In the Interest of M.S., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 17-1174
Filed September 26, 2018

IN THE INTEREST OF M.S.,
Minor Child,

S.R., Mother,
Petitioner-Appellee,

C.S., Father,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Marion County, Thomas W. Mott,

Judge.

A father appeals the juvenile court’s decision to terminate his parental rights

in a private termination action. REVERSED AND REMANDED.

Blake D. Lubinus of Lubinus Law Firm, PLLC, Des Moines, for appellant

father.

Mark A. Simons of Simons Law Firm, PLC, West Des Moines, for appellee

mother.

Aida E. Bogaczyk of Bogaczyk Law Firm, PLLC, Clive, guardian ad litem for

minor child.

Heard by Danilson, C.J., McDonald, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
2

SCOTT, Senior Judge.

A father appeals the juvenile court’s decision to terminate his parental rights

in a private termination action. We determine the order terminating the father’s

parental rights must be reversed because the father was not adequately informed

of his right to counsel. We remand to the juvenile court, where proper notice should

be served on the father and proof of the service of notice placed in the record, prior

to any rehearing on the merits of the petition to terminate his parental rights. On

remand, if the father requests the assistance of counsel and is financially unable

to employ counsel, then counsel should be appointed for him.

I. Background Facts & Proceedings

S.R., mother, and C.S., father, were previously married and are the parents

of M.S., born in 2009. Under the parties’ dissolution decree, they had joint legal

custody of the child, with S.R. having physical care. C.S. was granted visitation

with the child and ordered to pay child support.

On April 13, 2017, S.R. filed a petition seeking to terminate C.S.’s parental

rights under Iowa Code chapter 600A (2017). On April 27, the district court filed

an “Order Setting Hearing,” which set the hearing date for June 8. The order

included the following notice:

The Court has ordered you to appear at a hearing regarding
the termination of your parental rights. At the hearing, the court may
terminate your parental rights. You have the right to be represented
by an attorney at the hearing. If you cannot afford to hire an attorney,
one may be provided to you at public expense, if you qualify. If you
want to apply for a court-appointed attorney, you must complete and
file with the court an affidavit of indigency (lack of funds) and
personally present it to a Judge of the Marion County Courthouse
before the scheduled hearing.
3

The order states, “The Petitioner shall personally serve the Father with a copy of

this Order.”

C.S. signed an acceptance of service the same day, stating he received the

original notice and petition for termination of his parental rights. The record does

not indicate C.S. was personally served with the “Order Setting Hearing.”

C.S. represented himself in the juvenile proceedings. He appeared for the

scheduled hearing on June 8.1 The court determined C.S.’s rights should be

terminated under section 600A.8(3)(b) because he did not maintain substantial and

continuous contact with the child and did not financially support her. The court

also found termination of C.S.’s parental rights was in the child’s best interests.

C.S. filed a motion to reconsider, asking the court to “Order a retrial based

on the new evidence and appoint me a court appointed attorney which I was never

made [aware] I could have for free since I couldn’t afford a lawyer and had to

represent myself.” The court denied the motion to reconsider. C.S. now appeals.

II. Standard of Review

Our review in private termination proceedings is de novo. In re G.A., 826

N.W.2d 125, 127 (Iowa Ct. App. 2012). We give deference to the factual findings

of the juvenile court, especially those relating to the credibility of witnesses, but we

are not bound by the court’s findings. In re R.K.B., 572 N.W.2d 600, 601 (Iowa

1998).

1
We note it would be the better practice for the court to inquire at the beginning of a
private termination hearing where one of the parties is not represented by counsel if the
party was aware of the statutory right to be represented by counsel at the hearing.
4

III. Service of Notice

C.S. claims he was not informed of his right to court-appointed counsel for

the termination proceedings. C.S. represented himself during the termination

hearing. He raised the issue concerning his right to court-appointed counsel in his

motion to reconsider, where he requested a retrial and asked the court to appoint

counsel for the retrial, stating he had not been aware of his right to counsel.

Section 600A.6A provides:

1. Upon the filing of a petition for termination of parental rights
under this chapter, the parent identified in the petition shall have the
right to counsel in connection with all subsequent hearings and
proceedings.
2. If the parent against whom the petition is filed desires but is
financially unable to employ counsel, the court shall appoint counsel
for the person if the person requests appointment of counsel and the
court determines that the person is indigent.

Under this section, there is a statutory right to court-appointed counsel in private

termination cases under chapter 600A if the parent “is financially unable to employ

counsel.” Iowa Code § 600A.6A; see also Crowell v. State Pub. Def., 845 N.W.2d

676, 689 (Iowa 2014).

When a person files a petition for termination of parental rights in

accordance with section 600A.5, the person must serve notice on all necessary

parties. Iowa Code § 600A.6(1). The notice “may be served personally or

constructively” and must include “[a] statement that the person against whom a

proceeding for termination of parental rights is brought shall have the right to

counsel pursuant to section 600A.6A.”2 Id. § 600A.6(3). Where a party’s address

2
The notice is also required to provide, “The time and place of the hearing on termination
of parental rights,” and “[a] clear statement of the purpose of the action and hearing.” Iowa
Code § 600A.6(3)(a), (b).
5

is known, as here, the notice “shall be served in accordance with [Iowa] [R]ule of

[C]ivil [P]rocedure 1.305 or sent by certified mail restricted delivery, whichever is

determined to be the most effective means of notification.” See id. § 600A.6(4).

“Proof of service of notice in the manner prescribed shall be filed with the juvenile

court prior to the hearing on termination of parental rights.” Id. § 600A.6(6).

We note the “Order Setting Hearing” contained the information required by

section 600A.6(3), specifically stating C.S. had “the right to be represented by an

attorney at the hearing” and an attorney would be appointed for him if he could not

afford to hire one. The acceptance of service signed by C.S., however, does not

state he received the “Order Setting Hearing,” as it mentions only the original

notice and petition for termination of parental rights.

C.S. signed an acceptance of service stating he “received the Original

Notice and Petition for Termination of Parental rights filed in this case and accept

service of these documents.” Section 600A.6(6) states, “Proof of service of notice

in the manner prescribed shall be filed with the juvenile court prior to the hearing

on termination of parental rights.” However, there is not a copy of this notice in the

record. The acceptance of service signed by C.S. is proof he received what is

designated as “the Original Notice,” but the record does not contain proof the

notice C.S. received contained the information required by section 600A.6.

The record does not show C.S. received notice containing the information

required by section 600A.6(3), including a statement he “had the right to counsel

pursuant to section 600A.6A.” See id. § 600A.6(3)(c). Under section 600A.6(6), it

was improper to hold the termination hearing without proof of this notice in the

record. We determine the order terminating C.S.’s parental rights must be
6

reversed. We remand to the juvenile court, where notice in accordance with

section 600A.6 should be served on C.S. and proof of the service of notice placed

in the record, prior to any rehearing on the merits of the petition to terminate C.S.’s

parental rights. On remand, if C.S. requests the assistance of counsel and is

financially unable to employ counsel, then counsel should be appointed for him.

See id. § 600A.6A.

To the extent C.S. raises constitutional issues, we conclude those issues

were not presented to the juvenile court or ruled on by the court, and so error was

not preserved. See In re N.W.E., 564 N.W.2d 451, 456 (Iowa Ct. App. 1997)

(noting in termination proceedings, as in other proceedings, error must be

preserved before we will address an issue on appeal).

We reverse the decision of the juvenile court and remand for further

proceedings. We do not retain jurisdiction.

REVERSED AND REMANDED.