In the Interest of W.N. and G.N., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 21-0476
Filed January 12, 2022

IN THE INTEREST OF W.N. and G.N.,
Minor Children,

C.B., Mother,
Appellant,

R.N., Father,
Appellant,

P.S. and K.S.,
Intervenors.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,

District Associate Judge.

A mother and father separately appeal the termination of their parental

rights to their children, and intervenors appeal an order on placement and

guardianship. AFFIRMED ON PARENTS’ APPEALS; REVERSED AND

REMANDED ON INTERVENORS’ APPEAL.

Cole Mayer of Macro & Kozlowski, L.L.P., West Des Moines, for appellant

mother.

Jami J. Hagemeier of Hagemeier Law, P.L.C., Des Moines, for appellant

father.

Andrea McGinn, Van Meter, for appellant intervenors.
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Thomas J. Miller, Attorney General, and Natalie Deerr, Assistant Attorney

General, for appellee State.

Kayla Stratton, Des Moines, attorney and guardian ad litem for minor

children.

Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
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VAITHESWARAN, Presiding Judge.

The department of human services investigated allegations that parents of

twenty-two- and ten-month-old children used methamphetamine while caring for

them. The parents consented to the children’s removal and placement with the

children’s maternal grandmother, and they did not contest their adjudication as

children in need of assistance. The children remained in their grandmother’s home

throughout the proceedings under a dispositional order granting the grandmother

and her husband1 temporary legal custody, subject to department supervision.

The State eventually filed a petition to terminate parental rights. The

grandparents moved to intervene during the termination hearing. They sought

“continued placement of the children in their home.” The district court granted their

motion. The court reasoned that, “should the court terminate parental rights,” the

grandparents would “have no party to represent their position” on whether they

were “suitable person[s]” to whom legal custody could be transferred. See Iowa

Code § 232.102(1)(a)(1) (2020). The court scheduled a separate hearing on the

placement question.

At that hearing, the grandparents asked the court to place the children with

them as potential guardians or future adoptive parents. Following the hearings,

the court terminated the parents’ rights and filed an “order on placement and

guardianship” denying the grandparents’ request. The court ordered the children

transferred to the custody and guardianship of the department for purposes of

1 The parties referred to both as the children’s grandparents. We will do the same.
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adoption. The parents and grandparents appealed. The supreme court granted a

stay of the placement/guardianship ruling pending appeal.

I. Grounds for Termination

The parents contend the State failed to prove the grounds for termination

cited by the district court. We may affirm if any of the grounds are supported by

clear and convincing evidence. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We

will focus on Iowa Code section 232.116(1)(h), which requires proof of several

elements, including proof the children cannot be returned to parental custody.

The district court determined the “return” element was satisfied “due to both

parents’ unresolved substance use disorders, the parents’ ongoing need for mental

health services, the parents’ need to address domestic violence in their continued

relationship, and their need to demonstrate sustained sobriety.” On our de novo

review, we agree with the court’s determination.

The children remained out of their parents’ care for approximately fifteen

months. Although the mother underwent substance-abuse treatment and

abstained from methamphetamine use, she conceded she “relapsed” on alcohol

as recently as a week before the termination hearing. She acknowledged she was

not the person who could be present for the children twenty-four hours a day.

The department case manager recommended termination of the mother’s

parental rights, citing her failure to “follow through with any aftercare services,” her

“continued” consumption of alcohol, and her continued relationship with the father

despite concerns of domestic violence. In a report to the court, she recommended

the parents “address through mental health therapy how the presence of violence

in their relationship impact[ed] the children.”
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The father also abused alcohol in violation of his probation agreement. He

was jailed approximately sixty days before the termination hearing. His

incarceration prevented him from being available to the children. The case

manager recommended termination of his parental rights.

We conclude neither parent could have the children returned to their

custody at the time of the termination hearing as required by Iowa Code section

232.116(1)(h)(4). The ground for termination was satisfied.

