SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS August 8, 2012

Posted on Aug 23, 2012

SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS - August 8, 2012

Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority.

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No. 11-0935. [1-1004] IN RE ESTATE OF HORD

Appeal from the IowaDistrict Court for MononaCounty, James D. Scott, Judge. REVERSED AND REMANDED. Heard by Danilson, P.J., Bower, J., and Miller, S.J. Opinion by Bower, J. Special concurrence by Miller, S.J. (12 pages)

The remainder beneficiaries of the Carl R. Hord Trust appeal from the district court ruling concluding they had conveyed their interests in the trust real estate to Lois Hord. They contend the spendthrift clause in Carl Hord's will prohibited any transfer or assignment of their individual shares prior to the distribution of property by the trustees. They further argue the transfers of their interests to Lois were invalid because they had contingent remainder rights in the trust property that could not be conveyed. Finally, they allege the after-acquired-title doctrine is inapplicable. OPINION HOLDS: Upon our review, we conclude the spendthrift clause in Carl Hord's will prohibited any transfer or assignment by the remainder beneficiaries of their right to future payment from the trust; therefore the transfers were invalid under Iowa Code section 633A.2302 (2009). Accordingly, we reverse the decision of the district court and remand with directions. SPECIAL CONCURRENCE ASSERTS: I concur in the result.

No. 11-0169. [2-166] IN RE MARRIAGE OF KINSER

Appeal from the IowaDistrict Court for PolkCounty, Scott D. Rosenberg, Judge. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Opinion by Tabor, J. (24 pages)

Both Mark and Amy Kinser challenge the decree dissolving their marriage and the post-trial modification of the decree. At trial, the parties presented evidence of the value of various assets obtained before and during the marriage, including buildings and other parcels of real estate, Mark's businesses, and personal property. Mark contends the district court's asset valuations are based on uncorroborated evidence. Amy challenges the district court's division of the estate as inequitable. OPINION HOLDS: I. After reviewing the district court's credibility findings and itemized values, we find its determinations in the supplemental order to be within the permissible range of record evidence, but we do correct some accounting errors. II. Because of Amy's financial contributions to their thirteen-year marriage, we find awarding her the T. Rowe Price, the New Asia, and the American Century accounts to her will represent a more equitable distribution of the marital estate. III. We affirm the district court's order that Mark pay $5000 in attorney fees for the trial, but we deny Amy's request for appellate attorney fees.

No. 11-1020. [2-228] STATE v. TAYLOR

Appeal from the IowaDistrict Court for LinnCounty, Ian K. Thornhill, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Opinion by Tabor, J. (21 pages)

Gabriel Taylor asks us to decide if a mandatory minimum sentence of seventeen and one-half years for his first-degree robbery conviction is grossly disproportionate to his conduct as a seventeen-year-old who aided and abetted an armed invasion of an apartment where he and two companions intended to steal marijuana and ended up fatally shooting the occupant. Taylorchallenges his sentence under the cruel-and-unusual-punishment prohibitions in both the federal and state constitutions. OPINION HOLDS: Given the substantial deference we accord the legislature's choice of penalties for various crimes andTaylor's decision to participate in this serious offense, knowing his confederate was armed, we reject his claim of gross disproportionality under the more exacting standard in theIowa constitution.

 No. 11-0619. [2-326] STATE v. TORREZ

Appeal from the IowaDistrict Court for WoodburyCounty, Jeffrey A. Neary, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (10 pages)

Anthony Torrez appeals his conviction of domestic abuse assault, third offense. At trial, the jury was provided with a preliminary set of jury instructions distributed before opening arguments and a final set delivered at the close of evidence. Although Torrez concedes the jury received a definition of reasonable doubt as a preliminary instruction, he contends his attorney should have objected when the jury did not receive the same reasonable doubt instruction in the set of final instructions. He also alleges counsel should have objected to the absence of an instruction defining specific intent. OPINION HOLDS: Because the district court told the jury before its deliberations that the preliminary instructions and the final instructions were to be "read together," we decline to find counsel ineffective for not challenging the omission of the reasonable-doubt instruction from the set of final instructions. We also find was Torrez not prejudiced by counsel's failure to object to the absence of a specific-intent instruction because the defense strategy was to deny Torrez committed an assault.

No. 11-1693. [2-377] YUNEK v. CONTINENTAL CASUALTY CO.

Appeal from the IowaDistrict Court for CalhounCounty, William D. Ostlund, Judge. REVERSED AND REMANDED. Considered by Vogel, P.J., and Tabor and Mullins, JJ. Opinion by Tabor, J. (13 pages)

This dispute arises from Continental Casualty Company's denial of benefits to Betty Yunek, the holder of a long-term care insurance policy. Yunek sued Continental, contending the insurer wrongly refused to pay for her care at the ShadyOaksCareCenterin LakeCity. The district court granted Continental's motion for summary judgment, deciding that no reasonable jury could find Yunek was "chronically ill"—or more specifically that she required substantial supervision due to a "severe cognitive impairment"—under the terms of her policy. On appeal, Yunek argues summary judgment was improper because she produced statements from health care professionals who believed that she required substantial supervision due to her progressing dementia. OPINION HOLDS: Because Yunek's evidence established a genuine dispute over a material fact, we reverse the grant of summary judgment and remand for a trial on the merits.

No. 10-1163. [2-455] STATE v. RICHARDS

Appeal from the IowaDistrict Court for PolkCounty, Joel D. Novak, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (9 pages)

Jack Richards appeals from his convictions for domestic abuse assault causing bodily injury and criminal mischief in the fifth degree, alleging that he received ineffective assistance of counsel. He claims that his trial attorney should have objected to hearsay statements offered by a police officer and to the use of the word "victim" to describe complaining witness Christine Medici. OPINION HOLDS: Because the hearsay statements were admissible under recognized exceptions, counsel had no duty to object. As for references to Medici as the "victim," Richards cannot show that he was prejudiced by counsel's inattention to that issue. Accordingly, we affirm.

