Opinion
No. 2-781 / 02-0680
Filed October 16, 2002
Appeal from the Iowa District Court for Hamilton County, James A. McGlynn, Judge.
J.P.'s mother appeals the district court order placing him in a day treatment program instead of allowing him to be home schooled. AFFIRMED.
Andrew Howie of Hudson, Mallaney Shindler, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Patrick Chambers, County Attorney, for appellee-State
Douglas Cook of Brekken, Deppe, Wynia, Cook Hyland, P.C., Jewell, for minor child.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
Jake, born in October of 1988, was thirteen years old when the juvenile court entered an order providing that he attend the Boys and Girls Home in Fort Dodge as a day student. Jake had been found to be a child in need of assistance because he failed to make satisfactory academic progress in school and was verbally and physically aggressive. Jake, his mother Rhonda, with whom he resides, and Jake's attorney contend on appeal that the program approved by the juvenile court results in Jake (1) spending over four hours a day being transported to and from the program, (2) being in a class with a poor student-teacher ratio, and (3) being mistreated and demeaned in the program. They contend the better solution is to have Jake taught at home. The State contends (1) this is an interlocutory appeal and should be dismissed, and (2) the placement was proper as it was the least restrictive placement that allowed Jake to remain in his mother's home. We affirm.
Our review is de novo. In re Meek, 236 N.W.2d 284, 289 (Iowa 1975); In re B.L., 491 N.W.2d 789, 791 (Iowa Ct.App. 1992).
We first address the State's contention that we should not consider the appeal because it is not an appeal from a final judgment. A party may not appeal without a final judgment. See Rowen v. LeMars Mut. Ins. Co., 357 N.W.2d 579, 581 (Iowa 1984). A final judgment is one that puts the case out of court and which may be enforced by execution or in some other appropriate manner. In re Estate of Swanson, 239 Iowa 294, 305, 31 N.W.2d 385, 391 (1948). In addressing the issue of the finality of a juvenile court order in In re Long, 313 N.W.2d 473, 475 (Iowa 1981), the court looked at Iowa Code section 232.133 (1979) and determined the legislature did not intend by enactment of the section an appeal of right could be taken to the supreme court from any and every interlocutory order or decree entered in juvenile court. Id. Rather, the court determined section 232.133 provides no special basis for an appeal of right but, as with all other orders, appealability depends on whether the juvenile court order is found to be "final." Long, 313 N.W.2d at 475. A juvenile order is not final unless it disposes of the issue. In re A.C., 443 N.W.2d 732, 733 (Iowa Ct.App. 1989). An order is interlocutory if it directs an inquiry into a matter of fact preparatory to a final decision. In re C.S., 516 N.W.2d 851, 857 (Iowa 1994); Long, 313 N.W.2d at 476; A.C., 443 N.W.2d at 733.
Section 232.133 provides in relevant part:
1. An interested party aggrieved by an order or decree of the juvenile court may appeal from the court for review of questions of law or fact.
. . . .
2. The procedure for such appeals shall be governed by the same provisions applicable to appeals from the district court provided that when such order or decree affects the custody of a child the appeal shall be heard at the earliest practicable time.
Here a final order placed Jake in the facility. It disposed of the issue of where Jake should be placed. The fact the order could be modified in the future at a subsequent dispositional hearing did not make it an interlocutory order. The cases cited by the State in support of its position are easily distinguished. In C.S., 516 N.W.2d at 857, the juvenile court instructed the Department of Human Services in March to inform it if the child were admitted to Orchard Place. If he was not, the juvenile court intended to do something further, that was, enter another order transferring custody of the child to the Colorado Boys' Ranch for placement. The final order was in April where the court decided the child would be placed in Colorado and his custody would be transferred to the Colorado Boys' Ranch. The challenge on appeal was that the appeal time ran from the date of the first order. The court disagreed and said the order transferring his custody to the Boys' Ranch was the final order. In A.C., 443 N.W.2d at 733, also cited by the State, the juvenile judge did no more than direct a petition for termination of parental rights be filed. Such an order did not dispose of an issue and had no finality.
