IN THE COURT OF APPEALS OF IOWA
No. 16-0313
Filed May 11, 2016
IN THE INTEREST OF X.O. AND J.O.,
Minor children,
R.O. and J.O,
Grandparents/Intervenors-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Humboldt County, Kurt J. Stoebe,
Judge.
Grandparents appeal the district court’s denial of their motion to remove
the department of human services as guardian of their grandchildren.
AFFIRMED.
Alesha M. Sigmeth Roberts of Sigmeth Roberts Law, P.L.C., Clarion, for
appellants.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Marcy J. Lundberg of Lundberg Law Firm, Des Moines, attorney and
guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
VAITHESWARAN, Presiding Judge.
Maternal grandparents appeal the district court’s denial of their motion to
remove the department of human services as guardian of their grandchildren.
I. Background Facts and Proceedings
A mother had two children, born in 2012 and 2013. The second child was
born with pulmonary issues and a potentially life-threatening condition known as
congenital adrenal hyperplasia, which prevented his body from producing
cortisol. He required interventions by a pulmonary specialist and an
endocrinologist.
When the second child was five months old, the department learned the
mother had neglected to take him to several medical appointments. The State
filed a child-in-need-of-assistance action. The district court adjudicated the child
in need of assistance and ordered him to remain in the mother’s custody under
the protective supervision of the department.
This status was short-lived. Within days, the mother left the children home
alone and the district court ordered them removed from her custody.
Although the mother and grandparents lived in northwest Iowa, the
children were placed in foster care in Des Moines because, in the social worker’s
view, there were no homes available outside the Des Moines area. This was a
two-and-a-half-hour drive away from the grandparents. The children were left in
Des Moines after it became apparent that most of the medical specialists
involved in the younger child’s care were located there. The department failed to
notify the grandparents of the removal.
3
Three months later, the department filed a report stating the mother
“wished to have her parents . . . be considered as a placement option for the
children.” The department did not place the children with them based in part on
the presence of six rescue dogs on their acreage and the endocrinologist’s
concerns about the grandparents’ “absence in the care and assistance of” the
children.
The maternal grandmother moved to intervene in the proceedings. The
court granted the motion. When no additional action was taken, the
grandparents filed a second motion to intervene. The court granted this motion
as well. In a subsequent order, the court determined “[i]t would be superfluous to
conduct a separate hearing on the movant’s request for permanency.” The court
gave the grandparents “the opportunity to appear” at the “hearing for
permanency/termination of parental rights.” Around the same time, the children
were moved to a second foster home in Des Moines. By this time, ten months
had elapsed since the child’s removal.
At the termination hearing, the grandparents appeared without an
attorney. During the grandmother’s cross-examination of the department social
worker overseeing the case, the county attorney objected to questions
concerning the grandparents’ request for placement of the children in their home,
asserting the issue was not properly before the court. The court sustained the
objection.
4
Following the hearing, the district court terminated the mother’s parental
rights and appointed the department to act as guardian of the children.1 This
court subsequently affirmed the termination decision. See In re J.O., No. 15-
0256, 2015 WL 1576419, at *2 (Iowa Ct. App. Apr. 8, 2015).
Less than a month after the termination decision was filed, the
grandparents again moved to intervene and concurrently filed a motion to
remove the department as guardian and custodian. They alleged the department
did not serve “as Guardian in the best interest of the children” because the
agency “failed to seek appropriate permanent placement for the children or a
family placement for the children during the pendency of the CINA cases.” They
further alleged, “DHS . . . failed to follow through with the request of the
Intervenor or the mother for . . . placement of the children with an appropriate
family member prior to placing the children in foster care.” Inexplicably, hearings
on the motion were delayed for seven to ten months.2 The children remained
with the foster parents during this period. Following the hearings, the district
court denied the motion. The grandparents appealed.
II. Removal of Department as Guardian/Custodian
“The juvenile court retains the authority to remove DHS as guardian if the
department acts unreasonably or irresponsibly in discharging its duties.” In re
S.O., No. 13-0740, 2013 WL 3458216, at *2 (Iowa Ct. App. July 10, 2013); see
Iowa Code § 232.118 (2015). In assessing an application for removal of a
1
The court also terminated the parental rights of the children’s fathers.
2
Some of the delay was attributable to an appeal from the denial of the grandparents’
request for a hearing, an appeal that was ultimately dismissed. But this delay does not
explain an additional six-month delay before the first scheduled hearing and a
subsequent delay of three months before the second scheduled hearing.
