In the Interest of Z.D., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 20-0580
Filed October 7, 2020

IN THE INTEREST OF Z.D.,
Minor Child,

J.M. and J.M., Intervenors,
Appellants,

STATE OF IOWA,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor,

District Associate Judge.

The State and intervenors appeal the juvenile court order removing the Iowa

Department of Human Services as the guardian of a minor child. REVERSED

AND REMANDED.

T.J. Hier of Hier Law Office, P.C., Baxter, for appellant intervenors

(relatives).

Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant

Attorney General, for appellant State.

Victoria D. Noel of The Noel Law Firm, P.C., Clinton, for appellee

intervenors (foster parents).

Marsha Arnold, Davenport, attorney and guardian ad litem for minor child.
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Considered by Mullins, P.J., Schumacher, J., and Blane, S.J.* Tabor, J.,

takes no part.

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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SCHUMACHER, Judge.

The State and intervenors appeal the juvenile court order removing the Iowa

Department of Human Services (DHS) as the guardian of a minor child. We find

the intervenors did not preserve error on their due process claims. We also find

the foster parents did not show DHS acted unreasonably or irresponsibly, or that

removing DHS as the guardian was in the child’s best interests. As such, we

reverse the decision of the juvenile court and remand for further proceedings.

I. Background Facts & Proceedings

Z.D. was born in 2019. The mother indicated she was unable to care for

the child and wanted to have the child placed for adoption. 1 On March 27, 2019,

the child was adjudicated to be in need of assistance (CINA). 2 The child was

placed in the temporary custody of DHS for placement in foster care. DHS placed

the child with E.D. and L.D. (foster parents).

The child’s great-uncle, J.M., and his wife, J.M., (together referred to as the

great-uncle) received notice of the CINA proceedings on April 1. The great-uncle

approached DHS on April 4 or 5 and requested Z.D. be placed with him. The

great-uncle previously adopted Z.D.’s half-sibling, M.M., and stated he wanted the

two siblings to be raised together. Additionally, the great-uncle’s sister adopted

another of Z.D.’s siblings, D.J., and the families had frequent contact.

1 The mother tested positive for amphetamines at the time of the child’s birth, and
the child tested positive for methamphetamine and amphetamines. A report filed
in the termination suggests that the mother intended to place the baby for adoption
under the Safe Haven law; however, a misunderstanding at the hospital may have
prevented such from occurring.
2 Separate adjudication and dispositional orders were filed for the father, as his

whereabouts were unknown. He was served by publication.
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On July 30, the great-uncle filed a motion to intervene. A home study

showed the great-uncle was an appropriate placement option for the child. The

great-uncle asked to have Z.D. placed in his care and stated he was interested in

adopting the child. The great-uncle had some visits with the child and asked for

increased, consistent visitation.

The court granted the motion to intervene on August 8. The court noted

DHS had known since shortly after the child was born that there was a relative with

a sibling of the child, and there should have been consideration of the great-uncle

as a potential placement for the child. The court found, “It is clear that [DHS] has

not made reasonable efforts in this case and that the placement of this child needs

to be addressed as soon as possible for the best interest of the child.” Thereafter,

the foster parents were permitted to intervene in the case.

On September 3, the State filed a petition for termination of parental rights

(TPR). On the same day, the State filed a motion for a continuance on the issue

of permanency. The great-uncle resisted the motion to continue and sought to

modify the placement of the child. He asserted that it would be in the child’s best

interests to be placed with a sibling. DHS requested separate representation by

the attorney general, and an assistant attorney general thereafter represented

DHS.3 The foster parents joined in the motion to continue. On September 18, the

juvenile court determined it was in the child’s best interests for the hearing to be

continued and for the child to remain with the foster parents.

3The county attorney and DHS had divergent interests. The county attorney filed
a brief asking for the removal of DHS as the child’s guardian.
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On September 23, the great-uncle filed a new motion requesting the child

be placed in his care prior to the TPR hearing. He also asked for a continuance of

the TPR hearing until the issue of permanency for the child had been established.

