Opinion
No. 0-214 / 99-0095
Filed October 25, 2000
Writ of certiorari directed to the Iowa District Court for Polk County, Constance Cohen, District Associate Judge.
A mother whose child was the subject of an emergency removal action claims due process requires that applications for an ex parte removal must be supported by oath or affirmation, and that removal orders must be supported by a sworn written record.
WRIT SUSTAINED IN PART AND ANNULLED IN PART.James A. Benzoni of Benzoni Law Office, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Charles K. Phillips, Assistant Attorney General, and Cory McClure, Assistant County Attorney, for appellee State.
Heard en banc. Sackett, C.J. specially concurs; Vogel, J. specially concurs.
I. Introduction
Persons responsible for investigating and taking action concerning allegations of child abuse or neglect are acutely aware of the potentially tragic consequences when a child is not removed from an abusive home. On the other hand, the consequences are just as troubling when a child is removed after an inadequate investigation of allegations of child abuse, allegations later found to be unsupported by the facts. See, e.g., Wallis v. Spencer, 202 F.3d 1126, 1134 (9th Cir. 2000) ("The children were not allowed to see their parents and cried for them constantly."). This conflict between the legitimate role of the state in protecting children, and the rights of children and parents to be free from arbitrary and undue governmental interference is occurring with increasing frequency as society recognizes that the problem of child abuse is no longer a private family matter. Id. at 1130.
This case highlights the fact that no matter how important the State's interest in protecting the children within its borders from parental abuse, any action taken by the State is nonetheless constrained by the United States and Iowa Constitutions. The "state has no interest whatever in protecting children from parents unless it has some reasonable evidence that the parent is unfit and the child is in imminent danger." Id.at 1142 n. 14. The fact that allegations of child abuse may be most distressing to all cannot justify the State ignoring the Constitutional rights of the parents or children.
The questions that arise in this case are whether an applicant for an ex parte removal order pursuant to Iowa Code section 232.78 (1997) must swear to or affirm allegations supporting removal, and whether the allegations must be reduced to writing before a court may grant an ex parte order to remove a child or children from their parental home. The Iowa Supreme Court directed a writ of certiorari to the Iowa Juvenile Court for Polk County, then transferred this case to this court pursuant to Iowa R. App. P. 401(a) and Supreme Court Rule 4(b), to determine whether the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and article one, sections eight and nine of the Iowa Constitution, require an application for ex parte removal pursuant to Iowa Code section 232.78 (1997) to be supported by oath or affirmation, and whether those constitutional provisions require that the facts supporting the application be reduced to writing. These issues are raised by a mother's challenge to the constitutionality of section 232.78.
It is not enough to note that the plaintiff relies on the Due Process Clause of the Fourteenth Amendment, for that Clause is the source of three different kinds of constitutional protection. Daniels v. Williams, 474 U.S. 327, 337, 106 S.Ct. 677, 677, 88 L.Ed.2d 662, 672 (1986) (Stevens, J., concurring). The plaintiff herein relies on two of the three prongs of the due process protection afforded by the Fourteenth Amendment, procedural due process and incorporation of the specific Fourth Amendment warrant requirements. The plaintiff also contends that the similar protections found in the Iowa Constitution, article one, sections eight and nine, also demand an application for removal pursuant to section 232.78 be on oath or affirmation, and be in writing.
The plaintiff contends section 232.78 (1997), on its face, does not comport with the federal and state constitutional protections noted above. The State contends the Fourth Amendment does not apply to the removal of children pursuant to Iowa Code section 232.78 (1997). The guardian ad litem contends procedural due process does not require an application for ex parte removal be reduced to writing, or on oath or affirmation.
Reasons for our careful consideration of the constitutionality of statutes affecting fundamental rights or interests were well stated in a case involving a federal statute found to violate Fourth and Fifth Amendment rights:
[I]llegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.
Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746, 752 (1886). We sustain the writ in part, and annul the writ in part.
II. Factual and Procedural Background
Michael was born to Felicia on January 9, 1998. On Friday, April 2, 1998, the Iowa Department of Human Services (hereinafter "DHS") filed an ex parte removal application with the Polk County Juvenile Court for the removal of Michael from the custody of his mother. The reasons given in the application were
Two older siblings have been removed parental rights terminated. The mother has a history of mental illness is not med. compliant. She is not able to care for her children. Michael is on an apnea monitor subsequent to an apnea episode during which he stopped breathing. The mother has not been compliant w/ VNS has missed at least one medical appointment for the child.
No affidavit or sworn testimony was presented in support of the allegations in the application. It also is alleged, though by its nature not in the record, that the DHS worker had an unreported conversation with the issuing judge prior to the grant of the application. Upon this information the court ordered the immediate removal of Michael and placed him in the temporary legal custody of the DHS pending hearing pursuant to Iowa Code section 232.95 (1997) to be held eleven days later. The order also directed that a peace officer take custody of Michael forthwith to effectuate the order.
