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CHAPTER TWO
JUVENILE COURT JURISDICTION A. GENERAL JURISDICTION OF THE JUVENILE COURT........................................3 1. ESTABLISHMENT OF THE JUVENILE COURT....................................................3 2. RESPECTIVE JURISDICTIONS OF JUDGES.......................................................3 B. EXCLUSIVE ORIGINAL JURISDICTION.................................................................4 1. “ORIGINAL” AND “EXCLUSIVE” JURISDICTION DEFINED ..................................4 2. EXCLUSIVE JURISDICTION .................................................................................4 3. EXCLUSIVE ORIGINAL JURISDICTION ...............................................................4 4. JUVENILE COURT JURISDICTION PARAMOUNT...............................................4 C. JUVENILE COURT JURISDICTION - TABLE ........................................................5 D. JUVENILE COURT JURISDICTION - AUTHORITY ................................................7 1. CHAPTER 125 SUBSTANCE ABUSE MINOR .....................................................7 2. CHAPTER 135L WAIVER PARENTAL NOTIFICATION ABORTION ....................7 3. CHAPTER 222 MENTALLY RETARDED MINOR..................................................7 4. CHAPTER 229 MENTAL ILLNESS MINOR ...........................................................8 5. CHAPTER 232 DIVISION II DELINQUENCY.........................................................8 6. CHAPTER 232 DIVISION III CHILD IN NEED OF ASSISTANCE...........................8 7. CHAPTER 232 DIVISION IV TERMINATION PARENTAL RIGHTS .......................9 8. CHAPTER 232 DIVISION V FAMILY IN NEED OF ASSISTANCE ........................9 9. CHAPTER 232 DIVISION XI VOLUNTARY FOSTER CARE .................................9 10. CHAPTER 232B IOWA INDIAN CHILD WELFARE ACT ...................................10 11. CHAPTER 233 NEWBORN INFANT CUSTODY RELEASE..............................10 12. GRANDPARENT VISITATION ...........................................................................10 13. CHAPTER 236 DOMESTIC ABUSE MINOR DEFENDANT...............................10 14. CHAPTER 598 MARRIAGE ...............................................................................12 15. CHAPTER 598B UNIFORM CHILD CUSTODY & JURISDICTION....................12 16. CHAPTER 600 ADOPTION................................................................................12 17. CHAPTER 600A PRIVATE TERMINATION PARENTAL RIGHTS.....................13 18. CHAPTER 665 CONTEMPT ..............................................................................14 19. CHAPTER 692A SEXUAL OFFENDER REGISTRY ..........................................15 E. TEMPORARY VS. PERMANENT NATURE OF ORDERS.....................................15 1. TEMPORARY NATURE JUVENILE DISPOSITION ORDERS.............................15 2. PERMANENT NATURE DISTRICT COURT CUSTODY ORDERS .....................15 3. PERMANENCY HEARINGS – JUVENILE COURT..............................................16 4. TERMINATION OF PARENTAL RIGHTS ............................................................17 F. PROHIBITED DISTRICT COURT JURISDICTION.................................................18 1. GENERALLY........................................................................................................18 2. SPECIFIC ACTIONS PROHIBITED .....................................................................18 3. APPLICATION TO PENDING JUVENILE ACTIONS ...........................................18 4. APPLICATION TO CHAPTER 232 ACTIONS......................................................19 5. VISITATION ISSUES ...........................................................................................19 6. APPLICATION AGAINST NON-PARTIES ...........................................................19 7. PROHIBITION INAPPLICABLE............................................................................20 8. NOTIFICATION TO DISTRICT COURT...............................................................20
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G. CONCURRENT JURISDICTION............................................................................22 1. GENERALLY........................................................................................................22 2. DISCRETION .......................................................................................................22 3. SPECIFIC ISSUE .................................................................................................22 4. INTER SE EFFECT..............................................................................................23 H. ISSUE PRECLUSION BETWEEN COURTS..........................................................23 1. GENERALLY........................................................................................................23 2. OFFENSIVE USE..................................................................................................24 3. DEFENSIVE USE.................................................................................................24 4. JUVENILE – DISTRICT COURT ..........................................................................24 5. ADMISSIBILITY OF DELINQUENCY RECORDS ................................................24 I. MAGISTRATE EXCEPTIONS JUVENILE JURISDICTION .....................................26 J. JUVENILE COURT JURISDICTION EXCLUSIONS...............................................27
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A. GENERAL JURISDICTION OF THE JUVENILE COURT 1. ESTABLISHMENT OF THE JUVENILE COURT A juvenile court is established in each county in the state of Iowa and is a division of the district court. The jurisdiction of the juvenile court is exercised by district court judges, district associate judges where specifically so designated by the chief judge, and by associate juvenile judges appointed by the chief judge. The juvenile court is within the district court and has the jurisdiction provided in chapter 232. Iowa Code Section 602.7101(1).
The jurisdiction of the juvenile court may be exercised by any district judge, and by any district associate judge who is designated by the chief judge as a judge of the juvenile court. Iowa Code Section 602.7101(2). The jurisdiction of the Iowa district court shall be exercised by district judges, district associate judges, associate juvenile judges . . . Iowa Code Section 602.6104(1).