He stated DHS had not engaged in reasonable efforts to have the child placed with

a relative. The mother joined in the motion, stating she wanted the child to be

placed with the great-uncle. The juvenile court scheduled a permanency hearing

on October 28, with the TPR hearing set for November 19.

There was a two-hour hearing on permanency on October 28. The

remainder of the hearing was continued until December 2. In the meantime, a TPR

hearing was held on November 19. The juvenile court terminated the parents’

rights and “ORDERED that the child is placed in the custody and guardianship of

[DHS] for placement in an appropriate pre-adoptive placement.”4

At the continued hearing on December 2, the parties informed the court that

rather than continue with the permanency hearing, they were going to wait for a

decision by the adoption selection committee. The attorney for the great-uncle

stated there was discussion about “getting some visitation set up with the [great-

uncle] that they can count on,” and “facilitating communication” about the child.

The attorney for the foster parents agreed, stating:

We are go[ing to] set up a meeting to make sure that there’s
consistent visitation and that’s being facilitated to ensure that the
Department is doing reasonable efforts, because obviously that is
important, and my clients are supportive of that. And then, as [the
great-uncle’s attorney] said, after the adoption selection staffing
occurs, if either of the parties desires a remedy, we believe that
would be the appropriate time to do it rather than now.

4Neither parent appealed the termination order. Neither parent is a party to this
appeal.
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The guardian ad litem stated, “I also agree with what has been said.” The court

entered an order stating the great-uncle’s motion was withdrawn.

On February 27, 2020, the foster parents filed an application to remove DHS

as the guardian for the child. The foster parents stated DHS was acting

unreasonably because it was taking too long to reach a decision on adoption. They

also stated that as there was increased visitation with the great-uncle, the child

“exhibited signs of separation anxiety and trauma.”5

The application to remove DHS as the guardian was set for a three-hour

hearing on March 19. The Iowa Supreme Court issued In the Matter of Ongoing

Provisions For Coronavirus/COVID-19 Impact On Court Services (March 17,

2020), which stated, “Non-delinquency juvenile matters set to commence before

May 4 shall be either continued to a date no earlier than May 4 or conducted with

the parties and/or participants appearing remotely using video or phone

conferencing, at the discretion of the court.”

On March 18, the court canceled the hearing scheduled for the next day

and directed the parties to “file written briefs/statements outlining their position in

this matter” by March 25. The county attorney and the foster parents filed written

briefs to support removal of DHS as the child’s guardian. The guardian ad litem

joined in these briefs. DHS and the great-uncle filed written briefs in resistance to

the motion.

5As discussed below, no evidence was presented on the application to remove
DHS as the guardian, so the foster parents’ concerns about visitation are not
supported by testimony or exhibits. The foster parents submitted affidavits to
support their position, but the juvenile court stated it would not consider them.
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The juvenile court issued a decision on March 27. The court found “the

situation with [Z.D.] only knowing the [foster parents] as his family and [DHS] not

investigating placement with the [great-uncle] was unreasonable conduct by [DHS]

in performing its obligations in this matter and that [DHS’s] conduct caused the

guardianship issue faced by the Court at this time.” The court stated DHS

consistently indicated the child would be adopted by the foster parents until after

the termination, when it began to have the child spend more time with the great-

uncle. The court determined, “The actions of [DHS] throughout this case have

been unreasonable and have not met the responsibilities of [DHS] to [Z.D.], to the

foster parents, or to the relative placement options.” The court found DHS should

be removed as the guardian for the child. The court named the foster parents as

the child’s guardian. DHS and the great-uncle now appeal.

II. Standard of Review

“We review actions seeking to remove DHS as guardian and challenging

custody placement de novo.” In re D.H., No. 12-1387, 2012 WL 5954633, at *2

(Iowa Ct. App. Nov. 29, 2012) (citing In re E.G., 738 N.W.2d 653, 654 (Iowa Ct.

App. 2007)). “We review both the facts and the law and adjudicate rights anew.”