II. Best Interests

The parents contend termination was not in the children’s best interests.

See Iowa Code § 232.116(2). The mother notes that she “parented the children

appropriately when she had visits” and she was not the subject of “parenting

concerns.” The father asserts the “children would not suffer detriment if they were

returned to him.”

As discussed, neither parent could safely care for the children at the time of

the termination hearing. We conclude termination was in the children’s best

interests.

III. Exceptions to Termination

The parents contend the district court should have invoked exceptions to

termination based on the district court’s placement of the children’s temporary

custody with a relative and the closeness of the parent-child relationship. See id.

§ 232.116(3)(a), (c). These exceptions are permissive. See In re M.W., 876

N.W.2d 212, 225 (Iowa 2016).

The district court declined to apply either of the exceptions in light of “these

children’s young age, their need for a long-term secure placement, their trauma
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history, and their emotional failure to thrive.” On our de novo review, we find

support for the court’s conclusion, and we affirm the court’s denial of the

exceptions.

IV. Six-Month Extension

The parents argue they should have been afforded a six-month extension

to work toward reunification. See Iowa Code § 232.104(2)(b). The department

case manager opined the parents could not realistically accomplish reunification

in a six-month period. She noted that the father “minimally engaged in services”

and, although the mother was more participatory, she and the father lacked

“insight” into the effect of their decisions on the children. On our de novo review,

we agree a six-month extension of time to work toward reunification was not

warranted.

V. Expert

The father contends the district court should have granted his motion for an

expert witness to “do a complete home study of the grandparents’ home.” In

denying the motion, the district court found the grandparents participated “in a

home study through the licensing agency” with which the department had a

contract and the grandmother also participated “in a psychological evaluation.”

The court concluded the proposed expert “would only serve to delay the court’s

[permanency] determination,” which was “not in the children’s best interests.”

On our de novo review, we find the record unclear on whether the

department completed a home study. Department reports contain references to a

“home study process” that was to have been initiated by the grandmother in June
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2020 through the same service provider considering her application to adopt the

children. But if a home study report was generated, the report is not in our record.

That said, the existence of an established entity charged with conducting

home studies supports the district court’s decision to deny the father’s request for

an expert to provide the same service. As for the psychological evaluation of the

grandmother, the department completed the evaluation, which is in our record and

will be discussed in greater detail below. We conclude the district court did not

abuse its discretion in denying the father’s motion for an expert. See In re S.D.,

671 N.W.2d 522, 528 (Iowa Ct. App. 2003) (setting forth standard for reviewing

motion to retain an expert).

VI. Removal from Grandparents—Placement/Guardianship

Preliminarily, we address the standard of review for

placement/guardianship decisions. The State argues the appropriate standard is

for an abuse of discretion. We disagree.

The grandparents sought to intervene under the authority of Iowa Code

chapter 232. They cited the permanency provision of Iowa Code section 232.104

and the relative exception contained in section 232.116(3).2 There is no question

that the placement decision fell under the purview of chapter 232. Accordingly,

we conclude our review is not for an abuse of discretion but is de novo. See In re

P.L., 778 N.W.2d 33, 40 (Iowa 2010) (“[T]he proper standard of review for all

termination decisions should be de novo.”). We turn to the merits.

2 As will be discussed, we believe section 232.117(3) governs the decision.
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Following termination of parental rights, Iowa Code chapter 232 authorizes

a court to transfer guardianship and custody of a child to several persons or

entities, including the department or “other relative [] or other suitable person.”

Iowa Code § 232.117(3)(c). The supreme court considered the provision in In re

A.S., 906 N.W.2d 467, 477 (Iowa 2018). There, the court rejected “the option of

affirming termination of A.S.’s parental rights while remanding for transfer of the

guardianship and custody of the child to a relative of the child.” A.S., 906 N.W.2d

at 477. The court cited (1) the absence of a “statutory preference for placement

with a relative,” (2) the recommendation of “[b]oth the [department] and the

guardian ad litem” to place “the child in the guardianship and legal custody of the

[department] so that the child [could] be adopted,” and (3) the principle that “a

guardianship is not a legally preferable alternative to termination.” Id.