The DHS contacted the police on April 2 to serve the order, but the police were unable to locate anyone at the family residence. There is no record of any efforts to serve the order over the weekend. The child was removed from his mother's custody on the morning of Monday, April 6.
A child in need of assistance (CINA) petition was filed the following day. The April removal hearing was continued by agreement of the parties until June 1, 1998, to be held in conjunction with the CINA adjudicatory hearing. At the June hearing, the mother stipulated to the CINA petition but reserved her right to contest the removal, which was granted by the court. Felicia then filed a "Motion to Review Removal Applications by Same Standard as Search Warrants." After several continuances, the CINA adjudication and dispositional orders were entered. On November 25, 1998, the State filed a petition to terminate the parent-child relationship between Felicia and Michael.
On December 16, 1998, the juvenile court overruled the "Motion to Review Removal Applications by Same Standard as Search Warrants." The juvenile court found that
to justify a removal, a Juvenile Court Judge must review an Application filed by an authorized person and find, in pertinent part, that there is substantial evidence the child's life or health is in imminent danger. Iowa Code Sections 232.78(1)(b) and 232.95 (1997).
Therefore, the juvenile court concluded, because search warrants only require probable cause, the parent's procedural due process rights were better protected. It stated, "In fact, to impose the same standard on removals as are imposed on search warrant applications would reduce the test to which the Juvenile Court presently holds applicants and lessen the scrutiny applied to them." The plaintiff filed a motion pursuant to Iowa Rule of Civil Procedure 179(b), asking the juvenile court to find the warrant requirement as incorporated by the Due Process Clause demands that the facts supporting an ex parte application for removal be reduced to writing and supported by oath or affirmation. The juvenile court summarily denied the motion. Notice of appeal from this order was filed in the Supreme Court on January 11, 1999, three days after the termination hearing. On February 11, 1999, the juvenile court entered its order terminating Felicia's parental rights. This order was separately appealed, and this court affirmed. See In re M.L., No. 99-0362 (Iowa App. June 14, 2000).
The State and guardian ad litem (GAL) each filed a motion to dismiss the appeal from the denial of the "Motion to Review Removal Applications by Same Standard as Search Warrants." The State argued the issue was not timely appealed as Felicia did not appeal the final CINA dispositional order, citing In re Long, 313 N.W.2d 473 (Iowa 1981) and In re W.D. III, 562 N.W.2d 183, 186 (Iowa 1997). The State and GAL further argued the issue was moot, citing In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994) (holding "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."). Although Felicia resisted the State's and GAL's motions, a three-justice panel of the supreme court granted the motions, and ordered the appeal dismissed. Felicia filed a motion to reconsider, along with a request the motion be considered en banc after oral argument, on the grounds the issue is justiciable as an issue of public importance, yet evading appellate review. Felicia soon filed a separate motion requesting the appeal be considered a petition for a writ of certiorari. The State and GAL resisted. A three-justice panel, with one justice dissenting, granted the motion to reconsider, denied the State and GAL's motion to dismiss on mootness grounds under the exception for issues of public importance otherwise evading appellate review, see Polk County Sheriff v. Iowa Dist. Court, 594 N.W.2d 421, 425 (Iowa 1999), and granted the motion to treat the appeal as a certiorari action. The cause was later transferred to this court pursuant to Iowa R. App. P. 401(a).
III. Scope and Standards of Review
We begin our discussion by explaining our scope and standards of review in a certiorari action that facially attacks the constitutional validity of a duly enacted statute. They are somewhat different than as portrayed by the parties.
A writ of certiorari will be sustained if we find the district court acted illegally. Wyciskalla v. Iowa Dist. Court, 588 N.W.2d 403, 405 (Iowa 1998). As used in a certiorari action when the evidence is uncontroverted, the term "illegally" means error in interpreting the law. See State v. West, 320 N.W.2d 570, 574 (Iowa 1982). This includes error in interpreting the United States or Iowa Constitutions. See Lewis v. Iowa Dist. Court, 555 N.W.2d 216 (Iowa 1996) (granting writ of certiorari to consider court's interpretation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution).
Ordinarily we review a certiorari action for correction of errors at law. Lewis, 555 N.W.2d at 218; Zimmerman v. Iowa Dist. Court, 480 N.W.2d 70, 74 (Iowa 1992). But the existence of a constitutional issue requires us to review de novo any evidence bearing on that claim. Lewis, 555 N.W.2d at 218. "Certiorari review of constitutional issues requires an independent evaluation of the totality of the circumstances under which the challenged ruling on the constitutional issues was made." Id. However, because the plaintiff is only challenging the statute on its face, and not as applied, we need not consider facts beyond the facts the ex parte application for removal was not supported by oath or affirmation, and was apparently not entirely reduced to writing.
A facial attack on the constitutionality of a statute asserts the statute is void for every purpose; that it cannot be constitutionally applied to any factual situation. City of Des Moines v. Lavigne, 257 N.W.2d 485, 486 (Iowa 1977).