Full-time associate juvenile judges shall be appointed by the district judges of the election district from persons nominated by the county magistrate appointing commission. Iowa Code Section 602.7103B(1).
2. RESPECTIVE JURISDICTIONS OF JUDGES District court judges have the full jurisdiction of the district court including respective jurisdictions of district associate judges and magistrates. Iowa Code Section 602.6202. District Associate Judges have jurisdiction over involuntary commitment proceedings under Chapters 125 and 229, temporary or emergency orders for protection under Chapter 236, entry of probate orders not requiring notice and hearing, and if so designated juvenile court jurisdiction. Iowa Code Section 602.6306(2). Associate Juvenile Judges shall have the same jurisdiction to conduct juvenile court proceedings, to issue warrants, nontestimonial identification orders, and contempt arrest warrants for adults in juvenile court proceedings, and to issue orders, findings, and decisions as the judge of the juvenile court. However the appointing judge may limit the exercise of juvenile court jurisdiction by the associate juvenile judge. Iowa Code Section 602.7103(1). 3
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B. EXCLUSIVE ORIGINAL JURISDICTION 1. “ORIGINAL” AND “EXCLUSIVE” JURISDICTION DEFINED “Original jurisdiction” is jurisdiction to consider a case in the first instance, the court to take cognizance of a case at its inception, try it, and pass judgment on the law and facts, as distinguished, for example, from appellate jurisdiction. Black’s Law Dictionary, page 1099, West Publishing 1990. “Exclusive jurisdiction” is jurisdiction possessed by one court to the exclusion of all other courts. That forum in which an action must be commenced because no other forum has jurisdiction to hear and determine the action. Black’s Law Dictionary, page 564, West Publishing 1990.
2. EXCLUSIVE JURISDICTION The juvenile court has exclusive jurisdiction concerning children alleged to be children in need of assistance under Iowa Code Chapter 232. Iowa Code Section 232.61. The District Court in a dissolution of marriage action has no jurisdiction to find a child to be a child in need of assistance. In re Marriage of Snyder, 276 N.W.2d 402 (Iowa 1979); Social Services v. Blair, 294 N.W.2d 567 (Iowa 1980). The District Court may refer children to the department of human services who may then file a china petition. Id.
3. EXCLUSIVE ORIGINAL JURISDICTION When one adds the concept of “original jurisdiction” to “exclusive jurisdiction,” it can logically be implied that the court with exclusive jurisdiction could delegate jurisdiction to a second court. For example, Iowa Code Section 232.8(1)(a) gives the juvenile court "exclusive original jurisdiction in proceedings concerning a child who is alleged to have committed a delinquent act unless otherwise provided by law." This provision does not deprive the district court of its criminal jurisdiction. Rather, section 232.8(1)(a) merely means that proceedings concerning delinquent acts must originate in juvenile court and continue in juvenile court until that court waives jurisdiction pursuant to Iowa Code Section 232.45. State v. Yodprasit, 564 N.W.2d 383, 386 (Iowa 1997).
4. JUVENILE COURT JURISDICTION PARAMOUNT The general rule that when two or more tribunals in the state have concurrent jurisdiction, the tribunal first assuming jurisdiction retains it to the exclusion of all tribunals in which the action might have initiated, applies to conflicts in jurisdiction involving custody questions; however, when the juvenile court, acting under the doctrine of parens patriae, acquires jurisdiction and properly assumes custody of the minor, its jurisdiction is paramount, even if acquired later in time. 47 Am.Jur.2nd Section 39, Juvenile Courts. 4
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C. JUVENILE COURT JURISDICTION - TABLE 1. Involuntary Hospitalization/Treatment of Minors for Chronic Substance Abuse Iowa Code Section 125.75A [exclusive original jurisdiction]; 2. Waiver of Parental Notification of Minor’s Abortion - Iowa Code Sections 232.5, 135L.1(5), and 135L.3(3) [exclusive jurisdiction]; 3. Adjudication and Treatment of Minors for Mental Retardation - Iowa Code Section 222.16A [exclusive original jurisdiction]; 4. Voluntary Hospitalization for Mental Illness to which a Minor Objects - Iowa Code Section 229.6A [exclusive original jurisdiction]; 5. Involuntary Hospitalization of a Minor for Serious Mental Impairment - Iowa Code Section 229.6A [exclusive original jurisdiction]; 6. Juvenile Justice - Chapter 232, Division II - Delinquency a. Over a child [under age 18] who commits a delinquent act; and b. An adult who commits a delinquent act prior to becoming an adult and is waived back to juvenile court. Iowa Code Section 232.8(1) [exclusive original jurisdiction]; 7. Juvenile Justice - Chapter 232, Division III - Child in Need of Assistance Iowa Code Section 232.61(1) [exclusive jurisdiction]; 8. Juvenile Justice - Chapter 232 - Division IV - Termination of Parental Rights CHINA in effect - Iowa Code Section 232.109 [exclusive jurisdiction]; 9. Juvenile Justice - Chapter 232 - Division V - Family in Need of Assistance Iowa Code Section 232.122 [exclusive jurisdiction]; 10. Juvenile Justice - Chapter 232 - Division XI - Voluntary Foster Care of Disabled Children - Iowa Code Section 232.176 [exclusive jurisdiction]; 11. Iowa Indian Child Welfare Act – Chapter 232B 12. Newborn Infant Custody Release Procedure – Chapter 233 [exclusive jurisdiction] 13. Grandparent visitation w/r child in need of assistance - In the Interest of K.B., 537 N.W.2d 774 (Iowa 1995) [exclusive inherent jurisdiction - not 598.35]; 14. Domestic Abuse with Minor Defendant - Iowa Code Sections 232.8(1)(c), 236.3(7); 5
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15. Marriage - Iowa Code Section 595.10; 16. Uniform Child Custody Jurisdiction and Enforcement Act - Iowa Code Section 598B.102(4); 17. Adoption - Iowa Code Sections 600.3, 232.6 18. Private Termination of Parental Rights - Iowa Code Sections 600A.5, 232.6; and 19. Contempt of Juvenile Court - Iowa Code Sections 602.7101, 602.7103, 665.1, 665.4(2).
