IN THE INTEREST OF A.P., Minor Child, G.D. and L.D., Appellants-Intervenors.
from the Iowa District Court for Polk County, Louise M.
Jacobs, District Associate Judge.
appeal from the juvenile court's order denying a motion
to modify placement. ORDERS AFFIRMED IN PART AND VACATED IN
J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines,
J. Miller, Attorney General, and Anagha Dixit, Assistant
Attorney General, for appellee State.
M. Vogan of Youth Law Center, Des Moines, guardian ad litem
for minor child.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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.
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.
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.
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.
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.
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 ...