Judicial declarations that statutes and ordinances are void on their face because, for example, they are too vague and indefinite or are completely beyond the power of the legislature, are exceptional cases where the court apparently `considers every conceivable situation which might possibly arise' and concludes that the legislation is nevertheless always unconstitutional.
Antieau, Modern Constitutional Law, § 15:36, p. 698 (quoted in Lavigne, 257 N.W.2d at 486). Further, our power to declare legislation unconstitutional, first recognized in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), is one that courts exercise with great caution, and only when such conclusion is unavoidable. State v. Rivera, 260 Iowa 320, 322-23, 149 N.W.2d 127, 129 (1967). When we are asked to address the constitutionality of a statute we are obliged to accord it every presumption of constitutionality, upsetting it only upon proof it clearly infringes constitutional rights and then only if every reasonable basis for support is negated. Seeman v. Iowa Dep't of Human Servs., 604 N.W.2d 53, 60 (Iowa 1999). It is with these high and exacting standards in mind that we address the plaintiff's facial attack on Iowa Code § 232.78 (1997).
IV. The Fourth Amendment A. Applicability of the Fourth Amendment to Removal of a Child Pursuant to Iowa Code Section 232.78 (1997)
We begin our analysis by focusing on the Fourth Amendment, which, by virtue of the Due Process Clause of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers. See Mapp v. Ohio, 367 U.S. 643, 654-55, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961). We must first determine whether the Fourth Amendment is implicated when a state official removes a child from parental custody.
The State argues there is virtually no precedent for applying the Warrant Clause to the removal of children, and further argues there is extensive precedent for the general proposition that rights associated with a criminal prosecution do not apply to proceedings pursuant to Chapter 232 of the Code of Iowa. We agree with the State that many of the protections of the Fifth and Sixth Amendments to the United States Constitution do not apply to juvenile proceedings. See, e.g., In re D.J.R., 454 N.W.2d 838, 846 (Iowa 1990) ("By its terms, the sixth amendment applies only to criminal cases."); In re K.M.R., 455 N.W.2d 690, 691-92 (Iowa App. 1990) (holding parents' rights to due process were not violated by a requirement that in order to avoid termination of their parental rights, they acknowledge they had abused their children).
The text of relevant portions of the Fifth and Sixth Amendments makes it clear they afford protection only to those charged with a crime. The Fifth Amendment states ". . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself. . . ." U.S. Const. amend V (emphasis added). The Sixth Amendment states
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
U.S. Const. amend. VI (emphasis added). Thus certain provisions of the Fifth Amendment, and the entire Sixth Amendment, are expressly limited to those charged with or convicted of criminal behavior. However, in contrast, the Fourth Amendment does not speak of an "offence", a "criminal case," "criminal prosecutions" or a "crime." Rather, it speaks of "the people:"
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
While it is true certain early cases held or assumed the Fourth Amendment was not applicable to searches in civil actions brought by the government, see, e.g., Murray's Lessee v. Hoboken Land Improvement Co.,59 U.S. (18 How.) 272, 15 L.Ed. 372 (1856), the United States Supreme Court has in more recent years determined Fourth Amendment protections do extend to such actions. In Camara v. Municipal Court, the issue was whether a warrant was required before a building may be inspected to detect building code violations. The Supreme Court stated:
We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime . . . But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely `peripheral.' It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.
Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1731-32, 18 L.Ed.2d 930, 936 (1967) (emphasis added). It was emphasized in Schmerber v. California that:
The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. In Wolf we recognized "[t]he security of one's privacy against arbitrary intrusion by the police" as being "at the core of the Fourth Amendment" and "basic to a free society."
Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908, 917 (1966) (quoting Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, 1785 (1949)). As Justice Stevens later stated:
It is thus perfectly clear that the evil the Amendment was designed to prevent was broader than the abuse of a general warrant. Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the first clause of the Amendment. Almost a century ago the Court stated in resounding terms that the principles reflected in the Amendment "reached farther than the concrete form" of the specific cases that gave it birth, and "apply to all invasions on the part of the government and its employés of the sanctity of a man's home and the privacies of life."
Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639, 650 (1980) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, 751 (1886)).
Examples of the application of Fourth Amendment requirements in a non-criminal context abound. See, e.g., Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997) (holding Georgia's requirement candidates for state office pass drug test did not fit within closely guarded category of constitutionally permissible suspicionless searches); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (holding public school district's student athlete drug policy did not violate student's federal or state constitutional right to be free from unreasonable searches); Soldal v. Cook County, 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (holding removal of mobile home in eviction action is a "seizure" within the meaning of the Fourth Amendment); Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (holding the Fourth Amendment was applicable to drug and alcohol testing mandated or authorized by Federal Railroad Administration regulations); New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (holding searches conducted by school officials must meet the reasonableness requirements of the Fourth Amendment); see generally 4 Wayne R. LaFave, Search and Seizure § 10 (3rd ed. 1996).
