2018 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (6 pages)

            A father appeals the termination of his parental rights to his three children.  OPINION HOLDS: We agree with the district court that the statutory grounds for termination were met and that termination was in the children’s best interests. 

            Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (12 pages)

            A mother appeals the termination of her parental rights in her child.  OPINION HOLDS: The State established the statutory elements authorizing termination, the conditions giving rise to termination would not abate in six months, and termination is in the child’s best interest.  The State made reasonable efforts supporting reunification.  The State also complied with the Indian Child Welfare Act.  The mother did not preserve her challenge related to the social history report because she did not bring her challenge at the juvenile court.

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED on both appeals.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (6 pages)

            The mother and father separately appeal the termination of their parental rights to their son, T.P.  They argue the statutory grounds for termination have not been met and termination is not in the child’s best interests.  OPINION HOLDS: The statutory grounds for termination have been met and the parents have not demonstrated they are capable of caring for T.P. now or in the future.  Therefore, we affirm. 

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Tabor, J., takes no part.  Opinion by McDonald, J.  (4 pages)

            A father appeals a dispositional order placing his child in the custody of the Iowa Department of Human Services  for placement in family foster care. He challenges both the juvenile court’s grant of custody to the Department and the Department’s placement of the child in foster care.  OPINION HOLDS: Because the Department was the preferable custodian, the juvenile court did not err in granting the Department custody of the child. We find that the father’s challenge to the Department’s placement of the child in foster care fails because the Department, as legal custodian of the child, has the authority to place the child in foster care.

            Appeal from the Iowa District Court for Cass County, Amy L. Zacharias, District Associate Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (13 pages)

            The father appeals the termination of his parental rights to his child, E.C.  The juvenile court terminated the father’s parental rights pursuant to Iowa Code section 232.116(1)(d), (h), and (i) (2018).  The father challenges the statutory grounds, maintains termination is not in E.C.’s best interests, and argues a permissive factor weighs against termination.  He asks us to reverse the termination and return E.C. to his care but argues in the alternative that the juvenile court should have given him an extension of time to work toward reunification.  OPINION HOLDS: Upon our de novo review of the record, there is not clear and convincing evidence to support any of the statutory grounds for termination.  We reverse the juvenile court’s termination of the father’s parental rights to E.C. and remand for dismissal of the termination petition as to the father.

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            Intervenors R.W. and S.W., relatives of three siblings, contend the department of human services failed to make reasonable efforts to keep the three siblings together.  OPINION HOLDS: We reverse and remand for the department to satisfy its statutory obligation under Iowa Code section 232.108 (2018) to make reasonable efforts to keep the siblings together as well as its statutory obligation to give preference to relatives in the placement decision.  

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (10 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: We find there is clear and convincing evidence in the record to support termination of the mother’s parental rights and termination of her rights is in the children’s best interests.  We affirm the decision of the juvenile court.

            Appeal from the Iowa District Court for Cherokee County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (10 pages)

            A mother appeals the termination of her parental rights to her two minor children, born in 2007 and 2011.  She argues: (1) the State failed to prove the statutory grounds for termination by clear and convincing evidence, (2) termination is not in the best interests of the children, (3) the juvenile court should have applied the statutory exception to termination contained in Iowa Code section 232.116(3)(c) (2018), and (4) the court erred in declining to grant her a six-month extension to work toward reunification.  OPINION HOLDS: We conclude the State presented sufficient evidence to support termination, termination is in the best interests of the children, the application of an exception to termination is unwarranted, and the mother is not entitled to an extension.  We affirm the juvenile court order terminating the mother’s parental rights. 

           Appeal from the Iowa District Court for Linn County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (9 pages)

           Carlston Donald appeals the district court’s denial of his application for postconviction relief.  He argues his appellate counsel was ineffective in failing to (1) challenge the weight of the evidence underlying the conviction and (2) file a proof brief or follow the protocol for frivolous appeals contained in Iowa Rule of Appellate Procedure 6.1005 (2009).  OPINION HOLDS: We conclude appellate counsel was not ineffective in declining to challenge the weight of the evidence and Donald did not preserve error on his claim concerning rule 6.1005.  We affirm the denial of his application for postconviction relief. 

            Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  Special Concurrence by Tabor and Potterfield, JJ.  (13 pages)

            Albert Garcia appeals his convictions for two counts of first-degree murder and two counts of first-degree robbery, contending: (1) a police detective lacked the qualifications to provide expert testimony about cell phone technology; (2) accomplice testimony was not corroborated by sufficient evidence; (3) his trial attorney was ineffective in failing to object to an instruction informing the jury it could consider his out-of-court statements “just as if they had been made at trial”; and (4) his murder convictions and sentences should be vacated under a merger doctrine.  OPINION HOLDS: We affirm Garcia’s judgment and sentences.  SPECIAL CONCURRENCE ASSERTS: I would find counsel failed in an essential duty by not objecting earlier to the officer’s testimony regarding the use of cellular phone tower technology and data.  The State did not establish that the officer had specific knowledge of this technology.  I would also find the district court erred in instructing the jurors they could consider Garcia’s out-of-court statements “just as if they had been made at trial,” consistent with my prior dissenting opinions in State v. Yenger, No. 17-0592, 2018 WL 3060251, at *7 (Iowa Ct. App. June 20, 2018), and State v. Payne, No. 16-1672, 2018 WL 1182624, at *11–12 (Iowa Ct. App. Mar. 7, 2018).  Nonetheless, I join the majority because Garcia cannot show he was prejudiced as a result of these failures. 

           Appeal from the Iowa District Court for Warren County, Patrick W. Greenwood, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (10 pages)

           The children of Donald Speck appeal a district court order granting a petition to probate a lost will filed by Donald’s ex-son-in-law under which he was a beneficiary and co-executor and the majority of Donald’s children were disinherited.  The children argue the presumption of revocation was not rebutted by clear, satisfactory, and convincing evidence and assert the court erroneously shifted the burden of proof to them.  OPINION HOLDS:  We find substantial evidence supports the district court’s conclusion the presumption of revocation by the testator of his 2012 will was rebutted.  We affirm the decision of the district court.

            Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (12 pages)

            Michael Webster appeals the summary dismissal of his application for postconviction relief.  opinion holds: Upon our de novo review, we conclude Webster failed to establish he was similarly situated to persons convicted of second-degree robbery on or after July 1, 2016.  Moreover, Webster did not show a heightened-scrutiny analysis applied to his claim, nor did he establish there was no rational basis for the legislature’s determination not to make the sentencing provision at issue prospective only.  For all these reasons, we affirm the district court’s summary dismissal of Webster’s PCR application.