In re W.T., 21-0540

CourtUnited States State Supreme Court of Iowa
Writing for the CourtOXLEY, JUSTICE
PartiesIN THE INTEREST OF W.T., Minor Child, J.L., Father, Appellant.
Decision Date03 December 2021
Docket Number21-0540

IN THE INTEREST OF W.T., Minor Child, J.L., Father, Appellant.

No. 21-0540

Supreme Court of Iowa

December 3, 2021


Submitted October 20, 2021

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Marshall County, Paul G. Crawford, District Associate Judge.

Dad seeks a delayed appeal from the juvenile court's termination of his parental rights.

Christopher A. Clausen of Clausen Law Office, Ames, for appellant father.

1

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant Attorney General, for appellee.

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OXLEY, JUSTICE

This appeal involves the termination of a dad's parental rights. Dad filed his notice of appeal one day late and asks us to grant his request for a delayed appeal. For the reasons discussed below, we grant Dad's request and, on our de novo review, affirm the juvenile court's order terminating his parental rights.

I.

This case was brought to the department of human service (DHS)'s attention when it was reported Mom allowed a registered sex offender to stay overnight with her and her three children, including W.T. Mom agreed with DHS that this was a bad idea. She was arrested for child endangerment and jailed after it happened again. The juvenile court granted DHS's removal order, and all three children were placed in foster care. The State filed a child-in-need-of-assistance (CINA) petition in November 2019. Mom identified Dad as W.T.'s father, and paternity testing confirmed he was her biological father in mid-March 2020. Dad lived in Arizona, and a home study was started. By then, W.T. was six months old.

Dad returned to Iowa in July for his brother's graduation and ended up staying when, in his words, he "got stranded." DHS met with him later that month. A provider scheduled a visit between Dad and W.T. in August, which Dad cancelled. DHS made contact with Dad nearly every month after that, but Dad did not even meet W.T. until January 17, 2021, four days before the termination hearing. In the meantime, the State moved to terminate Mom's and Dad's parental rights on November 4, 2020 because Mom was not in a position to

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provide for the needs of the child, and Dad had not engaged in services or even met W.T. even though he had moved back to Iowa in July. When Dad finally met W.T. on January 17, 2021, she clung to the provider during the first half of the two-hour visit because she had never met Dad and was scared. She eventually warmed up to Dad, but as the provider testified, they couldn't have been bonded after that one short visit.

At the time of the hearing on January 21, Dad lacked a stable income, having just started working part-time doing odd jobs for his landlord for an undetermined amount of pay. Dad was living with a woman whose parental rights to her own children had previously been terminated, which raised concerns for DHS. The DHS case manager also expressed concerns at the termination hearing about W.T.'s emotional state if she was separated from her half sister, who was in the same foster placement. The juvenile court concluded the State proved the grounds for termination and terminated Mom's and Dad's parental rights on April 6.

The deadline to appeal was April 21. See Iowa R. App. P. 6.101(1)(a). Mom did not appeal. Dad appealed but filed the notice of appeal on April 22-one day late. Recognizing the untimeliness of the notice, Dad's counsel filed a motion for a delayed appeal, explaining: "The undersigned conferred with the father who wishes to appeal. The undersigned had calendared the deadline to appeal based on the date of notification of April 8, 2021, in error." We ordered the motion be submitted with the appeal.

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We transferred the case, and the court of appeals denied Dad's request for a delayed appeal because the late filing was based on attorney inadvertence and was not attributable to any extenuating circumstances. We granted Dad's application for further review to further define the parameters of delayed appeals in the context of chapter 232 appeals.

II.

We begin by determining whether we can hear Dad's appeal. Although an untimely appeal from a termination-of-parental-rights (TPR) order results in dismissal of the appeal, see In re J.H., 952 N.W.2d 157, 165 (Iowa 2020), we recently extended our delayed appeal jurisprudence involving criminal appeals to TPR appeals under limited circumstances, see In re W.M., 957 N.W.2d 305 (Iowa 2021) (granting father a delayed appeal when his notice of appeal was filed two days late); In re A.B., 957 N.W.2d 280 (Iowa 2021) (granting father a delayed appeal when the petition on appeal, required to perfect his appeal under rule 6.201(3), was filed two days late). In the TPR context, we said a delayed appeal is proper "only where the parent clearly intended to appeal," the "failure to timely perfect the appeal was outside of the parent's control," and the delay was "no more than negligible." In re A.B., 957 N.W.2d at 292.

