In Re TR

705 N.W.2d 6, 2005 WL 2585245
CourtSupreme Court of Iowa
DecidedOctober 14, 2005
Docket05-0178
StatusPublished

This text of 705 N.W.2d 6 (In Re TR) is published on Counsel Stack Legal Research, covering Supreme Court 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 TR, 705 N.W.2d 6, 2005 WL 2585245 (iowa 2005).

Opinion

705 N.W.2d 6 (2005)

In the Interest of T.R., Minor Child,
L.R., Mother, Appellant.

No. 05-0178.

Supreme Court of Iowa.

October 14, 2005.

*7 E.H. Philiph, Sibley, for appellant mother.

Joseph M. Feller of Koopman, Kennedy & Feller, Sibley, for appellants maternal grandparents.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Robert E. Hansen, County Attorney, for appellee State.

Roger D. Bindner of Klay, Veldhuizen, Bindner, De Jong & Jacobsma P.L.C., Orange City, for appellees paternal grand-parents.

Shannon Sandy, Spirit Lake, for minor child.

LAVORATO, Chief Justice.

Mother appeals a child-in-need-of-assistance permanency order that changed custody and directed the county attorney to file a petition to terminate the mother's parental rights. The State moved to dismiss the appeal, alleging that the underlying order was not a final appealable order and grounds for permitting an interlocutory appeal had not been proven. Because we agree with the State, we grant its motion to dismiss the appeal.

I. Background Facts.

T.R., the subject of this appeal, was born October 1, 1995. His mother, Laura, is thirty-six years old. His father, David, is deceased. David and Laura separated, David filed for divorce, and he died before the divorce was final.

David had become concerned about Laura's ability to care for T.R. For example, when T.R. was two, David came home from work and found Laura asleep on the couch during which time T.R. had disassembled an electrical circuit. In addition, Laura had mental health and substance abuse problems that interfered with her care of T.R. Because of his concern for T.R.'s safety and health, David quit his *8 overnight trucking job, got a day job, took T.R. to daycare during the day, and was home with T.R. at night. David assumed more and more care of T.R.

When David filed for divorce, the court awarded him temporary custody of T.R. During the divorce proceedings, Laura lived with her parents, the Franks.

In October 1999, David was diagnosed with leukemia. For approximately a year before David died in October 2000, T.R. lived with David and David's parents, the Roetzels. Following David's funeral, T.R.—at the Franks' request—lived with them and their daughter, Laura.

II. Proceedings.

On October 28, 2002, the State filed a petition alleging that T.R. was a child in need of assistance. The petition alleged that T.R.

has suffered or is imminently likely to suffer harmful effects as a result of:
Failure of the child's parent, guardian, custodian, or other member of the household in which the child resides to exercise a reasonable degree of care in supervising the child. [Iowa Code §] 232.2(6)(c)(2).
[A] parent's or guardian's mental capacity or condition, imprisonment, or drug or alcohol abuse [that] results in the child not receiving adequate care. [Iowa Code §] 232.2(6)(n).

In November 2002, following an uncontested adjudicatory hearing, the court adjudicated T.R. a child in need of assistance upon the grounds alleged in the petition. The court allowed custody of T.R. to remain with Laura subject to protective supervision by the Iowa Department of Human Services (DHS). The court ordered Laura to complete a substance abuse evaluation and follow all recommendations made as a result of the evaluation.

In March 2003, following an uncontested dispositional hearing, the court found that "reasonable efforts have been made to prevent the need for an out-of-home placement [of T.R.] through substance abuse services for Laura, but despite such services, it is contrary to the welfare of [T.R.] to return to his mother's care" until substance abuse and related issues have been resolved. The court placed temporary custody of T.R. jointly with the maternal and paternal grandparents with physical custody to be with the maternal grandparents subject to protective supervision by DHS.

In September 2003, following a review hearing, the court maintained temporary custody with the maternal and paternal grandparents with physical custody to be with the maternal grandparents subject to protective supervision by DHS.

In March 2004, Laura was dismissed from services because of her refusal to participate. Laura had kept only thirty percent of appointments with in-home services.

In January 2005, following a contested review and permanency hearing, the court entered a permanency order. See generally Iowa Code § 232.104 (2003). The court concluded that T.R. should remain adjudicated a child in need of assistance, transferred physical custody to the paternal grandparents, ordered liberal visitation between T.R. and his maternal grandparents, and supervised visitation between T.R. and his mother at the discretion of DHS. Finally, pursuant to Iowa Code section 232.104(2)(c), the court directed the county attorney to institute proceedings to terminate Laura's parental rights.

Laura appealed. The State moved to dismiss her appeal, contending that a permanency order directing termination proceedings is interlocutory and that such interlocutory *9 appeals are rarely granted. Laura resisted the motion. She maintains that the permanency order from which she appealed is a final order because the order "substantially affect[s] the child's situation." In the alternative, Laura requests that her appeal be treated as an application for interlocutory appeal pursuant to Iowa Rule of Appellate Procedure 6.2. See Iowa R.App. P. 6.1(4).

In a single-justice order, this court directed that the motion to dismiss be submitted with the appeal. See id. r. 6.22(6) (authority of a single justice to entertain motions). The order stayed the termination proceedings pending the outcome of the appeal.

The State moved for the court to vacate the single-justice order and to grant the State's motion to dismiss. See id. (allowing party to seek review of action of a single justice). The court entered an order confirming the single-justice order.

Later, the paternal grandparents and T.R.'s guardian ad litem and attorney filed a joinder with the State's brief. The maternal grandparents filed a joinder with Laura's brief.

III. Issues.

The first issue we must address is whether the State's motion to dismiss should be granted. In the event we do not grant the motion to dismiss, Laura raises two substantive issues: whether it was in T.R.'s best interest to (1) change physical custody from the maternal grandparents to the paternal grandparents and (2) direct the county attorney to commence termination of parental rights proceedings rather than allow guardianship with either set of grandparents. Because we think the State's motion to dismiss should be granted, we restrict our discussion to that issue.

IV. Motion to Dismiss.

The State filed a motion to dismiss Laura's appeal, asserting the appeal was not from a final judgment and that criteria permitting an interlocutory appeal were not satisfied. Laura's appeal challenges two aspects of the permanency order: the order changing physical custody of T.R. and the order directing the county attorney to initiate termination of parental rights when guardianship could be pursued.

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Cite This Page — Counsel Stack

Bluebook (online)
705 N.W.2d 6, 2005 WL 2585245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tr-iowa-2005.