The third ground on which the court relied in A.S. is the same ground cited

by the district court in this case. Specifically, the court denied the grandparents’

request “to be able to either adopt the children or have the children remain in their

care by way of a guardianship” because “[t]ermination and adoption are the

preferred methods of obtaining permanency for children who cannot be returned

to a parental home,” citing In re B.T., 894 N.W.2d 29, 33–34 (Iowa Ct. App. 2017).

We have no quarrel with the focus on permanency and adoption. But, in

our view, the grandparents’ request to retain custody of the children advanced both

goals. The grandmother testified that if the parents could not be “Mom and Dad,”

she was “going to be here to look after the babies.” The State’s attorney

specifically asked her, “if the Court terminates [parental] rights and the [children]

remain with you, are you committed to giving the [children] a forever home?” The
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grandmother responded, “Yes, I am.” The attorney then asked, “Would you be

willing to adopt them?” She responded, “Yes.” The grandmother testified she

had investigated the process for getting licensed to adopt and already “sent [in]

their fingerprints.” In her words, “Everything’s all done . . . . Everything’s been

sent off and we’re waiting.” The grandfather similarly testified he would “move

Heaven and earth for” the children and he would do “[a]nything to keep the

[children].” He expressed a desire to give them “some structure in their lives, some

well-being, someplace that they [could] call permanent.” He opined, “[I]t would

make me very happy to adopt them.” In short, the grandparents were willing to

fulfill the twin goals of permanency and adoption. Cf. A.S., 906 N.W.2d at 478

(noting grandparents did not testify).

The grandparents also had the ability to fulfill those goals. Their home was

the only stable home the children knew. As the district court acknowledged, both

children were attached to their grandparents and thrived in their care. The court

found “[t]he children enjoy a loving relationship with” the grandparents—the

younger child shared “a particularly close relationship with her grandfather” and

the older child enjoyed “a close relationship with her grandmother.” The court

further found the children “made gains in their development and growth while in”

the grandparents’ home. And the court found the grandmother “participated in the

children’s therapy as expected.”

Until shortly before the termination hearing, the department conceded as

much. In a report filed three months before the termination hearing, the

department characterized the placement as a “strength” and stated the children

were “doing well in this placement.” In contrast to the case manager’s later
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suggestion that the grandmother refused to enroll the older child in daycare and

educational services, the report stated the decision to delay those services was

made by a service provider who believed the older child could not be placed in

daycare until she developed better communication skills.

Those skills improved in the grandmother’s care. The department reported

that the older child had enhanced “communication and behaviors” and reported

that the grandmother agreed to have the child participate in Head Start. Finally, it

was undisputed that, at the time of the termination hearing, the child was at the

same level as her peers in all subjects except math.

A service provider who met with the grandparents at their home testified the

children’s basic needs, developmental needs, and medical needs were being met.

She described the grandparents as “very interactive and nurturing towards the”

children. She stated the bond between the younger child and the grandfather was

strong and he was a “positive role model.” She testified to the grandmother’s ability

to discern whether the children’s mother and father were sober and stated, “that

shows protective capacities.” Although she conceded there had been strain

between the grandmother and mother, she testified that, more recently, the two

discussed “wanting to work as a team” for the sake of the children. She noted that

they had “increased conversations,” sometimes simply to chat. She opined “their

relationship ha[d] definitely improved throughout this case.” Cf. In re W.M., 957

N.W.2d 305, 315 (Iowa 2021) (denying request for guardianship after concluding

the mother and grandmother lacked a close, conflict-free relationship warranting

creation of a guardianship); A.S., 906 N.W.2d at 478 (noting “there was physical

and verbal aggression in the grandparents’ household”). When asked if the
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children’s parents and grandparents were the most important people in the

children’s lives, she responded, “Absolutely.” She had no reservations with having

the children remain in the care of their grandparents.