In In re A.B., the father's intent to appeal was obvious from his timely-filed notice of appeal, his counsel was responsible for missing the deadline for filing the petition on appeal, and the two-day delay "did not unnecessarily prolong the appeal process." Id. at 293. We reached a similar conclusion in In re W.M., where an incarcerated father's intent to timely appeal was shown by his return of the

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signed notice of appeal to his attorney postmarked on the deadline for filing the notice, the prison transfer and mail situation that delayed the father's receipt of the order and notice from his attorney was beyond the father's control, and the belated notice of appeal did not delay the proceedings where the petition on appeal was still filed within thirty days of the juvenile court's termination order. 957 N.W.2d at 316-17.

Here, Dad argues the same standard applies to him because he clearly intended to appeal, the failure to timely perfect the appeal was his attorney's fault, not his, and the appeal process was not delayed by the one-day-late filing of the notice of appeal where the petition on appeal was still filed within thirty days of the termination order, just as in W.M. Dad contends the only thing missing is a "statement of extenuating circumstances," a reference to footnote 4 in In re A.B. See 957 N.W.2d at 293 n.4. There, we cautioned:

That is not to say an attorney's inadvertent failure to properly calendar the deadline for a petition on appeal will entitle her client to a delayed appeal. Such would effectively write our "no extensions" provision out of the rules, which we have no intention of doing. Rather, we recognize the extenuating circumstances in this case involving the heightened quarantining practices required by the coronavirus . . . .

Id. We must now decide whether footnote 4 adds an extenuating circumstances requirement that precludes parents from receiving appellate review of their termination order when their attorney misses the appeal deadline for a less than

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extenuating reason, i.e., an inadvertent or negligent reason.[1] We conclude it does not.

The constitutionally-grounded liberty interests involved in parental rights termination proceedings, coupled with the lack of recourse for a parent whose appeal is not properly perfected through no fault of their own, led us to extend to parental rights termination proceedings the standard for allowing delayed appeals we have long used in criminal cases. In re A.B., 957 N.W.2d at 290 (discussing delayed appeals in the criminal context "as a remedial procedure that excuses a party's failure to timely perfect their appeal in the very limited situation 'where it appears that state action or other circumstances beyond appellant's control have frustrated an intention to appeal' and denial of the right to appeal implicates the appellant's constitutional rights" (quoting Swanson v. State, 406 N.W.2d 792, 793 (Iowa 1987))). Yet we balanced the parent's interests against the children's significant interest in reaching "finality so they can move forward

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with a permanency plan" by adding an additional qualifier that the delay can be "no more than negligible." Id. at 292; see also In re W.M., 957 N.W.2d at 316. We thus established a two-part approach for delayed appeals in TPR cases. The first part mirrors our criminal case approach: a delayed appeal is proper if the client intended to appeal on time and was not able to do so due to circumstances beyond the client's control. But given the strong countervailing interests involved in termination proceedings, we added a second component requiring that any resulting delay be negligible.

Whether counsel has a good reason, a bad reason, or no reason at all for failing to timely file a notice of appeal makes no difference to the parent who just lost the chance to appeal the juvenile court's termination decision. Further, when the delay is caused by counsel's negligence, additional concerns about whether the attorney rendered ineffective assistance come into play. Parents named in a chapter 232 termination petition have a statutory right to counsel, including appointed counsel for parents who cannot afford their own. Iowa Code § 232.113(1) (2021). The statutory reference to "all . . . proceedings" no doubt includes the right to counsel on appeal.[2] We have recognized that due process requires that the statutory right to counsel comes with it the right to effective counsel. See In re D.W., 385 N.W.2d 570, 579 (Iowa 1986) (assuming, based in

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part on state's concession, that "due process requires counsel appointed under a statutory directive to provide effective assistance"), modified on other grounds by In re J.P.B., 419 N.W.2d 387 (Iowa 1988). Given the constitutional interests involved in termination proceedings, we have addressed issues raised on appeal that were not presented in the juvenile court under an ineffective assistance analysis. See, e.g., In...

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