2018 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (12 pages)

            Thomas Neils challenges the economic, child support, and visitation provisions of the decree dissolving his marriage to Carol Neils.  OPINION HOLDS: Upon our de novo review, we find deviation from the child-support guidelines to use Thomas’s earning capacity as determined by the district court was appropriate under the facts of this case.  Additionally, the court’s determination the parties should create a visitation schedule together is proper under the facts of the case.  Finally, the equalization payment as calculated equitably divided the parties’ marital property.  Accordingly, we affirm the district court’s dissolution decree in all respects.

            Appeal from the Iowa District Court for Scott County, Patrick A. McElyea, Judge.  AFFIRMED.  Considered by Danilson, C.J., Doyle, J., and Mahan, S.J.  Opinion by Doyle, J.  (4 pages)

            Chad Erwin appeals his conviction for operating a motor vehicle without the owner’s consent.  OPINION HOLDS: Because Erwin never requested reporting of the individual conference with a potential juror struck for cause or objected to the district court about the lack of reporting, he has failed to preserve his claim for our review.    

            Appeal from the Iowa District Court for Sioux County, Tod J. Deck, Judge.  SENTENCES VACATED AND REMANDED FOR RESENTENCING.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Danilson, C.J.  (9 pages)

            Matthew Spaans appeals his sentence after pleading guilty to four counts of child endangerment.  He contends he received ineffective assistance of counsel when his plea counsel failed to object to the State’s alleged breach of the plea agreement.  He also contends the district court considered improper factors during sentencing and challenges a portion of the sentencing order related to appellate attorney fees.  OPINION HOLDS: Because we conclude the district court relied upon an improper factor during sentencing, we vacate the defendant’s sentences and remand for resentencing.

            Appeal from the Iowa District Court for Delaware County, Stephanie C. Rattenborg, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (2 pages)

            Zachary Jimerson appeals his convictions, following guilty pleas, of two criminal violations.  He argues his counsel was ineffective in failing to adequately review his case prior to advising him to plead guilty.  OPINION HOLDS: We find the record inadequate for us to determine whether counsel failed to perform an essential duty or whether any such failure prejudice Jimerson.  Accordingly, we affirm Jimerson’s convictions but preserve his ineffective-assistance claim for postconviction-relief proceedings to allow for the development of a proper record and to provide counsel an opportunity to weigh in on the matter.

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (5 pages)

            A mother appeals the termination of her parental rights.  The mother does not contest the statutory grounds upon which her rights were terminated but contends termination is not in the child’s best interests and statutory exceptions should be applied to preclude termination.  OPINION HOLDS: We find termination is in the child’s best interests and no permissible exception to termination applies in this case.

            Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (6 pages)

            A father appeals from the termination of his parental rights to two children.  He contends the State did not prove the children could not be returned to his custody and termination was not in the children’s best interests because of their strong attachment to him.  OPINION HOLDS: On our de novo review, we find the father has made little progress in addressing the concerns that initially led to removal of the children.  The father conceded the children could not be returned to his care, but an extension also would be inappropriate.  The children’s best interests are served by termination of the father’s parental rights and likely adoption by the paternal grandparents. 

            Appeal from the Iowa District Court for Benton County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (9 pages)

            A mother appeals the termination of her parental rights to her child.  She contends the State failed to prove the statutory grounds for termination by clear and convincing evidence, termination is not in the best interests of the child, a statutory exception to termination should be applied, and the juvenile court erred in declining her request for additional time to work toward reunification.  OPINION HOLDS: Upon our de novo review, we conclude the State met its burden for termination under Iowa Code section 232.116(1)(h) (2018), termination is in the best interests of the child, the mother failed to meet her burden to warrant the application of the statutory exception contained in section 232.116(3)(c), and an extension of time is unwarranted.  We affirm.  

            Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.  REVERSED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  Separate Writing by McDonald, J.  Dissent by Vogel, P.J.  (17 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS: The agency’s failure to notify the father of the child-in-need-of-assistance (CINA) proceedings prevented him from being heard in the CINA action and rendered the proceeding void as to him.  We further conclude an intent to abandon the child was not established.  SEPARATE WRITING ASSERTS: There is insufficient evidence supporting the statutory ground authorizing the termination of the father’s parental rights.  The issue of whether the father received notice of the CINA case is not before this court.  Even if the issue of notice was properly before this court, the father’s lack of notice of the CINA case is immaterial to the termination of the father’s parental rights under Iowa Code section 232.116(1)(b), which does not require the child first be adjudicated in need of assistance as a prerequisite to termination of parental rights.  DISSENT ASSERTS: Iwould affirm the termination of the father’s parental rights in its entirety.  I believe both issues of notice and abandonment were not properly raised and should not provide a basis to reverse on appeal.

            Appeal from the Iowa District Court for Cass County, Amy L. Zacharias, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

            A father appeals the termination of his parental rights.  OPINION HOLDS: We find the State met its burden to establish the ground for termination under section 232.116(1)(e) (2018) by clear and convincing evidence and termination is in the best interests of the child.

            Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (12 pages)

            A father appeals the denial of his motion to modify a dispositional order in child-in-need-of-assistance proceedings.  He contends circumstances have so materially and substantially changed that the best interests of the child require transferring custody from the mother to him.  OPINION HOLDS: Without deciding whether the “material and substantial change” test has been superseded by legislative amendment, and giving due weight to the juvenile court’s determinations of witness credibility, we conclude the father did not show evidence meeting that test.  We further find it is in the child’s best interests to remain in his mother’s custody.  Therefore, we affirm. 

            Appeal from the Iowa District Court for Scott County, Mark Fowler, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (4 pages)

                The mother appeals the permanency order, which transferred guardianship and custody of her child, D.C., to the child’s maternal grandparents.  First, she argues the district court failed to account for the progress she has made.  Second, she argues the Iowa Department of Human Services has failed to make reasonable efforts toward reunification.  OPINION HOLDS: We find the permanency order was appropriate and affirm by memorandum opinion pursuant to Iowa Court Rule 21.26(1)(a), (d), and (e).

            Appeal from the Iowa District Court for Adair County, Monty Franklin, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (7 pages)

            A mother appeals the termination of her parental rights in her three children.  OPINION HOLDS: The evidence supports the statutory grounds authorizing termination of the mother’s parental rights.  The mother failed to preserve error on the issue of whether the State made sufficient efforts toward reunification.  The termination is in the best interests of the children.