Opinion
No. 4-725 / 04-1463
Filed December 8, 2004
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, Judge.
A grandmother whose son's parental rights to two children had been earlier terminated appeals from a juvenile court order denying her motion to intervene in the termination case to contest adoption of the children. AFFIRMED.
Cathy S., Des Moines, pro se.
Thomas J. Miller, Attorney General, Gordon E. Allen, Deputy Attorney General, John Sarcone, County Attorney, and Faye Jenkins, Assistant Polk County Attorney, for appellee-State.
Michael Sorci, Des moines, guardian ad litem for minor children.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Cathy, whose son Jamie's parental rights to two children had been earlier terminated, appeals from a juvenile court order denying her motion to intervene in the termination case to contest adoption of the children by relatives. Finding no reversible error, we affirm.
Leanna is the mother, and Jamie the father, of Victoria, born in June 1996, and Kelsey, born in May 1998. In March 2002 the children were adjudicated children in need of assistance (CINA). Pursuant to juvenile court orders they were placed with Cathy's sister, Vicki, and Vicki's husband, Dan, Jamie's aunt and uncle. They have thereafter remained with Vicki and Dan.
In early March 2003 the State filed a petition seeking termination of Leanna's and Jamie's parental rights. On April 18, 2003, Cathy filed a motion to intervene in the termination case. She alleged that on or about July 28, 2000, a stipulated order for grandparent visitation rights had been entered in Polk County Equity Case No. 40057, and as a result she had an interest in the termination proceeding, the disposition of which might impair or impede her ability to protect her interest. In a pretrial conference order filed the same date, April 18, the court ordered that Cathy's motion to intervene would "be tried after termination hearing."
The termination hearing was held May 6 and 16, 2003. On May 18, 2003, prior to ruling on the termination petition the juvenile court entered an order. The order (1) finds that "the visitation hearing survives the termination pursuant to Equity 40057," (2) "grants concurrent jurisdiction to litigate grandparent visitation in District Court," and (3) concludes: "The intervention is moot."
The juvenile court entered a ruling terminating Leanna's and Jamie's parental rights to the children on July 14, 2003. On January 6, 2004, Cathy filed a "Motion for Hearing on Motion to Intervene." She referred to her April 18, 2003 motion to intervene and pretrial conference order which stated the motion would be tried after the termination hearing. She stated the motion to intervene had not been set for hearing and requested that it be set. It appears that no hearing on her motion was scheduled or held.
On July 6, 2004, Cathy filed what she denominated a "Motion for Appearance To Resist." In it she stated that she wished to resist the adoption of Victoria and Kelsey by Vicki and Dan, who had apparently been approved by the Department of Human Services (DHS) as adoptive parents for the children, and wished to herself adopt the children. She alleged that following an earlier, unspecified hearing Dan had "put an end to any visitations." The juvenile court held a hearing on July 16, 2004. It construed Cathy's most recent motion as a request to intervene for the purpose of adopting the children. It also construed her motion and testimony as seeking visitation with the children. In an order filed September 1, 2004, the court overruled Cathy's request to intervene and request for visitation, and provided that the DHS, as the children's legal guardian, could allow such visitation as was appropriate until adoption of the children occurred. Cathy appeals.
In her petition on appeal Cathy alleges that the children's "adoption [was] put through 9-27-04." The State urges that because the children have now been adopted by Vicki, Cathy's appeal is moot as there is no relief this court can grant concerning pre-adoptive placement of the children, or post-termination visitation. It correctly points out that although the fact of the children's adoption is outside the record upon which Cathy's appeal is based, such matters may be submitted to establish mootness. See In re L.H., 480 N.W.2d 43, 45 (Iowa 1992) (noting that matters outside the record may be submitted to establish or counter a claim of mootness).
Although the State's argument concerning mootness may have merit, we prefer to pass that issue and address the substance of Cathy's claims of juvenile court error. Our review of the denial of a motion to intervene is for correction of errors at law, giving some deference to the district court's discretion. In re A.G., 558 N.W.2d 400, 403 (Iowa 1997). That discretion is not the ability to deny intervention where the prerequisites of the rule allowing intervention have been met, but instead is the discretion to determine whether a prospective intervenor is "interested" in the litigation. Id.
