In the Interest of K.D. and K.D., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1278
Filed October 5, 2022
IN THE INTEREST OF K.D. and K.D.,
Minor Children,
C.H., Intervenor,
Appellant.
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Appeal from the Iowa District Court for Polk County, Lynn Poschner, District
Associate Judge.
This appeal arises from a post-remand order in the aftermath of a
termination-of-parental-rights ruling and a ruling denying a motion to remove a
guardian. AFFIRMED.
Andrea M. Flanagan of Flanagan Law Group, PLLC, Des Moines, for
appellant Intervenor.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Paul L. White, Des Moines, attorney and guardian ad litem for minor
children.
Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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VAITHESWARAN, Presiding Judge.
This appeal arises from a post-remand order in the aftermath of a
termination-of-parental-rights ruling and a ruling denying a motion to remove a
guardian.
The background is as follows. Parental rights to two children were
terminated, and the department of health and human services was appointed as
post-termination guardian of the children. The children’s attorney and guardian ad
litem moved to have the department removed as guardian. That motion was
denied. The children’s attorney and guardian ad litem and the children’s step-
grandmother who had been caring for them appealed the denial. See In re
K.D., 975 N.W.2d 310 (Iowa 2022). The supreme court reversed and remanded
the case “for the juvenile court to remove [the department] as guardian and appoint
a suitable new guardian upon assessing the children’s best interests.” Id. at 325.
On remand, the court appointed the children’s foster parents as their guardians.
The step-grandmother appealed.
The step-grandmother disagrees with eight findings or conclusions
contained in the remand order. Seven of them require examination of the hearing
transcript. Because a transcript was not ordered, we cannot review those findings.
See Iowa R. App. P. 6.803(1) (“Within seven days after filing the notice of appeal,
the appellant must use the combined certificate to order in writing from the court
reporter a transcript of such parts of the proceedings not already on file as the
appellant deems necessary for inclusion in the record. If the appellant intends to
urge on appeal that a finding or conclusion is unsupported by the evidence or is
contrary to the evidence, the appellant must include in the record a transcript of all
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evidence relevant to such finding or conclusion.”); In re F.W.S., 698
N.W.2d 134, 135 (Iowa 2005) (“It is the appellant’s duty to provide a record on
appeal affirmatively disclosing the alleged error relied upon. The court may not
speculate as to what took place or predicate error on such speculation.” (citation
omitted)).
The eighth point of contention is the court’s reference to a change in “the
law of who the court may appoint as guardian and custodian of the children.”
Compare Iowa Code § 232.117(3)(c) (2021) (authorizing placement of a child with
a “suitable person”), with Iowa Code § 232.1 (2022) (authorizing “a preference for
placement with the child’s family or a fictive kin”), and id. § 232.117(3)(c)
(referencing “fictive kin”). The step-grandmother contends the district court erred
in applying the current law “rather than the law of the case that existed at the time
a guardian was selected.”
Even if we accept the step-grandmother’s premise that the court should
have applied the old version of section 232.117(3)(c), we agree with the State that
the provision does not assist the step-grandmother because the old version did
“not mandate a preference for relative placement after the termination of parental
rights.” See K.D., 975 N.W.2d at 325. In any event, the step-grandmother does
not argue her status as a relative of the children entitled her to a preference in the
guardian-selection process. She does not seek a guardianship appointment with
or without a preference. She simply contends reversal is required because the
“deemed-negligent” department selected the foster parents who ultimately became
the guardians. No authority is cited for the proposition that the supreme court’s
removal of the department as guardian of the children nullifies all the department’s
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prior actions, including its selection of the foster parents. Also absent is an attempt
to confront the fact that the department did not select the successor guardian; the
court did. In the absence of citation to authority, we deem the issue waived. See
Iowa R. App. P. 6.903(2)(g)(3) (requiring “citations to the authorities relied on” and
stating, “Failure to cite authority in support of an issue may be deemed waiver of
that issue”); In re D.M., 965 N.W.2d 475, 480 n.2 (Iowa 2021) (letting court of
appeals decision stand on waiver for failure to cite authority).
We affirm the court’s remand order appointing the foster parents as
guardians of the children.
AFFIRMED.