Most Recent Court of Appeals Summaries

            Appeal from the Iowa District Court for Webster County, Kurt J. Stoebe, Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Considered without oral argument by Greer, P.J., Buller, J., and Potterfield, S.J.  Ahlers, J., takes no part.  Opinion by Potterfield, S.J.  (14 pages)

            Sisters Shelly Zabel and Jacqueline Oberhelman (Jackie) filed competing petitions to be named guardian and conservator of their mother, Mary Zabel, who has advanced dementia.  Following a four-day trial, the district court selected Shelly to be guardian and Green State Credit Union to be the conservator; it suspended a 2012 durable medical power of attorney giving Jackie certain powers.  Jackie appeals, challenging the court’s guardianship decision and the suspension of the power of attorney.  OPINION HOLDS: The district court did not abuse its discretion in appointing Shelly guardian rather than Jackie; we affirm that decision.  But the court lacked authority to suspend Mary’s 2012 medical power of attorney naming Jackie as her agent in this circumstance, so we reverse that decision. 

            Appeal from the Iowa District Court for Scott County, Meghan Corbin, Judge.  AFFIRMED.  Considered without oral argument by Schumacher, P.J., Chicchelly, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (6 pages)

            An applicant convicted of first-degree murder and first-degree burglary appeals the denial of his application for DNA profiling under Iowa Code section 81.10 (2022).  OPINION HOLDS: Because the applicant filed his application for DNA profiling as a standalone case and the district court did not take judicial notice of his underlying criminal case or his pending postconviction-relief proceeding, the records in those other cases are not before us.  On the merits, the district court properly denied his application because all requested samples were already profiled and the applicant failed to allege any new method or technology for retesting the samples.

            Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.  AFFIRMED.  Considered without oral argument by Langholz, P.J., Sandy, J., and Doyle, S.J.  Opinion by Doyle, S.J.  (4 pages) 

            Ceeron Williams appeals the denial of his application for postconviction relief (PCR) from his convictions for assault with the intent to inflict serious injury, intimidation with a dangerous weapon with intent, and willful injury causing serious injury.  OPINION HOLDS: We agree with the PCR court that Williams failed to establish that his trial counsel breached an essential duty and failed to show prejudice resulted from any of the claimed breaches.  Because we cannot provide any better reasoning or analysis than that found in the PCR court’s well-reasoned order, we affirm with this memorandum opinion.  See Iowa Ct. R. 21.26(1)(d), (e).

            Appeal from the Iowa District Court for Cerro Gordo County, Christopher C. Foy, Judge.  AFFIRMED.  Considered without oral argument by Greer, P.J., Sandy, J., and Telleen, S.J.  Opinion by Telleen, S.J.  (5 pages)

            Moises Erreguin-Labra appeals his convictions for third-degree sexual abuse and assault causing bodily injury, arguing the district court’s response to a report of unauthorized courtroom photography biased his jury and denied his right to a fair trial.  OPINION HOLDS: Because Erreguin-Labra raised no objection to the court’s actions at trial, his sole challenge on appeal is not preserved for our review.  We affirm his convictions without reaching the merits of his jury bias claim.

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Heard at oral argument by Tabor, C.J., and Schumacher, Badding, Buller, and Sandy, JJ.  Opinion by Badding, J.  Special concurrence by Tabor, C.J.  (22 pages)

            Will Young Jr. appeals his convictions and sentences for willful injury causing serious injury and intimidation with a dangerous weapon with intent.  He asserts that he was denied effective assistance of counsel, urging this court to reach that claim by finding Iowa Code section 814.7 (2023) unconstitutional.  Young also contends that the State failed to prove the “reasonable apprehension” element of his intimidation charge, and that the district court was unaware it had discretion to reduce his minimum sentences.  OPINION HOLDS: We reject Young’s argument that Iowa Code section 814.7 violates the Supremacy Clause of the United States Constitution.  We therefore lack authority to decide his ineffective-assistance claim on direct appeal.  We further conclude that Young’s conviction for intimidation with a dangerous weapon with intent, as marshaled at trial, is supported by sufficient evidence.  We find no evidence of a lapse in the district court’s sentence discretion.  Accordingly, we affirm.  SPECIAL CONCURRENCE ASSERTS: The majority properly finds Young’s interest in vindicating his Sixth Amendment right can be diverted to postconviction proceedings without violating the Supremacy Clause.  But in my view, he makes a powerful case that “the Iowa legislature’s determination that most ineffective-assistance-of-counsel claims are better resolved in collateral proceedings cannot countermand the Sixth Amendment’s requirement that states provide indigent defendants with effective representation.”  I write separately to underscore that serious doubt remains whether vindication in postconviction relief proceedings—on a practical level—will come quickly enough to deliver justice.