No. 10-1902. [2-456] STATE v. MOORE

Appeal from the IowaDistrict Court for PolkCounty, Joel D. Novak, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (25 pages)

Randall Moore appeals from the judgment and sentence entered upon jury verdicts finding him guilty of murder in the first degree, in violation of Iowa Code sections 707.1 and 707.2 (2009); kidnapping in the first degree, in violation of sections 710.1 and 710.2; sexual abuse in the first degree, in violation of sections 709.1 and 709.2; and attempt to commit murder, in violation of section 707.11. On appeal, Moorecontends the district court erred in denying his motion to exclude expert testimony and in denying his motion in limine as to alleged prior bad acts evidence. OPINION HOLDS: Upon our review, we find no abuse in the district court's discretion on either of these issues. Accordingly, we affirm.

No. 11-1866. [2-471] ACUITY v. 3A INVESTMENT, INC.

Appeal from the IowaDistrict Court for WebsterCounty, Thomas J. Bice, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (2 pages)

Defendants 3A Investment and Edgar and Treva Augustine appeal from the district court's order granting summary judgment in favor of Acuity. The defendants argue the district court erred in determining the defendants did not have underinsured motorist (UIM) coverage under the provisions of a business auto insurance policy written by Acuity. The defendants further contend the district court erred in failing to find Acuity's denial of UIM coverage in this case constituted bad faith. OPINION HOLDS: Upon our review, we affirm the district court's ruling granting summary judgment in favor of Acuity.

No. 11-1336. [2-503] STATE v. SILVA

Appeal from the IowaDistrict Court for CedarCounty, Mark J. Smith, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (9 pages)

Emeterio Silva appeals his convictions for reckless driving and possession of marijuana, challenging the state trooper's basis for stopping his car and the sufficiency of the evidence establishing his guilt on both counts. OPINION HOLDS: I. Because we find the trooper had probable cause to believe that Silva violated Iowa Code section 321.306 (2009), neither the Fourth Amendment nor Article I, Section 8 of the Iowa constitution mandate suppression of the evidence obtained from the stop. II. In addition, when we view the stipulated minutes of evidence in the light most favorable to the State, we find substantial support for the district court's verdicts.

No. 11-1816. [2-511] STATE v. AXIOTIS

Appeal from the IowaDistrict Court for Cerro GordoCounty, James M. Drew, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (6 pages)

Randy Axiotis appeals his convictions and sentencing for unlawful possession of a prescription drug and second-degree harassment. OPINION HOLDS: We find the record insufficient to reach his claim of ineffective assistance of counsel and preserve his argument for postconviction proceedings. Axiotis also claims a sentence, which he has not appealed, was imposed improperly; however, we lack jurisdiction to review that issue.

No. 11-1835. [2-512] IN RE MARRIAGE OF MCCREEDY

Appeal from the IowaDistrict Court for ClintonCounty, Gary D. McKenrick, Judge. AFFIRMED AS MODIFIED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (9 pages)

Holly McCreedy appeals from the economic provisions of the decree dissolving her marriage to Robert McCreedy. She contends the district court erred in declining to award her traditional alimony and in dividing the marital property. She also contends the court erred in denying her request for attorney fees. Robert seeks an award of his appellate attorney fees. OPINION HOLDS: While we agree that an award of traditional spousal support is not appropriate under this record, we modify the property division provisions of the decree to award each party their separate retirement funds. The district court was within its discretion to deny Holly's request for attorney fees. We decline to award Robert his appellate attorney fees.

No. 11-1886. [2-513] STATE v. SCOTT

Appeal from the IowaDistrict Court for MahaskaCounty, Randy S. DeGeest, District Associate Judge. REVERSED AND REMANDED. Considered by Vogel, P.J., and Tabor and Mullins, JJ. Opinion by Tabor, J. (19 pages)

The question in this appeal is whether the State complied with Iowa Code section 321J.7 (2011) in obtaining evidence of the defendant's blood alcohol concentration. In challenging his operating-while-intoxicated conviction, Justin Scott argues the district court should have suppressed his blood test result because the physician did not properly certify that he was incapable of refusing or consenting to chemical testing. The district court concluded that the physician's "inadvertence" in signing the request form rather than the certification form did not render the test results inadmissible. Scott argues that State v. Boner, 186 N.W.2d 161 (Iowa 1971), requires literal compliance with statutory certification when a defendant lacks the capacity to refuse or consent to a chemical test. The State distinguishes Boner and advocates for a substantial compliance standard for section 321J.7. OPINION HOLDS: Assuming without deciding that substantial compliance with section 321J.7 will suffice, we conclude the physician's evaluation of Scott's condition did not satisfy the reasonable objectives of the certification statute.

No. 11-1262. [2-540] STATE v. HUSTON

Appeal from the IowaDistrict Court for LeeCounty, John G. Linn, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (16 pages)

Karen Huston appeals the judgment and sentence entered following her conviction for child endangerment causing serious injury, in violation of Iowa Code sections 726.6(1) and 726.6(5) (2009), as a habitual offender under section 902.8. Huston contends the district court erred in admitting testimony that there was a founded child abuse report against her. Huston further argues her trial counsel was ineffective. OPINION HOLDS: Upon consideration of both issues raised on appeal, we affirm Huston's conviction and sentence.

