In the Interest of C.S., Minor Child

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-0717 Filed May 11, 2022

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

A.D. and D.D., Guardians, Petitioners-Appellees,

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

Appeal from the Iowa District Court for Scott County, Phillip J. Tabor, District

Associate Judge.

A father appeals the denial of his petition to terminate C.S.’s guardianship,

and the termination of his parental rights under Iowa Code chapter 600A (2020).

AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN PART.

Jeffrey L. Powell of Powell and McCullough, P.L.C., Coralville, for appellant

father.

Barbara K. Wallace of Betty, Neuman & McMahon, P.L.C., Davenport, for

appellees.

Rebecca C. Sharpe, attorney and guardian ad litem for minor child.

Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.

Tabor, J., takes no part. 2

VAITHESWARAN, Judge.

A child’s maternal aunt and uncle had been caring for the child for several

months. They presented the child’s father with an affidavit of parental consent to

a proposed guardianship. They did not present him with the guardianship petition

referenced in the consent form. The father signed the consent.

The relatives filed the consent in district court, together with a guardianship

petition.1 They did not serve the father with the petition or an original notice.

Following a hearing at which the father did not appear, the district court granted

the guardianship petition.

Several months later, the father moved to terminate the guardianship,

alleging in part that he was not served with process. The relatives countered by

filing a petition to terminate his parental rights. Following a hearing on both

matters, the district court denied the father’s motion to terminate the guardianship

and granted the relatives’ petition to terminate the father’s parental rights. The

father appealed both orders. The two matters were consolidated for appeal.

I. Denial of Father’s Motion to Terminate Guardianship

The father argues “[t]he underlying guardianship is invalid due to lack of

personal service.” His argument is essentially a collateral attack on the

guardianship action precipitating the current litigation. See Sanford v. Manternach,

601 N.W.2d 360, 364 (Iowa 1999) (“A collateral attack upon a judgment is an attack

made by or in an action or proceeding that has an independent purpose other than

the impeaching or overturning of the judgment, although impeaching or overturning

1 They also filed a consent obtained from the child’s mother. She additionally consented to termination of her parental rights. 3

the judgment may be necessary to the success of the action.” (citation omitted)).

“[A] judgment is not subject to collateral attack except on jurisdictional grounds.”

Id. Lack of notice “goes to the heart of the district court’s jurisdiction.” In re S.P.,

672 N.W.2d 842, 845 (Iowa 2003). Absence of notice renders a judgment void

and “is subject to attack at any time.” Id. at 846.

Iowa Code chapter 232D (2020) governs minor guardianships.2 The

chapter authorizes the initiation of guardianship proceedings “by the filing of a

petition.” Iowa Code § 232D.301(1). The petition must list “[t]he name and

address, to the extent known and ascertainable, of . . . [a]ny living parents of the

minor.” Id. § 232D.301(2)(d)(1). “Notice shall be served upon the minor’s known

parents listed in the petition in accordance with the rules of civil procedure.” Id.

§ 232D.302(2); see also id. § 232D.106 (“The rules of civil procedure shall govern

guardianship proceedings concerning a minor who is alleged to be in need of a

guardianship except as otherwise set forth in this chapter.”).

The rules of civil procedure require service of an original notice with a copy

of the petition “by any person who is neither a party nor the attorney for a party to

the action.” Iowa R. Civ. P. 1.302(4). Service of the original notice is accomplished

by delivery of “a copy to the proper person.” Iowa R. Civ. P. 1.305. In the

alternative, “A party or party’s agent or attorney may take an acknowledgement of

2 The chapter vests exclusive jurisdiction of a guardianship proceeding concerning a minor in the juvenile court. See Iowa Code § 232D.103. Before the guardianship petition was filed, the juvenile court filed a ”bridge order” transferring jurisdiction of the child from the juvenile court to the district court following a child-in-need-of- assistance action. Pursuant to the bridge order, the child’s mother was granted physical care of the child, subject to visits with the father. 4

service and deliver a copy of the original notice in connection therewith . . . .” Iowa

R. Civ. P. 1.302(4).

As noted at the outset, the relatives did not personally serve the father with

an original notice and guardianship petition, either before obtaining his consent to

the proposed guardianship or at any time thereafter. They filed the petition and

the father’s consent, then made a single, unsuccessful attempt at personal service.

While the relatives suggest the failure of personal service rests at the father’s

doorstep because he “lied about his address,” the father in fact informed them that

he had “since moved” from the address disclosed on his affidavit of parental

consent and if he “need[ed] to be served,” he would “get” them his “new residence

address.” There is no indication that the relatives contacted him or conducted an

independent investigation to determine his new address. See Dennis v.

Christianson, 482 N.W.2d 448, 452 (Iowa 1992) (rejecting the plaintiff’s contention

that the defendant evaded service by moving from Iowa to Arizona).