We further note that many federal courts of appeal have recognized the requirements of the Fourth Amendment must be satisfied when a child is removed from parental custody, or is seized and examined as part of an abuse investigation. See, e.g., Wooley v. City of Baton Rouge, 211 F.3d 913 (5th Cir. 2000); Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000); Tenenbaum v. Williams, 193 F.3d 581 (2nd Cir. 1999); Malik v. Arapahoe County Dep't of Soc. Servs., 191 F.3d 1306 (10th Cir. 1999); J.B. v. Washington County, 127 F.3d 919 (10th Cir. 1997); Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993); Hurlman v. Rice, 927 F.2d 74 (2nd Cir. 1991); Good v. Dauphin County Soc. Servs. for Children and Youth, 891 F.2d 1087 (3rd Cir. 1989). This recognition is based on such actions constituting a seizure of the person.
We are indeed fortunate to be citizens of a nation where protection against unreasonable search and seizure, including the protection of the requirements for issuance of warrants, do not extend only to those suspected of criminal activity. The Fourth Amendment protects a right of privacy. This right to privacy is increasingly recognized in decisions involving this and other provisions of the Constitution as a core protection safeguarding all citizens against unwarranted intrusions by police and other government officials. See, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). We therefore hold that the Fourth Amendment must be complied with when children are seized from the custody of their parents pursuant to an ex parte order authorized by Iowa Code section 232.78 (1997).
B. Applicability of the Warrant Clause
To hold the Fourth Amendment applies to seizures of children by government officials and employees only begins the inquiry into what Fourth Amendment standards govern such seizures, and in particular whether the State must comply with the Warrant Clause. The touchstone of the Fourth Amendment is reasonableness. Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297, 302 (1991). The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. See Illinois v. Rodriguez, 497 U.S. 177, 183, 110 S.Ct. 2793, 2799, 111 L.Ed.2d 148, 158 (1990); see also State v. Jones, 586 N.W.2d 379, 382 (Iowa 1998) (noting article I, section 8 of the Iowa Constitution provides the same protection). In the light of the purpose of the Fourth Amendment, to safeguard the privacy and security of citizens against arbitrary invasions by government officials, the United States Supreme Court has long held that "except in certain carefully defined classes of cases," a search of private property without proper consent is unreasonable unless authorized by a valid search warrant. See, e.g., Camara, 387 U.S. at 528-529, 87 S.Ct. at 1731, 18 L.Ed.2d at 935. Justice Jackson eloquently made this point in an oft-quoted passage:
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. * * * The right of officers to thrust themselves into a home is * * * a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.
Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948).
Because the Fourth Amendment must be complied with when children are removed pursuant to section 232.78, either a warrant is required or one of the few exceptions to the Warrant Clause must apply. See State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995) (noting "[a] search and seizure without a valid warrant is per se unreasonable unless it comes within a recognized exception such as consent, search incident to arrest, probable cause and exigent circumstances, or plain view.").
For two reasons, we conclude that the Warrant Clause must be complied with. First, none of the exceptions to the Warrant Clause apply in this situation, including "exigent circumstances coupled with probable cause," because there is, by definition, time enough to apply to a magistrate for an ex parte removal order. See State v. Hatter, 342 N.W.2d 851, 855 (Iowa 1983) (holding the exigent circumstances exception to the Warrant Clause only applies when "an immediate major crisis in the performance of duty afforded neither time nor opportunity to apply to a magistrate."). Second, as noted by the Second Circuit, "[i]n the context of a seizure of a child by the State during an abuse investigation . . . a court order is the equivalent of a warrant." Tenenbaum v. Williams, 193 F.3d 581, 602 (2nd Cir. 1999).
We can fathom no set of facts that would allow us to find the requirements of the Warrant Clause need not be complied with when applying for an ex parte removal order. We therefore hold that the requirements of the Warrant Clause of the Fourth Amendment to the United States Constitution must be complied with when securing an ex parte removal order pursuant to Iowa Code section 232.78 (1997).
C. Requirements of the Warrant Clause
Having determined the Warrant Clause of the Fourth Amendment applies does not end our inquiry, for we must determine what the Warrant Clause requires. The plaintiff contends all facts related to the magistrate must be given on oath or affirmation, and in the form of a sworn affidavit, sworn testimony abstracted in writing, or both. The State rests on its assertion the Warrant Clause does not apply, and the GAL does not address the argument.
I. "On oath or affirmation"
The plaintiff contends the Warrant Clause requires that the application for removal pursuant to Iowa Code section 232.78 (1997) must be on oath or affirmation. Clearly, the Warrant Clause states ". . . no Warrants shall issue, but upon probable cause, supported by Oath or affirmation. . . ." U.S. Const. amend. IV. We therefore agree with the plaintiff the application must be on oath or affirmation, and sustain this part of the writ.