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D. JUVENILE COURT JURISDICTION - AUTHORITY 1. CHAPTER 125 SUBSTANCE ABUSE MINOR The juvenile court has exclusive original jurisdiction in proceedings concerning a minor for whom an application for involuntary commitment or treatment is filed under section 125.75 [involuntary commitment or treatment of chronic substance abusers]. Iowa Code Section 125.75A.
2. CHAPTER 135L WAIVER PARENTAL NOTIFICATION ABORTION If a pregnant minor objects to the notification of a parent prior to the performance of an abortion on the pregnant minor, the pregnant minor may petition the court to authorize waiver of the notification requirement pursuant to this section in accordance with the following procedure. . . Iowa Code Section 135L.3(3). “Court” means the juvenile court. Iowa Code Section 135L.1(5).
The court shall have exclusive jurisdiction over the proceedings for the granting of an order for waiver of the notification requirements relating to the performance of an abortion on a minor pursuant to section 135L.3 Iowa Code Section 232.5 “Court” means juvenile court established under section 602.7101. Iowa Code Section 232.2(8).
3. CHAPTER 222 MENTALLY RETARDED MINOR The juvenile court has exclusive original jurisdiction in any court proceedings concerning a minor pursuant to this chapter [Chapter 222 regarding Persons with Mental Retardation]. Iowa Code Section 222.16A(2). 7
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The Juvenile Court has continuing jurisdiction to hear a petition for discharge from commitment from a mentally retarded adult whose original confinement was as a minor pursuant to Iowa Code Chapter 222. Chapter 222 is silent on the issue. Matter of Bear, 576 N.W.2d 303 (Iowa 1998).
4. CHAPTER 229 MENTAL ILLNESS MINOR Notwithstanding section 229.11 [immediate custody], the juvenile court has exclusive original jurisdiction in proceedings concerning a minor for whom an application for involuntary admission is filed under section 229.6 [hospitalization of persons with mental illness] or for whom an application for voluntary admission is made under section 229.2(1) [voluntary admission of a minor], to which the minor objects. Iowa Code Section 229.6A.
5. CHAPTER 232 DIVISION II DELINQUENCY The juvenile court has exclusive original jurisdiction in proceedings concerning a child who is alleged to have committed a delinquent act unless otherwise provided by law, and has exclusive original jurisdiction in proceedings concerning an adult who is alleged to have committed a delinquent act prior to having become an adult, and who has been transferred to the jurisdiction of the juvenile court pursuant to an order under section 803.5. Iowa Code Section 232.8(1)(a).
6. CHAPTER 232 DIVISION III CHILD IN NEED OF ASSISTANCE The juvenile court shall have exclusive jurisdiction over proceedings under this chapter alleging that a child is a child in need of assistance. Iowa Code Section 232.61(1).
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7. CHAPTER 232 DIVISION IV TERMINATION PARENTAL RIGHTS The juvenile court shall have exclusive jurisdiction over proceedings under this chapter to terminate a parent-child relationship and all parental rights with respect to a child. No such termination shall be ordered except under the provision of this chapter if the court has made an order concerning the child pursuant to the provisions of division III of this chapter and the order is in force at the time a petition for termination is filed. Iowa Code Section 232.109.
8. CHAPTER 232 DIVISION V FAMILY IN NEED OF ASSISTANCE The juvenile court shall have exclusive jurisdiction over family in need of assistance proceedings. Iowa Code Section 232.122.
9. CHAPTER 232 DIVISION XI VOLUNTARY FOSTER CARE The court shall have exclusive jurisdiction over voluntary placement proceedings [concerning children with mental or physical disabilities who cannot be cared for in their own home]. Iowa Code Section 232.176.
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10. CHAPTER 232B IOWA INDIAN CHILD WELFARE ACT
1. If a proceeding held under this chapter involves an Indian child as defined in section 232B.3 and the proceeding is subject to the Iowa Indian child welfare Act under chapter 232B, the proceeding and other actions taken in connection with the proceeding or this chapter shall comply with chapter 232B. 2. In any proceeding held or action taken under this chapter involving an Indian child, the applicable requirements of the federal Adoption and Safe Families Act of 1999, Pub. L. No. 105-89, shall be applied to the proceeding or action in a manner that complies with chapter 232B and the federal Indian Child Welfare Act, Pub. L. No. 95-608. Iowa Code Section 232.7.