The relatives were also unsuccessful in their effort to have the father accept

service. See Rittgers v. West Bank, No. 13-0816, 2013 WL 6686432, at *1, *4

(Iowa Ct. App. Dec. 18, 2013) (stating an attorney who was asked by petitioners

over email if he would be willing to accept service on behalf of his client “had no

duty to accept service”). Although they electronically transmitted the petition and

original notice approximately two weeks after obtaining his signature on the

consent form, they did not obtain “a signed, dated acknowledgment of service

endorsed on the notice.” Iowa R. Civ. P. 1.305(1).

Nor could electronic transmission of the original notice and petition alone

constitute an effective substitute for personal service. A rule on electronic filings 5

forecloses that option. See Iowa Ct. R. 16.314(3) (“Original notices must be served

upon the party against whom an action is brought in accordance with the Iowa

Code and the Iowa Rules of Civil Procedure.”); see also Iowa Ct. R. 16.314(3) cmt.

(“Electronic service cannot be used to serve an original notice or any other

document that is used to confer personal jurisdiction.”); In re Marriage of Rana,

No. 20-0513, 2021 WL 4889244, at *4 (Iowa Ct. App. Oct. 20, 2021) (citing rule

and concluding a filing of a counterclaim on the electronic filing system “did not

accomplish personal service”).

The guardians nonetheless argue the father “had notice when he reviewed

and signed the Affidavit of Consent and Guardianship Agreement” and “[a] hearing

was not necessary to even enter the voluntary guardianship and it could have been

done on the filings alone.” To the contrary, the father had no notice of the petition

and original notice when he signed the affidavit of consent. Although the affidavit

represented that he “had read the Petition for Guardianship filed with this affidavit,”

the petition was not attached. Significantly, the petition would have apprised the

father of the relatives’ request for “an Order setting hearing on this petition and

prescribing notice of this petition and notice of the hearing.” And the original notice

would have apprised him of his obligation to file a motion or answer within twenty

days or risk a default judgment. Without those key documents, the father could

not have “knowingly and voluntarily consen[ted] to the guardianship,” as was

required by the provision authorizing guardianships by parental consent. See Iowa 6

Code § 232D.203(2). The affidavit of consent, then, was not an effective substitute

for personal service as required by Iowa Code section 232D.302(2).3

Nor could the father’s signature on the consent and guardianship

agreement constitute an appearance in the court proceeding and a waiver of the

service requirement. The service requirement is predicated on a filed petition. See

In re J.F., 386 N.W.2d 149, 152 (Iowa Ct. App. 1986) (noting parent waived right

to have dispositional order vacated by voluntarily appearing and acquiescing in the

court’s jurisdiction for ten months), superseded by statute on other grounds as

recognized in In re A.S., No. 17-0663, 2017 WL 2665119, at *1 n.1 (Iowa Ct. App.

June 21, 2017); see also Iowa R. Civ. P. 1.302 (“A notice to the . . . respondent . .

. against whom an action has been filed shall be served in the form and manner

provided by this rule.” (emphasis added)). As discussed, the petition was not filed

when the relatives obtained the consent. And it is worth reiterating that the father

did not appear at the guardianship hearing. See Appearance, Black’s Law

Dictionary (11th ed. 2019) cmt. (stating appearance signifies “act by which one

against whom suit has been commenced submits [] to the court’s jurisdiction”

(quoting 4 Am Jur. 2d Appearance § 1, at 620 (1995))).

In sum, the guardianship petition underlying the father’s motion to terminate

the guardianship was void because the father received no notice of the petition by

personal service as required by the minor guardianship statute and the rules of

3 Notably, a proposed 2021 amendment to section 232D.302(2) did not dispense with service in accordance with the rules of civil procedure in cases of parental consent to a guardianship. The proposed amendment would have retained that requirement while clarifying there was no obligation to notify consenting parents of an entitlement to representation. See H.F. 834, 89th Gen. Assemb., Reg. Sess. (Iowa 2021). 7

civil procedure. The absence of personal service was not obviated by an

acceptance of service or by an appearance. On our de novo review, we reverse

the denial of the father’s motion to terminate the guardianship and vacate the

guardianship order. See S.P., 672 N.W.2d at 848.