Id. “Although we give weight to the juvenile court’s findings of fact, we are not

bound by them.” Id.

III. Due Process

The great-uncle contends he was denied due process because the juvenile

court ruled the parties could not present testimony or submit exhibits at a hearing

on the motion to remove DHS as the child’s guardian.
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Prior to the hearing scheduled for March 19, 2020, the great-uncle filed a

motion requesting a continuance or for the hearing to be held by video or

telephone, in accordance with the supreme court’s order filed on March 17. The

foster parents resisted the motion, stating time was of the essence, and the court

could “determine which, if any parties, may participate via videoconference or

telephone.” The great-uncle responded by again pointing out the supreme court’s

guidelines. However, the court determined the issue would be decided based only

on the previous record in the case and the parties’ briefs.

The great-uncle filed a motion to reconsider the court’s ruling, but it referred

solely to the court’s decision to require the child, who was on an extended visit with

the great-uncle, to be immediately returned to the foster parents. The motion to

reconsider did not refer to the court’s decision to exclude testimony and new

exhibits. Also, the issue was not raised in the great-uncle’s brief. The great-uncle

did not file any motions after the court’s ruling but filed a notice of appeal.

“[T]he general rule that appellate arguments must first be raised in the trial

court applies to CINA and [TPR] cases.” In re A.B., 815 N.W.2d 764, 773 (Iowa

2012). This rule applies even to “issues implicating constitutional rights,” such as

due process. In re K.C., 660 N.W.2d 29, 38 (Iowa 2003). The issue concerning

due process was not raised before the juvenile court and was not ruled on by the

court. We conclude this issue has not been preserved for our review. See In re

Z.P., ___ N.W.2d ___, ___, 2020 WL 5268435, at *3 (Iowa 2020) (noting an issue

that “was not disputed below” “is therefore not preserved for appeal”).
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IV. Removal of Guardian

DHS and the great-uncle claim the juvenile court improperly removed DHS

as the child’s guardian. We first note that on December 2, 2019, the foster parents

stated that if either of the parties wanted to challenge the adoption selection

committee’s decision, that would take place “after the adoption selection staffing

occurs.” The guardian ad litem agreed as well. The great-uncle’s attorney also

stated the case “needs to get in front of the adoption selection committee so this

child can move forward with adoption. Whether it ends up being the [foster

parents] or whether it ends up being the [great-uncle], they can go through that

process.” The attorney stated any challenges would be made after the adoption

selection committee’s decision.

Although the foster parents agreed on the record to let the adoption

selection process play out, less than three months later, on February 27, 2020,

they filed an application to remove DHS as the guardian for the child. The foster

parents stated DHS was acting unreasonably because it was taking too long to

reach a decision on adoption. The foster parents sought to bypass the DHS

adoption selection committee by having DHS removed as the child’s guardian

before the committee met and made a decision.6

“When DHS is a child’s guardian, it determines the specific adoptive home

for the child.” In re J.H., No. 20-0081, 2020 WL 2988758, at *3 (Iowa Ct. App.

June 3, 2020) (quoting In re T.J.M., No. 18-1390, 2018 WL 5840806, at *3 (Iowa

6 The adoption selection committee met on March 16, 2020. According to the
great-uncle’s brief, he was informed by DHS that he had been chosen by the
committee to adopt the child.
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Ct. App. Nov. 7, 2018)); see also In re S.O., No. 13-0740, 2013 WL 3458216, at

*2 (Iowa Ct. App. July 10, 2013) (“It is DHS’s duty and right, however, to choose

the placement for these children.”). DHS follows a selection process and criteria

set out in the Iowa Administrative Code. J.H., 2020 WL 2988758, at *3 (citing Iowa

Admin. Code r. 441-200.4(3)). We find it is not unreasonable or irresponsible for

DHS to be following this process. Although the foster parents and the juvenile

court may have wished the process could be accomplished more expeditiously,

we do not find the process was taking an undue amount of time.7

Iowa Code section 232.118(1) (2020) provides for the removal of a guardian

in juvenile court proceedings. We have stated:

