Opinion
No. 2-942 / 02-1633
Filed November 25, 2002
Appeal from the Iowa District Court for Linn County, MICHAEL J. NEWMEISTER, District Associate Judge.
The maternal grandmother appeals a juvenile court order terminating her daughter's parental rights to the daughter's two children. AFFIRMED.
Anne M. Laverty of Mullins Laverty, P.L.C., Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Denver D. Dillard, County Attorney, and Lance Heeren, Assistant County Attorney, for appellee-State.
Michael Fay, Cedar Rapids, for appellee-mother.
Hanna Weston of Nadler Weston, Cedar Rapids, for appellee-father.
Mary Chicchelly of Seidl Chicchelley, Marion, guardian ad litem for minor children.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
H.B. is the mother of four young children, including T.N., who was born in July 1999, and C.B., who was born in February 2001. C.N. is H.B.'s mother. The juvenile court terminated H.B.'s parental rights to T.N. and C.B. pursuant to Iowa Code sections 232.116(1)(c) and (g) (2001). The juvenile court terminated the parental rights of the four natural, legal, and putitive fathers of T.N. and C.B. pursuant to each of four statutory provisions. Neither H.B. nor any of the fathers appeal.
These provisions have been renumbered as sections 232.116(1)(d) and (h) in the 2001 Code Supplement.
C.N., who was allowed by the juvenile court to intervene in the termination proceeding, appeals. She requests that we reverse the termination of H.B.'s parental rights to T.N. and C.B. In the alternative she requests that we order full briefing. In its response to C.N.'s petition on appeal the State of Iowa requests an order affirming the juvenile court. The attorney and guardian ad litem for T.N. and C.B. joins in the State's response. Because of the nature of the issues presented we find the petition and responses, together with the entire record and the juvenile court's decision, allow us to address the issues without further briefing.
C.N. states her issue on appeal as, "Whether the court erred in terminating the parental rights of the mother, and in failing to acknowledge the rights of the maternal grandmother, a rightful intervenor." In its response the State views C.N.'s statement of the issue as perhaps raising two issues. We will therefore address what are arguably two separate issues.
C.N.'s statement of the issue might arguably be seen as first raising a claim that the juvenile court erred in terminating H.B.'s parental rights. The State points out that no parent of T.N. or C.B. has appealed the termination of such parent's parental rights and asserts that C.N., as a maternal grandmother, has no standing to appeal the termination of a parent's parental rights. Although C.N. cites authority in support of what we hereafter discuss as a second issue, she cites no authority suggesting she has standing to challenge the termination of parental rights of other persons and we have found no such authority. We agree with the State that C.N. has no standing to appeal that part of the juvenile court's order terminating H.B.'s parental rights.
When the juvenile court terminates the parental rights of a child's parents it is required to transfer the guardianship and custody of the child to some agency, facility, institution, or individual. Iowa Code § 232.117(3). Potential guardians and custodians include the department of human services, see Iowa Code § 237.117(3)(a), and a relative of the child, see Iowa Code § 232.117(3)(c). In its termination order the juvenile court placed the custody and guardianship of T.N. and C.B. with the department of human services.
On appeal C.N. appears to assert the juvenile court erred in placing guardianship and custody with the department of human services rather than with her. The State and the attorney and guardian ad litem for the children assert C.N. has not preserved error with respect to this issue because, as C.N. herself argues, the juvenile court did not address or dispose of any such claims by C.N.
C.N. was represented by counsel and participated in the termination proceeding. She asserts she preserved error on this issue through the relief she requested at the termination hearing, citing two pages of the transcript containing some of her testimony upon direct examination by her attorney. Although in the portion of the transcript she cites C.N. is never asked, and never states, whether she is requesting guardianship and custody of the children, her testimony might arguably be seen as making such a request. However, in its ruling and order the juvenile court did not address or pass on any such request by C.N., as apparently acknowledged by C.N.'s assertion on appeal that the juvenile court "at the very least . . . should have explained is reasoning for passing over [C.N.] as a custody option."
"Issues must ordinarily be presented to and passed on by the trial court before they may be raised and adjudicated on appeal." Benavides v. J.C. Penney Life Ins. Co, 539 N.W.2d 352, 356 (Iowa 1995). "It is well settled that [an Iowa Rule of Civil Procedure] 179(b) [now rule 1.904(2)] motion is essential to preservation of error when a trial court fails to resolve an issue, claim, defense, or legal theory properly submitted to it for adjudication." State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984) (citations omitted). This rule has been held to apply to termination proceedings. See In re A.R., 316 N.W.2d 887, 889 (Iowa 1982); In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994). C.N. did not file a motion pursuant to rule 1.904(2). We conclude that by not filing such a motion in the juvenile court C.N. has not preserved error on the issue she now attempts to present. See In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (holding, in CINA proceeding, that constitutional and statutory challenges were waived by failing to file a rule 1.904(2) motion).