II. Order on Relatives’ Petition to Terminate Father’s Parental Rights

The relatives filed their petition to terminate parental rights as “guardians

and custodians” of the child. Based on our conclusion that the guardianship

petition was void, the relatives could not rely on their status as guardians to support

their petition to terminate the father’s parental rights. See Iowa Code § 600A.5

(authorizing “[a] parent or prospective parent” or “custodian or guardian of the

child” to “petition a juvenile court for termination of parental rights under [chapter

600A]”). But they could rely on their status as “custodians” of the child. See

id.§ 600A.2(8)(defining “custodian” in part as “a stepparent or a relative within the

fourth degree of consanguinity to a minor child who has assumed responsibility for

that child”). They alleged they were the maternal aunt and uncle of the child and

they had served as the child’s caretakers for eleven months. That status provided

the statutory hook to invoke chapter 600A. See In re M.S., No. 20-0428, 2020 WL

4814168, at 2* n.2 (Iowa Ct. App. Aug. 19, 2020) (“noting the grandparents

“appear[ed] to meet the definition of ‘custodian’ set forth in section 600A.2(8), as

they [were] relatives within the fourth degree of consanguinity to the children and

had ‘assumed responsibility for’ the children”). Accordingly, we will address the

father’s challenges to the district court’s termination order. 8

A. Judicial Estoppel

The father argues, “The principle of [j]udicial [e]stoppel should have

prevented termination by the [d]istrict [c]ourt, give[n] the existence of the . . . bridge

order.” In his view, “[T]he proper course would have been for [the] mother to

petition to modify the [b]ridge [o]rder in Johnson County to authorize the

guardianship.”

We preliminary examine whether the father preserved error on his

contention. He acknowledges “[t]he [d]istrict [c]ourt made no particular findings or

reference to” his assertion of judicial estoppel as an affirmative defense but notes

that he sought enlargement of the court’s conclusions to address that defense.

Although the district court summarily denied the enlargement motion, we conclude

the father preserved error by requesting a ruling. See In re O.M.F., No. 08-1739,

2009 WL 2952069, at *4 (Iowa Ct. App. Sept. 2, 2009) (“When a ruling fails to

address an issue properly presented, a party must file a motion under Iowa Rule

of Civil Procedure 1.904(2) to preserve error.” (citation omitted)). But, even if he

did not, the supreme court has stated, “[T]he doctrine of judicial estoppel may be

raised sua sponte on appeal.” See In re Q.G., 911 N.W.2d 761, 770 n.4 (Iowa

2018) (citing Tyson Foods, Inc. v. Hedlund, 740 N.W.2d 192, 195 (Iowa 2007)).

That said, the judicial estoppel argument turns on whether the relatives

used the proper vehicle to seek the guardianship underlying their petition to

terminate his parental rights. Our conclusion that the guardianship petition must

be vacated effectively resolves the father’s contention that the relatives were

judicially estopped from seeking a chapter 232D guardianship order in lieu of

having the mother seek a modification of the bridge order. 9

In a related vein, the father asserts he “had no idea that signing his consent

for the guardianship would create the sole basis for standing to terminate parental

rights within six months of doing so.” We agree the relatives’ termination petition

could not rest on the guardianship petition. But as discussed, the relatives had

statutory standing as custodians.

B. Best Interests

The father next asserts, “Even if the Court were to agree that grounds

supporting termination exist . . . , the termination must be reversed because

termination is not in [the child’s] best interest.” He relies on In re Q.G., 911 N.W.2d

761, 774 (Iowa 2018), in which the supreme court concluded the mother “did not

show by clear and convincing evidence the best interest of the children [would] be

advanced by termination of [the father’s] parental rights.” But the supreme court

subsequently limited the holding of Q.G., stating each case must be decided on its

own facts. See In re B.H.A., 938 N.W.2d 227, 233 (Iowa 2020) (noting the case

did not evince the “exceptional circumstance” present in Q.G.). In assessing the

facts, we look to the statutory best-interest definition, which “requires that each

biological parent affirmatively assume the duties encompassed by the role of being

a parent” by “demonstration of a genuine effort to maintain communication with the

child,” among other things. Iowa Code § 600A.1(2)

The child’s aunt testified the father did not ask for a visitation schedule with

the child. When she first assumed custody, he “mentioned going to a baseball

game” with the child but “never followed up.” She acknowledged the father

contacted the child “once a week on average” for “the first three months,”

interacting with him via FaceTime. He only spoke to the child twice during the 10

fourth month and once during the fifth month. The father did not initiate electronic

contact in the ensuing two months, although he saw the child twice—once during

a visit the child’s mother scheduled and the second time at the child’s birthday

party scheduled by the aunt.4

We recognize the father loved his child and had a strong desire to see him.

At the same time, he admitted his electronic visits were limited. In his words,

“[T]here is no denying, I wasn’t always in direct contact. A lot of people did speak

on my behalf.” He also acknowledged that the child’s aunt “never once denied

[him] an actual conversation with” the child. On our de novo review, we conclude

the father’s limited communication and interaction with the child support the district

court’s conclusion that termination was in the child’s best interests. See B.H.A.,

938 N.W.2d at 235 (citing “inconsistent pattern of visits”). We affirm termination of

the father’s parental rights to the child.

4 The aunt extended invitations to the child’s father and the child’s paternal grandmother. Both attended.