            Appeal from the Iowa District Court for Black Hawk County, Alan Heavens, Judge.  AFFIRMED.  Considered without oral argument by Schumacher, P.J., and Badding and Chicchelly, JJ.  Opinion by Badding, J.  (8 pages)

            Jerris Davis Sr. appeals the denial of his application for postconviction relief, which alleged that (1) trial counsel was ineffective for failing to move for a mistrial and to poll the jury because of a heated argument between two jurors during deliberations; and (2) appellate counsel was ineffective for failing “to raise issues other than ineffective assistance of counsel.”  OPINION HOLDS: Upon our de novo review of the record, we agree with the district court that Davis failed to prove that his trial counsel and previous appellate counsel provided ineffective assistance. 

            Appeal from the Iowa District Court for Polk County, Joseph D. Seidlin, Judge.  AFFIRMED.  Considered without oral argument by Greer, P.J., and Langholz and Sandy, JJ.  Opinion by Greer, P.J.  (3 pages)

            Michael Roach was convicted of second-degree murder and first-degree robbery in 2004.  The district court summarily dismissed his sixth postconviction-relief application, filed more than thirteen years after the statute of limitations closed.  Roach appeals.  OPINION HOLDS: Roach did not raise a new ground of law that excepted him from the statute of limitations, we cannot overrule precedent from the Iowa Supreme Court, and Roach’s equitable tolling claim is not preserved.  We affirm.

            Appeal from the Iowa District Court for Scott County, Tamra Roberts, Judge.  AFFIRMED.  Considered without oral argument by Greer, P.J., Langholz, J., and Potterfield, S.J.  Opinion by Potterfield, S.J.  (12 pages)

            After a bench trial led to convictions for one count of second-degree sexual abuse and one count of third-degree sexual abuse, Searcy Wyatt sought postconviction relief (PCR).  Wyatt asserted trial counsel provided ineffective assistance by failing to (1) call additional witnesses on his behalf, (2) use exhibits he provided, and (3) adequately prepare him to testify at trial.  The district court denied Wyatt’s application.  On appeal, Wyatt asks us to reverse the district court’s ruling on the same claims of ineffective assistance of trial counsel.  OPINION HOLDS: Wyatt failed to establish that counsel breached an essential duty in any of the three claims he raised, so we need not consider the alleged cumulative prejudice he suffered.  We affirm the district court’s denial of his PCR application.

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Ackley, Judge.  AFFIRMED.  Considered without oral argument by Schumacher, P.J., Chicchelly, J., and Doyle, S.J.  Opinion by Doyle, S.J.  (6 pages)

            Zachary Verdeyen appeals his convictions of second-degree sexual abuse and lascivious acts with a child.  OPINION HOLDS: Substantial evidence supports the jury’s finding that Verdeyen is guilty of both charges, so we affirm his convictions.

            Appeal from the Iowa District Court for Scott County, Mark Fowler, Judge.  AFFIRMED.  Considered without oral argument by Tabor, C.J., and Schumacher and Chicchelly, JJ.  Opinion by Tabor, C.J. (8 pages)

            Brianna Moss pleaded guilty to criminal mischief in the second degree and possession of a controlled substance.  The district court sentenced her to concurrent prison terms of five years and 365 days.  Moss raises two issues in this appeal of her sentence.  First, she contends that the court improperly relied on unproven conduct—her failures to appear for sentencing and to maintain contact with her probation officer.  Second, she alleges that the court abused its discretion by choosing prison over probation.  OPINION HOLDS: Finding that the district court neither considered impermissible factors nor abused its discretion by imposing incarceration, we affirm Moss’s sentence.

