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In the Interest of W.W.

December 12, 2012

IN THE INTEREST OF W.W., J.W., AND E.W., MINOR CHILDREN, S.W., FATHER, APPELLANT.


Appeal from the Iowa District Court for Polk County, Arthur Gamble, Judge.

The opinion of the court was delivered by: Vaitheswaran, J.

A father appeals a district court order dismissing his petition to terminate his ex-wife's parental rights; he also challenges an attorney fee award in his ex-wife's favor. REVERSED AND REMANDED.

Heard by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ.

Scott Whisler appeals a district court order dismissing his petition to terminate his ex-wife's parental rights.

I. Background Facts and Proceedings

Scott and Dena Whisler married and had three children. They lived in Texas for several years and, in 2005, obtained a divorce decree from a Texas court. The court designated Scott the "sole managing conservator" of the children and Dena the "possessory conservator." The court required supervision of Dena's visits with the children, reasoning as follows:

The Court finds that credible evidence has been presented that Dena Darlene Whisler has a history or pattern of child neglect directed against the children. . . . It is therefore ordered that visitation shall be under the supervision of a visitation supervising service chosen by Scott Allen Whisler. Dena Darlene Whisler shall be responsible for contacting the supervising service and shall pay all costs of such service. Dena Darlene Whisler is further ordered to take random drug tests at Scott Allen Whisler's request. Dena Darlene Whisler shall be responsible for the payment of such drug testing. Once she has tested clean on 3 tests in a row she will only pay for drug tests she fails, and Scott Allen Whisler shall pay for all others.

Finally, the court permanently enjoined Dena and "her agents, servants, employees, and attorneys" from "[c]ommunicating in person, by telephone, or in writing with Scott" and required any contact with him to take place through "a designated intermediary such as Iowa Child Protective Services."

Meanwhile, Scott moved to Iowa, as did Dena. Dena did not visit the children for six months preceding the entry of the 2005 Texas decree or at any time thereafter.

In 2007, Dena obtained an order modifying the Texas divorce decree to designate three Iowa organizations as visitation supervisors. The modification order required the parents to "cooperate with the scheduling of the supervised access and making the children available for same." Scott provided the three organizations with his contact information but was never approached by them to facilitate visits.

More years elapsed with no contact between Dena and her children. In 2011, Scott filed a petition to terminate her parental rights, alleging in part that Dena abandoned the children. See Iowa Code § 600A.8(3) (2011). The district court found Dena to be indigent and appointed her an attorney. Following trial, the district court rejected the allegation of abandonment and dismissed Scott's petition. Pursuant to statute, the court ordered Scott to pay Dena's trial attorney fees. The court also ordered the parents and guardian ad litem to submit a parenting plan to facilitate visitation.

Scott moved to amend the district court's findings and conclusions. He asserted in part that the court had no authority to impose a parenting plan. The district court agreed and struck that portion of its order. The court later ordered Scott to pay Dena's trial attorney fees. Scott appeals.

II. Timeliness of Appeal

Scott did not file his notice of appeal within thirty days of the district court's original order dismissing his termination petition, but he did file it within thirty days of the court's ruling on his motion to reconsider. See Iowa R. App. P. 6.101(1)(b) (requiring notice of appeal to be filed within thirty days from the time that the order, judgment, or decree is entered but stating rule 1.904(2) motion for enlarged findings and conclusions delays deadline to file notice of appeal until thirty days after the entry of a ruling on that motion). Dena asserts that Scott could not avail himself of this delayed time frame because, in her view, the motion to reconsider was not a true 1.904(2) motion for enlarged findings and ...


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