11. CHAPTER 233 NEWBORN INFANT CUSTODY RELEASE . . . The Department shall immediately notify the juvenile court and the county attorney of the department’s action and the circumstances surrounding the action and request an ex parte order from the juvenile court ordering, in accordance with the requirements of section 232.78, the department to take custody of the newborn infant. Iowa Code Section 233.2(3). See also Section 233.2(4)(a) regarding the filing of a child in need of assistance and termination petition in the juvenile court.
12. GRANDPARENT VISITATION The power of the juvenile court in a CHINA proceeding includes a determination to visitation rights of parents and grandparents. Juvenile court’s exclusive jurisdiction over custody decisions includes determinations of visitation rights. The juvenile court is not limited by section 598.35 in granting visitation to a grandparent who does not meet the qualifications under that section. Best interests of the child govern. Here the child in a guardianship pursuant to a permanency order was approved for short unsupervised visitation with a grandparent. In Interest of K.R., 537 N.W.2d 774 (Iowa 1995).
13. CHAPTER 236 DOMESTIC ABUSE MINOR DEFENDANT
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If the person against whom relief from domestic abuse is being sought is seventeen years of age or younger, the district court shall waive its jurisdiction over the action to the juvenile court. Iowa Code Section 236.3(7). The juvenile court shall have jurisdiction in proceedings commenced against a child pursuant to section 236.3 over which the district court has waived its jurisdiction. The juvenile court shall hear the action in the manner of an adjudicatory hearing under section 232.47, subject to the following: (1) The juvenile court shall abide by the provisions of sections 236.4 and 236.6 in holding hearings and making a disposition; and (2) The plaintiff is entitled to proceed pro se under sections 236.3A and 236.3B. Iowa Code Section 232.8(1)(c).
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14. CHAPTER 598 MARRIAGE
Marriages may be solemnized by: 1. A judge of the supreme court, court of appeals, or district court, including a district associate judge, associate juvenile judge, or a judicial magistrate, and including a senior judge as defined in section 602.9202, subsection 1. Iowa Code Section 595.10.
15. CHAPTER 598B UNIFORM CHILD CUSTODY & JURISDICTION (1) Except as provided in section 598B.204, a court of this state has jurisdiction to make an initial child-custody determination only if any of the following applies: (a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before commencement of the proceeding and the child is absent from this state but a parent continues to live in this state; or (b) A court of another state does not have jurisdiction under paragraph (a), or a. . . Iowa Code Section 598B.201.
16. CHAPTER 600 ADOPTION The [juvenile] court may exercise jurisdiction over adoption and termination of parental rights proceedings under chapters 600 and 600A. Iowa Code Section 232.6. An action for the adoption of a natural person shall be commenced by the filing of an adoption petition, as prescribed in section 600.5, in the juvenile court or court of the county . . . Iowa Code Section 600.3(1).
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17. CHAPTER 600A PRIVATE TERMINATION PARENTAL RIGHTS
A petition for termination of parental rights shall be filed with the juvenile court in the county in which the guardian or custodian of the child resides or the child, the biological mother or the pregnant mother is domiciled. If a juvenile court has made an order pertaining to a minor child under chapter 232, division III, and that order is still in force, the termination proceedings shall be conducted pursuant to the provisions of chapter 232, division IV. Iowa Code Section 600A.5
Termination of parental rights shall be accomplished only according to the provisions of this chapter. However, termination of parental rights between an adult child and the child’s parents may be accomplished by a decree of adoption establishing a new parent-child relationship. Iowa Code Section 600A.3.
The [juvenile] court may exercise jurisdiction over adoption and termination of parental rights proceedings under chapters 600 and 600A. Iowa Code Section 232.6.
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18. CHAPTER 665 CONTEMPT Any officer authorized to punish for contempt is a court within the meaning of this chapter. Iowa Code Section 665.1 The punishment for contempt, where not otherwise specifically provided, shall be: . . . before district judges, district associate judges, and associate juvenile judges by a fine not exceeding five hundred dollars or imprisonment in a county jail not exceeding six months or by both such fine and imprisonment. Iowa Code Section 665.4(2).
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An associate juvenile judge shall have the same jurisdiction to conduct juvenile proceedings, to issue warrants, nontestimonial identification orders, and contempt arrest warrants for adults in juvenile court proceedings, and to issue orders, findings, and decisions as the judge of the juvenile court. Iowa Code Section 602.7103(1).
19. CHAPTER 692A SEXUAL OFFENDER REGISTRY . . . A person who is convicted . . . as a result of adjudication of delinquency in juvenile court shall be required to register as required in this chapter unless the juvenile court finds that the person should not be required to register under this chapter. Iowa Code Section 692A.2(4).
E. TEMPORARY VS. PERMANENT NATURE OF ORDERS 1. TEMPORARY NATURE JUVENILE DISPOSITION ORDERS All dispositional orders entered under the authority of Iowa Code Section 232.102 wherein custody of a child is transferred are temporary in nature. In the Interest of J.R.H., 358 N.W.2d 311, 319 (Iowa App. 1984). The juvenile code is structured to make permanent decisions with respect to the child’s custody only at the conclusion of the proceedings, whether that be with a termination of parental rights or long-term foster placement. Id, citing Iowa Code Section 232.103 and In re Blackedge, 304 N.W.2d 211, 214. The lack of the court’s ability to make a permanent placement at the dispositional stage does not affect the authority to make a temporary disposition, however. In Interest of J.R.H., supra.
