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In re J.B.

Court of Appeals of Iowa

September 12, 2018

IN THE INTEREST OF J.B. and O.B., Minor Children, B.S., Mother, Appellant, M.B., Father, Appellant.

          Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.

         A mother and a father separately appeal the termination of their parental rights to their children.

          Crystal L. Ely of North Iowa Youth Law Center, Mason City, for appellant mother.

          Jane M. Wright, Forest City, for appellant father.

          Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee State.

          David A. Grooters of Pappajohn, Shriver, Eide & Nielsen, PC, Mason City, guardian ad litem for minor children.

          Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.

          DOYLE, JUDGE.

         A mother and a father separately appeal the termination of their parental rights to their children pursuant to Iowa Code section 232.116(1)(h) (2018). We review termination proceedings de novo. See In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). We are not bound by the juvenile court's findings of fact, although we give them weight, especially those concerning witness credibility. See id.

         The parents first contend the juvenile court improperly considered information in the child-in-need-of-assistance (CINA) file in determining clear and convincing evidence established the grounds for termination under section 232.116(1)(h). Specifically, they claim the CINA files were not presented at trial, the State never requested the juvenile court take judicial notice of the files, and they did not have an opportunity to be heard on the question of whether judicial notice should be taken. The State counters that error has not been preserved for our review because any error alleged was never raised to the juvenile court. See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012) ("[T]he general rule that appellate arguments must first be raised in the trial court applies to CINA and termination of parental rights cases."); In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (holding a parent waives error by failing to file a timely motion to enlarge or amend the judgment or degree to call the court's attention to an issue that could be resolved so as to avoid appeal). Although both parents filed motions for nunc pro tunc orders, this was not the proper mode of redress. See Weissenburger v. Iowa Dist. Ct., 740 N.W.2d 431, 434 (Iowa 2007) (distinguishing between a nunc pro tunc order, which corrects a clerical error, and procedures to alter, vacate, or modify judgments). Furthermore, the State notes that both parents deprived the juvenile court of jurisdiction to rule on any error alleged by filing a notice of appeal before any ruling was made on their motions. In re B.L., 470 N.W.2d 343, 347 (Iowa 1991) ("The general rule is that the trial court loses jurisdiction over the merits of the controversy when an appeal is perfected.").

         Even assuming error was preserved and the juvenile court improperly took notice of the CINA files, any error is harmless because de novo review allows us to review the evidence admitted at the termination hearing and reach our own conclusions. See In re A.K., 825 N.W.2d 46, 51 (Iowa 2013) (noting that "de novo review of the evidence may promote efficiency when there is an evidentiary error below because we can review the evidence anew, without considering the inadmissible evidence"). In doing so, we find clear and convincing evidence supports terminating both the mother's and the father's parental rights under section 232.116(1)(h). Termination is appropriate under this section when clear and convincing evidence establishes the following:

(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of the child's parents for at least six months of the last twelve months, or for the last six consecutive months and any ...

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