In considering whether DHS should be removed as the guardian of
a child, we have looked at whether it has engaged in “unreasonable
actions.” [In re E.G., 745 N.W.2d 742, 744 (Iowa Ct. App. 2007)].
We have also looked at whether “the Department in any way failed
in its guardianship duties or in looking out for [the child’s] best
interests.” Id.; accord [S.O., 2013 WL 3458216, at *2] (“The juvenile
court retains the authority to remove DHS as guardian if the
department acts unreasonably or irresponsibly in discharging its
duties.”). The actions of DHS “must serve the best interests of the
child.” In re N.V., 877 N.W.2d 146, 153 (Iowa Ct. App. 2016); accord
In re C.L.C., 479 N.W.2d 340, 345 (Iowa Ct. App. 1991) (noting “the
overall principle of chapter 232 [is] to seek the best interests of the
child”).

T.J.M., 2018 WL 5840806, at *3. Thus, we consider whether (1) “DHS acted

unreasonably or irresponsibly in discharging its duties” and (2) removal of DHS as

the guardian is in the child’s best interests. J.H., 2020 WL 2988758, at *3.

Factually, this case is very similar to I.P., where foster parents filed a motion

to remove DHS as the guardian of a child after DHS decided to transition the child

7Some of the delay in this case was caused by the motions for continuance that
were filed throughout the case and granted by the court.
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to a family who had adopted the child’s half-sibling.8 2019 WL 3317922, at *2.

“[T]he [juvenile] court found DHS acted unreasonably in failing to timely contact

[the child’s] relatives.” Id. Despite this, the court concluded removing DHS as the

guardian was not the appropriate remedy. Id. On appeal, we stated, “[P]roviding

a good foster home does not create a legal ground to remove the DHS as guardian

after termination. We concluded DHS acted in the child’s best interests by placing

the child with a half-sibling. Id.

Also, in T.J.M., a great-uncle sought to remove DHS as the guardian when

DHS chose to place a child with a maternal aunt who had adopted the child’s half-

sibling. 2018 WL 5840806, at *2. The juvenile court determined DHS should be

removed as the child’s guardian because the great-uncle had been led to believe

the child would be placed in his care. Id. The court found DHS failed to have

continuity in decision-making. Id. We reversed the juvenile court’s decision,

finding DHS was required “to make a reasonable effort to place the child and

siblings together in the same placement.” Id. at *4 (quoting Iowa Code

§ 232.108(1)). Additionally, DHS had a lengthy statement giving its reasons for

placing the child with the maternal aunt, where the child’s half-sibling was living.

8 There are several cases where a party asked to have DHS removed as the
guardian of a child, the juvenile court denied the request on the ground DHS had
not acted unreasonably or failed to act in the child’s best interests, and the issue
was affirmed on appeal. See In re I.P., No. 19-0715, 2019 WL 3317922, at *5
(Iowa Ct. App. July 24, 2019); In re W.L., No. 19-0424, 2019 WL 2375248, at *4
(Iowa Ct. App. June 5, 2019); In re X.O., No. 16-0313, 2016 WL 2743445, at *5
(Iowa Ct. App. May 11, 2016); In re R.S., No. 15-1244, 2015 WL 5578273, at *3
(Iowa Ct. App. Sept. 23, 2015); S.O., 2013 WL 3458216, at *2; D.H., 2012 WL
5954633, at *4; In re K.M.H., No. 12-1300, 2012 WL 5562784, at *3 (Iowa Ct. App.
Nov. 15, 2012); In re D.H., No. 10-1313, 2010 WL 4484849, at *7 (Iowa Ct. App.
Nov. 10, 2010).
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Id. at *5. We concluded, “In our de novo review of the facts and the law, we

conclude DHS did not act unreasonably, irresponsibly, or contrary to the best

interests of [the child] when it determined the child should be permanently placed

in the home of the maternal aunt.” Id.