2. Writing Requirement
Before addressing whether the Fourth Amendment requires the facts underlying the application for ex parte removal be reduced to writing, we must first address whether certain recent statutory changes to Iowa Code section 232.78 moot the issue. The plaintiff contends that, "Despite the recent statutory changes, the glaring deficiencies remain. . . . [The statutory amendments] still do not provide the due process protection required by the warrant clause of the United States and Iowa Constitutions." Neither the State nor the GAL addresses this argument, apparently resting on their assertion there are no "glaring deficiencies."
Subsequent to the facts that gave rise to this case, the Iowa Legislature amended Iowa Code section 232.78 (1997). See1998 Iowa Acts, ch. 1190, § 4-6. The statute now allows a juvenile court to issue an ex parte removal order only when "[t]he application for the order includes a statement of the facts to support the findings specified in paragraphs ` a', ` b', and ` c'." Iowa Code § 232.78(1)(d) (1999).
We conclude, based on the plain language of the amended statute, that there is no statutory requirement the facts supporting the application for ex parte removal be reduced to writing. The words "application" and "statement" do not imply these requirements may be only in writing. We therefore agree with the plaintiff that the 1998 amendments to Iowa Code section 232.78 do not require the statement of facts in the application for ex parte removal be in writing. Whether this is a "glaring deficiency," however, is another question, which we next address.
The plaintiff argues, in essence, that the Fourth Amendment requires in the criminal context that all facts supporting issuance of a warrant be reduced to writing so a reviewing court will have a record of what was presented to the magistrate. The plaintiff then argues by analogy that a juvenile court holding a temporary removal hearing pursuant to Iowa Code section 232.95 must have only the facts that were presented to the issuing judge in writing in order to review the initial removal. Two flaws are apparent in the plaintiff's argument.
First, the text of the Fourth Amendment does not require the sworn facts underlying an application for a search warrant be reduced to writing. U.S. Const. amend. IV; see also State v. Oliveri, 261 Iowa 1140, 1145-46, 156 N.W.2d 688, 691 (1968) ("It has been well established by our court that the probable cause required by the constitution and statute does not have to be shown in the information for search warrant itself, but may be shown in an affidavit attached thereto orby sworn testimony taken before the magistrate prior to the issuance of the warrant." (Emphasis added)). Rather, the requirement that all facts supporting a search warrant be in writing flows from statute, see Iowa Code § 808.3 (1999), as does the requirement all facts supporting an arrest warrant be in writing in a criminal prosecution, see Iowa Code § 804.1 (1999). See State v. Liesche, 228 N.W.2d 44, 46-48 (Iowa 1975) (noting the requirement the magistrate make a written abstract of sworn testimony exists by reason of 1969 legislation); see also2 LaFave, Search and Seizure § 4.3(b) (3rd ed. 1996) (noting "it has often been held that reliance upon oral testimony does not violate the Fourth Amendment," and "the prevailing view is that [a written record of oral testimony] is not needed to square the warrant-issuing process with the Fourth Amendment."). Therefore, the plaintiff's analogy must fail, because the "writing requirement" is derived from statute, not the constitution.
Second, a search warrant is subject to review at a later suppression hearing as part of the same proceeding. Thus
the issuance of a search warrant is to be tested entirely by the recitals in affidavits and the magistrate's abstracts of oral testimony endorsed on the application. No other evidence bearing on the issue should be received in a suppression hearing. This court may not consider any other relevant information present in the record which was not presented to the neutral magistrate issuing the warrant. A warrant whose affidavits and application are lacking as to the probable cause determination may not be rehabilitated or fortified by later testimony.
State v. Thomas, 540 N.W.2d 658, 661-62 (Iowa 1995) (internal citations and quotations omitted). In conducting such a review a court is obligated "to insist that the issuing magistrate's function be performed in a neutral and detached manner, not serving merely as a rubber stamp for the police." State v. Myers, 570 N.W.2d 70, 73-74 (Iowa 1997) (quoting State v. Beckett, 532 N.W.2d 751, 754 (Iowa 1995)).
However, unlike a search warrant in a criminal investigation, a removal pursuant to Iowa Code section 232.78 (1997) is not subject to further review. Contrary to the plaintiff's argument, a temporary removal hearing pursuant to Iowa Code section 232.95 (1997), which must be held within ten days of the initial removal, see Iowa R. Juv. P. 4.6, does not review whether the initial removal was correct or not. Rather, the statutory purpose of the temporary removal hearing after a child has been removed from the home as the result of action taken pursuant to section 233.78 is "to determine whether the temporary removal should be continued." Iowa Code § 232.95 (1997) (emphasis added). Thus, where a suppression hearing focuses solely on facts presented to the magistrate in the past, see Thomas, 540 N.W.2d at 661-62, a temporary removal hearing pursuant to Iowa Code section 232.95 (1997) focuses only with what is presented to the juvenile judge at the time of that hearing. Therefore, what the juvenile judge who issued the ex parte removal order knew or did not know has no bearing on the subsequent steps of chapter 232 proceedings, and in particular the temporary removal hearing.
