Opinion
No. 4-580 / 03-2077
Filed February 24, 2005
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.
Guardian ad litem appeals the district court's failure to find Iowa Code section 232B.6 (Supp. 2003) unconstitutional. APPEAL DISMISSED.
Robert J. Phelps of Phelps Phelps, Davenport, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Gerda Lane, Assistant County Attorney, for appellee State.
Heard by Sackett, C.J., and Vogel, Zimmer, and Hecht, JJ., and Nelson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
This appeal was initiated by a guardian ad litem following the juvenile court's action in a combined adjudicational and dispositional order in a Child in Need of Assistance (CINA) proceeding which:
a. rejected arguments by the guardian ad litem against the constitutionality of a portion of the Iowa Indian Child Welfare Act, Iowa Code section 232B.6 (Supp. 2003), providing for emergency removals of Indian children, and
b. adopted the recommendation of the parties and the guardian ad litem regarding placement of the child involved.
This appeal, therefore, was filed by the party (guardian ad litem) who received the disposition he recommended. His appeal contends a case or controversy still exists which should be adjudicated by the court. That controversy allegedly includes the trial court's improper holdings that:
1. The standard for removal under the Iowa Indian Child Welfare Act did not violate due process of law protections;
2. The Iowa Indian Child Welfare Act did not violate the equal protection provision of the 14th Amendment; and
3. The Iowa Indian Child Welfare Act did not violate the First Amendment to the United States Constitution which prohibits the establishment of religion.
The State has filed a motion to dismiss the appeal, arguing that the law prohibits an appellate court from deciding a moot issue and further that a party is prohibited from appealing a favorable ruling, citing (among others), Johnson Equipment Corp. v. Industrial Indemnity, 489 N.W.2d 13 (Iowa 1992). The Johnson case contains the following language: "This is because a party need not, in fact cannot, appeal from a favorable ruling." Johnson Equip., 489 N.W.2d at 116 (quoting Wassom v. Sac County Fair Assoc., 313 N.W.2d 548 (Iowa 1981)).
For this and all the reasons set out in the State's motion, the motion to dismiss is sustained; this appeal is dismissed.