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In re A.P.

Court of Appeals of Iowa

June 6, 2018

IN THE INTEREST OF A.P., Minor Child, G.D. and L.D., Appellants-Intervenors.

          Appeal from the Iowa District Court for Polk County, Louise M. Jacobs, District Associate Judge.

         Intervenors appeal from the juvenile court's order denying a motion to modify placement. ORDERS AFFIRMED IN PART AND VACATED IN PART.

          Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, for appellants.

          Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney General, for appellee State.

          Lynn M. Vogan of Youth Law Center, Des Moines, guardian ad litem for minor child.

          Considered by Danilson, C.J., and Mullins and McDonald, JJ.

          MCDONALD, Judge.

         This appeal arises out of a proceeding to terminate parental rights initiated pursuant to Iowa Code chapter 232 (2017). The juvenile court terminated the father's parental rights in his child, A.P. (born 2016), transferred guardianship of the child to the Iowa Department of Human Services (IDHS), and directed IDHS to place the child in the care of a specific foster family. Neither the father nor the mother (now deceased) appeal. Instead, intervenors Greg and Lisa appeal from the juvenile court's order denying their motion to modify placement and have A.P. placed with them. On appeal, they contend, among other things, the juvenile court lacked the authority to direct placement of the child contrary to IDHS's expressed preference.

         IDHS has been involved with this family since the birth of the child. The underlying facts and circumstances giving rise to removal and termination of the father's parental rights are largely immaterial to the intervenors' appeal. In short, the child was born with the presence of methamphetamine and oxycodone in her system and has special medical needs caused by her exposure to drugs in utero. IDHS removed her from the family shortly after birth. The mother was addicted to drugs and deceased during the pendency of the case. The father was in prison at the time of the child's birth. Upon his release, the father engaged in services for a fleeting moment before absconding to avoid arrest on a new warrant. Greg, the father's stepbrother, and Greg's wife, Lisa, became involved in A.P.'s life after this case was initiated but prior to the termination of the father's parental rights. Greg and Lisa exercised weekly visitation with A.P., attended her medical appointments, and advocated for changes to improve her health.

          Greg and Lisa filed a motion to intervene and modify placement of the child on September 5, 2017. The juvenile court granted the motion to intervene. The juvenile court held a bifurcated hearing on termination of the father's parental rights and placement of the child on October 20 and 26. At the placement hearing, a caseworker from IDHS stated the department was advocating for placement of the child with Greg and Lisa. An order terminating the father's parental rights was issued on November 30, 2017. The order transferred guardianship of A.P. to IDHS but did not make a determination on placement. A subsequent order concluded:

the child shall remain in the care of the foster parents and the interveners request for placement of the child in their care is denied . . . It is further ordered that [the] court will retain oversight over issues regarding the placement of [A.P.] and any change in placement must be brought to the attention of the court before made.

         Greg and Lisa filed a motion to reconsider, which was denied on January 24, 2018. At that time, the juvenile court dismissed Greg and Lisa as intervenors.

         Prior to addressing the merits of the appeal, we first address our jurisdiction over the appeal. Here, the final order terminating the father's parental rights was entered on November 30, 2017. See In re W.D., III, 562 N.W.2d 183, 186 (Iowa 1997) (noting the termination order was a final order). No appeal was taken from that order. The orders at issue in this appeal are subsequent orders regarding guardianship and custody post-termination. Although a final, appealable order was already issued with respect to the termination decision, our case law provides a right to appeal from these subsequent orders as well. See In re B.B.M., 514 N.W.2d 425, 427 (Iowa 1994) (resolving appeal from guardianship and custody proceedings post-termination); In re C.L.C., 479 N.W.2d 340, 344-45 (Iowa Ct. App. 1991) ("[The intervenors] never desired to intervene on the issue of whether to terminate the parental rights of the children's natural parents. Rather, they seek to be heard on the issue of guardianship and custody of the child[]. The fact that temporary placement of the child should be done as near as contemporaneously as possible to the time in which the parental rights are terminated does not transform a proceeding to terminate parental rights into a final judgment on the matter of guardianship and custody."). Because Greg and Lisa "only desire to be heard on the issue of guardianship and custody, a matter over which the court still has jurisdiction, " their appeal is proper. See B.B.M., 514 N.W.2d at 427; see also Iowa Code § 232.118(1) ("[T]he court having jurisdiction of the child may, after notice to the parties and a hearing, remove a court-appointed guardian and appoint a guardian."). We proceed to the merits.

         Greg and Lisa contend the juvenile court was without the authority to appoint IDHS guardian of the child at issue and direct the placement of the child to a particular foster family rather than with Greg and Lisa. The guardian ad litem argues Greg and Lisa lack standing to challenge the juvenile court's order. We disagree. This court has recognized "that persons qualifying as suitable persons at the time of the court's determination under sections 232.117(3) . . . have a legal right to be considered as guardians and custodians of children following the termination of the parental rights." See C.L.C., 479 N.W.2d at 343. Here, Greg is the father's step-brother. The juvenile court granted Greg and Lisa's motion to intervene and ...


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