CourtListener 10128792•In the Interest of G.B., Minor Child
Texto completo
IN THE COURT OF APPEALS OF IOWA
No. 24-1193
Filed October 2, 2024
IN THE INTEREST OF G.B.,
Minor Child,
E.V., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Cynthia S. Finley,
Judge.
A mother appeals the termination of her parental rights, arguing her misfiled
notice of appeal does not deprive this court of jurisdiction and challenging whether
a statutory exception under Iowa Code section 232.116(3) should have precluded
termination. AFFIRMED.
Alexander S. Momany of Howes Law Firm, PC, Cedar Rapids, for appellant
mother.
Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney
General, for appellee State.
Julie F. Trachta of Linn County Advocate, Inc., Cedar Rapids, attorney and
guardian ad litem for minor child.
Considered by Schumacher, P.J., and Buller and Langholz, JJ.
2
LANGHOLZ, Judge.
A mother’s parental rights to her two children—a daughter and a son—were
terminated based on ongoing substance use. While the mother at first engaged in
services, she ultimately consented to terminating her rights to her son and
retreated from further testing or treatment. The State then moved to terminate the
mother’s rights to her daughter under Iowa Code section 232.116(1)(g) (2024).
The juvenile court agreed, finding the mother was unwilling or unable to participate
in further treatment and another period of rehabilitation would be futile. And
because termination served the daughter’s best interest and no statutory exception
was appropriate, the court terminated the mother’s parental rights.
The mother then tried to appeal but filed her notice of appeal in the wrong
case. After our supreme court raised the error, the mother acted quickly—filing a
late notice of appeal in the correct case and still filing her petition on appeal within
fifteen days from the errant notice of appeal. The State responded within its fifteen-
day deadline, and the appeal was ultimately submitted for our consideration no
later than it would have been had the mother’s notice of appeal been timely filed.
To start, we agree with the parties that we have appellate jurisdiction. This
is a permissible delayed appeal because the mother intended to timely appeal, she
was blameless for her counsel’s filing misstep, and the delayed notice of appeal
did not delay the rest of the appellate process at all. But on the merits, we disagree
with the mother’s sole argument that the juvenile court should have applied a
statutory exception to termination because the daughter remained in her father’s
custody. The mother’s persistent substance use poses a danger to the daughter,
and the daughter is best served by permanency in her home. So we affirm.
3
I. Factual Background and Proceedings
Two children—an eight-year-old daughter and a three-year-old son—came
to the attention of the department of health and human services (“HHS”) in the
summer of 2023 after their mother tested positive for methamphetamine. The
daughter was in her father’s physical care and had only sporadic visitation with the
mother. The son, however, was from another relationship and was in the mother’s
care. He also tested positive for methamphetamine. Both children were
adjudicated as children in need of assistance (“CINA”) in August, resulting in the
mother losing visitation with the daughter and HHS taking custody of the son.
While the CINA proceedings were pending, the mother struggled to remain
sober. After completing treatment in December 2023, she relapsed about a week
later. And she tested positive for methamphetamine again in late January 2024.
In February, the mother consented to terminating her parental rights to her
son. As a result, the State moved to waive reasonable efforts to reunify the mother
with the daughter. See generally Iowa Code § 232.57(2)(c) (authorizing courts to
waive reasonable-efforts requirement in “aggravated circumstances,” including
when a “parent’s parental rights have been terminated under section 232.116 with
respect to another child who is a member of the same family, and there is clear
and convincing evidence to show that the offer or receipt of services would not be
likely within a reasonable period of time to correct the conditions which led to the
child’s removal”). The court granted the request, noting the mother “has not been
able to demonstrate any extended period of sobriety” and thus it was “unlikely that
the provision of additional services over additional time will alter the outcome.”
4
Five days later, the State moved to terminate the mother’s parental rights
to her daughter. The guardian ad litem supported termination, opining the
daughter “is very bonded with her father,” “does not want to have visits with her
mother,” and “does not feel any closeness or other indications of a bond with her
mother.” Indeed, the mother seldom exercised her visitation rights and never
cared for the daughter for extended time periods, and the daughter does not call
her “mom.” The mother also stopped participating in drug testing and could show
no meaningful span of sobriety. So the guardian ad litem felt any contact with the
mother would be unsafe for the daughter.