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guardian a court will consider (1) the reasonableness of the department’s
actions, (2) the best interest of the children, and (3) whether there has been a
substantial change of circumstances. See In re D.H., No. 10-1313, 2010 WL
4484849, at *6-7 (Iowa Ct. App. Nov. 10, 2010).
The grandparents contend the department acted unreasonably and not in
the children’s best interest by (A) failing to notify relatives of the removal and
(B) failing to consider them as a placement option while at the same time placing
unreasonable burdens on them and showing bias against them.
A. Notice
Iowa Code section 232.84 provides:
Within thirty days after the entry of an order under this chapter
transferring custody of a child to an agency for placement, the
agency shall exercise due diligence in identifying and providing
notice to the child’s grandparents, aunts, uncles, adult siblings,
parents of the child’s siblings, and adult relatives suggested by the
child’s parents, subject to exceptions due to the presence of family
or domestic violence.
The notice must contain:
a. A statement that the child has been or is being removed
from the custody of the child’s parent or parents.
b. An explanation of the options the relative has under
federal, state, and other law to participate in the care and
placement of the child on a temporary or permanent basis. The
options addressed shall include but are not limited to assistance
and support options, options for participating in legal proceedings,
and any options that may be lost by failure to respond to the notice.
c. A description of the requirements for the relative to serve
as a foster family home provider or other type of care provider for
the child and the additional services, training, and other support
available for children receiving such care.
d. Information concerning the option to apply for kinship
guardianship assistance payments.
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Iowa Code § 232.84(3). The statute “places the onus on the department . . . to
identify relatives subject to notification.” In re R.B., 832 N.W.2d 375, 380 (Iowa
Ct. App. 2013). The department social worker overseeing the case conceded the
mother told her she wished to have the children placed with the grandmother.
She also conceded the section 232.84 notice was not sent to the grandparents or
other relatives. When the guardian ad litem asked her whether the notice would
have been a “silly formality” because she was already in touch with the
grandparents, she responded, “Yes.” A department supervisor also
characterized the notice as simply “an option.”
To the contrary, formal notice was required “even if the relatives were
informally aware of the child’s transfer to foster care.” In re N.V., ___ N.W.2d
___, ___, 2016 WL 757423, at *5 (Iowa Ct. App. 2016). “The statutorily-
prescribed notice would have clarified their options with respect to the child.” Id.
at *6; see In re N.P., No. 12-0805, 2012 WL 3196125, at *2 (Iowa Ct. App. Aug.
8, 2012) (“Had the grandmother received the 232.84 notice with the information
the statute requires, she would have been informed of her options to participate
in the care and placement of the children. She would have been informed about
available assistance and support options. And most importantly, she would have
been informed of her options for participating in the legal proceedings.”). The
grandmother in this case testified that she only learned of these options after she
retained an attorney following the termination proceeding. By this time, almost a
year had passed since the child’s removal. We conclude the department acted
unreasonably in failing to notify the grandparents and other relatives of their
rights as required by section 232.84.
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B. Placement
The children’s guardian has the duty and right “to choose a specific
placement for [a child.]” In re E.G., 745 N.W.2d 741, 744 (Iowa Ct. App. 2007).
See also In re D.H., No. 12-1387, 2012 WL 5954633, at *4 (Iowa Ct. App. Nov.
29, 2012). There is “a statutory preference for placement of children with
relatives during the child-in-need-of-assistance phase of the proceedings.” N.V.,
2016 WL 757423, at *6; see 42 U.S.C. § 671(a)(19) (requiring the State to
“consider giving preference to an adult relative over a non-related caregiver when
determining a placement for a child”); see also R.B., 832 N.W.2d at 381. There
is no such preference after termination. In re R.J., 495 N.W.2d 114, 117 (Iowa
Ct. App. 1992); S.O., 2013 WL 3458216, at *1.
The grandparents assert the department acted unreasonably in failing to
place the children with them before and after the termination ruling. They cite a
number of factors, which we will address together.
The department social worker in charge of the case testified she
considered the grandparents as a placement option before termination. While
she stated she did not have a good first impression of the grandmother, she
agreed to check the home and perform background checks on both
grandparents.
As noted, the home check revealed the presence of six rescue dogs on
the acreage. Although the grandmother was willing to consign some of the dogs
to the mud room and have some of them live outdoors, the social worker said
that the dogs would exacerbate the younger child’s pulmonary issues. She
expressed no such concern with respect to the three cats in the first foster
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parents’ home. As for the background checks, she agreed they did not uncover
anything that “would have prevented the [d]epartment from moving forward” with
placing the children in their home.
