Opinion
No. 5-001 / 04-1603
Filed February 9, 2005
Appeal from the Iowa District Court for Lucas County, Gary Kimes, Judge.
A mother appeals from the juvenile court's permanency order. APPEAL DISMISSED.
William Eddy of the Booth Law Firm, Osceola, for appellant-mother.
Tiffany Koenig of Kragnes, Tingle Koenig, P.C., Des Moines, for appellant-intervenor.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Paul Goldsmith, County Attorney, for appellee-State.
Monty Franklin of the Franklin Law Office, Chariton, for the children.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
A mother appeals from the juvenile court's permanency order. She contends the court erred in ordering the county attorney to file a petition to terminate her parental rights to her children, and in ordering the children's placement in foster care. The children's maternal grandmother also appeals, contending the court erred in continuing the children's placement in foster care. We review these claims de novo. In re C.H., 652 N.W.2d 144, 147 (Iowa 2002).
The children were adjudicated in need of assistance in September 2002. The children were placed with their mother until temporary removal was ordered in November 2003. The children were placed in foster care at that time. The maternal grandmother was granted intervenor status in January 2004.
On October 1, 2004, a permanency hearing was held. The mother and grandmother sought placement of the children with the grandmother. The juvenile court ordered the children to remain in foster care. The court also ordered the county attorney to file a petition to terminate parental rights.
The State has filed a motion to dismiss, arguing the appeal is interlocutory. In the case of In re W.D., III, 562 N.W.2d 183, 184 (Iowa 1997), following a permanency hearing, the juvenile court ordered the children remain in foster care and ordered a termination petition be filed. Our supreme court determined the court's order was an interlocutory ruling, from which permission to appeal must be granted. In re W.D., III, 562 N.W.2d at 186.
Where a party improperly attempts an appeal as of right from an order that is determined to be interlocutory, the papers in those cases are treated as an application for interlocutory appeal. Iowa R. App. P. 6.1( 4). The application may be granted on finding that the juvenile court's ruling involves substantial rights and will materially affect the final decision and that a determination of its correctness before trial on the merits will better serve the interests of justice. Iowa R. App. P. 6.2(1).
Our supreme court has been very reluctant to allow interlocutory appeals in this manner. W.D., III, 562 N.W.2d at 186. Id. Interlocutory appeals should rarely be permitted prior to a juvenile court's final disposition where the court has ordered the filling of a termination of parental rights petition. Id. In W.D., III, the Iowa Supreme Court found no reason to consider the parents' appeal as an interlocutory appeal. Id. Accordingly, we decline to grant interlocutory appeal to the mother. Likewise, the grandmother should not be granted interlocutory appeal. Her request for custody may be heard in the context of the termination of parental rights proceeding. Because a termination petition must be filed within thirty days, granting either party an interlocutory appeal would unnecessarily delay the final resolution of the ultimate placement of these boys.
It is worth noting that some orders entered after a permanency hearing may be final as the court has the option of returning the child home, continuing the current placement for six months, transferring custody to a suitable person, transferring sole custody to another parent, or providing for "long-term" care. See Iowa Code § 232.104(2) (2003).