2. PERMANENT NATURE DISTRICT COURT CUSTODY ORDERS The custody of children should be quickly established and seldom changed except for the most cogent reasons. In re the Marriage of Snyder, 284 N.W.2d 251, 254 (Iowa 1979).
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3. PERMANENCY HEARINGS – JUVENILE COURT a. Permanency Hearing A permanency hearing must be held (1) within twelve months of the removal under sections 232.78 [exparte removal], 232.95 [temporary removal hearing], 232.96 [adjudicatory removal], or 232.102 [dispositional removal] or (2) within thirty days of the entry of order waiving reasonable efforts in aggravated circumstances. The permanency hearing may be held concurrently with a Section 232.103 modification hearing. Iowa Code Section 232.104(1). Permanency hearings are also now required in delinquency cases which meet the statutory timeline above. Iowa Code Section 232.58. b. Waiver of Reasonable Efforts - Aggravated Circumstances Redefines “reasonable efforts” to state that a “child’s health and safety” is a paramount concern in making reasonable efforts. Iowa Code Section 232.102(9)(a). The law now allows for a “waiver” of reasonable efforts in “aggravated circumstances.” The court is to make written findings of fact based upon evidence in the record to indicate the aggravated circumstances exist. It is the duty of the moving party to present that evidence including where necessary certified copies of prior termination proceedings or criminal convictions. The rationale for the provision is that it is not in the child’s best interest to delay the establishment of a permanent placement for 12 months where services are not likely to allow for a child’s safe return to the home. Iowa Code Section 232.102(12). “Aggravated circumstances” include (1) abandonment, (2) the child meets definition of child in need of assistance by physical or sexual abuse or neglect, such abuse or neglect posed a significant risk to the life of the child or imminent danger to the child, and the provision of services will not correct the conditions within a reasonable period of time [See Section 232.116(1)(h)]; (3) the parental rights of the parent to another child in the same family were previously terminated and the provision of services would not correct the conditions within a reasonable period of time; (4) the parent was “convicted” of the murder, voluntary manslaughter, or aiding and abetting, attempting, conspiring or soliciting the same of another child of the parent; (5) the parent was convicted of a felony assault which resulted in serious bodily injury to the child in interest or another child of the parent. Note that convictions and not merely charges or founded abuse reports are necessary with regard to the latter two provisions. The list of aggravated circumstances as contained in the statute was not intended by congress to be all-inclusive according to the congressional record made in 16
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the passage of the Adoption and Safe Families Act of 1997. 143 Congressional Record S 12670.
4. TERMINATION OF PARENTAL RIGHTS a. Generally The juvenile court may enter an order pursuant to chapter 232 for termination of a parent’s parental rights where a prior adjudication of the child as a child in need of assistance existed and provided the ground(s) set forth in Iowa Code Section 232.116(1)(a) - (q) is shown by clear and convincing evidence and further the termination is in the child’s best interest. Iowa Code Section 232.117. Where an order is entered for termination of parental rights, the court is to establish the child’s guardianship and custody and require the guardian to take prompt action to provide for the child’s adoption or other permanent placement. Iowa Code Section 232.117(5). Termination and adoption is the preferred method of establishing permanency for children as opposed to long-term foster care. In Interest of R.L., 541 N.W.2d 900, 903 (Iowa App. 1995). b. Termination Petition Required The county attorney is required to file a petition for termination of parental rights, unless certain exceptions exist, where: (1) a child has been in foster care for 15 of the last 22 months; (2) the court has waived reasonable efforts for the aggravated circumstance specifically set forth in section 232.116(1)(h); (3) a child is under twelve months of age and is judicially determined to be abandoned [see section 232.2(1) for definition of ‘”abandonment;” (4) the parent was “convicted” of the murder, voluntary manslaughter, or aiding and abetting, attempting, conspiring or soliciting the same of another child of the parent; (5) the parent was convicted of a felony assault which resulted in serious bodily injury to the child in interest or another child of the parent. Iowa Code Section 232.111(1A). Exceptions to the requirement of filing include: (1) a child is cared for by a relative; (2) the filing is not in the child’s best interest for a compelling reason; (3) DHS has not provided necessary services within the time frame set forth in the case plan and a limited extension of time is needed. Note that if the time lines for permanency hearings are met, the county attorney would seldom be required under this section to file, although the court may have directed the filing following the permanency hearing. The Iowa Supreme Court has determined that a county attorney does not act unethically if he or she files a termination petition upon direction by the court event where the county attorney believes good cause exists not to file, i.e., that a prima facie case cannot be made out. In re. K.C., 660 N.W.2d 29 (Iowa 2003). The statute is specific to require the county attorney 17
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to file in such circumstances, it does not say the department or the state shall file, although the department may file under section 232.111(1).
