2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J.  (5 pages)

            A father appeals the juvenile court order terminating his parental rights.  OPINION HOLDS: We find termination of the father’s parental rights is in the children’s best interests.  Also, the juvenile court properly determined the exception to termination based on the closeness of the parent-child relationship should not be applied.  We affirm the juvenile court’s decision.

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., Bower, J., and Danilson, S.J.  Opinion by Bower, J.  (5 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS:  The mother concedes the statutory grounds for termination of parental rights have been met but claims termination is not in the best interests of the children.  We conclude it is in the children’s best interests to terminate the mother’s parental rights.  We affirm the decision of the juvenile court.

            Appeal from the Iowa District Court for Fremont County, Craig M. Dreismeier, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (10 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: We find clear and convincing evidence to support termination of the mother’s parental rights pursuant to Iowa Code section 232.116(1)(f) and (h) (2018).  The children cannot be returned to the mother at the present time due to unresolved substance-abuse and domestic-violence issues and the mother’s inability to provide adequate supervision to ensure the children’s safety.  Termination of the mother’s rights is in the children’s best interests.     

            Appeal from the Iowa District Court for Lee (North) County, Ty Rogers, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (12 pages)

            A mother appeals the termination of her parental rights to two children, and a father appeals the termination of his parental rights to three children.  They also contend the State did not timely file its response brief.  OPINION HOLDS: We agree the State did not timely file its response brief.  We further find the State proved the statutory grounds for termination, that termination was in the children’s best interests, and termination would not be so detrimental due to the closeness of the parent-child relationship that termination should be avoided.  We also find the State made reasonable efforts toward reunification.  We affirm. 

            Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Doyle, P.J., Mullins, J., and Danilson, S.J.  Opinion by Doyle, P.J.  Dissent by Danilson, S.J.  (8 pages)

A mother and a father separately appeal the termination of their parental rights.  OPINION HOLDS: Clear and convincing evidence establishes the grounds for terminating both the mother’s and the father’s parental rights because the child could not be returned safely to either parent’s care.  Termination is in the child’s best interests and none of the exceptions to the termination statute apply.  Accordingly, we affirm the termination of both the mother’s and the father’s parental rights.  DISSENT ASSERTS: I respectfully dissent.  I believe the evidence falls short of clear and convincing evidence that the child could not be returned home to the parents.  Initially, the parents struggled to attend to the child’s special needs but they had progressed to four overnights a week without any significant incident prior to the termination hearing.  I would reverse.  

            Appeal from the Iowa District Court for Cherokee County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Danilson, S.J.  Opinion by Mullins, J.  (11 pages)

            A father appeals the termination of his parental rights.  He challenges the sufficiency of the evidence supporting the grounds for termination, asserts termination is not in the children’s best interest, and requests the application of a statutory exception to termination.  The father also argues the State failed to make reasonable efforts to reunify him with the children.  OPINION HOLDS: We affirm the termination of the father’s parental rights.

            Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka, Associate Juvenile Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (5 pages)

            A father appeals the termination of his parental rights in his child.  OPINION HOLDS: The juvenile court did not err in denying the father’s request for an additional six months to work toward reunification.  Termination is in the child’s best interest, and the parent-child bond is not so strong as to preclude termination.

            Appeal from the Iowa District Court for Polk County, Bradley M. McCall, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Opinion by Potterfield, P.J.  (12 pages)

            Devaris Perry appeals from his convictions for attempted murder, intimidation with a dangerous weapon with intent, and reckless use of a firearm resulting in property damage.  With the assistance of counsel, Perry argues the district court abused its discretion in failing to exclude a State witness for whom there was inadequate notice, there was insufficient evidence to support his conviction for attempted murder, the weight of the evidence is contrary to each of the three guilty verdicts, and trial counsel provided ineffective assistance by failing to file a motion to suppress Perry’s involuntary confession.  Additionally, in a supplemental pro se brief, Perry reiterates some of the arguments made by counsel and also maintains there was no corroboration of accomplice testimony and his trial counsel was ineffective when he inadequately impeached a witness for the State.  OPINION HOLDS:  Substantial evidence supports Perry’s convictions—even if Stogner was an accomplice.  Additionally, we cannot say the district court abused its discretion when it denied Perry’s motion to exclude Stogner as a witness or when it denied Perry’s motion for new trial based on the weight of the evidence.  Thus, we affirm Perry’s convictions.  We preserve for possible postconviction relief his claims of ineffective assistance.  

            Appeal from the Iowa District Court for Poweshiek County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (2 pages)

            Seth Torbensen appeals from the sentence imposed upon his plea of guilty, contending the district court abused its discretion in considering improper factors.  OPINION HOLDS: Torbensen made no objection to the presentence investigation report and cannot now complain the court considered matters therein.  We affirm.   

            Appeal from the Iowa District Court for Pottawattamie County, Timothy O’Grady, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (14 pages)

            Cedric Whitmire appeals his convictions for sexual abuse in the third degree, pimping, willful injury causing bodily injury, domestic abuse assault by strangulation causing bodily injury, and possession of marijuana.  OPINION HOLDS: Upon our review, we affirm.

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  REVERSED AND REMANDED ON APPEAL; AFFIRMED ON CROSS-APPEAL.  Heard by Potterfield, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (12 pages)

            The plaintiff in a third-party action for indemnity appeals the grant of summary judgment in favor of the third-party defendants, arguing the district court erred in finding their claim was time-barred under the stock purchase agreement.  The third-party defendants cross-appeal the denial of their application for attorney fees.  OPINION HOLDS: The unambiguous language of the contract evidences the intent of the parties that the Gaddises would indemnify CEI for claims from the accrual of the products liability cause of action until the running of the applicable statute of limitations.  Therefore, the district court erred in granting summary judgment to the Gaddises.  We reverse and remand for entry of new orders denying the Gaddises’ motion for summary judgment and granting CEIs as well as any further necessary proceedings.  We affirm the denial of the Gaddises’ request for attorney fees. 

            Appeal from the Iowa District Court for Sioux County, Patrick H. Tott and Julie Schumacher, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Doyle, P.J.  (5 pages)

            Benjamin DeJesus-Cruz appeals his convictions for manufacture, delivery, or possession of methamphetamine with intent to deliver and operating while intoxicated.  OPINION HOLDS: Counsel may have breached an essential duty in failing to make a separate argument concerning the impoundment and search of his vehicle under the state constitution’s prohibition against unreasonable searches and seizures.  No Iowa cases had foreclosed the argument counsel failed to make, and case law from other jurisdictions supported the position.  We preserve this claim for postconviction relief to allow full development of the record regarding counsel’s decision-making and any prejudice to DeJesus-Cruz.