After a one-day hearing, the juvenile court terminated the mother’s parental
rights on July 9. The court found the mother had “made little to no progress toward
reunification since the case began. She continued to test positive for
methamphetamine and then stopped testing altogether.” Indeed, the mother “was
in substantially the same, or even worse, position as she was in at the onset of the
case.” Because the daughter had been adjudicated as in need of assistance, the
mother’s rights to her son were previously terminated, the mother was unwilling or
unable to participate in corrective services, and another period of rehabilitation
would be futile, the State carried its burden to terminate the mother’s rights under
Iowa Code section 232.116(1)(g). And the court further found termination best
served the daughter and no statutory exceptions were appropriate.
Fifteen days later, the mother filed a notice of appeal stating she was
appealing “from the Order re: Termination of the Parent/Child Relationship entered
on July 9, 2024.” But she mistakenly filed her notice in the CINA action and with
the CINA case number rather than in the termination action with the termination
5
case number.1 See Iowa R. App. P. 6.101(1)(a) (requiring notice of appeal to be
“filed in the district court and an informational copy with the supreme court”). Still,
the appeal started down the tracks—the appellate proceeding was docketed,
transcript was ordered, and the attorney general appeared to represent the State.
Our supreme court noticed the filing error and asked the mother to address
whether the error deprived the appellate courts of jurisdiction. The mother acted
quickly—fifteen days after her errant notice of appeal, she filed a corrected notice
of appeal in the termination case and her petition on appeal in the appellate case.
So while her notice of appeal was technically fifteen days late, her petition on
appeal was functionally filed on time. And the State filed its response fifteen days
later. The same day, the supreme court ordered the jurisdictional issue to be
considered with the appeal. The next business day, the mother’s appeal was
transferred to our court and submitted for our consideration without oral argument.
II. Appellate Jurisdiction: Delayed Appeal
We must first consider our jurisdiction over this appeal. Parents appealing
from an order terminating their parental rights must file a notice of appeal “in the
district court and an informational copy with the supreme court within 15 days after
the filing of the order or judgment.” Iowa R. App. P. 6.101(1)(a); see also Iowa
Code § 602.7101(1) (providing that “[t]he juvenile court is within the district court.”).
1 The mother’s counsel explained that he made this error because the juvenile
court’s termination order, while filed in the correct case, listed the CINA case
number in the caption rather than the termination case number and referred to the
CINA case by the termination case number in the text of the order. In its response
to the petition on appeal, the State notes a nunc pro tunc order by the district court
may be appropriate to address this caption issue. We take no position on the
propriety of such an order and do not foreclose either party from seeking that relief
in the district court.
6
Failure to comply generally deprives appellate courts of jurisdiction over the
appeal. See In re W.M., 957 N.W.2d 305, 316 (Iowa 2021). This expedited
timeline reflects our state’s policy to achieve permanency and forestall children
languishing “in a state of limbo while the wheels of justice grind through the appeal
process.” In re A.B., 957 N.W.2d 280, 291 (Iowa 2021). At the same time, parents
have constitutionally protected liberty interests in “the care, custody, and control”
of their children. Id. (cleaned up). So we apply our appellate procedures with
these constitutional protections and the unique termination-of-parental-rights
context in mind.
The tension between strictly enforcing expedited deadlines and a parent’s
right to appellate recourse is perhaps most pronounced when “an attorney fails to
timely file the notice of appeal or timely complete the petition on appeal.” Id. at 292.
There, dismissing the errant appeal forecloses a parent’s ability to obtain relief
and, unlike our criminal system, there is no equivalent to postconviction relief for
parents whose rights were wrongly terminated. Id. To resolve this constitutional
tension, our supreme court has authorized a narrow path for parents to pursue
delayed appeals. Id.
Delayed appeals from orders terminating parental rights are permitted only
when a “parent clearly intended to appeal and the failure to timely perfect the
appeal was outside of the parent’s control.” Id. And the resulting delay from an
untimely appeal must be “no more than negligible” to prevent defeating the core
purpose of the expedited deadlines. Id. at 292; see also In re W.T., 967 N.W.2d
315, 319 (Iowa 2021) (explaining the negligible-delay requirement protects “the
strong countervailing interests” of permanency and finality in termination cases).