F. PROHIBITED DISTRICT COURT JURISDICTION 1. GENERALLY The District Court is prohibited exercising jurisdiction concerning minor children in any action other than a juvenile action if juvenile action is pending unless the juvenile court authorizes the same. During the pendency of an action under this chapter, a party to the action is estopped from litigating concurrently the custody, guardianship, or placement of a child who is the subject of the action, in a court other than the juvenile court. A district judge, district associate judge, magistrate, or judicial hospitalization referee, upon notice of the pendency of an action under this chapter, shall not issue an order, finding, or decision relating to the custody, guardianship, or placement of the child who is the subject of the action, under any law, including but not limited to chapter 598, 598A, or 633. Iowa Code Section 232.3(1).
2. SPECIFIC ACTIONS PROHIBITED Iowa Code Section 232.3(1) prohibits the District Court from entering temporary or permanent custody orders in actions for dissolution, separate maintenance, annulment, or separate actions for custody, and probate guardianships concerning minor wards if a juvenile court action is then pending. It is not merely limited to such actions, however, and may include custody orders in other types of actions including temporary custody awards in domestic abuse relief actions. Where the juvenile court enters an order for termination of parental rights, it should either retain jurisdiction to complete the adoption or grant concurrent jurisdiction to the district court for that purpose. In Matter of Adoption of S.M.H., 1-031/00-94, filed 4/27/01, Iowa Court of Appeals.
3. APPLICATION TO PENDING JUVENILE ACTIONS The prohibition applies when a juvenile action is “pending” which means a petition has been filed seeking an adjudication of a child as subject to the juvenile court’s jurisdiction or where emergency ex parte orders for removal under Sections 18
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232.78 or 232.95 have been entered by the court whereby it exercises its jurisdiction. “Pending” means “during, while awaiting.” Webster’s New Collegiate Dictionary, page 869, 1988. It does not require that the juvenile court has entered an adjudicatory or dispositional order. For the prohibition to apply, it does not matter whether the District Court action is pending in advance of the Juvenile Court proceeding. Orders of the District Court entered in advance of the pendency of the juvenile case, however, are honored and determine the status of the case prior to juvenile court involvement.
4. APPLICATION TO CHAPTER 232 ACTIONS The prohibition applies to all types of juvenile cases under chapter 232, not merely child in need of assistance cases. It would include delinquency [division II], child in need of assistance [division III], termination of parental rights [division IV], family in need of assistance [division V], and voluntary foster care of disabled children [division XI]. Within chapter 232 references are also made to juvenile court jurisdiction relative to other chapters of the code including: Chapter 135L concerning waiver of parental notification of a minor’s abortion [Section 232.5]; Chapter 222 commitment and treatment mentally retarded minors in delinquency proceedings [Section 232.51]; Chapter 229 hospitalization and treatment for mentally ill minors in delinquency proceedings [Sections 232.51 and 232.52(2)(f)]; and for Chapter 236 concerning domestic abuse by a minor defendant [Section 232.8(1)(d)]. Section 232.52A also provides for substance abuse treatment as a disposition in a delinquency case. Thus it could be forcefully argued that by reference to these other chapters and types of proceedings, that the prohibition against the District Court entering custody orders concerning minors involved these proceedings without a grant of concurrent jurisdiction by the juvenile court is effective despite the fact actions under chapters other than strictly chapter 232 are involved. There appears to be no conclusive argument, however, that the prohibition applies where a chapter 600A private termination action has been filed in the juvenile court.
5. VISITATION ISSUES Beyond guardianship, custody, and placement issues, visitation issues are probably also included within the prohibition. Visitation is statutorily a part of and included within the custody award made by the district court in a dissolution, separate maintenance or annulment action. Iowa Code Section 598.41(1)(a). Case law indicates it is the juvenile court who determines grandparent visitation where a juvenile action is pending. In Interest of K.R., 537 N.W.2d 774 (Iowa 1995).
6. APPLICATION AGAINST NON-PARTIES The District Court is stayed from entering any order in an adoption action 19
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[Chapter 600] which would affect custody or placement during the pendency of a CHINA case under Chapter 232. The estoppel under Section 232.3 applies to the courts, not just to the parties, and thus the fact that foster parents were not "parties" to the CHINA case did not allow the adoption action filed by the foster parents to proceed. Matter of Adoption of A.J.H., 519 N.W.2d 90 (Iowa 1994).
7. PROHIBITION INAPPLICABLE The prohibition is limited to determining issues of custody, guardianship, and placement of children. It would thus not prohibit the district court from determining such matters as paternity and child support.