No. 11-1370. [2-541] STATE v. WELDON

Appeal from the IowaDistrict Court for IowaCounty, Douglas S. Russell, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (8 pages)

Tonch Weldon appeals his conviction of murder in the first degree, in violation of Iowa Code section 701.2 (2009). He argues that the district court erred by (1) improperly allowing lay opinion testimony and (2) improperly disallowing a forensic toxicologist from testifying that Weldon was too intoxicated to form the specific intent required for murder in the first degree. OPINION HOLDS: We find the district court did not abuse its discretion in permitting a witness to testify that it was her belief Weldon would choose is his wife and children over the victim. We also find no abuse of discretion when the district court refused to allow a forensic toxicologist to testify regarding Weldon's ability to form the requisite specific intent.

No. 11-1526. [2-543] STATE v. MEEKS

Appeal from the IowaDistrict Court for ScottCounty, Mark J. Smith, Judge. JUDGMENT OF CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED FOR RESENTENCING. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (9 pages)

Rachel Meeks appeals from the sentence imposed upon her plea of guilty to first-degree theft. She requests resentencing "due to prosecutorial violations of the plea agreement." OPINION HOLDS: Because the prosecutor effectively failed to "recommend against incarceration" and failed to stand mute in respect to the entry of a deferred judgment, we vacate the sentence and remand the case for resentencing.

No. 11-1669. [2-546] STATE v. MORENO

Appeal from the IowaDistrict Court for PolkCounty, Robert A. Hutchison, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (8 pages)

Saul Moreno appeals from the judgment and sentence entered following his guilty plea to lascivious acts with a child. He contends the district court abused its discretion by considering his lack of remorse as a sentencing factor and by failing to state on the record its reasons for the sentence given. He also contends his trial counsel was ineffective in failing to advise him to assert his constitutional right against self-incrimination at sentencing. OPINION HOLDS: We find the district court acted within its discretion in sentencingMoreno. The court adequately stated its reasons for the sentence on the record, includingMoreno's lack of remorse. We also reject his ineffective-assistance-of-counsel claim becauseMoreno cannot show he was prejudiced by counsel's alleged breach of duty.

No. 11-1738. [2-551] STATE v. SINES

Appeal from the IowaDistrict Court for WashingtonCounty, Crystal S. Cronk, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (8 pages)

Thomas Sines challenges the sentence imposed following his conviction for failure to comply with the sex offender registry. He alleges his counsel was ineffective for acquiescing in the State's sentencing recommendation rather than advocating for a lesser punishment. OPINION HOLDS: Because Sines is unable to show he was prejudiced by counsel's performance at the sentencing hearing, we affirm.

No. 11-1918. [2-554] LINDSEY v. STATE

Appeal from the IowaDistrict Court for DubuqueCounty, Monica Ackley, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (5 pages)

Flynn Lindsey appeals from the denial of his application for postconviction relief. OPINION HOLDS: Because Lindsey fails to establish the department of corrections acted arbitrarily or that postconviction counsel was ineffective, we affirm.

No. 11-1189. [2-564] GRAHAM v. KELLY

Appeal from the IowaDistrict Court for FloydCounty, Chris Foy, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (11 pages)

Robert and Cindy Graham appeal from the district court order granting summary judgment in favor of Dr. Kristopher Kelly on their claim of dental malpractice. They contend the court erred in granting summary judgment on their malpractice claims involving informed consent, surgical referral, and the extraction technique. OPINION HOLDS: The undisputed facts do not show Dr. Kelly breached the appropriate standard of care. Because the Grahams' claims fail as a matter of law, the court appropriately granted summary judgment.

No. 12-0433. [2-584] ZINGER v. ESTATE OF ZINGER

Appeal from the IowaDistrict Court for ScottCounty, David Sivright, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., Doyle, J., and Miller, S.J. Opinion by Miller, S.J. (7 pages)

Shirley Zinger appeals from a judgment denying her claim in probate against the executor of the estate of Donald D. Zinger. OPINION HOLDS: We find no error in the trial court's determinations that the periodic payments provided for by the decree dissolving the marriage of Donald and Shirley were in the nature of alimony, rather than property settlement, and terminated upon Donald's death.

No. 12-1049. [2-589] IN RE A.A.

Appeal from the IowaDistrict Court for LinnCounty, Barbara H. Liesveld, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (8 pages)

A father challenges the juvenile court's ruling adjudicating his three children—A.A., H.A, and J.A.—to be in need of assistance (CINA) under Iowa Code sections 232.2(6)(b), (6)(c)(2), and (6)(n) (2011). He argues the State failed to meet its burden to prove any of the three grounds. OPINION HOLDS: We hold that because the father exposed his children to violence and the danger of a loaded firearm, and has previously reacted in similarly inappropriate ways in encounters with family members, the State proved by clear and convincing evidence that the children suffered or are imminently likely to suffer harmful effects as result of the father's failure to exercise a reasonable degree of care in supervising them.

No. 11-1892. [2-607] STATE v. JUERGENS

Appeal from the Iowa District Court for DubuqueCounty, Michael J. Shubatt, Judge (ruling in limine), and Randal J. Nigg, District Associate Judge (trial). AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Danilson, J. (5 pages)

Jeffrey Juergens appeals a conviction for indecent exposure after a jury trial contending there was insufficient evidence to support the conviction and that the court erred in admitting evidence of a prior bad act. OPINION HOLDS: The insufficient-evidence claim is premised upon an argument that Juergens was not identified as the perpetrator. Upon our review, we conclude Juergens was sufficiently identified as the perpetrator. The trial court did not abuse its discretion in admitting the prior bad act. We affirm.

No. 12-0945. [2-612] IN RE B.F.