            Appeal from the Iowa District Court for Shelby County, Amy Zacharias, Judge.  AFFIRMED ON APPEAL; AFFIRMED AS MODIFIED ON CROSS-APPEAL.  Considered without oral argument by Schumacher, P.J., and Badding and Chicchelly, JJ.  Opinion by Badding, J.  (7 pages)

            Scott Rasmussen appeals, and Michelle Rasmussen cross-appeals, the property division in the decree dissolving their marriage.  They each challenge the amount of the cash equalization payment.  Scott argues the payment is too high because Michelle dissipated marital assets, while Michelle argues the payment is too low because of an excluded asset and errors in the court’s calculations.  Scott also challenges the court’s decision to award an empty lot at Lake Panorama to Michelle.    OPINION HOLDS: We decline to apply the dissipation doctrine to Michelle’s spending that occurred during the marriage, but we do subtract funds she used to pay off a marital debt from her liquidated 401(k) funds.  We affirm the district court’s division of assets, with the addition of assigning Scott’s service truck to him in the amount of $30,000.  Following our recalculation of the property award, we raise Scott’s equalization payment by $33,000.  Lastly, we decline Michelle’s request for appellate attorney fees. 

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED AS MODIFIED.  Considered without oral argument by Schumacher, P.J., and Chicchelly and Sandy, JJ.  Opinion by Chicchelly, J.  (12 pages)

            Lee Anne McColl appeals the economic provisions of the decree dissolving her marriage to Jeffrey Howe.  OPINION HOLDS: We modify the provisions of the decree dividing the parties’ assets to require that Jeffey pay Lee Anne an additional $6500 but affirm in all other respects.  We decline to award Lee Anne appellate attorney fees.

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED AS MODIFIED.  Considered without oral argument by Greer, P.J., and Buller and Langholz, JJ.  Opinion by Buller, J.  (13 pages)

            A spouse appeals the division of property in the decree dissolving her marriage with her husband.  She also makes claims for trial attorney and expert witness fees, as well as requesting appellate attorney fees.  OPINION HOLDS: We find the increase of net value of an LLC formed during the marriage with the spouses as members should have been considered a divisible marital asset and modify the decree accordingly.  We otherwise affirm the district court’s decree and deny the wife’s request for appellate attorney fees.

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED.  Considered without oral argument by Greer, P.J., and Langholz and Sandy, JJ.  Opinion by Langholz, J.  (5 pages)

            Chloe Clark appeals the denial of postconviction relief from her simple-misdemeanor conviction for fifth-degree criminal mischief.  She argues that she received ineffective assistance of counsel because her counsel failed to ensure her plea was knowing and voluntary as she thought she was pleading guilty to littering.  OPINION HOLDS: Even assuming counsel breached an essential duty, Clark failed to prove prejudice.  There is no reasonable probability that Clark would not have pleaded guilty to this simple misdemeanor offense given the favorable plea agreement that resulted in the dismissal of two felony offenses.   

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  CONVICTIONS AND SENTENCES AFFIRMED IN PART AND VACATED IN PART, AND REMANDED FOR ENTRY OF CORRECTED JUDGMENT AND SENTENCE.  Considered without oral argument by Badding, P.J., Langholz, J., and Telleen, S.J.  Opinion by Telleen, S.J. (7 pages)

            Bryant Wallace appeals his conviction and sentence, challenging the sufficiency of the evidence supporting his conviction for intimidation with a dangerous weapon with intent (Count I).  He also asserts the district court erred by imposing an uncharged sentencing enhancement and by failing to merge his conviction for conspiracy (Count III) with his conviction under Count I.  OPINION HOLDS: We find substantial evidence supports the jury’s verdict on Count I, and so we affirm Wallace’s conviction for intimidation with a dangerous weapon with intent.  As for the sentencing claims, we reject Wallace’s challenge to the mandatory minimum but vacate his conviction under Count III.  We remand this case for entry of a corrected judgment and sentence.