8. NOTIFICATION TO DISTRICT COURT Iowa Code Chapters 598 and 598B require the petitioner in dissolution proceedings to advise the District Court of the pendency of other custody proceedings concerning any child to be effected by the district court action. Often times, however, this does not occur. In such cases the following form notification may be filed by the Juvenile Court Judge in the district court proceeding to alert the District Court and counsel of the pendency of a juvenile action. SEE FORM: NoticeExcJur - Notice to District Court and Counsel Pursuant to Iowa Code Section 232.3
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In the District Court of the State of Iowa In and For .................. County In Re the Marriage of ) .................. and .................. ) Upon the Petition ) Notice to District Court and Counsel of Dissolution ) Pursuant to Iowa Code Section 232.3 ........................ ) (Petitioner) ) Equity No............. and Concerning ) ........................ ) (Respondent) ) ____________________________________________________ COMES NOW the undersigned Judge of the Juvenile Court who hereby notifies the above-captioned District Court and counsel of record that there is a juvenile court action pending in ______________ County, Iowa, concerning the following child(ren): ____________________________________________________________________; whose parent(s), guardian(s) or custodian(s) and respective address(es) are as follows: ____________________________________________________________________. Unless and until the juvenile court grants concurrent jurisdiction to the district court concerning said children, the District Court should enter no orders concerning the children’s custody, placement, guardianship, or visitation. During the pendency of an action under this chapter, a party to the action is estopped from litigating concurrently the custody, guardianship, or placement of a child who is the subject of the action, in a court other than the juvenile court. A district judge, district associate judge, magistrate, or judicial hospitalization referee, upon notice of the pendency of an action under this chapter, shall not issue an order, finding, or decision relating to the custody, guardianship, or placement of the child who is the subject of the action, under any law, including but not limited to chapter 598, 598B, or 633. Iowa Code Section 232.3(1). The juvenile court with jurisdiction of the pending action under this chapter, however, may upon the request of a party to the action or on its own motion, authorize the party to litigate concurrently in another court a specific issue relating to the custody, guardianship, or placement of the child who is the subject of the action. Before authorizing a party to litigate a specific issue in another court, the juvenile court shall give all parties to the action an opportunity to be heard on the proposed authorization. The juvenile court may request but shall not require another court to exercise jurisdiction and adjudicate a specific issues relating to the custody, guardianship, or placement of the child. Iowa Code Section 232.3(2). The clerk shall provide a copy of this notice to the presiding District Court Judge, counsel and parties. Dated this _______________.
_______________________________ ____________, Juvenile Court Judge ________ Judicial District of Iowa
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G. CONCURRENT JURISDICTION 1. GENERALLY The Juvenile Court has the power to grant concurrent jurisdiction to the District Court to make certain determinations concerning children otherwise reserved to the Juvenile Court. The juvenile court with jurisdiction of the pending action under this chapter, however, may upon the request of a party to the action or on its own motion, authorize the party to litigate concurrently in another court a specific issue relating to the custody, guardianship, or placement of the child who is the subject of the action. Before authorizing a party to litigate a specific issue in another court, the juvenile court shall give all parties to the action an opportunity to be heard on the proposed authorization. The juvenile court may request but shall not require another court to exercise jurisdiction and adjudicate a specific issues relating to the custody, guardianship, or placement of the child. Iowa Code Section 232.3(2).
2. DISCRETION The juvenile court has the legal discretion to authorize a party to litigate concurrently a specific issue relating to custody, guardianship, or placement of a child who is the subject of a pending juvenile action, however, its discretion must be exercised in the best interests of the child. In the Interest of R.G., 450 N.W.2d 823 (Iowa 1990).
3. SPECIFIC ISSUE The juvenile court's power to allow concurrent litigation extends only to a specific issue relating to the custody, guardianship, or placement of a child who is the subject of a child in need of assistance action and does not extend to the juvenile court making a wholesale relinquishment of its jurisdiction. Matter of Guardianship of Murphy, 397 N.W.2d 686, 688-689 (Iowa 1986).
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4. INTER SE EFFECT Custody or visitation orders entered by the district court granted concurrent jurisdiction under 232.3 by the juvenile court are determinative of the rights of the parents inter se if and when the juvenile court’s placement of the children during their child in need of assistance status has been rendered of no further effect by orders of the juvenile court. A. B. v. M.B., 569 N.W.2d 103 (Iowa 1997). Custody or visitation orders entered by a court granted “concurrent jurisdiction” may not conflict with or frustrate the placement of a child established through a child in need of assistance proceeding. Id. At 104 - 105. “Inter se” means “among or between themselves and is used to distinguish rights or duties between two or more parties from their rights or duties to others.” Black’s Law Dictionary, page 819, West Publishing, Revised 6th Edition [1990]. Thus an order which is inter se between the child’s parents is effective only as between them absent the orders of the juvenile court. Even though concurrent jurisdiction has been granted and the district court ruled on the application for custody, guardianship, or placement, the juvenile court order for placement continues to be in force and effect until terminated.
H. ISSUE PRECLUSION BETWEEN COURTS 1. GENERALLY If the same issue has previously been litigated, the concept of issue preclusion is involved. “When an issue of fact of law is actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Restatement [2d], Judgments, Section 27. Three prerequisites have traditionally been required before issue preclusion may be applied: (1) identity of issues raised in successive proceedings; (2) a determination of these issues by a valid final judgment to which such determination was necessary; and (3) identity of parties [privity]. Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981). A four factor test is used to apply issue preclusion: * Issue(s) concluded must identical [standard of evidence]; 23
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* Issue(s) must have been raised and litigated in the prior action [guilty plea]; * Issue(s) must have been material and relevant to the disposition of the prior action; and * The determination made of the issue in the prior action must have been necessary and essential to the resulting judgment. Brown v. Monticello State Bank of Monticello, Iowa, 360 N.W.2d 81, 84 (Iowa 1985).
2. OFFENSIVE USE If the four prerequisites of the doctrine are satisfied, issue preclusion may be applied offensively where mutuality is lacking if it is determined that the party sought to be precluded was afforded a full and fair opportunity to litigate the issue in the action relied upon and that no other circumstances justify affording him an opportunity to relitigate the issue. Hunter, supra at 124.