Appeal from the IowaDistrict Court for StoryCounty, Victor C. Lathrop, Associate Juvenile Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Bower, J. (7 pages)

A mother appeals the termination of her parental rights to her child. She contends the State failed to prove the grounds for termination by clear and convincing evidence and that termination is not in the child's best interests. OPINION HOLDS: We conclude the evidence shows the mother has a severe substance abuse problem that presents a danger to the child. Because there is no evidence the child can be safely returned to her care in a reasonable amount of time, we find the grounds for termination have been proved. The child's best interests require termination, and the mother's bond to the child is not so great that the child would be harmed by termination of her parental rights. Accordingly, we affirm.

No. 12-1056. [2-616] IN RE S.M.

Appeal from the Iowa District Court for Franklin County, Peter B. Newell, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Bower, J. (5 pages)

A mother appeals the termination of her parental rights to her children. She contends the State failed to make reasonable efforts to reunify her with her children. She also alleges she requested and was denied additional visitation. OPINION HOLDS: Even assuming the mother made a formal request for additional visitation, the record shows the mother did not utilize all of the visitation offered. Because reasonable efforts were made, we affirm the termination of the mother's parental rights.

No. 11-1124. [2-624] STATE v. WOOD

Appeal from the IowaDistrict Court for AppanooseCounty, Annette J. Scieszinski, Judge. AFFIRMED. Considered by Potterfield, P.J., Bower, J., and Miller, S.J. Opinion by Miller, S.J. (9 pages)

Thomas Wood Sr. was charged with two counts of sexual abuse in the second degree, in violation of Iowa Code section 709.3(2) (2009), and three counts of sexual abuse in the third degree, in violation of section 709.4(2). The State alleged Wood had engaged in sex acts with his two daughters, T.B. and C.W. During the trial Wood made offers of proof of the testimony of T.B. and C.W. on the issue of whether T.B. had touched C.W.'s breasts during a playful game in the past, and whether they had taken baths together. The district court determined the evidence was not admissible because it had only a minor amount of relevance, and any probative value was outweighed by the danger of jury confusion about the importance of it and why it was being allowed. A jury found Wood guilty of the charges against him and he appeals. OPINION HOLDS: I. In this case, the evidence presented in the offers of proof had such a little amount of relevance, if any, that we have no problem in finding the district court did not abuse its discretion in determining that any probative value was substantially outweighed by the danger of confusion of the issues and misleading the jury. We conclude the district court did not abuse its discretion in determining the evidence presented in the offers of proof was not admissible. II. We also conclude the evidence was inadmissible for impeachment purposes because it went to a collateral issue. We affirm Wood's convictions.

No. 11-1175. [2-625] HOLMES v. STATE

Appeal from the IowaDistrict Court for BlackHawkCounty, George L. Stigler, Judge. AFFIRMED. Considered by Danilson, P.J., Mullins, J., and Schechtman, S.J. Opinion by Schechtman, S.J. (4 pages)

Joseph Holmes was previously convicted of four counts of forgery. He appealed, raising speedy trial claims. His conviction was affirmed by the Iowa Court of Appeals. Holmes filed an application for postconviction relief, raising the same speedy trial claims. The district court granted the State's motion to dismiss. Holmes appeals. OPINION HOLDS: The dismissal herein was procured by the filing of a motion to dismiss by the State under Iowa Code section 822.6 (2007), which is analogous to our summary judgment procedure in the civil arena. The language of section 822.6 is similar to that contained in Iowa Rule of Civil Procedure 1.981 requiring a genuine issue of material fact. There was no such issue. We accordingly affirm the judgment of the district court.

No. 12-0175. [2-644] CLAY v. MATTHEWS

Appeal from the IowaDistrict Court for LinnCounty, Patrick R. Grady, Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Mullins, J. (2 pages)

Monica Clay appeals the district court's order denying her motion to remove her personal injury case from the operation of Iowa Rule of Civil Procedure 1.944. OPINION HOLDS: Since the district court fully identified and considered all the issues presented, we affirm per Iowa Court Rule 21.29(1)(d) and (e).

No. 12-1058. [2-647] IN RE K.A.

Appeal from the IowaDistrict Court for MuscatineCounty, Gary P. Strausser, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Danilson, J. (9 pages)

Rose is the mother, and Chris is the father, of K.A., born in 2005. The parents each appeal from the termination of their parental rights. Despite three and one-half years of intensive services and education, the mother is unable to follow through with K.A.'s dietary guidelines and fails to provide proper supervision sufficient to keep the child safe and healthy. The father has not progressed beyond semi-supervised visits and did not request that he be considered a placement for the child until the termination hearing. OPINION HOLDS: Because statutory grounds for termination exist, termination is in the child's best interest, and no consequential factor weighs against termination, we affirm.

No. 12-1060. [2-648] IN RE A.D.W.

Appeal from the IowaDistrict Court for PottawattamieCounty, Charles D. Fagan, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Tabor, J. (18 pages)

A mother appeals the termination of her parental rights to three children. The father of the two younger children also appeals the termination of his parental rights. Both parents argue the State did not prove grounds for termination under Iowa Code section 232.116(1) (2011). The mother raises four additional claims: (1) she was entitled to a continuance because she did not receive proper notice of the termination hearing; (2) the juvenile court improperly considered an exhibit containing photographs from her Facebook page; (3) the juvenile court erred in denying her motion to appoint an attorney for X.M.M. in addition to his guardian ad litem; and (4) termination was not in the children's best interests. OPINION HOLDS: I. Because the parents did not maintain "significant and meaningful contact" with their children, we conclude termination was proper under section 232.116(1)(e). II. We find no merit to the mother's remaining assignments of error.

No. 12-1062. [2-649] IN RE Z.G.

Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Mullins, J. (7 pages)

In this child-in-need-of-assistance proceeding, a mother appeals the juvenile court's modification order removing her son from her care and placing him in the custody of the Iowa Department of Human Services for residential treatment. OPINION HOLDS: The child has significant behavioral and emotional issues that prevent him from being maintained in a family home environment. Clear and convincing evidence shows that the child has not complied with case permanency plan expectations, and that his best interests require modification to residential treatment. Accordingly, we affirm.

No. 10-1283. [2-419] STATE v. MOORE

Appeal from the IowaDistrict Court for BlackHawkCounty, Joseph Moothart, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. Special concurrence by Potterfield, J. (14 pages)

Percy Moore appeals from his conviction, following a jury trial, of domestic abuse assault causing bodily injury. He contends the court erred in overruling his motion in limine and objections to evidence of his wife, Diana's, out-of-court statements based on confrontation and hearsay grounds, and in excluding evidence of his wife's past assaults on him. He also contends his attorney was ineffective. OPINION HOLDS: Diana's statements were not testimonial and fall within the excited utterance exception to hearsay. The court did not err in admitting them. Moore did not preserve error on his claim concerning evidence of his wife's past assaults. His attorney was not ineffective. SPECIAL CONCURRENCE ASSERTS: The officer interview was testimonial in nature, and therefore its admission violatedMoore's Sixth Amendment right to confrontation. This error, however, was not prejudicial.

No. 12-1100. [2-651] IN RE K.S.

Appeal from the IowaDistrict Court for Van Buren County, Gary R. Noneman, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Eisenhauer, C.J. (5 pages)

A mother appeals from the order terminating her parental rights to her daughter. She argues the court should not have terminated her rights because the child is in the father's care. OPINION HOLDS: The father's care of the child is a factor to be considered by the court in determining whether termination is warranted. Under the facts and circumstances of this case, termination is appropriate.

No. 11-1985. [2-517] IN RE MARRIAGE OF HOPP

Appeal from the IowaDistrict Court for ShelbyCounty, Greg W. Steensland, Judge. AFFIRMED. Considered by Vogel, P.J., Bower, J., and Huitink, S.J. Opinion by Huitink, S.J. (12 pages)

Dianna Gettler appeals the district court's decision modifying the physical care provision of the parties' dissolution decree and claims the district court should have found Gary Hopp in contempt for failure to pay child support. OPINION HOLDS: Physical Care. On our de novo review, and considering all of the evidence in the record, we affirm the district court's decision to modify the dissolution decree to place the children in Gary's physical care. We determine there has been a substantial change in circumstances and Gary can minister more effectively to the children's well-being, making it in the children's best interests to modify the decree. Contempt. We determine the district court did not abuse its discretion in determining the evidence did not prove beyond a reasonable doubt thatGary had willfully violated the child support obligation in the parties' dissolution decree. Nonetheless,Gary is responsible for the full amount of child support he had been ordered to pay.

No. 10-1945. [2-621] STATE v. ANDERSON

Appeal from the IowaDistrict Court for BremerCounty, Peter B. Newell, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., Doyle, J., and Huitink, S.J. Opinion by Huitink, S.J. (6 pages)

Andrew Anderson was charged with driving while barred, in violation of Iowa Code sections 321.560 and 321.561 (2009), an aggravated misdemeanor. The case was tried to the court, and the court found him guilty of driving while barred. Andersonappeals his conviction. OPINION HOLDS: TheIowa supreme court has determined that for a conviction of driving while barred, the State must show the Iowa Department of Transportation (IDOT) gave notice to the person that their driver's license was barred. We find no error in the district court's conclusion thatAnderson had not provided any evidence he officially changed his address with the IDOT. The only evidenceAnderson sent notice was his own testimony. The district court may well have found his testimony on this subject was not credible. There is substantial evidence in the record to show the IDOT sent notice toAnderson at the address shown in the IDOT records. We conclude that by finding there was no evidenceAnderson had changed his address with the IDOT, the court was finding there was insufficient evidence to showAnderson had actually sent a change of address to the IDOT. We affirmAnderson's conviction.

No. 11-1480. [2-507] STATE v. SONI

Appeal from the IowaDistrict Court for PolkCounty, Robert A. Hutchison, Judge. AFFIRMED AS MODIFIED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Vogel, P.J. (12 pages)

The defendant, Lawrence Soni, appeals his convictions for assault, in violation of Iowa Code sections 708.1 and 708.2(5) (2009), and willful injury causing bodily injury, in violation of Iowa Code section 708.4(2). Soni asserts a faulty jury instruction on reasonable doubt caused prejudice, there was insufficient evidence to support the verdict on the willful injury charge, the two convictions should have merged, and his prison sentence should have been suspended. OPINION HOLDS: We find the jury was properly instructed as to reasonable doubt, there was sufficient evidence to support the verdict on the willful injury charge, and the district court did not abuse its discretion by not suspending the prison sentence. We therefore affirm the trial court on these grounds. However, because the district court entered an illegal sentence when it failed to merge the two convictions, we merge the conviction of simple assault and vacate the sentence imposed on that conviction.

No. 11-1339. [2-337] STATE v. LYLE

Appeal from the IowaDistrict Court for PolkCounty, Robert A. Hutchison, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Vogel, P.J. (12 pages)

Defendant, Andre Lyle Jr., appeals his sentence following his conviction for robbery in the second degree, in violation of Iowa Code sections 711.1 and 711.3 (2009). Pursuant to section 902.12(5), Lyle was sentenced to serve seventy percent of his ten-year sentence before he is eligible for parole or work release. Lyle asserts this seventy-percent mandatory minimum sentence is cruel and unusual punishment as applied to him. OPINION HOLDS: Based on all of the factors in this case, we find Lyle's sentence does not raise an inference of gross disproportionality to his crime of second-degree robbery. Because we find Lyle has failed to satisfy the threshold test first articulated in Solem v. Helm, 463 U.S. 277, 292 (1983),—that is, the balancing of the gravity of the crime against the severity of the sentence—we need not conduct an intrajurisdictional or an interjurisdictional analysis of the sentence. We affirm the district court's imposition of the seventy-percent mandatory minimum sentence under Iowa Code section 902.12.