7
Here, the mother’s notice of appeal was filed in the termination action fifteen
days late. But the peculiar record here convinces us that the mother intended to
appeal and is blameless for the filing error. Indeed, the mother’s counsel filed the
notice of appeal unequivocally stating the intent to appeal the termination order
and including the mother’s signature within the fifteen-day deadline—just in the
wrong case. See W.T., 967 N.W.2d at 319–21 (explaining “there is no need to
show extenuating circumstances to support a delayed appeal when the attorney is
at fault for filing a late notice of appeal” because “the reason counsel failed to file
a timely notice of appeal is irrelevant to our reasoning in allowing the appeal to go
forward”). So the first two elements are satisfied and we next consider whether
the error impermissibly delayed the appellate process. See W.M., 957 N.W.2d
at 316.
Under our expedited scheme, a termination appeal progresses in three,
fifteen-day stages. First, a parent has fifteen days to file a notice of appeal. Iowa
R. App. P. 6.101(1)(a). Second, the parent’s petition on appeal is due fifteen days
after the notice of appeal is filed. Iowa R. App. P. 6.201(1)(b). And third, the
State’s response, if any, is due fifteen days after the petition is filed. Iowa R. App.
P. 6.202(2). We thus expect a parent’s appeal to be ready for appellate review no
later than forty-five days after the juvenile court’s termination order.
The mother started this appeal on July 24 by erroneously filing the notice of
appeal in the CINA action. But the mother still filed her petition on appeal fifteen
days later, on August 8—the same day she filed the late notice of appeal in the
termination action and the same day the petition would have been due if the notice
had been timely filed in the correct case. The State responded to the petition
8
fifteen days later, on August 23—no later than it would have been required with a
timely notice. Our supreme court raised the jurisdictional issue sua sponte while
this process was ongoing and without slowing it down. And the same day that the
State filed its response to the petition—a Friday—the supreme court ordered the
jurisdictional issue be submitted with the appeal. The following Monday, the
appeal was transferred to our court and immediately submitted to this panel for our
consideration without oral argument.
Reviewing this timeline, the mother’s delayed notice of appeal did not
prolong the appellate process. See W.M., 957 N.W.2d at 316–17 (finding no delay
in the appellate process from an untimely notice when the petition on appeal was
still filed fifteen days from when the notice should have been filed). Indeed, despite
the mother’s filing error, the appellate train kept moving down its express track
without a single day’s delay. So even with the extra jurisdictional statement, the
mother’s case was ready for consideration by our court forty-five days after the
juvenile court’s order. And so, under the governing precedents particular to
parental-rights appeals, we have jurisdiction to proceed to the merits. See id.
III. Exceptions to Termination under Iowa Code section 232.116(3)
Terminating parental rights follows a three-step process. In re L.B., 970
N.W.2d 311, 313 (Iowa 2022). The State must first prove that a statutory ground
for termination exists. Id. Next, the State must show that termination is in the
child’s best interest. Id. And third, the parent bears the burden to show whether
a permissive exception should preclude termination. Id. We review each of these
steps de novo, giving appropriate weight to the juvenile court’s preferred fact-
finding position. A.B., 957 N.W.2d at 293.
9
The mother only challenges the third step—whether the court should have
applied a statutory exception to deny termination. We thus do not disturb the
court’s conclusions that the State carried its burden to show clear and convincing
evidence that the mother’s parental rights should be terminated under Iowa Code
section 232.116(1)(g) and that termination is in the daughter’s best interest.
The mother argues the court should have forgone termination because “[a]
relative has legal custody” of the daughter. Iowa Code § 232.116(3)(a). This
exception is permissive, so even if a family member has custody, a court may still
order termination when doing so would serve the child’s best interest. In re A.S.,
906 N.W.2d 467, 476–77 (Iowa 2018). And we agree with the juvenile court that
although the daughter remains in her father’s custody, termination is appropriate.
The daughter has endured significant instability with the mother—multiple
CINA actions, continued substance use, and sporadic visitations. In light of the
mother’s retreat from services leading up to the termination hearing, we see no
benefit to the daughter to delaying permanency in the hopes that the mother will
one day make progress toward sobriety. See In re A.M., 843 N.W.2d 100, 112
(Iowa 2014). Indeed, the “defining elements” of our best-interest inquiry is the
daughter’s safety and “her need for a permanent home.” In re J.E., 723
N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring). Both of these elements are
present here—the mother’s substance use poses a danger to her daughter and
the daughter deserves to be settled in her home after years of instability. Thus,
the juvenile court appropriately declined to apply the permissive exception under
section 232.116(3)(a), and we affirm the termination of the mother’s parental rights.
AFFIRMED.
Continue sua pesquisa no ChatGPT ou Claude
Conecte o Omnilex para pesquisar o corpus jurídico pelo seu assistente de IA.