In a recent case, J.H., although the adoption selection committee chose

foster parents who had adopted a child’s half-sibling, a supervisor overruled the

committee and determined the child should be placed with the child’s grandfather.

2020 WL 29887758, at *1–2. The foster parents sought to remove DHS as the

child’s guardian. Id. at *2. We affirmed the juvenile court’s decision removing DHS

as the child’s guardian, finding DHS acted unreasonably because it did not follow

its own procedures for the permanent placement of children. Id. at *5. We also

concluded DHS had not acted in the child’s best interests, noting that generally

DHS has a preference to keep siblings together. Id. at *6.

We acknowledge that separation between a child and foster parents may

be painful. Z.D.’s foster parents have provided his shelter and care since Z.D. was

a newborn. He was just over a year old at the time of the hearing held on the

motion to remove DHS as his guardian. However, our supreme court has

previously held, “The foster care system is designed to provide temporary, not

permanent, homes for children.” E.G., 745 N.W.2d at 744. DHS is not required to

make “reasonable efforts to preserve a pre-adoptive foster care placement.” R.S.,

2015 WL 5578273, at *1. We do not find DHS acted unreasonably or irresponsibly

by having the child live with foster parents for a period of time but then explore

other options when considering the best placement for adoption. See I.P., 2019

WL 3317922, at *5 (“[P]roviding a good foster home does not create a legal ground
 13

to remove the DHS as guardian after termination.”); T.J.M., 2018 WL 5840806, at

*5 (finding DHS did not act unreasonably by failing to give deference to one relative

because the child previously had been placed in his care). As has been stated

before:

In terms of the court’s involvement in ruling on the application to
remove the DHS, this is not a custody battle between the two
competing parties. The juvenile court is not permitted to make its
own independent decision as to which family the child should be
placed with for adoption. That duty lies with the DHS, as the
guardian of the child. In E.G. I, we held that “[t]he legislature, while
giving the juvenile court continuing oversight consistent with the best
interest of the child, did not give the juvenile court the right to
establish custody or consent to adoption.” 738 N.W.2d at 657.
“Rather, these rights were specifically granted to the guardian,”
which is the DHS in this case. Id. The appointed guardian, not the
juvenile court, is responsible for making important decisions that
have a permanent effect on the life and development of the child and
promoting the general welfare of the child.

J.H., 2020 WL 2988758, at *9–10 (Ahlers, J., specially concurring).

Even if we were to find DHS acted unreasonably, we do not find DHS failed

to act in the child’s best interests or that removal of DHS as the child’s guardian

would be in the child’s best interests. We have stated:

Iowa Code section 232.108(1) “requires the department to ‘make a
reasonable effort to place the child and siblings together in the same
placement.’” In re J.B., No. 18-1177, 2018 WL 4362753, at *2 (Iowa
Ct. App. Sept. 12, 2018) (quoting Iowa Code § 232.108(1)). “[T]he
importance of sibling relationships has been statutorily recognized in
section 232.108.” In re M.D., No. 17-1893, 2018 WL 739351, at *2
(Iowa Ct. App. Feb. 7, 2018). “[T]he overall thrust of section 232.108
[is] to maintain sibling relationships absent clear and convincing
evidence it would be detrimental.” In re A.J., No. 13-0216, 2013 WL
1227360, at *3 (Iowa Ct. App. Mar. 27, 2013).

T.J.M., 2018 WL 5840806, at *4.

Based on the statutory requirements of section 232.108(1), DHS was

required to “make a reasonable effort” to place the child in a home with a sibling,
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which in this case was the home of the great-uncle. The great-uncle had adopted

Z.D.’s half-sibling, M.M., and had frequent contact with another half-sibling, D.J.,

who had been adopted by the great-uncle’s sister. It was not contrary to Z.D.’s

best interests for DHS to consider placing the child with the great-uncle or increase

visitation with the great-uncle so an assessment could be made as to whether his

home was the best placement for the child.

We reverse the juvenile court’s decision removing DHS as the child’s

guardian and remand for further proceedings.

REVERSED AND REMANDED.