We note the parents are not without judicial remedy if a removal is made in violation of the parents constitutional rights. See, e.g., Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000) ( 42 U.S.C. § 1983 action by parents whose children were wrongfully removed).
The appellate procedural background of this case well demonstrates the ex parte order for removal is not subject to further judicial review. As noted above, this appeal was initially dismissed by the Iowa Supreme Court because the issue was moot. Review of this case, and the ex parte removal statute, comes only after the Iowa Supreme Court found while that the case is moot, it is reviewable under the exception "for issues of public importance otherwise evading appellate review," citing Polk County Sheriff v. Iowa Dist. Court, 594 N.W.2d 421, 425 (Iowa 1999).
Therefore, the plaintiff's analogy must also fail because unlike a search warrant, the ex parte removal order is not subject to review. For the reasons stated above, the Fourth Amendment does not require all underlying facts supporting the application for an ex parte removal be reduced to writing.
V. Procedural Due Process
As noted earlier, the plaintiff makes two different due process claims. We have above rejected her contention due process, as that concept incorporates the Fourth Amendment's Warrant Clause, requires all underlying facts supporting an application for ex parte removal be reduced to writing. We now turn to her second due process claim, procedural due process.
"Procedural due process imposes constraints on governmental decisions which deprive individuals of `liberty' or `property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18, 31 (1976). Thus, the first question we face is whether there is a "liberty" or "property" interest at stake. One "liberty interest at issue in this case the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized" by the United States Supreme Court. Troxel v. Granville, ___ U.S. ___, 120 S.Ct. 2054, 2060, ___ L.Ed.2d ___ (2000) (plurality opinion). We also identify a separate liberty interest at stake, corollary to and just as clearly fundamental as the parents' interest in the care, custody, and control of their children the children's fundamental right to familial association. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, 519 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected"); Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) ("Parents and children have a well-elaborated constitutional right to live together without governmental interference."); Franz v. United States, 707 F.2d 582, 595 (D.C. Cir. 1983) ("The constitutional interest in the development of parental and filial bonds free from government interference . . . is manifested in the reciprocal rights of parent and child to one another's `companionship'"); Duchense v. Sugarman, 566 F.2d 817 825 (2d Cir. 1977) ("[The] right to the preservation of family integrity encompasses the reciprocal rights of both parent and children.").
Having found two separate, identifiable private liberty interests, our next consideration is "what process is due" in this particular context. In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994). "Generally, the fundamental requirement of due process is an opportunity to be heard." Id. (citing Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287, 299 (1970)). "This may include a right to notice of the hearing, to confront and cross-examine adverse witnesses, to be represented by counsel, to an impartial decision maker, and to a decision based solely on legal rules and the evidence presented at the hearing." Id. (citing Goldberg, 397 U.S. at 268-72, 90 S.Ct. at 1020-22, 25 L.Ed.2d at 299-301). However, "due process is flexible and calls for such procedural protections as the particular situation demands." Id. (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972)). "Its flexibility is in its scope it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure." Morrissey, 408 U.S. at 481, 92 S.Ct. at 2600, 33 L.Ed.2d at 494.
In order to determine what process is due parent and child when a juvenile court is considering an ex parte application for removal, we utilize the three factors enunciated in Mathews v. Eldridge. In re A.M.H., 516 N.W.2d at 871; see also In re K.L.C., 372 N.W.2d 223, 226 (Iowa 1985). Those are:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews, 424 U.S. at 334-35, 96 S.Ct. at 903, 47 L.Ed.2d at 33.
We have already identified the two private fundamental liberty interests at stake: that of parents to raise their children; and that of the child to be raised by their parents. We briefly touch on the State's interests, for they are as well-elaborated and established as the parents' and children's rights at stake. "[T]he 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 re I.L.G.R., 433 N.W.2d 681, 689 (Iowa 1988). This has been referred to as the " parens patriae" duty of the State. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). We keep in mind, however, as noted at the outset, that the "state has no interest whatever in protecting children from parents unless it has some reasonable evidence that the parent is unfit and the child is in imminent danger." Wallis v. Spencer, 202 F.3d 1126, 1142 n. 14 (9th Cir. 2000).
Thus, as correctly noted by the GAL, whether procedural due process requires all underlying facts be reduced to writing hinges on the risks of errors in Iowa's ex parte removal procedures and the probable value of such an additional safeguard. The plaintiff identifies two potential additional benefits of a written record. First, a full written record might provide a "check upon the discretionary power of the issuing magistrate," including allowing "review of whether the trial court actually exercised such higher standards in issuing the initial emergency removal order." Second, the plaintiff identifies as a potential problem a department of human services caseworker giving an "unsworn, verbal statement regarding her third-hand beliefs as to the situation with no showing of reliability. Obviously, this would be totally unacceptable if this were a search warrant to search someone's garage, tool shed, trunk of their parked car. . . ."
