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In re S.S.

Court of Appeal of Iowa

November 6, 2013

IN THE INTEREST OF S.S., Minor Child, K.S., Father, Appellant.

Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.

K.S. appeals the district court's dismissal of his petition to vacate the 2008 order terminating his parental rights.

David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles City, for appellant father.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Steven J. Halbach, Assistant County Attorney, for appellee State.

Considered by Vogel, P.J., and Tabor and Mullins, JJ.

PER CURIAM.

A father, K.S., appeals the district court's dismissal of his pro se petition to vacate the juvenile court's 2008 order terminating his parental rights to his child. K.S. claims he has a right to a hearing on the merits of his petition, because, on appeal, he characterizes his petition as asserting fraud. We agree with the district court K.S. failed to show a basis on which relief could be granted, and therefore we affirm.

On October 23, 2008, K.S.'s parental rights were terminated to his child. He did not appeal the final decision. He nonetheless continued to file various motions with the supreme court. By order dated February 19, 2009, the supreme court notified K.S. that he had exhausted all opportunities under the Iowa Rules of Appellate Procedure to contest the termination, and that it would not consider any further motions on the matter.

On July 12, 2012, four years after the termination order, K.S. filed a pro se petition with the district court requesting the order terminating his parental rights be vacated. The substantive portions of the petition stated:

One of the supportive factors used in the petition for terminating my parental rights was that I would not be released from prison within five years, which has turned out to be false.
Other supporting factors used in the petition for terminating my parental rights were maliciously misstated; and because of the sole fact that I was in prison, I was unable to present my evidence that would have proven the allegations used in the petition was grossly false.
Newly discovered evidence has been gathered to support all the above. [exhibits are not attached]

The district court, sua sponte, denied the petition, stating K.S.'s "parental rights were terminated in 2009 with the final Procedendo being received by this court on June 9, 2009. The relief sought in [K.S.'s] petition is unavailable, and the court will consider no more filings by [K.S.] in these proceedings." K.S. appeals, claiming he has a right to a hearing on the merits of his petition, because he now characterizes his petition as asserting fraud.

We review a ruling on a dismissal of a petition for correction of errors at law. Mueller v. Wellmark, Inc., 818 N.W.2d 244, 253 (Iowa 2012). A dismissal may be granted when the allegations in the petition, taken as true, fail to state a claim upon which relief may be granted. Id. Further, when alleging fraud, the petitioner must plead ...


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