Opinion
No. 2-750 / 02-1229
Filed October 16, 2002
Appeal from the Iowa District Court for Polk County, Linda R. Reade, Judge.
Mother appeals from the order terminating her parental rights to her son. AFFIRMED.
Thomas Graves of James, Graves Ukabiala, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Celene Coffman, Assistant County Attorney, for appellee-State.
Kimberly Ayotte of the Youth Law Center, Des Moines, guardian ad litem for minor child.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
Chakakhan M. is the mother of Montez B., who was born on September 18, 2001. When Montez was born, Chakakhan was a resident at the House of Mercy, where she had been placed as a condition of her probation for first-degree theft. Chakakhan left the House of Mercy, on November 5, 2001, and was "on the run" until January 9, 2002, having left Montez with another woman. The State attained a removal order for Montez and the court later adjudicated him in need of assistance pursuant to Iowa Code section 232.2(6)(c)(2) (2001). By order on March 7, 2002, the juvenile court terminated Chakakhan's parental rights to Montez and two other children, Adisa M. and Leon B. Chakakhan appealed this order.
While the first termination order was on appeal, the State filed a second termination petition regarding Montez on April 19, 2002. Chakakhan moved to dismiss the second petition contending it was based upon the same grounds as the first termination order which was then the subject of a pending appeal. The juvenile court denied Chakakhan's motion.
Although this court affirmed the first termination order with regard to Adisa and Leon, we dismissed the termination proceedings as to Montez on May 10, 2002. The juvenile court held a hearing on the second petition on June 26, 2002 and subsequently terminated Chakakhan's parental rights to Montez pursuant to Iowa Code sections 232.116(1)(g) and (h) (Supp. 2001). Chakakhan appeals.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern in a termination proceeding is the best interests of the child. In re R.R.K., 544 N.W.2d 274, 275 (Iowa Ct.App. 1995).
Chakakhan first contends the juvenile court erred in failing to grant her motion to dismiss because the court lacked jurisdiction to hear the second petition while the appeal from the first termination order was pending. The State counters that the critical issue is whether the juvenile court had jurisdiction at the time of the second termination hearing, rather than at the time the petition was filed. In this case, the appeal from the first termination order was concluded on May 10, 2002, more than six weeks before the hearing on the second petition.
The general rule is that the trial court loses jurisdiction over the merits of the controversy when an appeal is perfected. Hulsing v. Iowa Nat'l Mut. Ins. Co., 329 N.W.2d 5, 7 (Iowa 1983). An exception to this rule is that a trial court can retain jurisdiction to proceed on collateral issues not affecting the subject matter of the appeal. In re Estate of Tollefsrud, 275 N.W.2d 412, 417-18 (Iowa 1979); see also Beyond the Garden Gate, Inc. v. Northstar Freeze-Dry Mfg., Inc., 526 N.W.2d 305, 311 (Iowa 1995) (noting an appeal deprives the district court of jurisdiction only as to those issues on appeal). Moreover, in In re B.L., 470 N.W.2d 343, 347 (Iowa 1991), our supreme court recognized the jurisdiction of juvenile courts is not suspended while appeals are pending and that "matters that are not directly involved in the appeal may be dealt with by the juvenile court during the appeal process." Id.
We conclude the district court did not err in failing to grant Chakakhan's motion to dismiss for lack of jurisdiction. The second termination petition sought to terminate Chakakhan's parental rights under one additional code section not alleged in the first petition. Also, the second petition asserted additional facts not alleged in the first. In particular, the second petition alleged Montez had been removed from Chakakhan's physical custody for the last six consecutive months, see Iowa Code § 232.116(1)(h)(c), and that the court had previously terminated Chakakhan's parental rights to another child, see Iowa Code § 232.116(1)(g)(b). Accordingly, the merits, issues, and factual bases of the first and second termination petitions were distinct. Finally, as the State notes, at the time of the hearing on the second termination, the first petition seeking termination of Chakakhan's parental rights to Montez had already been dismissed by this court. Thus, we conclude the juvenile court did not lack jurisdiction to hear the second petition from which Chakakhan now appeals.
The first petition sought termination under Iowa Code section 232.116(1)(h) (Supp. 2001), while the second sought termination under sections 232.116(1)(g) and (h).
Chakakhan next asserts the termination was not in Montez's best interests. Termination is not mandatory upon a finding that all of the applicable statutory elements have been met. In re E.B.L., 501 N.W.2d 547, 552 (Iowa 1993). In addition to meeting the statutory requirements for termination, the termination must be in the best interest of the child. In re T.Q., 519 N.W.2d 105, 106 (Iowa Ct.App. 1994).
The district court found Chakakhan (1) is serving a term of up to ten years in prison, (2) has expressed thoughts of harming Montez, (3) has not taken advantage of the services offered to reunite the family, and (4) did not comply with the case permanency plan. We conclude these findings were proven by clear and convincing evidence. Accordingly, based on these findings we agree termination of Chakakhan's parental rights is in Montez's best interests and we therefore affirm.