In the Matter of the Guardianship of M.M. and J.M., Minor Children, J.H., Father ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1104
Filed September 14, 2016
IN THE MATTER OF THE GUARDIANSHIP
OF M.M. AND J.M.,
Minor Children,
J.H., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Fayette County, Joel A. Dalrymple,
Judge.
A father challenges the appointment of maternal grandparents as
guardians over his two children. VACATED AND DISMISSED.
Nicholas A. Sarcone of Stowers & Sarcone, P.L.C., West Des Moines, for
appellant father.
Carolyn J. Beyer of Beyer Law Firm, P.C., Iowa City, for appellees.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.
A father challenges the appointment of maternal grandparents as
guardians over his two children. He raises a number of issues, one of which we
find dispositive: the maternal grandparents’ failure to formally notify the children’s
caretakers of their guardianship action.
I. Background Facts and Proceedings
This appeal involves two of the father’s children, born in 2006 and 2009.
The mother’s parental rights to these children were terminated in a Michigan
proceeding. The children were placed in the father’s care. He moved them to
his home in Iowa where, according to the Michigan Department of Human
Services, they adjusted well to their placement. The father afforded the children
visits with their maternal grandparents, who had served as their foster parents in
Michigan and had since moved to Iowa.
Meanwhile, the father was charged with a federal crime. He sent the
children to stay with his parents in Texas and gave them power of attorney over
the children’s affairs. He also signed a letter purporting to appoint his mother
guardian of the children. He came to realize the document was not “good
enough” to create a guardianship.
The paternal grandparents cared for the children and enrolled them in
Texas schools. Meanwhile, the maternal grandparents filed an Iowa petition
seeking to become permanent co-guardians of the children. The paternal
grandmother responded with a similar application in Texas. The father filed a
pre-answer motion to dismiss the Iowa action on the ground the children were
living in Texas with the paternal grandparents, to whom he had provided power
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of attorney and guardianship letters. He asserted the Iowa district court lacked
personal jurisdiction over his children. The district court did not rule on the motion
prior to trial. Although the record contains an e-mail documenting some
communication between the Iowa and Texas courts, the outcome of these
communications is unclear.
The Iowa court scheduled the case for trial. Following trial, the court
rejected jurisdictional challenges raised by the father in his pre-answer motion
and pre-trial brief and granted the maternal grandparents’ guardianship petition.
On appeal, the father leads off with a notice issue, which we find
dispositive.
II. UCCJEA – Notice
The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)
provides the exclusive jurisdictional basis for making a child custody
determination. See Iowa Code § 598B.201(1), (2) (2015). A child-custody
proceeding “includes a proceeding for . . . guardianship . . . in which the issue
may appear.” Id. § 598B.102(4).
Chapter 598B contains the following notice provision:
Before a child-custody determination is made under this
chapter, notice and an opportunity to be heard in accordance with
the standards of section 598B.108 must be given to all persons
entitled to notice under the law of this state as in child-custody
proceedings between residents of this state, any parent whose
parental rights have not been previously terminated, and any
person having physical custody of the child.
Id. § 598B.205(1) (emphasis added).
The father contends, “Notice was required to the paternal grandparents
under Iowa Code § 598B.205, and without this notice the judgment is invalid and
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unenforceable.” The maternal grandparents respond that error was not
preserved.
Error preservation is not a concern because the provisions of the UCCJEA
are jurisdictional and challenges to subject matter jurisdiction may be raised at
any time. See In re Jorgensen, 627 N.W.2d 550, 554-55 (Iowa 2001) (noting the
precursor to UCCJEA “set forth the jurisdictional requirements with regard to a
custody determination,” which were questions of subject matter jurisdiction the
court could determine even though the parties did not raise them); In re Marriage
of Ross, 471 N.W.2d 889, 893 (Iowa 1991) (stating jurisdictional requirements of
precursor to UCCJEA were mandatory, not discretionary); see also Klinge v.