            Appeal from the Iowa District Court for Iowa County, Justin Lightfoot, Judge.  REVERSED AND REMANDED.  Considered without oral argument by Tabor, C.J., and Ahlers and Sandy, JJ.  Opinion by Sandy, J.  (9 pages)

            Van Otegham Dairy Partnership (VODP) appeals from the district court’s ruling granting Spahn & Rose Lumber Company’s (S&R) motion for summary judgment, arguing the district court erred (1) “in concluding that boilerplate fine print disclaiming responsibility for materials selection nullified S&R’s” (a) “express warranty to complete a workmanlike barn” and (b) “express agreement to design and build a dairy barn of good quality” and (2) “because [the district court’s] interpretation of the materials disclaimer violated the doctrine of expectations.”  OPINION HOLDS: We reverse the district court’s ruling granting summary judgment as to counts one and four of VODP’s amended petition, and remand for further proceedings.  Because we can decide this appeal on VODP’s primary arguments, we need not address whether the contract was a contract of adhesion subject to the doctrine of reasonable expectations. 

            Appeal from the Iowa District Court for Linn County, Casey D. Jones (plea) and Nicholas Scott (sentencing), Judges.  AFFIRMED.  Considered without oral argument by Greer, P.J., Sandy, J., and Mullins, S.J.  Opinion by Greer, P.J.  (13 pages)

            Doyen appeals his guilty plea, arguing that because he never signed his written guilty plea, the court cannot show he voluntarily and intelligently agreed to its terms, including waiving his right to file a motion in arrest of judgment, which our appellate courts have found to be a prerequisite to finding good cause to challenge the terms of his guilty plea on appeal.  OPINION HOLDS: We find Doyen had good cause to challenge his appeal.  But the record is devoid of information on whether the guilty plea was entered voluntarily and intelligently or if Doyen would have chosen to go to trial absent a defect in the guilty plea.  We affirm Doyen’s conviction and sentence; he may seek relief through a postconviction-relief action if he chooses.

            Appeal from the Iowa District Court for Winneshiek County, Laura J. Parrish, Judge.  WRIT SUSTAINED IN PART, WRIT ANNULLED IN PART, AND CASE REMANDED.  Considered without oral argument by Tabor, C.J., and Schumacher and Chicchelly, JJ.  Opinion by Chicchelly, J.  (9 pages)

            Roger Lundtvedt contests the legality of the district court’s orders issued in a contempt action.  OPINION HOLDS: Because the district court exceeded the law by requiring Lundtvedt to pay attorney fees to purge his contempt, we sustain the writ of certiorari as to that part of the contempt order but annul the writ in all other particulars.  We remand to the district court for entry of an order consistent with this decision.

            Appeal from the Iowa District Court for Woodbury County, James N. Daane, Judge.  AFFIRMED.  Considered without oral argument by Ahlers, P.J., and Badding and Buller, JJ.  Opinion by Badding, J.  Dissent by Buller, J.  (19 pages)

            Dawn Cook appeals from a ruling that granted Scott Flieder’s petition to modify the parties’ dissolution decree to grant him physical care of the parties’ two children.  After moving out of state in 2018 and leaving the children in her mother’s care since then, Dawn claims that her “heavy reliance upon her mother to assist in raising the children does not make Scott a superior parent,” considering Scott’s failure to pay her any child support and his sporadic visitation with the children.  OPINION HOLDS: In this close case, we give careful consideration to the district court’s findings that Dawn previously denied Scott access to the children, Scott has recently become much more active in the children’s lives, and the children’s best interests are served by allowing them to remain in a familiar environment in their father’s care.  We affirm the district court’s decision granting Scott physical care.  DISSENT ASSERTS: Because the father is an unemployed convicted sex offender and admitted domestic abuser, has limited to no experience meaningfully parenting the children on his own, and has never paid a dime of child support, I dissent from the majority's finding that he is a superior caretaker compared to the mother, who prioritized her career to financially support the children.

            Appeal from the Iowa District Court for Cerro Gordo County, Blake H. Norman, Judge.  AFFIRMED.  Considered without oral argument by Greer, P.J., and Buller and Langholz, JJ.  Opinion by Buller, J.  (7 pages)

            A party to a real estate agreement appeals a ruling finding the agreement was not unconscionable, declaring the other party is the legal owner, and issuing a writ of possession to the other party.  OPINION HOLDS: We affirm.

            Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.  AFFIRMED.  Considered without oral argument by Ahlers, P.J., and Badding and Buller, JJ.  Opinion by Buller, J.  (7 pages)

            A mother appeals from a custody decree placing physical care of her two children with their father.  She argues the district court misweighed the relevant custodial factors and requests appellate attorney fees.  OPINION HOLDS: After considering the district court’s implicit and explicit credibility findings, we affirm.

            Appeal from the Iowa District Court for Scott County, Tom Reidel, Judge.  AFFIRMED.  Considered without oral argument by Ahlers, P.J., and Badding and Buller, JJ.  S.J. Telleen takes no part.  Opinion by Badding, J.  (3 pages)

            Debra Miller appeals the sentence imposed following her pleas of guilty to theft and assault while displaying a dangerous weapon.  OPINION HOLDS: Finding no abuse of the court’s discretion in imposing a prison sentence, we affirm. 

            Appeal from the Iowa District Court for Wright County, Hans Becker, Judge.  APPEAL DISMISSED.  Considered without oral argument by Schumacher, P.J., and Buller and Sandy, JJ.  Opinion by Sandy, J.  (3 pages)

            A petitioner, M.Z., appeals the juvenile court’s dismissal of her petition to establish an involuntary guardianship over two minor children.  M.Z. argues the juvenile court’s dismissal was predicated on an incorrect interpretation of Iowa Code section 232D.301(1) (2024).  OPINION HOLDS: Because M.Z. failed to serve the minors and minors’ known parents pursuant to Iowa Code Section 232D.302 and Iowa Rule of Appellate Procedure 6.702, our court lacks jurisdiction, and we accordingly dismiss this appeal.

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  AFFIRMED ON APPEAL AND CROSS-APPEAL.  Considered without oral argument by Greer, P.J., and Langholz and Sandy, JJ.  Opinion by Sandy, J.  (22 pages)

            Nicole Shimp f/k/a Happel appeals the district court order modifying the visitation provisions of she and Brian Happel’s dissolution decree.  Nicole claims the district court erred by not granting her request for primary physical care of her and Brian’s three sons.  Alternatively, she argues the district court erred by altering the summer visitation schedule to eliminate her Wednesday overnight visitation with the children. Brian cross-appeals, claiming the district court erred by (1) denying his request for a week-on/week-off summer visitation schedule; (2) awarding Nicole $20,000 in trial attorney fees; and (3) incorrectly determining his gross income for child support purposes.  OPINION HOLDS: Upon our de novo review of the record, we affirm on appeal and cross-appeal.

            Appeal from the Iowa District Court for Van Buren County, John M. Wright, Judge.  APPEAL DISMISSED.  Considered without oral argument by Langholz, P.J., Sandy, J., and Doyle, S.J.  Opinion by Sandy, J.  (7 pages)

Travis Gonterman appeals his sentence following his guilty plea for driving while barred as a habitual offender.  On appeal, Gonterman contends the district court abused its discretion in sentencing him by not providing any reasons on the record for his sentence.  OPINION HOLDS: Because Gonterman has failed to establish good cause, we lack jurisdiction to entertain his appeal.  Consequently, we dismiss this appeal.         

            Appeal from the Iowa District Court for Des Moines County, Joshua P. Schier, Judge.  AFFIRMED.  Considered without oral argument by Tabor, C.J., and Schumacher and Chicchelly, JJ.  Opinion by Chicchelly, J.  (4 pages)

            T.C. appeals the district court’s order continuing his residential treatment.  OPINION HOLDS: Because there is substantial evidence supporting the court’s findings, we affirm.

            Appeal from the Iowa District Court for Boone County, John R. Flynn, Judge.  AFFIRMED.  Considered without oral argument by Tabor, C.J., and Ahlers and Langholz, JJ.  Opinion by Langholz, J.  (6 pages)

            Ruslan Negruta appeals his conviction and sentence for ongoing criminal conduct.  He argues that his guilty plea was not knowing and voluntary and that the district court abused its discretion in sentencing him to prison rather than probation.  OPINION HOLDS: Because Negruta did not file a motion in arrest of judgment after being properly advised of the need to do so to challenge his guilty plea on appeal, we cannot consider the challenge to his plea.  And seeing no abuse of discretion, we affirm the district court’s sentencing decision.