In her first issue Cathy states: "Filed Motion to Intervene 4-18-2003 Denied to Intervene before Termination. Judge never answered. (Not Dismissed as now claims.) Second petition filed 6-06-04 Adoption put through 9-27-04." Cathy's first issue is prolix and difficult to understand. In its September 1, 2004 order the juvenile court stated: "A prior motion to intervene for visits by [Cathy] was filed before the termination was entered and later dismissed." As best we understand Cathy's first issue she claims (1) the juvenile court erred in finding her prior motion to intervene had been dismissed, and (2) the juvenile court erred in denying her most recent motion to intervene. We address these claims in the order listed.
It appears the date of 6-06-04 is in error, and should be 7-06-04, the date Cathy filed the motion the juvenile court heard on July 16, 2004.
As noted above, in its May 18, 2003 order the juvenile court granted concurrent jurisdiction to litigate Cathy's request for visitation, and held the motion to intervene was thus moot. It thus implicitly denied and dismissed her then-pending motion to intervene. Her claim the court erred in later stating that her motion to intervene had been dismissed is thus without merit.
As an "other relative" Cathy had a right, following termination, to be considered for guardianship and custody of the children. Iowa Code § 232.117(3)(c) (2003). However, she did not seek guardianship and custody but instead sought to intervene to object to the children's adoption by relatives, adopt the children herself, and, as her motion was construed by the juvenile court, have visitation with the children pending any adoption. The juvenile court might have allowed Cathy to intervene and then considered the substance and merits of her requests. However, it accomplished the same thing by holding an extended evidentiary hearing on whether she should have visitation pending any adoption and whether she would be an appropriate and suitable adoptive parent for the children. Error, if any in fact occurred, in the juvenile court's denial of intervention was thus not prejudicial to Cathy and serves as no basis for reversal of the juvenile court ruling.
The juvenile court made detailed findings of fact and, based on those facts, determined that a change in the children's custody was not recommended or in their best interest, that unsupervised visitation with Cathy was not appropriate, and that Cathy was not an appropriate adoptive parent for the children. Cathy appears to challenge only the denial of intervention, and not the substance of the juvenile court's findings of fact and resulting determinations. However, without unduly further extending this opinion we merely note that we fully agree with the court's findings and resulting determinations, which are fully supported by the record.
Cathy identifies her second legal issue as "prosecutorial misconduct." She goes on to state that she was "pro se," was told by the children's guardian ad litem and the assistant county attorney to wait outside until the guardian ad litem came and got her, and that she was deprived of her right to see and hear the evidence against her. Although she asserts she was excluded from the hearing on her motion to intervene, the record contains a fifty-four page transcript of the hearing held on July 16, 2004. That transcript shows that Cathy was present, testified, presented a daughter as a witness, cross-examined a witness presented by the State, and made argument to the court. Her claim that she was excluded from the hearing is clearly contrary to the facts shown by the record and thus without merit.
Cathy further complains that the judge "said she would have me back to read the councelor's (sic) letter before making her decision." She implicitly asserts that she was not brought back to court for a further hearing as promised. At the conclusion of the July 14, 2004 hearing the parties and court agreed that arrangements would be made for Cathy to have a session with the children's therapist and the record would remain open for a report from the therapist. The record does contain a two-page letter, dated August 6, 2004, from the children's therapist, which the court apparently marked "Court's Exhibit 1" and dated "8-30-04." The parties and the court had also agreed at the conclusion of the July 14 hearing that once the report was received, if Cathy did not agree with it and wanted an opportunity to provide further information to the court she could have an in-court hearing or simply write a letter to the judge, who would provide copies to the other parties, and if the other parties felt a need for a hearing one would then be scheduled. However, the record contains no statement or suggestion that after the report was received and distributed the court would schedule a further hearing if no request was received from Cathy or another party. No letter from Cathy appears in the record, and no request for a hearing by Cathy or another party appears in the record. Under such circumstances Cathy's claim that the juvenile court erred by failing to have another hearing is thus without merit.