July 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Scott County, Mark Fowler, Judge.  AFFIRMED.  Considered by Potterfield, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (4 pages)

            The father appeals the termination of his parental rights to his biological child, I.D., and his legal child, S.D.  The juvenile court terminated his parental rights to both children pursuant to Iowa Code section 232.116(1)(f) and (l) (2018).  The father does not contest the statutory grounds for termination; he argues termination is not in the children’s best interests because they share a bond with him.  He also asks for additional time to work toward reunification.  OPINION HOLDS: Termination is in the children’s best interests, and the father has not established that the children are so bonded to him that we should avoid termination of his parental rights.  Additionally, because we cannot say the father could safely parent the children if given an extension to work toward reunification, we affirm.

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            The mother’s rights to these children were at issue at a termination-of-parental-rights hearing in November 2016.  After an extended delay, the juvenile court entered a written order in July 2018, terminating the mother’s parental rights.  The mother appealed, and in In re L.T., 924 521, 530 (Iowa 2019), our supreme court reversed the termination and remanded to the juvenile court.  The termination hearing on remand took place in April 2019, and the juvenile court again found the grounds to terminate the mother’s parental rights.  The mother appeals, arguing the Iowa Department of Human Services (DHS) failed to make reasonable efforts until the July 2018 termination order was entered and termination of her rights is not in the children’s best interests.  She also asks for additional time to work toward reunification with the children.  OPINION HOLDS: Although DHS discontinued services aimed at reunification before the written order was entered, the department did not fail to fulfill its reasonable-efforts obligation.  Additionally, we cannot further delay permanency for these children, as termination of the mother’s parental rights is in their best interests.  We affirm.

            Appeal from the Iowa District Court for Fremont County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Greer, J.  (7 pages)

            The juvenile court terminated the mother’s parental rights to her child, R.S., under Iowa Code section 232.116(1)(f) (2019).  On appeal, the mother argues: (1) termination is not required because the child was in the father’s care, (2) termination is not in the child’s best interests, (3) the Iowa Department of Human Services failed to provide appropriate services, and (4) the exception in Iowa Code section 232.116(3)(a) should apply since the father has legal custody.  OPINION HOLDS: Because filing a termination petition was permissible while R.S. remained in the father’s care and termination is in R.S.’s best interests, we affirm the termination of the mother’s parental rights.

            Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (13 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS: Under the facts and circumstances of this case, the State provided reasonable services for reunification and the child could not be returned to the father’s care at the time of the termination-of-parental-rights hearing.  And even considering the father’s parole, additional time under section 232.104(2)(b) is unjustified.  We therefore affirm the order terminating the father’s parental rights.

            Appeal from the Iowa District Court for Blackhawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (7 pages)

            A mother appeals the termination of her parental rights to her three minor children.  The mother argues the State did not make reasonable efforts at reunification and challenges the sufficiency of the evidence underlying the statutory grounds for termination cited by the juvenile court.  OPINION HOLDS: We conclude the mother failed to preserve error on her reasonable-efforts challenge and the State met its burden for termination.  We affirm the termination of the mother’s parental rights.

            Appeal from the Iowa District Court for Marshall County, Steven J. Oeth, Judge.  AFFIRMED ON BOTH APPEALS AND REMANDED.  Heard by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (18 pages)

            Jade and Shannon Robinson purchased the home of William and Joyce Welp; the Robinsons later initiated suit against the Welps, claiming the Welps failed to disclose a number of known problems with the home.  The district court determined the Welps had a duty to disclose a snake problem pursuant to Iowa Code chapter 558A (2016) and the purchase agreement, which they breached; the court awarded the Robinsons damages in the amount of $64,216.42 and costs and attorney fees of $55,212.  On appeal, the Welps challenge the district court’s ruling, arguing the evidence does not support that there was a snake problem while they owned the home or that they had actual knowledge of any such problem.  In the alternative, they argue newly-discovered evidence presented in their post-judgment petition to vacate requires that the court’s judgment be vacated or modified.  Additionally, they contest the district court’s determination of “reasonable attorney fees,” maintaining the award of fees should be further reduced.  On cross-appeal, the Robinsons maintain the district court should have also determined that the Welps failed to properly disclose problems with leaks in an in-ground pool; they ask for additional damages.  They also urge us to find that the district court abused its discretion in reducing their attorney-fee request and ask for an award of appellate attorney fees.  OPINION HOLDS: We affirm the district court’s ruling that the Welps breached their duty to disclose a snake problem on the property in question but did not breach a duty to inform the Robinsons of a past pool leak.  We also affirm the district court’s denial of the Welps’ motion to vacate and the reduced award of attorney fees to the Robinsons.  Because the purchase agreement does not preclude the recovery of appellate attorney fees, we remand to the district court for the limited purpose of an evidentiary hearing on and the fixing of appellate attorney fees.

