In re T.O.

• Docket Number: 23-1163
• Decision Date: 08 November 2023
• Parties: IN THE INTEREST OF T.O., Minor Child, D.O., Mother, Appellant.
• Court: Iowa Court of Appeals

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IN THE INTEREST OF T.O., Minor Child, D.O., Mother, Appellant.

No. 23-1163

Court of Appeals of Iowa

November 8, 2023

Appeal from the Iowa District Court for Jones County, Joan M. Black, District Associate Judge.

A notice of appeal was filed on behalf of the mother by counsel without the mother's signature.

Robin L. Himes, Cedar Rapids, for appellant mother.

Brenna Bird, Attorney General, and Michelle R. Becker, Assistant Attorney General, for appellee State.

Craig Elliott, Anamosa, attorney and guardian ad litem for minor child.

Considered by Greer, P.J., and Schumacher and Badding, JJ.

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SCHUMACHER, Judge

A notice of appeal from an order terminating the mother's parental rights was filed on behalf of the mother, D.O., by her counsel. The State moved to dismiss, claiming the court did not have jurisdiction to consider the appeal because the notice of appeal was not signed by the mother. The notice of appeal did not meet the requirements found in Iowa Rule of Appellate Procedure 6.102(1)(a) to appeal the termination of parental rights. And the mother did not substantially comply with the requirements of the rule. We determine that we lack jurisdiction to consider the notice of appeal that was not signed by the mother. Accordingly, we dismiss the appeal.

I. Background Facts &Proceedings

A petition to terminate the mother's parental rights to T.O., born in 2015, was filed by the State on May 8, 2023. The mother was appointed counsel pursuant to Iowa Code section 815.9 (2023).^[1] The appointment order stated, "The mother is currently incarcerated. [Counsel] is appointed as guardian ad litem as well as her attorney."^[2]

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The termination hearing was held on July 6. At the time of the termination hearing, the mother had not seen T.O. in person in nearly one year. It was reported that the child was scared of the mother. The court made arrangements for the mother to participate in the termination hearing by telephone from the Linn County Jail. The mother, however, refused to participate, saying she was not going to talk to strangers. Counsel for the mother stated that she tried to visit the mother at the jail. But the mother denied T.O. was her child, and she was not interested in talking to counsel. Counsel was required to meet with the mother while standing in the hallway through the half-opened jail cell door, as it was determined to be unsafe to meet with the mother privately.

Counsel for the mother presented exhibits to show that on December 19, 2022, the mother was ordered to have a competency evaluation in a pending criminal matter. A doctor from the Iowa Medical and Classification Center (IMCC) determined the mother was not competent to stand trial. In the criminal matter, on March 2, 2023, the court found the mother was "suffering from a mental disorder which would prevent her from understanding the proceedings or assisting effectively in [her] defense and that the [mother] is not competent to stand trial at this time." She was ordered to "undergo competency restoration treatment at the IMCC."

Counsel for the mother requested that the termination hearing be continued due to the mother's incompetency. Counsel stated the mother was "not able to

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understand the proceedings" or "adequately participate in these proceedings." The court denied the motion, finding, "the primary purpose here, unlike a criminal trial, is not your client's ability to participate and her own . . . interests. It's the best interests of the child. So we will continue today."

On July 10, the mother's parental rights were terminated pursuant to Iowa Code section 232.116(1)(g) and (h). The court also determined that termination of the mother's parental rights was in the child's best interests. The termination order noted the mother had been found incompetent in pending criminal matters.^[3]

Counsel for the mother filed a notice of appeal on July 25. The notice was not signed by the mother. The notice stated the mother was unable to sign, stating she was found to be incompetent in her criminal cases. An order was entered on July 28, 2023, appointing an attorney to represent the mother in the appeal. The State moved to dismiss, asserting the court lacked jurisdiction to consider the appeal because the mother did not sign the notice of appeal. The State also pointed out that counsel for the mother did not indicate the mother affirmatively intended to appeal the court's ruling. The Iowa Supreme Court ordered that this jurisdictional issue should be considered with the appeal.

II. Jurisdiction

Iowa Rule of Appellate Procedure 6.102(1)(a) provides:

An appeal from a final order or judgment in a termination-of-parental-rights or a child-in-need-of-assistance case under Iowa Code chapter 232 is initiated by filing the notice of appeal with the clerk of the district court where the order or judgment was entered within the time provided in rule 6.101(1)(a). The notice of appeal cannot be filed unless signed by both the appellant's counsel and the

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appellant. The notice of appeal must follow the requirements of Iowa R. Elec. P. 16.305(5)(c)(1) for filing documents containing two or more signatures. The appellant's signature must be an original or an unaltered digitized signature. See Iowa R. Elec. P. 16.201(35). An informational copy of the notice of appeal must be filed electronically with the clerk of the supreme court.

(Emphasis added).

Under this rule, "[t]he notice of appeal must be signed by the appellant's counsel and the appellant." In re T.F., No. 03-0500, 2003 WL 21076398, at *1 (Iowa Ct. App. May 14, 2003). A parent's appeal is dismissed when the parent failed to sign the notice of appeal. See In re C.M., No. 22-0331, 2022 WL 1234156, at *1 n.2 (Iowa Ct. App. Apr. 27, 2022) (noting the father filed a notice of appeal but did not sign it and his appeal was dismissed); In re L.B., No. 18-0262, 2018 WL 1863294, at *1 n.1 (Iowa Ct. App. Apr. 18, 2018) ("Although a notice of appeal was filed in the mother's name, the mother failed to sign it" and "[h]er appeal was ultimately dismissed for failure to comply with the appellate rules of procedure."); In re C.W., No. 13-0129, 2013 WL 2146237, at *1 n.1 (Iowa Ct. App. May 15, 2013) (stating the father's appeal was dismissed because his appeal was filed without his signature); In re K.B., No. 03-1414, 2003 WL 23220031, at *1 n.2 (Iowa Ct. App. Nov. 26, 2003) (finding the mother's appeal was dismissed because she failed to comply with the rule requiring that the notice of appeal be signed by counsel and the parent). The case In re D.S. notes, "The mother's attorney appealed at the mother's behest, but the supreme court dismissed the appeal when the mother failed to sign the notice of appeal." No. 22-1455, 2022 WL 16985692, at *1 n.2 (Iowa Ct. App. Nov. 17, 2022). We have found no instances

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where an appeal in a termination case proceeded based on the signature of the attorney alone.^[4]

In instances where only the attorney signed the notice of appeal, the appeal has been permitted to continue where a parent filed an amended petition containing the correct signatures. In re...