No. 11-0492. [2-487] STATE v. MEANS

Appeal from the IowaDistrict Court for ScottCounty, Gary D. McKenrick, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Vogel, P.J. (9 pages)

As a juvenile, Jason Means was convicted and sentenced to a mandatory sentence of life imprisonment without the possibility of parole for first-degree kidnapping in addition to ninety-five consecutive years for other felonies. He appeals the district court's denial of his motion to correct an illegal sentence. OPINION HOLDS: We find the district court properly rejected Means's claims in his second motion that the 1994 sentencing court failed to articulate on the record the reason for imposing consecutive sentences and failed to provide him his right of allocution. These claims were based on an improper procedure, not on an illegal sentence. We also find Means's claims that he should have been present when the district court issued its order amending his sentence and at the second motion's hearing were not properly preserved for our review.

No. 11-1347. [2-504] STATE v. MURRAY

Appeal from the Iowa District Court for Wapello County, Kirk A. Daily, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Vogel, P.J. (6 pages)

Daniel Murray appeals from his conviction for driving while barred in violation of Iowa Code section 321.561 (2010). He asserts the district court should have granted his motion to suppress as he claims the officer who approached his vehicle lacked reasonable suspicion to do so. OPINION HOLDS: We affirm the denial ofMurray's motion to suppress and affirm his conviction.

No. 11-1717. [2-549] FIRST AMERICAN BANK v. ENHANCED CUSTOM HOMES, INC.

Appeal from the Iowa District Court for PolkCounty, D.J. Stovall, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Vogel, P.J. (3 pages)

Enhanced Custom Homes, Inc. (ECH) and Jesse Helmick appeal the district court's grant of summary judgment to First American Bank in a foreclosure action. Helmick claims the district court erred in finding him personally liable for the debt owed by ECH based on an "Unlimited Continuing Guaranty" Helmick signed in 2005. OPINION HOLDS: We find Helmick attempts to support his appeal with contentions not presented to or decided by the district court. We therefore find he failed to preserve his argument on appeal. In addition, even if we were to find his argument preserved, we conclude it has no merit.

No. 11-1299. [2-566] IN RE DETENTION OF STEVENSON

Appeal from the IowaDistrict Court for MarshallCounty, Carl D. Baker, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Vogel, P.J. (5 pages)

Kevin Stevenson appeals the order of commitment entered by the district court following the jury verdict finding him to be a sexually violent predator, as defined by Iowa Code section 229A.2(11) (2009). Stevenson asserts the district court erred in denying his motion for a directed verdict as he asserts there was insufficient evidence to prove he suffers from a mental abnormality or is likely to reoffend. OPINION HOLDS: As we find sufficient evidence from which the jury could conclude Stevenson suffered from a mental abnormality and was likely to reoffend, we affirm his conviction.

No. 11-1880. [2-606] STATE v. SANTAMARIA

Appeal from the IowaDistrict Court for WoodburyCounty, Todd Hensley, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Vogel, P.J. (3 pages)

Mario Santamaria appeals following his guilty plea to operating while intoxicated, habitual offender, in violation of Iowa Code sections 321J.2 and 902.8 (2011), claiming counsel rendered ineffective assistance during his plea hearing. OPINION HOLDS: We affirm his conviction but preserve his ineffective-assistance-of-counsel-claim for possible postconviction relief.

No. 12-1053. [2-618] IN RE T.M. AND C.M.

Appeal from the IowaDistrict Court for PolkCounty, Constance Cohen, Associate Juvenile Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Vogel, P.J. (8 pages)

A mother appeals the termination of her parental rights to two of her children. OPINION HOLDS: Even though the juvenile court did not follow the ideal procedure for admitting evidence, the record before our court demonstrates by clear and convincing evidence the mother was offered reasonable services, additional time was not warranted, the children could not be returned home, and termination was in the children's best interests. We affirm.

No. 11-1959. [2-637] STATE v. AMELIA

Appeal from the Iowa District Court for MadisonCounty, Paul R. Huscher (plea hearing) and Gregory A. Hulse (sentencing hearing), Judges. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Vogel, P.J. (4 pages)

Michael Amelia appeals following his guilty plea to one count of prohibited acts (manufacturing methamphetamine), in violation of Iowa Code section 124.401(1)(c)(6) (2009), and one count of violation of pseudoephedrine purchase restrictions, in violation of Iowa Code sections 126.23A and 124.213. Amelia asserts his counsel rendered ineffective assistance by allowing him to plead guilty and failing to file a motion in arrest of judgment after the court failed to advise him of the applicable mandatory minimum sentence. OPINION HOLDS: We affirm his conviction, but preserve his ineffective-assistance claim for possible postconviction relief proceedings as we find the record on direct appeal inadequate to address the claim.

No. 12-0850. [2-652] IN RE N.G.

Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Vogel, P.J. (5 pages)

A mother appeals the termination of her parental rights to her daughter, N.G., born in June 2011. She asserts there was not clear and convincing evidence to support the juvenile court's findings and termination is not in the best interests of the child. OPINION HOLDS: We affirm the juvenile court's termination of the mother's parental rights as we find sufficient statutory grounds exist to terminate and it is in the child's best interests.