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  REVERSED AND REMANDED.  Heard by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (9 pages)

            Jason Rieper appeals and Heidi and Rachel McFarland cross-appeal from the jury verdict in favor of the McFarlands on their legal-malpractice claim.  Rieper represented the McFarlands in an unsuccessful adoption.  Rieper asserts emotional distress damages are not available here, the McFarlands did not establish a prima facie case for legal malpractice, and a new trial or a reduction or remittitur of the jury award is warranted due to prejudicial statements and violations of the court’s rulings.  On cross-appeal, the McFarlands assert, in the event of a new trial, evidence of the baby’s death should be admitted and we should clarify the standards for evaluating juror bias.  OPINION HOLDS: The McFarlands have not shown Rieper engaged in illegitimate conduct, as required to recover emotional distress damages in a legal-malpractice claim.  We therefore reverse and remand for entry of judgment in favor of Rieper.  Because this issue is dispositive, we do not reach the parties’ other issues.

            Appeal from the Iowa District Court for Pottawattamie County, Susan K. Christensen, Judge.  AFFIRMED.  Considered by Mullins, P.J., Danilson, S.J., and Vogel, S.J.  Opinion by Danilson, S.J. (13 pages)

            John Osborn appeals from judgment and sentences imposed upon his convictions for four counts of sexual abuse in the third degree, in violation of Iowa Code sections 709.1 and 709.4(2)(c)(4) (2014).  Osborn contends his trial counsel was ineffective in failing to object to a witness’s testimony as beyond the scope of the minutes and the district court abused its discretion in admitting as an exhibit the criminal complaint and attached affidavit, which was offered to refute Osborn’s inference investigators rushed to judgment.  He also asserts the court imposed an illegal sentence (four concurrent terms of imprisonment), arguing multiple convictions on four counts of sexual abuse where the marshalling instructions are identical must be merged.  OPINION HOLDS: We preserve the ineffective-assistance-of-counsel claims for possible postconviction-relief proceedings.  The district court did not abuse its discretion in allowing the admission of the criminal complaint as rebuttal to the defense’s claim of a rush to judgment.  We reject the claim that an illegal sentence was imposed.

            Appeal from the Iowa District Court for Monona County, Jeffrey L. Poulson, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Mullins, P.J., Bower, J., and Blane, S.J.  Opinion by Blane, S.J. (8 pages)

            John Gibson appeals his convictions for being a felon in possession of a firearm, assault on a peace officer, two counts of child endangerment, and two counts of assault while participating in a felony.  OPINION HOLDS:  We determine Gibson’s sentence for being a felon in possession of a firearm should not be merged with his sentences for assault while participating in a felony.  We find the district court did not abuse its discretion in deciding the sentence for being a felon in possession of a firearm should run consecutively to Gibson’s other sentences, which run concurrently.  On the matter of mandatory minimum sentences for assault on a peace officer and assault while participating in a felony, we remand for a partial resentencing hearing to allow the court to exercise its discretion to determine whether the five-year minimum sentence should be imposed.

            Appeal from the Iowa District Court for Story County, Adria A.D. Kester, Judge.  SENTENCES VACATED IN PART.  REMANDED FOR RESENTENCING.  Considered by Doyle, P.J., May, J., and Carr, S.J.  Opinion by Carr, S.J.  (7 pages)

            Eduard Lester appeals his sentences for two counts of robbery in the second degree and two counts of burglary in the first degree.  He appeals the provisions of his sentences that impose: fines for his robbery charges without suspending the fines, consecutive sentences, court costs and attorney fees, and law enforcement initiative surcharges.  OPINION HOLDS: We find the court did not abuse its discretion in imposing the fines or in running his sentences consecutively.  However, the court erred in imposing costs and fees without evaluating his reasonable ability to pay and in imposing law enforcement initiative surcharges for his robbery charges without statutory authorization.  Therefore, we vacate his sentences in part and remand for resentencing.

            Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (12 pages)

            A mother of four children died, leaving a significant estate to be distributed to her children under the terms of her will.  In this second appeal, Bonnie Forbes challenges the district court’s (A) reduction of her share of the estate, (B) refusal to reduce Woodrow Houser’s share of the estate, (C) allocation of executor fees, and (D) refusal to pay certain charges incurred for upkeep of estate assets.  OPINION HOLDS: We affirm the portion of the district court order awarding Forbes thirty-five percent of the ordinary executor fee and Lawrence Houser sixty-five percent of the fee.  We reverse the portion of the order reducing Forbes’ distributive share by $52,837.81 and remand for entry of an order increasing her distributive share by that amount.  We reverse the portion of the order declining to reduce Woodrow Houser’s distributive share by amounts owing on promissory notes and remand for entry of an order reducing his distributive share by $36,557.71 after reduction by the $38,272.29 contained in the UICCU savings account.  We reverse the denial of the charges submitted by Forbes’ son-in-law, son, and husband and remand for entry of an order requiring the executor to pay the enumerated charges.

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  REVERSED AND REMANDED.  Considered by Doyle, P.J., May, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (8 pages)

            Undray Reed appeals the district court decision denying his application for postconviction relief.  OPINION HOLDS:  The court found Reed established a claim of ineffective assistance of appellate counsel in his postconviction-relief proceeding, but improperly concluded it did not have authority to grant Reed relief.  We reverse the decision of the district court and remand for further proceedings.