We therefore look to Jake's challenges to the order. Jake lives with his mother, Rhonda, and her friend, Tom. Rhonda is divorced from Jake's father, Emel. Jake attended public school at Northeast Hamilton during the 2000 to 2001 school year. His behavior at Northeast Hamilton was such that the school determined it was unable to meet his needs. Jake began school in the fall of 2001 at the Webster Middle School. Things did not go well there either. There is considerable evidence that Jake was threatening, noncompliant, and disrespectful. In a seven-week period he was given 151 timeouts. He was suspended for hitting a fellow student in the face. He used foul language, fought, and damaged school property. Apparently several months after enrolling in Webster Middle School he began attending the alternate school at the Boys and Girls home in Fort Dodge, Iowa, where the juvenile court ultimately placed him.
In January of 2002 the principal at Webster Middle School requested a petition be filed in juvenile court asking Jake be found to be a child in need of assistance. There was a stipulation entered into whereby it was agreed that the finding could be made. On March 15, 2002, based on the stipulation, Jake was found to be a child in need of assistance as defined by Iowa Code section 232.2(6)(f).
A dispositional hearing was held on April 15, 2002. At that time Jake still attended the program at the Girls and Boys Home in Fort Dodge. Dissatisfied with the program there, Jake and his family requested at the hearing that Jake be schooled at home with the help of a tutor, and that he receive counseling.
Jake testified the work at the Boys and Girls Home was too hard, his teacher was always gone, and he could not get additional help. Rhonda testified Jake leaves home at 6:45 a.m. and returns at 4:30 p.m. though classes don't start until 9 a.m. and are over at 2:15 p.m. This results in Jake spending over four hours a day on a bus. Rhonda said Jake's behavior deteriorated after he went to the Boys and Girls Home.
Rhonda testified she is a high school graduate and she cleans homes and hotel rooms but has a flexible schedule as does Tom, the man who lives in her home. She said this would allow them to give Jake the help he needs. Rhonda said if Jake could remain at home that her family and friends would assist her with his care, he would have counseling, and a tutor who is a certified teacher would assist. Rhonda says she has no problems with Jake at home.
There was testimony that help for Jake might be available through a program in Ames that would involve an hour rather than a four-hour bus ride. Jake's father had little to add except to blame Jake's problems on Rhonda's drinking.
After the dispositional hearing the juvenile court ordered Jake's custody be transferred to the Department of Human Services for placement in a supervised community treatment program. Jake was given the privilege of remaining in his parental home while participating in the day treatment program, but if his behavior was not acceptable, he would then be transferred to a residential program.
The question is not whether Jake needs help. It was agreed that he does. He recognizes in his brief that he needs help, and from our review of the record we agree. The difficult question is where will his needs best be served.
We agree with Jake and his family that Jake's spending four hours a day on a bus is not ideal. We also recognize that, not only have Jake and his family complained about the Boys and Girls Home, but there is evidence that Jake has problems at the home. Despite attending the program for at least three or four months prior to the dispositional hearing, nothing in the record shows us that Jake's behavior has improved during the time he has been in attendance. Jake correctly argues there is little in the record to show the goals of the program or how it is structured to meet Jake's needs.
The juvenile court did not find from this record, nor can we, that Jake's needs would be adequately addressed by having him stay at home all day and getting his education there. While his mother is well intentioned, she presented no realistic structured plan to show she could meet his needs. Nor is there any evidence that the plan she suggested would meet the State requirements for a home-schooled student.
We have reviewed the evidence and cannot disagree with the decision reached by the juvenile court. We commend Jake's mother for her interest in her child. However, her efforts at this time might be better served by encouraging Jake to cooperate with the program in which he is placed and taking the time to transport him to school to maximize her contact with him. We affirm.