No. 11-1214. [2-335] STATE v. PEARSON

Appeal from the IowaDistrict Court for Des MoinesCounty, Cynthia H. Danielson, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (10 pages)

A defendant who was a minor at the time she is alleged to have committed the crimes of robbery and burglary contends two consecutively-imposed mandatory minimum prison sentences of seventeen-and-a-half years each violate her right to be free from cruel and unusual punishment under the federal and state constitutions. OPINION HOLDS: The district court properly considered the defendant's age and other factors in sentencing her to consecutive mandatory minimum sentences, and we further conclude the defendant's sentence was not disproportionate to the crimes she committed.

No. 11-1792. [2-345] GRIFFIN v. THARP

Appeal from the IowaDistrict Court for LouisaCounty, John G. Linn, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (5 pages)

Defendant landowners contend that the district court erred in declining to find a boundary by acquiescence and in quieting title to the disputed tract in favor of the plaintiffs. OPINION HOLDS: Substantial evidence supports the district court's findings that the defendants failed to establish a boundary by acquiescence, and the court did not commit error in quieting title to the disputed property in favor of the plaintiffs.

No. 11-1077. [2-461] STATE v. CHAMBERLIN

Appeal from the IowaDistrict Court for JonesCounty, Sean W. McPartland, Judge. AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (8 pages)

Jeremy Chamberlin appeals his judgment and sentences for one count of lascivious conduct with a minor and three counts of dissemination of obscene material to a minor. He asserts (1) there was insufficient evidence to establish he was in a position of authority over the minor on the first of two lascivious acts counts, (2) there was insufficient evidence to establish the pictures he texted the minor were obscene, and (3) the district court improperly considered an unproven offense in sentencing him. OPINION HOLDS: We conclude substantial evidence supports the jury's findings that Chamberlin was in a position of authority over the minor and that the pictures he texted the minor were obscene. The jury's findings of guilt on the first count of lascivious conduct with a minor and the three counts of dissemination of obscene material to a minor are accordingly affirmed. However, we agree with Chamberlin that the district court impermissibly referred to an unproven charge in sentencing him. We accordingly vacate Chamberlin's sentences and remand for resentencing.

No. 11-1969. [2-515] BUDDE v. THOMA

Appeal from the IowaDistrict Court for DubuqueCounty, John J. Bauercamper, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (4 pages)

The defendants appeal the district court's denial of their petition to vacate a default judgment against them. OPINION HOLDS: The district court did not err in concluding that the defendants failed to sustain their burden of showing unavoidable casualty or misfortune under Iowa Rule of Civil Procedure 1.1012(5), and we affirm the denial of the defendants' motion to vacate the default judgment.

No. 11-1071. [2-538] ALLEN v. STATE

Appeal from the IowaDistrict Court for PolkCounty, Karen A. Romano, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. Tabor, J., takes no part. (5 pages)

Donald Bruce Allen appeals the denial of his application for postconviction relief. He contends his attorney was ineffective in failing to (1) ensure that his plea to neglect of a dependent person was supported by a factual basis and (2) investigate a diminished-responsibility defense. OPINION HOLDS: Because the minutes of testimony provided a factual basis for finding Allen neglected his child, we conclude Allen's attorney was not ineffective in failing to challenge his plea to this charge. We further conclude Allen's attorney did not breach an essential duty in failing to raise a diminished-responsibility defense, which he investigated and made a strategic decision not to pursue.

No. 11-1664. [2-545] STATE v. RUKUNDO

Appeal from the IowaDistrict Court for JohnsonCounty, Nancy A. Baumgartner, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (3 pages)

A defendant appeals his judgment and sentence for a drug tax stamp violation, claiming (1) counsel was ineffective in not properly advising him of the immigration consequences associated with his guilty plea and (2) the court erred in accepting his flawed plea. OPINION HOLDS: As both arguments raised on appeal are claims of ineffective assistance of counsel, and since the record is inadequate to resolve these claims on direct appeal, the defendant's claims are preserved for postconviction relief proceedings.

No. 11-2040. [2-609] STATE v. RAISCH

Appeal from the Iowa District Court for Franklin County, Peter B. Newell, District Associate Judge. SENTENCE VACATED, CASE REMANDED FOR RESENTENCING. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Vaitheswaran, P.J. (4 pages)

A defendant contends the prosecutor breached a plea agreement and his attorney was ineffective in failing to object to the breach. OPINION HOLDS: Because the prosecutor did not commend to the court the sentence contained in the written plea agreement, he breached that agreement, and counsel was ineffective for failing to object to that breach. Therefore, the case is remanded for resentencing.

No. 11-1267. [2-599] STATE v. BELL

Appeal from the IowaDistrict Court for ScottCounty, Douglas C. McDonald, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Potterfield, J. (3 pages)

Larry Allen Bell appeals from his conviction for driving while barred as a habitual offender. He does not contest on appeal, nor before the district court, that he was driving and that his state-issued driver's license had been barred. His appellate counsel argues the trial court erred in not evaluating Bellfor competency. In a pro se brief, Bellasserts he is a "Freeman-Sovereign" and the district court had no jurisdiction over him. OPINION HOLDS: We have thoroughly reviewed the record and conclude the district court did not err in failing to have Bell evaluated for competency. Bell was driving while his state-issued driver's license was barred. The record also shows he is a habitual offender. We therefore affirm his conviction. See Iowa R. App. P. 6.1203(a), (d).

No. 12-0481. [2-610] IN RE MARRIAGE OF SHANNON

Appeal from the IowaDistrict Court for PottawattamieCounty, Kathleen A. Kilnoski, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Potterfield, J. (2 pages)

Tonya Smith appeals from the denial of modification to custody provisions of her dissolution decree, contending grounds for modification exist and that she is entitled to attorney fees. OPINION HOLDS: Upon our de novo review, we find the district court identified and considered all the issues and affirm its reasoning and conclusions without further discussion.

