                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0229
                              Filed May 20, 2015


MARIE STAGG,
     Plaintiff-Appellant,

vs.

DEPARTMENT OF HUMAN SERVICES,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.



      Marie Stagg appeals an Iowa Department of Human Services’ founded

child abuse assessment and the placement of her name on the child abuse

registry, challenging the agency’s jurisdiction. REVERSED AND REMANDED

WITH DIRECTIONS.




      Marie Stagg, Propria Persona, Philadelphia, Pennsylvania, for appellant.

      Thomas J. Miller, Attorney General, and Amy Licht, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, P.J.

       Marie Stagg appeals an Iowa Department of Human Services’ founded

child abuse assessment and the placement of her name on the child abuse

registry.   Stagg raises several issues, including a challenge to the agency’s

jurisdiction. We find this issue dispositive.

I.     Background Proceedings

       In January 2012, the Iowa Department of Human Services received a

report of child abuse allegedly committed by Stagg “approximately two years”

earlier. Stagg lived in Philadelphia, Pennsylvania, at the time of the report and

the time of the claimed incident. The department conducted an investigation,

which included two summary telephone contacts with the Philadelphia

Department of Human Services and a letter seeking assistance in the

investigation.   On the same day the letter was faxed to the Philadelphia

department, the Iowa department issued a “notice of child abuse assessment:

founded,” naming Stagg as the perpetrator. Three weeks later, the Pennsylvania

department notified Stagg it had conducted an assessment which would result in

closure of its case.

       Stagg appealed the Iowa notice, alleging in part that the agency lacked

personal and subject matter jurisdiction because she and the child lived in

Pennsylvania at the time of the claimed child abuse incident.

       Following a hearing, an administrative law judge found “in October 2009

[the time of the claimed incident], Stagg lived in Pennsylvania and had custody of

[the child].” The ALJ further found, at the time of the abuse disclosure more than

two years later, the father “lived in the State of Iowa and had custody of [the
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child].” The ALJ proceeded to address whether the department could exercise

personal and subject matter jurisdiction.

         The ALJ concluded Stagg failed to timely raise the issue of personal

jurisdiction and, accordingly, waived it.          The ALJ further concluded “the

department properly asserted subject matter jurisdiction over Stagg.” The ALJ

acknowledged the Pennsylvania department “issued a letter to Stagg stating that

after conducting an assessment, it concluded that there was not substantial

evidence that Stagg’s family was in need of general protective services.” But the

ALJ noted “[n]o evidence was submitted establishing that the [Pennsylvania]

worker had access to the considerable documentary evidence and sworn

testimony submitted by the parties in this administrative proceeding.” The ALJ

concluded “[t]he department was not precluded from concluding that Stagg

committed abuse of [the child] because the State of Pennsylvania apparently

concluded that Stagg’s family was not in need of general protective services.” In

a final agency decision, the department affirmed this conclusion.1

         Stagg sought judicial review of the final agency decision. The district court

also concluded Stagg waived personal jurisdiction. The court further concluded,

“Even if [the child] was a Philadelphia resident at the time the abuse occurred,

the Department retains jurisdiction to investigate and conduct an assessment of

out-of-state incidents of child abuse when the victim is currently an Iowa

resident.”

         On appeal, Stagg reiterates, “At all relevant time of this specious alleged

incident, [the child] and I were undisputed residents of Philadelphia,

1
    The department modified one aspect of the proposed decision not relevant on appeal.
                                         4


Pennsylvania.”     Accordingly, she asserts this matter should “have been

dismissed for lack of jurisdiction.”

