In the Interest of T.B., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 18-1509
Filed October 24, 2018

IN THE INTEREST OF T.B.,
Minor Child,

M.U., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Washington County, Daniel P.

Kitchen, District Associate Judge.

A mother appeals the district court order placing custody of her child with

her biological father. AFFIRMED.

John G. Daufeldt of Daufeldt Law Firm, PLC, Conroy, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Kathryn J. Salazar of Schlegel & Salazar, LLP, Washington, guardian ad

litem for minor child.

Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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POTTERFIELD, Presiding Judge.

The mother appeals the dispositional review order placing T.B. in the care

and custody of her biological father. The mother argues the district court did not

have jurisdiction to modify the disposition while an appeal contesting T.B.’s

removal was pending.

I. Background Facts and Proceedings.

T.B. was adjudicated a child in need of assistance (CINA) in January 2017.

The facts of the underlying CINA case are recounted in In re T.B., No. 18-0767,

2018 WL 4929737, at* 1–3 (Iowa Ct. App. Oct. 10, 2018). T.B. and sibling M.M.1

were removed from their mother’s care in March 2018 after the Iowa Department

of Human Services (DHS) filed an application for emergency removal. In April, the

district court modified the dispositional order, continuing T.B.’s placement outside

the home and transferring custody of T.B. to DHS. The mother appealed the

modification of the dispositional order. We affirmed the decision of the district court

in a decision filed on October 10. During the pendency of the appeal, on August

20, the district court granted the father custody of T.B. Prior to the modification in

custody, the father had been exercising “unlimited” parenting time and overnight

visitations with T.B.

The mother appeals the order placing T.B. in her father’s custody, arguing

the district court lacked jurisdiction to modify the disposition while the appeal was

pending.

1
Custody of M.M. remains with DHS. The child has a different biological father.
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II. Standard of Review.

We review CINA proceedings de novo. In re J.S., 846 N.W.2d 36, 40 (Iowa

2014).

III. Discussion.

“The general rule is that the trial court loses jurisdiction over the merits of

the controversy when an appeal is perfected.” In re B.L., 470 N.W.2d 343, 347

(Iowa 1991). However, a trial court can “retain jurisdiction to proceed on collateral

issues not affecting the subject matter of the appeal.” Id. The Iowa Code provides

additional insight into the matter:

The pendency of an appeal or application therefor shall not
suspend the order of the juvenile court regarding a child and shall
not discharge the child from the custody of the court or the agency,
association, facility, institution or person to whom the court has
transferred legal custody unless the appellate court otherwise orders
on application of an appellant.

Iowa Code § 232.133(3) (2018).

In In re B.L., the court held, “[M]atters that are not directly involved in the

appeal may be dealt with by the juvenile court during the appeal process.” 470

N.W.2d at 347. In that case, the juvenile court retained jurisdiction to request

status reports and an in-court review while the mother appealed whether the child

could be placed with the father under section 232.101. Id.

In In re E.H., No. 02-1558, 2003 WL 21458967, at *1 (Iowa Ct. App. June

25, 2003), a father appealed the adjudication of his children as CINA, arguing there

was insufficient evidence. While the appeal was pending, he filed a motion to

reopen the juvenile court record to contest testimony given at the adjudicatory

hearing. Id. Our court held the district court did not retain jurisdiction over the
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issue of whether certain evidence should have been allowed in the adjudicatory

hearing because it was the same matter directly involved in the appeal: the

sufficiency of the evidence for adjudication. Id.; see also In re M.M.T., No. 12-

0519, 2015 WL 1612564, at *4 (Iowa Ct. App. May 9, 2012) (holding the juvenile

court lost jurisdiction over a father’s motion for a new termination hearing once the

father appealed the termination order).

Here, the mother’s pending issue on appeal was whether her children

should have been removed from her care and custody. She argued the State failed

to prove by substantial evidence that imminent risk, which warranted emergency

removal of the children from her care, existed and did not prove a material and

substantial change in circumstances warranting a change in disposition. During

the pendency of the appeal, the district court decided the collateral issue of to

whom custody of T.B. would be transferred. See In re M.B., No. 02-1229, 2002

WL 31315582, at *2 (Iowa Ct. App. Oct. 16, 2002) (holding the district court

retained jurisdiction over a second termination petition while an initial termination

petition was pending on appeal when the “merits, issues, and factual bases of the

first and second termination petitions were distinct”).

We hold the district court retained jurisdiction to determine where T.B. would

be placed during the mother’s appeal regarding whether T.B. should have been

removed.

AFFIRMED.