Opinion
No. 3-768 / 03-1398
Filed October 15, 2003
Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge.
A paternal uncle and his wife appeal a juvenile court order in a child in need of assistance case denying their motion to reconsider placement of the child in interest. APPEAL DISMISSED.
Scott and Deb Goering, Sergeant Bluff, appearing pro se.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Jennifer Galloway, Assistant County Attorney, for appellee-State.
Michael R. Sorci, Johnston, guardian ad litem for minor child.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
C.P. was born to M.G. on June 1, 2002. C.P. was removed from her mother's custody on August 13, 2002, pursuant to Iowa Code section 232.78 (2001) and was placed in the temporary custody of the Iowa Department of Human Services (DHS). On October 21, 2002, the juvenile court adjudicated C.P. a child in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(c)(2) and (6)(n). The October 21 order continued C.P. in DHS custody for placement such as foster care.
C.P.'s paternal uncle, S.G., and S.G.'s wife, D.G., sought to intervene. In an order dated April 24, 2003 and filed April 25 the juvenile court denied their motion to intervene.
On April 30, 2003, S.G. and D.G. filed a "Motion to Modify Placement." They noted that M.G.'s parental rights had been terminated on April 28, 2003. Although their motion did not expressly request that C.P. be placed with them, that appears to be its intent. In an order dated May 7, 2003, and filed May 8, the juvenile court denied the motion. In doing so it noted S.G. and D.G. were not parties in the case.
The order terminating M.G.'s parental rights also terminated the parental rights of C.P.'s putative fathers.
On July 14, 2003 S.G. and D.G. wrote a letter to the District Associate Judge who entered the May 8 order. They requested that the judge "reconsider this ruling," identifying the CINA case by case number. They requested that the court "allow this child a chance to have the kinship placement and let us raise our niece." It thus appears clear that the request related to the juvenile court's May 8 ruling in this case. The juvenile court treated the July 14 letter as a "Motion to Reconsider" its ruling denying the motion to modify placement. On July 29 it denied the motion to reconsider. S.G. and D.G. appealed on August 12.
The State asserts this court is without jurisdiction to hear this appeal because S.G. and D.G. did not timely appeal the denial of their motion to intervene, the order terminating parental rights, or the denial of their motion to modify placement. This appeal is clearly not from any order in the termination of parental rights case and we therefore have no occasion to consider whether S.G. and D.G. were parties to or timely appealed in that separately filed, separately numbered, and concurrently progressing case. It also seems clear from S.G. and D.G.'s July 14 letter that their appeal is solely from the order denying their motion to modify placement, and is not from the April 25 order denying intervention. We will nevertheless treat the appeal as if from both the April 25 and May 8 orders. For the following reasons we agree with the State that we are without jurisdiction to entertain the appeal.
The time for appeal is prescribed by Iowa Rule of Appellate Procedure 6.5(2). In relevant part the rule provides:
A notice of appeal from final orders entered in child in need of assistance proceedings . . . must be filed within, and not after, 15 days from the entry of the order, unless a motion for new trial as provided in Iowa R.Civ.P. 1.1007 or a motion as provided in Iowa R.Civ.P. 1.904(2) is filed, and then within 15 days after entry of a ruling on such motion.
Iowa R.App.P. 6.5(2).
An untimely motion for new trial or motion for enlarged or amended findings and conclusions (rule 1.904(2)) does not toll the time period within which an appeal must be taken. See e.g., Hogan v. Chesterman, 279 N.W.2d 12, 15 (Iowa 1979) (motion for new trial); Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 471 (Iowa 1978) (motion for enlarged or amended findings and conclusions). If this appeal was untimely, we must dismiss it. Qualley, 261 N.W.2d at 468. Because S.G. and D.G.'s August 12, 2003 appeal was not taken within fifteen days of any order other than the July 29 order overruling the motion contained in their July 14 letter, we have jurisdiction of this appeal only if their July 14 motion was timely.
We will assume, without so deciding, that S.G. and D.G.'s July 14 motion was in substance a rule 1.904(2) motion. See, e.g., Beck v. Fleener, 376 N.W.2d 594, 596 (Iowa 1985) (finding plaintiffs' motion to reconsider was in substance a motion for enlarged or amended findings and conclusions). Any such motion must be filed within the time allowed for a motion for new trial. Iowa R.Civ.P. 1.904(2). Motions for new trial are provided for by Iowa Rule of Civil Procedure 1.1004. Rule 1.1007 provides, in relevant part, that "[m]otions under rule . . . 1.1004 . . . must be filed within ten days after filing of the . . . decision with the clerk . . . unless the court, for good cause shown and not ex parte, grants an additional time not to exceed 30 days."
S.G. and D.G.'s July 14 motion was filed more than two months after the juvenile court's April 25 order denying their motion to intervene and its May 8 order denying their motion to modify placement. No order extending the time for filing the July 14 motion had been sought or secured. The July 14 motion was untimely and did not toll the fifteen day period for taking an appeal. The appeal thus is untimely, and we are without jurisdiction to entertain it. We therefore dismiss the appeal.