II.    Jurisdiction

       Iowa Code section 232.67 (2013), setting forth the purpose and policy

behind child abuse reporting and rehabilitation, states “[c]hildren in this state are

in urgent need of protection from abuse.” (Emphasis added). Neither this portion

of the Iowa Code nor chapter 235A relating to the child abuse registry contains a

jurisdictional provision governing the reach of the child abuse reporting and

assessment provisions.2      Cf. Iowa Code § 85.71 (addressing entitlement to

workers’ compensation benefits for out-of-state injuries). In the absence of a

relevant statutory provision, the department points to its rule styled, “Jurisdiction

of assessments,” which was included in the agency record and discussed with

the ALJ. The portion of the rule cited by the department provides:

       Child protection workers serving the county in which the child’s
       home is located have primary responsibility for completing the
       assessment except when the suspected abuse occurs in an out-of-
       home placement. Circumstances in which the department shall
       conduct an assessment when another state is involved include the
       following:
       175.35(1) Child resides in Iowa but incident occurred in another
       state. When the child who is the subject of a report of suspected
       abuse physically resides in Iowa but has allegedly been abused in
       another state, the worker shall do all of the following:
               a. Obtain available information from the reporter.
               b. Make an oral report to the office of the other state’s
       protective services agency and request assistance from the other
       state in completing the assessment.
               c. Complete the assessment with assistance, as available, of
       the other state.

2
  Because the founded notice of child abuse assessment does not involve “a child-
custody determination,” the provisions of the Uniform Child-Custody Jurisdiction and
Enforcement Act, Iowa Code chapter 598B are inapplicable.          See Iowa Code
§ 598B.102(3).
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Iowa Admin. Code r. 441-175.35(1). In the department’s view, because the child

lived in Iowa “at the time the allegations were reported to and investigated by the

Department,” the child was “properly subject to the Department’s investigative

powers.” The agency discounts the relevancy of the child’s residence at the time

of the claimed incident and states, in any event, “the record does not contain

evidence, and the ALJ did not find, that [the child] was a Philadelphia resident at

the time of the abuse.”

       To the contrary, the ALJ found “Stagg lived in Pennsylvania and had

custody of [the child]” at the time of the claimed incident of abuse. This finding is

supported by substantial evidence. See Iowa Code § 17A.19(10)(f) (setting forth

standard for review of agency fact findings); Grant v. Iowa Dep’t of Human

Servs., 722 N.W.2d 169, 173 (Iowa 2006) (“We are bound by the agency’s

findings of fact ‘if supported by substantial evidence in the record as a whole.’”).

First, Stagg introduced a portion of an Iowa district court custody order filed in

2011—long after the claimed incident of abuse—stating “the child’s custody has

never [previously] been considered by a court.”3 In the absence of a custody

order at the time of the claimed child abuse incident, Stagg exercised sole

custody of the child. See Iowa Code § 600B.40.4 Second, Stagg introduced


3
  The court also noted, “Neither party has challenged this court’s jurisdiction under the
Uniform Child Custody Jurisdiction Act (Iowa Code chapter 598B) to make this initial
determination as to [the child’s] custody.”
4
  This provision states in pertinent part:
        The mother of a child born out of wedlock whose paternity has not been
        acknowledged and who has not been adopted has sole custody of the
        child unless the court orders otherwise. If a judgment of paternity is
        entered, the father may petition for rights of visitation or custody in the
        same paternity action or in an equity proceeding separate from any action
        to establish paternity.
Iowa Code § 600B.40.
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medical notes from an Iowa provider who saw the child in 2010 and to whom the

father reported the claimed incident of abuse. The notes stated in pertinent part:

“[The child] previously had been in the custody of his mother but now lives in

Ames with . . . his father. [The child] told his father that when he was with his

mother, Marie Stagg, last October, that there was 1 episode” of abuse.

(Emphasis added). This evidence establishes the child was a legal resident of

Pennsylvania at the time of the claimed abuse incident.

       Because the child was a legal resident of another state at the time of the

claimed abuse, the mother who had sole custody of the child was a legal resident

of another state at the time of the claimed abuse, and the abuse was alleged to

have occurred in another state, we are convinced rule 441-175.35(1) did not vest

the department with jurisdiction to investigate the incident and issue a founded

child abuse report.   Application of the rule in this context would expand the

department’s jurisdiction to any report of abuse committed at any time in any

state as long as the child is in Iowa at the time a child abuse report is made.