Bentien, 725 N.W.2d 13, 16 (Iowa 2006) (“Lack of subject matter can be raised
‘at any time.’” (citation omitted)); In re S.P., 672 N.W.2d 842, 846 (Iowa 2003)
(stating the father “had every right to challenge” a termination order based on the
absence of notice to him, even though he waited until the appeal to do so,
because void judgments are subject to attack at any time); White v. Harper, 807
N.W.2d 289, 293 (Iowa Ct. App. 2011) (“Courts may raise the issue of subject
matter jurisdiction at any time.”). But even if section 598B.205 did not implicate
the court’s subject matter jurisdiction, we conclude the statutory notice issue was
raised—albeit belatedly—and was decided by the district court, obviating any
error preservation concerns. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide them on
appeal.”). We proceed to the merits.
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Section 598B.205(1) requires notice “under the law of this state” to be
given to “any person having physical custody of the child.” The UCCJEA defines
“physical custody” as “the physical care and supervision of a child.” Iowa Code §
598B.102(14). At the time the maternal grandparents filed their guardianship
action, the paternal grandparents had physical custody of the children. The
district court conceded as much, citing the father’s “intent and desire to otherwise
remove the children from Iowa and place them within the care and custody of his
parents,” “the children’s relocation” to Texas, and the father’s continued
residence in Iowa. The paternal grandparents attended to the children’s daily
needs, including their educational and medical needs, pursuant to the power of
attorney granted by the father. While the district court concluded the power of
attorney had “no bearing upon the custody determination or finding for the
purposes of the notice issue,” we are persuaded otherwise. The father, who
indisputably had legal custody of the children, possessed the authority to assign
others as physical caretakers. The power of attorney he executed evinced his
intent to assign his parents as the caretakers. Cf. In re Sophia G.L., 890 N.E.2d
470, 483-84 (Ill. 2008) (finding no notice to maternal grandfather was required in
the absence of evidence that he “was responsible for [the child’s] physical care
and supervision”).
Having concluded the paternal grandparents had physical custody of the
children, we further conclude they were entitled to notice of the Iowa
guardianship proceeding. See Iowa Code § 598B.205(1). Section 598B.108
specifies the type of notice to which they were entitled:
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1. Notice required for the exercise of jurisdiction when a
person is outside this state may be given in a manner prescribed by
the law of this state for service of process or by the law of the state
in which the service is made. Notice shall be given in a manner
reasonably calculated to give actual notice but may be by
publication if other means are not effective.
2. Proof of service may be made in the manner prescribed
by the law of this state or by the law of the state in which the
service is made.
3. Notice is not required for the exercise of jurisdiction with
respect to a person who submits to the jurisdiction of the court.
The paternal grandparents did not receive the types of notice specified in section
598B.108. See id.; Harper, 807 N.W.2d at 295 n.10 (noting parents who have
physical custody of a child are bound by child custody determinations only if they
were “notified in accordance with section 598B.108” or submitted to the
jurisdiction of the court); Iowa Rs. Civ. P. 1.305, 1.306 (prescribing methods of
service). Again, the district court conceded as much, stating the record
contained no proof of service of the guardianship action on the paternal
grandparents. But, the court surmised they must have had actual notice of the
proceedings based on their relationship with the father and the children’s god
parents.
Where notice is required, actual notice is insufficient. See State v.
Kaufman, 201 N.W.2d 722, 724 (Iowa 1972) (“Actual notice, manifested by the
special appearance, is no substitute for service of notice according to statute.”);
In re J.R.H., No. 05-0610, 2005 WL 1398586, at *1 (Iowa Ct. App. June 15,
2005) (“The fact that a parent may be aware of the legal proceedings through
informal sources does not relieve the State of its obligation to provide formal
notification of the child-in-need-of-assistance proceedings.”); see also Ex parte
D.B., 975 So. 2d 940, 952-53 (Ala. 2007) (“Although it appears that the adoptive
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couple had actual notice of the Nebraska proceeding, given that one of their
attorneys was present, nothing in the record indicates that the adoptive couple
were properly served with notice of that proceeding. Additionally, the adoptive
couple’s attorney who was present in the Nebraska proceeding never made an
official appearance, and there is no indication in the record that he participated in
the proceeding in any way.”). Formal notice was required. See Iowa Code
§ 598B.108. The absence of formal notice deprived the Iowa district court of
subject matter jurisdiction.
We vacate the ruling in the maternal grandparents’ guardianship action as
void and unenforceable.
VACATED AND DISMISSED.