As noted above, the trial court denied the plaintiff's motion because it found the court must find "in pertinent part, that there is substantial evidence the child's life or health is in imminent danger." (Emphasis added). Because the Fourth Amendment only requires a finding of probable cause, the trial court reasoned plaintiff's due process rights were better protected by the statute than by applying Fourth Amendment standards.
Having held the Warrant Clause requirements apply, we believe there is minimal risk of an erroneous deprivation through procedures used to secure a temporary removal order, and a requirement all underlying facts be reduced to writing would be of little value. First, as noted above, an ex parte temporary removal order is, by its very nature, not reviewed. There is no further hearing on the matter. The next hearing is the temporary removal hearing pursuant to Iowa Code section 232.95, but that hearing focuses on the continuation of the removal, and not whether the initial removal was correct. Therefore, there is no added value in requiring the underlying facts supporting the application to be set out in writing.
Second, because of our holding that the Fourth Amendment applies to the seizure of a child pursuant to an ex parte temporary removal order, the alleged problem of unsworn, third-hand hearsay information is adequately protected against and there is little if any probable value to an additional safeguard of reducing the facts underlying the application to writing. In reviewing whether substantial evidence (or probable cause or its functional equivalent) exists justifying the emergency removal, an "issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the [application] before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information," the requirements of Iowa Code section 232.78(1) have been met. See, e.g., Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983). Requiring all underlying facts be reduced to writing would have limited value in making this determination. We conclude that a written record of the facts presented to the issuing magistrate is not required by procedural due process, and therefore annul this part of the writ.
We note the Fourth Amendment only requires a finding of probable cause. The trial court found, and the parties agree, the issuing judge must find "substantial evidence" the child's life or health is in imminent danger. We note, but have no occasion to decide the issue, that Iowa Code section 232.78 uses neither the term "probable cause" nor "substantial evidence." The trial court found this to be the appropriate standard by applying the standard applicable to the temporary removal hearing pursuant to Iowa Code section 232.95. However, that hearing is separate and distinct from the ex parte removal application process of section 232.78.
VI. The Iowa Constitution
Because we interpret the scope and purpose of article one, section eight of the Iowa Constitution to be coextensive with federal interpretations of the Fourth Amendment, State v. Loyd, 530 N.W.2d 708, 711 (Iowa 1995), we also hold, for the reasons stated above, that article one, section eight of the Iowa Constitution requires the application for ex parte removal be on oath or affirmation, but does not require that the facts supporting the application be reduced to writing. We also conclude, because "[w]e consider the Iowa and federal due process provisions to be `identical in scope, import, and purpose,' " Bob McKiness Excavating Grading, Inc. v. Morton Bldgs., Inc., 507 N.W.2d 405, 410 (Iowa 1993) (quoting Koppes v. Pearson, 384 N.W.2d 381, 385 (Iowa 1986)), that article one, section nine of the Iowa Constitution does not require the factual allegations supporting the application for ex parte removal to be reduced to writing.
VII. Conclusion
The Fourth Amendment constrains both Federal and State governmental actors from unreasonably seizing a person, even a child alleged to be abused by his or her parents. Unless an exception to the Warrant Clause is proven by the State to apply, such a seizure is unreasonable unless accomplished by authority of a warrant. In this case, no exception to the Warrant Clause applies and the court order is the functional equivalent of a warrant. Therefore the oath or affirmation requirement of the Warrant Clause applies, and the application for such an order must be supported by oath or affirmation.
Contrary to the plaintiff's assertions, neither the Warrant Clause nor the Due Process Clause requires the underlying facts supporting an application for an ex parte removal order to be reduced to writing. This merely highlights the difference between a search warrant in a criminal investigation or prosecution and an ex parte removal order. In the criminal context, evidence seized in violation of the Fourth Amendment is excluded from the criminal prosecution. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453-54 (1963). Thus, there is a need for a written record of the issuing magistrate's findings at the time of the application for the search warrant. See State v. Thomas, 540 N.W.2d 658, 661-62 (Iowa 1995). However, there is no equivalent of the exclusionary remedy in the context of a child who is later found to have been wrongfully removed from his or her parental custody. The child simply goes home, before or as the result of the temporary removal hearing.
For the reasons stated above, we sustain that part of the writ asking this court to find the juvenile court acted illegally by not holding an application for ex parte removal must be supported by oath or affirmation. We annul that part of the writ asking this court to find the juvenile court acted illegally in not holding the underlying facts supporting the application for ex parte removal must be in writing.
WRIT SUSTAINED IN PART AND ANNULLED IN PART.
I concur with the scholarly majority that an ex parte application for removal of a child from his or her parental home must be supported by an oath or an affirmation as to the facts supporting the removal.
I write separately because of concerns the majority opinion may be taken for saying more than it says. First, the holding does not send the children in this case back to their parental home. The parental rights of these parents have been terminated and the issue is moot as to this case. Secondly, I cannot conceive of a delay in making a necessary removal that would be occasioned by requiring the oath or affirmation of facts supporting removal.
