In the Interest of W.W.
2012 Iowa App. LEXIS 1067
| Iowa Ct. App. | 2012Background
- Scott Whisler appeals a district court order dismissing his petition to terminate Dena Whisler's parental rights.
- Texas divorce decree (2005) designated Scott as sole managing conservator and Dena as possessory; Texas order required supervised visitation and a broad injunction against direct contact with Scott.
- Scott and Dena relocated to Iowa; Dena ceased visitation for years and did not engage with supervised visitation arrangements.
- In 2011, Scott petitioned to terminate parental rights for abandonment; district court found Dena indigent, appointed counsel, and rejected abandonment, ordering fees and a parenting plan to facilitate visitation.
- Scott moved to amend the order; court struck the parenting plan and later ordered Scott to pay Dena's trial attorney fees; Scott appealed.
- The court ultimately reversed and remanded, addressing timeliness, abandonment, best interests, and fee issues, with a remand for appellate-fee determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal | Whisler; timely under Rule 1.904(2) based on reconsideration ruling | Dena; timeliness governed by original 1.904(2) motion timing | Timely; notice of appeal timely after reconsideration ruling |
| Abandonment evidence | Dena abandoned the children by lack of support and contact | Dena prevented visits via Texas injunction and enforcement | Clear and convincing Abandonment established under 600A.8(3) |
| Best interests of the children | Termination serves the children’s best interests given emotional reactions and lack of contact | Termination not in best interests absent other factors | Termination in the best interests; remanded for entry of termination order for Dena |
| Attorney-fee law (trial fees) under 600A.6B | State Public Defender review not required for non-indigent filer; equal-protection concerns | 6A.613 applies universally and is constitutional | Section 600A.6B(3) requires defender review for applicable claims; no equal-protection violation; district court’s treatment affirmed; remanded for appellate-fee determination |
| Appellate attorney fees | Appellate fees shiftable under 600A.6B; Dena entitled to fees | Opposing party bears appellate costs; no automatic fee shift | Dena entitled to appellate fees; remanded for determination of amount |
Key Cases Cited
- In re C.A.V., 787 N.W.2d 96 (Iowa Ct.App.2010) (standard for abandonment on evidence of neglect and communication)
- Explore Info. Servs. v. Court Info. Sys., 636 N.W.2d 50 (Iowa 2001) (Rule 1.904(2) motion scope and limits)
- Woody v. Machin, 380 N.W.2d 727 (Iowa 1986) (timeliness of appeal linked to 1.904(2) reconsideration ruling)
- Meier v. Senecaut, 641 N.W.2d 532 (Iowa 2002) (preservation of error for untimely 1.904(2) motions)
- In re S.A.J.B., 679 N.W.2d 645 (Iowa 2004) (counsel provision in termination cases; equal-protection considerations)
- Schaffer v. Frank Moyer Constr., Inc., 628 N.W.2d 11 (Iowa 2001) (appellate-fee considerations under fee-shifting statutes)