No. 11-1006. [2-657] STATE v. SICKELS

Appeal from the IowaDistrict Court for PolkCounty, Arthur E. Gamble, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Vaitheswaran and Doyle, JJ. Opinion by Doyle, J. (2 pages)

John Sickels appeals the district court's ruling ordering him to make restitution to the Crime Victim Assistance Program (CVAP). OPINION HOLDS: After a thorough review and consideration of the record, we affirm the district court's ruling without opinion pursuant to Iowa Rule of Appellate Procedure 6.1203(a), (d).

No. 11-0522. [2-592] STATE v. ARMSTRONG

Appeal from the IowaDistrict Court for ScottCounty, Marlita A. Greve, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Doyle, J. (9 pages)

Cherece Armstrong appeals her convictions for theft in the second degree and credit card fraud, alleging the State failed to offer substantial evidence, the trial court abused its discretion in denying a mid-trial motion to sever, and her trial counsel was ineffective in several respects. OPINION HOLDS: Because Armstrong's appellate claims concerning the card transactions were not raised in her motion for judgment of acquittal before the trial court, those claims were not preserved for our review. Armstrong's claim concerning her mid-trial motion to sever was not preserved for our review. Finally, Armstrong has failed to persuade us that her trial counsel was ineffective as enumerated in her brief. Accordingly, we affirm her convictions.

No. 11-0969. [2-494] STATE v. CHRISTENSEN

Appeal from the IowaDistrict Court for WoodburyCounty, Arthur E. Gamble, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (2 pages)

James Christensen appeals the district court's ruling ordering him to make restitution to the Crime Victim Assistance Program (CVAP). OPINION HOLDS: After a thorough review and consideration of the record, we affirm the district court's ruling without opinion pursuant to Iowa Rule of Appellate Procedure 6.1203(a), (d).

No. 11-1285. [2-431] WELLS FARGO v. CONTINUOUS CONTROL SOLUTIONS, INC.

Appeal from the IowaDistrict Court for PolkCounty, Scott D. Rosenberg, Judge. AFFIRMED IN PART AND VACATED IN PART. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (8 pages)

The appellants appeal the provisions of the district court's charging orders directing the limited liability companies to provide cash flow statements to the appellees. OPINION HOLDS: To effectuate a charging order, Iowa Code section 489.503 (2011) authorizes a court to order a limited liability company to disclose financial information to a court-appointed receiver only. We conclude there is no statutory authority for the disclosure orders the district court issued in this case. We therefore vacate the parts of the orders which require disclosure to the judgment creditors' counsel or to the court and affirm the remaining portions of the orders.

No. 12-1055. [2-646] IN RE Q.P.

Appeal from the IowaDistrict Court for BlackHawkCounty, Stephen C. Clarke, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Doyle, J. (6 pages)

A mother appeals the order terminating her parental rights, contending the State failed to prove the grounds for termination, she should have been given additional time for reunification, and a guardianship with the child's maternal grandmother should have been established and termination of her parental rights avoided. OPINION HOLDS: Upon our review of the record, we affirm the juvenile court's finding that the ground for termination under Iowa Code section 232.116(1)(h) (2011) had been met. We find no error in the juvenile court's denial of the mother's request for additional time for reunification or for establishment of a guardianship with the maternal grandmother. We accordingly affirm the termination of the mother's parental rights.

No. 12-0805. [2-587] IN RE N.P.

Appeal from the IowaDistrict Court for PolkCounty, Colin J. Witt, District Associate Judge. AFFIRMED WITH DIRECTIONS. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (8 pages)

The father challenges the termination of his parental rights to his children, arguing the Iowa Department of Human Services (DHS) failed to comply with the relative notice requirements of Iowa Code section 232.84 (2011). OPINION HOLDS:Iowa Code section 232.84 is silent as to the remedy for failure to comply with its notice requirements. Addressing the failings of the adults in this case by a reversal of the juvenile court's termination order would run counter to the over-arching consideration in all termination of parental rights cases—the best interests of the children. Assuming the father has standing to challenge DHS's failure to provide the section 232.84 notice to the grandmother and considering the children's situation in light of the goal of serving the children's long-term and immediate best interests, we see no other option than to continue these children's placements in their foster homes. We therefore affirm the decision of the juvenile court to terminate the father's parental rights.

No. 12-0944. [2-619] IN RE N.C.

Appeal from the IowaDistrict Court for FayetteCounty, Alan D. Allbee, Associate Juvenile Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Doyle, J. (12 pages)

A mother, father, and grandparents appeal from the order terminating the parents' parental rights, asserting several claims. OPINION HOLDS: Because there was evidence the child could not be placed in the father's care, we affirm the juvenile court ruling overruling the father's motion to dismiss the termination petition as to him. We agree with the juvenile court the State proved the ground for termination under Iowa Code section 232.116(1)(h) (2011) by clear and convincing evidence as to both parents, and we conclude the grandparents lack standing to challenge the ground on the father's behalf. We therefore affirm on this issue. We find no error in the juvenile court's decision not to establish a guardianship with the grandparents. Finally, we find the mother failed to preserve her reasonable services issue for our review, and the termination of her parental rights was in the child's best interests. Accordingly, we affirm the juvenile court's ruling terminating the parents' parental rights, as well as placing the child in the custody and guardianship of the Iowa Department of Human Services.

Steve Lombardi
Iowa personal injury, workers' compensation, motorcycle, quadriplegic, paraplegic, brain injury, death