3. DEFENSIVE USE Defensive use of issue preclusion is allowed where the party against whom the doctrine is invoked was so connected in interest with one of the parties in the former action as to have had a full and fair opportunity to litigate the relevant claim or issue and be properly bound by its resolution. Hunter, supra at 123.
4. JUVENILE – DISTRICT COURT The interrelationship between the juvenile and district court was demonstrated where the court held that a juvenile court determination that a child's father had not sexually abused his daughter had a preclusive effect [and barred relitigation of the issue] in a subsequent dissolution modification proceeding regarding custody and visitation of the child. Issue preclusion applies when (1) the issue concluded is identical; (2) the issue was raised and litigated in the prior action; (3) the issue was material and relevant to the disposition of the prior action; and (4) the determination of the issue in the prior action was necessary and essential to the resulting judgment. In re Marriage of Winnike, 497 N.W.2d 170 (Iowa App. 1992).
5. ADMISSIBILITY OF DELINQUENCY RECORDS a. Statute. “Adjudication and disposition proceedings under this division 24
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[Delinquency - Division II, Chapter 232] are not admissible as evidence against a person in a subsequent proceeding, in any other court before or after the person reaches the age of majority except in sentencing proceedings after conviction of the person for an offense other than a simple or serious misdemeanor.” Iowa Code Section 232.55(2). b. CHINA & TPR. Evidence of a father’s juvenile record was not admissible in a child in need of assistance and subsequent termination of parental rights proceedings concerning the father’s child since those proceedings were not “a sentencing proceeding after conviction.” In Interest of T.C., 492 N.W.2d 425, 429 (Iowa 1992). c. Criminal Sentencing. Iowa Code Section 232.55(2) which prohibits use of a juvenile’s record when sentencing a defendant in adult criminal court for less than a felony or aggravated misdemeanor does not prohibit the criminal court for considering the juvenile record when sentencing for multiple convictions including both felonies or aggravated misdemeanors and for simple or serious misdemeanors. State v. Cheatheam, 569 N.W.2d 820 (Iowa 1997).
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I. MAGISTRATE EXCEPTIONS JUVENILE JURISDICTION Under Iowa Code Section 232.8(1)(b), all law violations committed by a minor are to be presented in Juvenile Court as delinquency actions, EXCEPT the following violations, which if committed by an adult would be simple misdemeanors and to be prosecuted in magistrate court: CODE CHAPTER
VIOLATION
321
Motor Vehicles
321G
Snowmobiles
453A
Cigarette & Tobacco
461A
Public Lands & Waters
461B
Use of State Waters by Non-residents
462A
Water Navigation Regulations
481A
Wildlife Conservation
481B
Endangered Plants & Wildlife
483A
Fish & Game Licenses
484A
Migratory Waterfowl
484B
Hunting Preserves
N/A
City Curfew & City Traffic Ordinances
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J. JUVENILE COURT JURISDICTION EXCLUSIONS VIOLATIONS EXCLUDED FROM JUVENILE COURT JURISDICTION UNLESS REVERSED WAIVED. These cases begin in adult criminal court. Violations by a child, age sixteen or older, which subject the child to the provisions of section 124.401(1)(e) or (f) [felony drug charges], or violations of section 723A.2 [criminal gang participation] which involve a violation of chapter 724 [weapons], or violation of chapter 724 [weapons] which constitutes a felony, or violations which constitute a forcible felony are excluded from the jurisdiction of the juvenile court and shall be prosecuted as otherwise provided by law unless the court transfers jurisdiction of the child to the juvenile court upon motion and for good cause. Iowa Code Section 232.8(1)(c).
EXCEPTIONS TO JUVENILE COURT JURISDICTION: 1. Possession, Manufacture or Delivery of Controlled Substance while armed with a firearm or offensive weapon; 2. Criminal Gang Participation with a Weapon 3. Felony Weapon charges - Unlawful possession of offensive weapons [Section 724.3 - Class D felony]; Carrying weapons on school grounds [Section 724.4B - Class D felony]; Trafficking in stolen weapons [Section 724.16A - D felony]; Giving False information when acquiring weapon [Section 724.21 - D felony]; and Reckless Use of a Firearm if either a bodily injury or serious bodily injury occurs [Section 724.30 - Class D or C felony] 4. Forcible felonies. A forcible felony is any felonious child endangerment, assault, murder, sexual abuse, kidnapping, robbery, arson in the first degree, or burglary in the first degree. However, willful injury in violation of section 708.4(2), sexual abuse in the third degree committed between spouses, sexual abuse in violation of section 709.4(2)(c)(4), sexual exploitation by a counselor or therapist in violation of section 709.15, or child endangerment resulting in bodily injury to a child in violation of section 726.6(2A) is not a forcible felony. Iowa Code Section 702.11.
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Attempted murder, although not specifically listed in Section 702.11 as a forcible felony, qualifies as a forcible felony because it is a felonious assault which are by definition forcible felonies. See State v. Powers, 278 N.W.2d 26, 29 (Iowa 1979). Thus because the minor was 16 years of age, the charge of attempted murder was exempted from the original jurisdiction of the juvenile court under Section 232.8(1)(c) and appropriately filed in adult court subject to the reverse waiver procedure. State v. Terry, 569 N.W.2d 364 (Iowa 1997).
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