judicial
intervention, some threshold level of deficiency is demanded.
Although a home environment may appear deficient when
measured by dominant socioeconomic standards, interposition by
the powerful arm of the public authorities may lead to worse
alternatives.

In re Raya, 63 Cal. Rptr. 252, 255 (Cal. Ct. App. 1967).

An Illinois court has also reached the same conclusion we do:

regurgitation of the statutory language without specification of the factual

allegations violates due process:

In a proceeding to have a parent declared unfit, due process
requires that the petition allege that the parent is unfit and set forth
 15

with particularity the specific grounds that serve as the basis for
such assertion. (In re Westland (1977), 48 Ill. App. 3d 172, 6 Ill.
Dec. 331, 362 N.E.2d 1153.) Neither of the necessary allegations
were present in the case at bar since the petitions only alleged, in
pertinent part, that “said minor is a neglected minor whose
environment is injurious to her welfare.” The requirements of an
assertion of parental unfitness and supporting allegations of the
grounds of such unfitness are material and are essential elements
of a petition to have parents declared unfit.

In re B.K., 460 N.E.2d 43, 45 (Ill. App. Ct. 1984).

Due process requires notice of the specific facts upon which the State

seeks to take action to enable the parent to properly meet the charge. See In re

Christopher C., 182 Cal. App. 4th 73, 83 (Cal. Ct. App. 2010) (stating the

purpose of petition is to give parents adequate notice of allegations against

them); M.J.S. v. K.E.S., 724 S.W.2d 318, 320 (Mo. Ct. App. 1987) (“Furthermore,

it is the office of the petition to provide such notice, so that one whose rights are

challenged may know what is relied upon as a cause of action in order that he

may be prepared at trial to meet the issues raised by the petition.”). That basic

standard of fairness was not met in this case. We hold the failure to provide the

father with notice of the conduct at issue deprived the father of his right to due

process as protected by the federal and state constitutions.

C.

The State argues reversal is not required because the father has not

established prejudice resulting from the insufficiency of the CINA petition. The

State relies on In re D.W., 385 N.W.2d 570 (Iowa 1986). That case is

distinguishable. The claim in D.W. was raised as an ineffective-assistance-of-

counsel claim requiring the establishment of Strickland prejudice. See D.W., 385

N.W.2d at 579. The claim raised here is a direct claim not analyzed under the
 16

Strickland standard. Further, “[n]otice in child neglect and dependency

proceedings is judisdictional.” Hewitt, 272 N.W.2d at 855 (collecting cases).

“Due to the substantial defects in the notice here and to the importance of notice,

jurisdiction did not attach. Prejudice is presumed.” Id. at 857.

III.

For the foregoing reasons, we reverse the district court. “Our reversal is

without prejudice to the State to file a new petition, to give proper notice, and

proceed again.” In re Meyer, 204 N.W.2d 625, 627 (Iowa 1973).

REVERSED.