Meanwhile, the social worker’s doubts about the grandparents prompted
her to impose two additional prerequisites to placement: participation in foster
care classes and a formal home study. She also required the grandparents to
attend all the second child’s medical appointments.
The grandparents delayed participation in the classes, completing them
only after the termination hearing. The home study was also performed after the
termination hearing. As for the medical appointments, the endocrinologist’s
nurse reported the grandparents only attended three of the twenty-seven
scheduled visits. The grandmother testified that neither the foster parents nor
the department notified her of all the appointments and scheduled them at their
convenience without consulting her. The social worker responded by recounting
the number of hours the first set of foster parents spent addressing the younger
child’s medical needs and suggested the maternal grandparents were ill-
equipped to expend the same number of hours.
On our de novo review, we conclude the department acted reasonably in
declining to place the children with the grandparents during the child-in-need-of-
assistance proceedings notwithstanding the statutory preference for relative
placement at this stage. While the department social worker’s first impression of
the grandmother appeared to color her subsequent interactions with the
grandparents, we conclude the initial placement decision was justified based on
9
the younger child’s medical needs and the foster parents’ proximity to most of his
physicians.3
We turn to the post-termination placement decision. The grandparents
contend the foster care social worker continued to handle the adoption
proceedings in contravention of department policy, which requires a case to be
transferred to an adoption worker within “45 days from receipt of the order for
termination of parental rights.” Iowa Dept. of Human Servs. Title 17: Ch. F(1):
Permanent Placement Procedures. This violation, they argue, and the social
worker’s bias against them rendered the placement decision unreasonable.
They also suggest their completion of the foster care classes amounted to a
substantial change of circumstances.
The foster care social worker stated she remained on the case after
termination because of its complexity and her knowledge of the circumstances.
We assume without deciding she could circumvent departmental policy in this
fashion, and we decline to conclude her decision to participate in the adoption
proceeding per se rendered the department’s actions unreasonable.
We are less sanguine about certain unsupported representations she
made to the adoption team. For example, she reported the grandmother had
“not attempted to have more contact with the children or ask[ed] . . . for visits with
the children.” In fact, the record is replete with evidence of the grandmother’s
requests for additional time with the children. She (1) asked the social worker “to
allow [her] to come for visits with the children”; (2) “called today,” wanting “to see
3
The grandparents argue the child’s condition was manageable. That is true. But
management required three shots a day and regular appointments with the Des Moines
medical team, in addition to surgical intervention in Iowa City.
10
the grandkids”; (3) “contacted [the social worker] asking for visits”; (4) “requested
visitation unsupervised for her[self] and her husband”; (5) asserted, “I haven’t
seen [the older child] since . . . September and [the younger child] since his last
doctor’s appointment . . . . Can you tell me what you decided and if I can see
them”; (6) stated she “did not like that the kids were so far away”; (7) “said she
cares about her grandkids so much and wants them to be with her”; (8) said, “I
do not want to lose my grandchildren”; and (9) asked, “Can I see them one last
time at least?” In the face of this overwhelming evidence refuting some of the
foster care social worker’s representations to the adoption committee, we
conclude she acted unreasonably in the post-termination phase of the
proceedings.
That said, the decision to place the children with the foster parents after
termination was based on more than the foster care social worker’s
representations. As noted, the grandparents failed to attend all of the second
child’s medical appointments and the child’s endocrinologist expressed concerns
about their engagement with the child’s needs. These factors overrode the
grandparents’ completion of foster care classes, which they allege amounted to a
substantial change of circumstances. Because the adoption team relied on these
additional factors in declining to place the children with the grandparents, we
conclude the foster care social worker’s unsupported representations do not
render the post-termination placement decision unreasonable.
We are left with the primary consideration—the best interest of the
children. By all accounts, both children were thriving in a stable home at the time
of termination. And, as noted, the home was close to the younger child’s medical
11
team. Under these circumstances, we conclude the post-termination placement
decision was in the children’s best interest notwithstanding the foster care social
worker’s failure to provide the section 232.84 notice and her unsupported
representations to the adoption team. See N.P., 2012 WL 3196125, at *3
(“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.”). We
affirm the district court order declining to remove the department as guardian or
custodian of the children.
AFFIRMED.