            Appeal from the Iowa District Court for Linn County, Carrie K. Bryner, Judge.  AFFIRMED ON BOTH APPEALS.  Considered without oral argument by Schumacher, P.J., and Buller and Sandy, JJ.  Opinion by Schumacher, P.J.  (16 pages)

            Parents separately appeal the termination of their parental rights to their child.  Both challenge the sufficiency of the evidence supporting the grounds for termination and claim the State failed to prove the Iowa Department of Health and Human Services made active efforts to reunify them with their child.  The mother also claims termination is not in the child’s best interests due to the closeness of the parent-child relationship.  And the father claims the court should have placed the child in a guardianship with a maternal aunt in lieu of terminating parental rights.  OPINION HOLDS: Upon our review, we affirm on both appeals.

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, Judge.  AFFIRMED.  Considered without oral argument by Greer, P.J., Chicchelly, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (6 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: In light of the mother’s ongoing substance use and her continued contact with the child’s abusive father, we affirm termination of the mother’s parental rights and find her requested alternatives to termination are not warranted. 

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, Judge.  AFFIRMED.  Considered without oral argument by Greer, P.J., and Badding and Chicchelly, JJ.  Opinion by Greer, P.J.  (6 pages)

            The mother appeals the termination of her parental rights to two of her children, H.S., born in 2021, and R.B., born in 2023.  She argues the juvenile court should have granted a six month extension of the termination proceedings to allow her additional time to reunify with her children.  OPINION HOLDS: After our de novo review, we affirm the juvenile court’s termination of the mother’s parental rights.

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, Judge.  AFFIRMED ON BOTH APPEALS.  Considered without oral argument by Buller, P.J., Sandy, J., and Potterfield, S.J.  Opinion by Potterfield, S.J.  (6 pages)

            The juvenile court terminated the mother’s and father’s parental rights to C.H. and M.H. pursuant to Iowa Code section 232.116(1)(f) and (h) (2024), respectively.  The parents separately appeal, but both argue giving them additional time to work toward reunification or, alternatively, establishing a guardianship is in the children’s best interests rather than termination of their parental rights.  OPINION HOLDS: We cannot say an additional six months will remedy the issues preventing reunification, so we agree with the juvenile court that additional time is not warranted.  And because there is not a viable option for guardian and a guardianship is not in the children’s best interests, we affirm the termination of the mother’s and the father’s parental rights.     

            Appeal from the Iowa District Court for Webster County, Joseph L. Tofilon, Judge.  AFFIRMED.  Considered without oral argument by Greer, P.J., and Badding and Chicchelly, JJ.  Opinion by Greer, P.J.  (6 pages)

            The juvenile court terminated the mother’s parental rights to F.C., born in 2024, pursuant to Iowa Code section 232.116(1)(h) (2024).  The mother challenges termination, arguing (1) it was improper for the juvenile court to hold a combined permanency and termination-of-parental-rights hearing, (2) the State failed to prove the statutory ground for termination because F.C. could have been returned to her custody, and (3) the court should have given her additional time to work toward reunification.  In the alternative, the mother asks for the court to establish a guardianship in lieu of termination.  OPINION HOLDS: We affirm the termination of the mother’s parental rights.

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, Judge.  AFFIRMED IN PART AND REVERSED IN PART ON APPEAL; REVERSED ON CROSS-APPEAL.  Considered without oral argument by Tabor, C.J., and Ahlers and Langholz, JJ.  Opinion by Langholz, J.  (10 pages)

            A father appeals and the Iowa Department of Health and Human Services cross-appeals the juvenile court’s dispositional review order.  Both challenge the juvenile court’s denial of their requests for supervised visitation in a therapeutic setting.  And the father challenges the order for a new psychosexual evaluation, contending that the court erroneously denied his request that it be completed by a different evaluator than the first evaluation.  OPINION HOLDS: We reverse the visitation restriction.  Given the father’s progress over the past year, and with the safeguards of full supervision and a therapeutic setting, we believe the daughter can be adequately protected while allowing the case to proceed.  Because the court’s order does not prohibit a new evaluator for the father’s second psychosexual evaluation, and the Department agrees that a new evaluator is appropriate, we affirm the court’s order authorizing the evaluation.