I concur with the majority's holding that prior to an ex parte order being entered commanding the removal of a child from parental custody, an application must be given under oath to comply with the Warrant Clause of the Fourth Amendment of the United States Constitution and Article one, Section eight of the Iowa Constitution. While no contrary authority exists in federal case law, we should not lose sight of the purpose behind the need to remove a child from the home and the possible consequences of our holding.
Iowa Code section 232.67 (1999) serves as a preamble to the child in need of assistance provisions and states:
The issues raised in this appeal were considered under the 1997 Iowa Code. Since the issue is now moot as to F.K. but justiciable as an issue of public importance, we look to its application under the current Iowa Code provisions.
Children in this state are in urgent need of protection from abuse. It is the purpose and policy of this part 2 of division III to provide the greatest possible protection to victims or potential victims of abuse through encouraging the increased reporting of suspected cases of abuse, ensuring the thorough and prompt assessment of these reports, and providing rehabilitative services, where appropriate and whenever possible to abused children and their families which will stabilize the home environment so that the family can remain intact without further danger to the child.
Currently a child may be removed from the parent's custody by court order pursuant to Iowa Code section 232.78 (1999) if, on facts reported to the court, "it appears that the child's immediate removal is necessary to avoid imminent danger to the child's life or health." Iowa Code § 232.78(1)(b) (1999).
The following section provides:
The person making the application for an order shall assert facts showing there is reasonable cause to believe that the child cannot either be returned to the place where the child was residing or placed with the parent who does not have physical care of the child.
Iowa Code § 232.78(2) (1999) (emphasis added).
There is no current requirement that the person making the application to remove a child assert such facts under oath. The issue on appeal to this court was whether an applicant "must swear to or affirm allegations supporting removal." Whether facts supporting a removal are simply presented to a judge or are presented under oath appears to be only a minor difference in procedure. However, this seemingly small procedural change may have the unintended consequence of delay in seeking to remove a child feared to be a victim of abuse. By requiring the facts presented to the judge be given under oath, the reporter may hesitate and choose to conduct further investigation rather than immediately pursuing the removal order. The consequence then becomes extending the time the child must remain exposed to the alleged abuse.
The purpose of applying the requirements of the Warrant Clause of the Fourth Amendment to removals under Iowa Code section 232.78 is to safeguard the constitutional rights of the parents and, as the majority points out, the child's fundamental right to familial association. See Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000). However, this may, under certain circumstances, run in conflict to Iowa's policy of "providing the greatest possible protection to victims or potential victims of abuse". Iowa Code § 232.67 (1999). "The state has an obligation to prevent loss of life and serious injury to those members of the community to whom it has a very special responsibility, the young. As the Supreme Court remarked in Wyman v. James, 400 U.S. 309, 318, 91 S.Ct. 381, 386, 27 L.Ed.2d 408 (1971), `There is no more worthy object of the public's concern.'" Darryl H. v. Gregory Coler, 801 F.2d 893, 902 (7th Cir. 1986). Furthermore, we must consider that "the child also has obvious and compelling interests in his personal welfare and safety, which are opposed to those of his parents when they pose the threat to the child's safety." Jordan v. Jackson, 15 F.3d 333, 346 (4th Cir. 1994). Therefore, we should be slow to place additional restraints on the state in attempting to protect our children from abuse. When faced with the choice of protecting the parent's constitutional rights of care, custody and control of their children and protecting our children from suspected abuse, the choice should be clear. If the removal later proves to have been in error, the parents have remedies available to seek redress of their grievances. See 42 U.S.C. § 1983 (1999).
There is authority that a parent does not have standing to assert a violation of the child's Fourth Amendment rights. See J.B. v. Washington County, 127 F.3d 919 (10th Cir. 1997) (stating mother had no standing to assert fourth amendment violation based on removal of child as it was the child's right to be secure in her home which was allegedly violated by the state's seizure of her).
We must also consider the consequences of an order removing a child, which was not secured by facts asserted under oath. The majority accurately states that a removal order is not subject to further review. Yet if the application was not given under oath, a parent could seek an immediate order to quash the removal order. Conceivably, this could occur before the temporary removal hearing, which must be held within ten days of the removal. Iowa R. Juv. P. 4.6. The State's response may be to attempt to correct the infirmity and seek a new removal order. It is possible, however, the order would be quashed, resulting in the child being returned to the allegedly abusive home prior to a full hearing on the removal.
An order to remove a child is subject to further review only through Iowa Code section 232.95, which is not structured to review the removal but to determine whether the temporary removal should continue.
Although I agree the Warrant Clause of the Fourth Amendment of the United States Constitution and Article one, Section eight of the Iowa Constitution, must apply to removals under Iowa Code section 232.78, we must be mindful of the special considerations inherent in such a requirement. The right of our children to be protected from abuse must remain our primary concern in implementing this important constitutional safeguard.