In Re DG

704 N.W.2d 454, 2005 WL 1968443
CourtCourt of Appeals of Iowa
DecidedAugust 17, 2005
Docket05-0718
StatusPublished

This text of 704 N.W.2d 454 (In Re DG) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re DG, 704 N.W.2d 454, 2005 WL 1968443 (iowactapp 2005).

Opinion

704 N.W.2d 454 (2005)

In the Interest of D.G. and L.G., Minor Children,
K.G., Father, Appellant,
S.G., Mother, Appellant.

No. 05-0718.

Court of Appeals of Iowa.

August 17, 2005.

*456 Stephen Jackson of Jackson & Jackson, P.L.C., Cedar Rapids, for appellant-father.

Thomas O'Flaherty of O'Flaherty Law Firm, Swisher, for appellant-mother.

Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Harold Denton, County Attorney, and Rebecca Belcher, Assistant County Attorney, for appellee-State.

Charles Nadler of Nadler & Weston, Cedar Rapids, guardian ad litem for minor children.

Considered by VOGEL, P.J., and MAHAN and ZIMMER, JJ.

VOGEL, P.J.

Kenneth is the father and Sherry the mother of Daisy, born in February of 1990, and Lindsey, born in May of 1993. In November of 2000 Sherry voluntarily placed Daisy and Lindsey in foster care as she was homeless and Kenneth was incarcerated. In December of 2000 the juvenile court adjudicated Daisy and Lindsey children in need of assistance (CINA) as to Sherry, and with respect to Kenneth, in February 2001. In February of 2002, the juvenile court conducted a permanency hearing. Based on its findings and the parties' stipulation, the court changed the permanency goal from family reunification to long-term foster family care.

Daisy and Lindsey have remained in the foster home of Sandra since their removal and are doing well in her care. With the change in permanency goals, Daisy's and Lindsey's contact with their mother and father decreased to mainly visits on holidays and birthdays, all supervised. The girls have indicated that they do not desire greater contact with their parents and have further indicated that they want the visits to remain supervised.

In the fall of 2003, Daisy began indicating she wanted her parents' parental rights to be terminated. Lindsey joined in expressing this sentiment sometime later. The girls both wish to be adopted by Sandra, and Sandra has expressed a willingness to adopt the girls. In December of 2004, the State filed a petition for termination of the parental rights of both Kenneth and Sherry. Following a hearing on the petition, the juvenile court determined circumstances had materially and substantially changed so that modification of its prior dispositional order of long-term foster care was warranted. The juvenile court then terminated both parent's parental rights pursuant to Iowa Code section 232.116(1)(f) (2003)[1]. Kenneth and Sherry *457 each filed timely notices of appeal. Kenneth also filed a timely petition on appeal, while Sherry filed only a joinder.

I. Scope of Review.

We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the children. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).

II. Perfecting an Appeal.

Iowa Code section 232.133(1) provides: "An interested party aggrieved by an order or decree of the juvenile court may appeal from the court for review of questions of law or fact." Such appeals are then taken by complying with Iowa Rules of Appellate Procedure 6.5 and 6.6. See In re C.M., 652 N.W.2d 204, 208-209 (Iowa 2002) (describing the rules adopted by our supreme court for expediting appeals from final orders). In this case, Sherry filed a timely notice of appeal but rather than filing a petition on appeal, she filed a "joinder" in Kenneth's petition on appeal.[2]

Iowa Rule of Appellate Procedure 6.6(4) provides that in order to perfect an appeal from a juvenile court order terminating the parent-child relationship, an appellant must file with the supreme court a "petition on appeal in conformance with rule 6.151." Rule 6.6(4) then further states,

If, after the filing of a notice of appeal, no petition on appeal has been filed with the clerk of the supreme court within 15 days, the appeal is not perfected and shall be dismissed and the parties shall proceed as if no notice of appeal had been filed.

Iowa Rule of Appellate Procedure 6.151(2) requires that each petition on appeal shall include among other things, a statement of material facts, a statement of legal issues presented, and supporting legal authority. Sherry's joinder provides none of this information and she has not cited any authority that would exempt her from the requirements of the rule.

Nonetheless, we do note that rule 6.14(10) allows multiple appellants or appellees to join in one brief or to "adopt by reference any part of the brief of another." We believe this rule impliedly requires that the interests of the joining parties, as advanced on appeal, be the same, or if not, that the facts and issues applicable to each are separately stated in a joint appeal. Cf. Iowa Code § 814.3 (providing that when criminal defendants are tried jointly they may join in their appeal).

In assessing whether Sherry's interests are the same so that she may join in Kenneth's appeal, we first look for a common question of fact or law. See generally Iowa Rule of Civil Procedure 1.232 (stating, "Any number of persons. . . may join as plaintiffs in a single action, when it presents or involves any question of law or fact common to all of them."). The likelihood of such commonality largely depends *458 on whether both parents are arguing a legal position that does not depend on facts unique to either of them. For example, we could contemplate such a scenario if both parents were asserting a constitutional violation of a Code section or rule. See e.g., In re L.M., 654 N.W.2d 502, 505-506 (Iowa 2002) (determining rules reducing time for filing a notice of appeal in termination of parental rights cases, as compared to the time allowed in other types of appeals, did not violate a mother's equal protection rights); see also In re A.E., 572 N.W.2d 579, 581 (Iowa 1997) (allowing a mother to join in an Indian tribe's appeal of an order denying the tribe's motion to transfer juvenile proceedings to a tribal court pursuant to the Indian Child Welfare Act (ICWA), and further allowing the State to join in the brief of the guardian ad litem defending the order denying the tribe's motion to transfer the proceedings). We now examine the issues advanced by Kenneth in this case in order to determine whether such commonality exists.

A. Joinder on Issue I: Change of Circumstances

Kenneth first asserts that his parental rights should not have been terminated because the State failed to adequately justify the modification of the case permanency goal from long-term foster care to termination of parental rights. In support of this proposition, Kenneth does not assert any facts or law specific to himself, but instead asserts only arguments that are responsive to the juvenile court's determination that there had been a material and substantial change of circumstances.

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In the Interest of D.G.
704 N.W.2d 454 (Court of Appeals of Iowa, 2005)

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Bluebook (online)
704 N.W.2d 454, 2005 WL 1968443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dg-iowactapp-2005.