Such a broad reading is an “irrational, illogical or wholly unjustifiable application

of law to fact that has clearly been vested by a provision of law in the discretion

of the agency” and is “[o]therwise unreasonable, arbitrary, capricious, or an

abuse of discretion.” See Iowa Code § 17A.19(10)(m), (n). The date the abuse

was reported cannot control under the particular circumstances of this case.

       Another portion of the department’s jurisdictional rule highlights the

problem with the State’s broad assertion of jurisdiction.       Rule 441-175.35(2)

provides:
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       175.35(2) Child resides in another state, but is present within Iowa.
       When the child who is the subject of a report of abuse is a legal
       resident of another state, but is present within Iowa, the worker
       receiving the report shall do all of the following:
       a. Act to ensure the safety of the child.
       b. Contact the child’s state of legal residency to coordinate the
       assessment of the report.
       c. Commence an assessment if the state of legal residency
       declines to conduct an investigation.

(Emphasis added.) Under the terms of this sub-rule, the Iowa department may

commence an assessment of a child who is a resident of another state only if the

other state declines to conduct an investigation.      Assuming for the sake of

argument that the child was present in Iowa but was a legal resident of

Pennsylvania at the time of the abuse, this provision would have foreclosed the

department from conducting an assessment. The Philadelphia department did

not “decline to conduct an investigation.” As the ALJ found, the Philadelphia

department initiated an assessment and closed the case only after completing

the assessment. This finding was supported by substantial evidence. See Iowa

Code §17A.19(10)(f). The Philadelphia department’s letter to Stagg, admitted as

an exhibit at the hearing, stated:

       As you know, I have been conducting an assessment regarding
       whether your family is in need of general protective services
       pursuant to a report we received at the Department. This letter is to
       advise you that my assessment has not found substantial evidence
       that your family is in need of general protective services as defined
       by the Child Protective Services Law and Regulations of the
       Commonwealth of Pennsylvania. We are therefore closing the
       case on your family.

Additionally, Iowa’s child protective worker confirmed that Pennsylvania’s case

closure was preceded by an investigation. She testified, “I did get a phone call at

a later date saying that somebody had gone out and talked with [Stagg], and that
                                         8


they did not find any evidence.” When Stagg asked the department worker why

she failed to consider the Philadelphia letter, the worker responded, “I did not get

a response while my assessment was open . . . . [M]y report had already been

closed, and since that information would not change the findings of my report, it

was—an addendum was not completed.”

      In short, under this sub-rule, the State would have been precluded from

initiating a child abuse investigation even if the child was present in Iowa at the

time of the claimed abuse. The fact the child was not in Iowa at the time of the

incident, as this sub-rule requires, makes the case against exercise of Iowa

jurisdiction even more compelling.

      We conclude the department lacked subject matter jurisdiction to

investigate the report of child abuse, issue a founded child abuse report, and

place Stagg on the child abuse registry where Stagg and the child were

Pennsylvania residents and the incident was alleged to have occurred more than

two years earlier within the territorial boundaries of Pennsylvania. Cf. Heartland

Express, Inc. v. Terry, 631 N.W.2d 260, 265 (Iowa 2001) (characterizing Iowa

Code section 85.71 as subject matter jurisdiction statute); TMC Transp. v.

Davidson, No. 04-1044, 2006 W.L. 334178, at *2 (Iowa Ct. App. 2006) (same).

As Stagg asserts, “the State of Iowa and IDHS have no authority, no control, no

command and no Jurisdiction of any accusations of Child Abuse that allegedly

occurred in Philadelphia, Pennsylvania involving residents of that State.”

      Our conclusion does not leave the child without protection.            It simply

recognizes the state where the child and legal custodian reside at the time of the
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claimed abuse and where the abuse allegedly occurred has a greater interest in

pursuing the matter.

       We reverse the district court’s ruling upholding the department’s founded

notice of child abuse assessment and remand with directions to remand to the

department for removal and expungement of the report and Stagg’s name and

identifying information from department records and from the child abuse

registry.

       REVERSED AND REMANDED WITH DIRECTIONS.
