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In re V.L.

Court of Appeals of Iowa

December 5, 2018

IN THE INTEREST OF V.L., Minor Child, L.O., Intervenor, Appellant.

          Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.

         A temporary custodian appeals a joint permanency and termination order transferring custody and guardianship of her niece to the department of human services. The State moved to dismiss. MOTION TO DISMISS OVERRULED; JUDGMENT AFFIRMED.

          Frank Steinbach of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman, P.C., West Des Moines, for appellant intervenor.

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

          Kayla Stratton of Juvenile Public Defender Office, Des Moines, guardian ad litem for minor child.

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


         For more than a year, V.L. lived with her great aunt Linda.[1] The State recruited Linda as a temporary custodian after removing V.L. from her mother's care. By all accounts, both Linda and V.L. enjoyed their time together. In Linda's words: "I know I brought a lot to her life, but on the other hand, she's brought a lot to my life." The child's guardian ad litem described V.L.'s influence on Linda as "an Indian summer"-brightening the great aunt's life.

         While lauding the "love and care" Linda provided V.L., the juvenile court transferred V.L.'s custody and guardianship to the Iowa Department of Human Services (DHS) following a joint permanency and termination-of-parental-rights (TPR) hearing.[2] Linda now seeks reversal of that transfer order. Pointing to their strong bond, Linda argues remaining in her custody serves V.L.'s best interests. As a sub-issue, Linda complains the juvenile court failed to consider her medical-records exhibit to rebut the DHS claim that her health conditions limited her ability to provide long-term care for V.L. Linda also contests the juvenile court's denial of her motion for new trial alleging newly discovered evidence. The motion flagged a recently completed home study recommending Linda as an adoptive parent for V.L., who turned three in August.

         As our first order of business, we must address the State's motion to dismiss.[3] The State insists Linda intervened only in the child-in-need-of-assistance (CINA) case and the permanency order she now challenges is not a final appealable order. The State also contends the termination order rendered moot any issues from the CINA permanency proceedings.

         For the reasons outlined below, we decline to dismiss the appeal as interlocutory. But after our independent review of the facts and law, we affirm the juvenile court's order transferring V.L.'s guardianship and custody to the DHS under Iowa Code section 232.117(3)(a) (2017).

         I. Facts and Prior Proceedings

         V.L. was not yet two years old when the DHS removed her from the care of her mother Jamie, who was using crack cocaine. In May 2017, Linda agreed to be V.L.'s temporary custodian. Linda had also raised Jamie and her siblings when the State removed them from their parents. Although she did not adopt them, she served as their legal guardian.

         Our record contains conflicting information about Linda's initial willingness to adopt V.L. The DHS worker testified that at the time of removal, Linda expressed reservations about being the "concurrent plan" if V.L. could not reunify with Jamie but agreed to temporary custody to "help Jamie out." By contrast, Linda testified: "I said from day one I would adopt her."

         After their daughter's removal, Jamie did not meet DHS expectations and V.L.'s father had little involvement in the CINA proceedings. In early December 2017, the juvenile court issued a CINA review order, noting DHS had decided Linda was "not a concurrent plan for the child." The court expected "to hear evidence regarding long-term placement of the child" at a permanency hearing in February 2018. A few days later, the State petitioned to terminate the parents' rights. The State's petition noted V.L. was currently in Linda's custody under DHS supervision. See Iowa Code § 232.111(4)(b)(3). In response, the juvenile court set a date for a joint permanency and termination hearing, directing Linda be served notice in accordance with the "statutory guidelines." See Iowa Code § 232.112(1) (listing "necessary parties" in termination case).

         Then in late December 2017, Linda moved to intervene in the CINA case, seeking permanent custody of V.L. The juvenile court granted her motion to intervene despite resistance from the State and guardian ad litem (GAL).[4]

         Linda appeared with her attorney at the joint permanency and termination hearings in April and May 2018. By that time, V.L. had been in Linda's care for almost one year. Linda, who was then sixty-two years old, testified she wanted to be V.L.'s long-term caretaker and felt physically able to do so. The State and GAL questioned Linda at length about her health conditions-which included fused disks in her back, diabetes, asthma, high blood pressure, high cholesterol, bursitis in her hip, and chronic depression and anxiety.[5]

         The DHS caseworker testified that she was not recommending Linda as the long-term placement for V.L. based largely on concerns she would not be physically able to care for the child.[6] The caseworker instead recommended V.L. be placed with a ...

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