Another service provider who provided mental-health therapy to the children

testified she worked with the older child to “utilize her secure relationships in order

to know the boundaries for strangers.” The secure relationships included “her

grandparents.” The provider also worked with the younger child “to provide an

increased level of attunement between her caregivers and herself.” She described

the children’s “adverse child experience” scores and stated none of the scores

were attributable to the grandparents. She agreed that removing the children from

their grandparents could have a lasting effect on their relationships into adulthood.

The person who conducted a psychosocial evaluation of the grandmother

testified the grandmother “was pretty clear that she was fighting for her

grandchildren, and that it was very important to her.” She said the grandparents

“together [were] trying to do what they c[ould] to provide the best for the children.”

While she characterized placement of the children with the grandmother as “risky,”

the concerns she enumerated were undercut by the grandmother’s actions in the

year preceding termination. The grandmother’s age of fifty-five, for example, did

not prevent her from serving as caretaker for these two children as well as the four

children of another daughter. And the grandfather’s health issues did not prevent

him from working full-time to support the family and helping with the children. His

full-time employment with retirement benefits should have alleviated the

evaluator’s concerns with the grandmother’s “financial fragility.” As for the

grandparents’ ability to keep up with the needs of the children, the grandmother
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cared for them all day, took them to scheduled appointments, and facilitated

services and visits within the home, facts acknowledged by the department

throughout the proceedings. Finally, there was scant if any indication that the

grandmother’s pace of learning cited by the evaluator prevented her from

understanding the children’s needs or translated into safety concerns for the

children. The example cited by the evaluator—the grandmother’s failure to

recognize the older child’s anxiety when a stuffed animal she was playing with

tipped over—is hardly indicative of sustained parenting deficiencies. Nor is the

grandmother’s initial reluctance to refer the child to another specialist—a referral

the evaluator conceded the grandmother agreed to after the nature of the

evaluation was explained. It is worth noting that the grandmother was keenly

attuned to the older child’s need for speech therapy and she facilitated services to

address the need. As a result of the grandmother’s attention, the length of the

older child’s sentences improved significantly over the placement period. As for

the younger child, the evaluator conceded she “lit up like a Christmas tree” on

seeing her grandfather. Cf. A.S., 906 N.W.2d at 478 (noting the child “at age two

[was] too young to express a preference”).

We are left with the grandfather’s criminal history. The grandfather testified

he served three-and-a-half years in prison for second-degree sex abuse and

second-degree burglary convictions arising out of crimes committed in 1979 when

he was nineteen years old. The sex abuse charge arose from an attempted

robbery of an adult woman. During the attempt, the grandfather incidentally

touched and grabbed the fully clothed woman in a public place. The grandfather

said he never saw the woman before and he was also fully clothed at the time.
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The State did not dispute the father’s rendition of the circumstances leading

to the sex abuse charge.3 And, although the State resisted the grandparents’

request to retain the children, as did the guardian ad litem, the department had no

qualms about placing the children in the grandfather’s home following the

children’s removal and expressed no concern with his treatment of the children or

the grandmother.

The district court also discounted the conviction in the placement decision.

The court explained that while “[a] forcible felony is a barrier to DHS or any private

agency approving an adoptive home study . . . the court may waive any

investigation and report required given that [the grandfather] is related within the

fourth degree of consanguinity to the person to be adopted. See Iowa Code

§ 600.8(12).[4]” The court stated, “If [the grandfather’s] 1979 conviction was the

only issue present regarding the children’s placement, the court may have

considered that outcome.” Ultimately, the court declined to waive an investigation

and report under section 600.8(12) because of the State’s concerns with the

grandmother’s caretaking abilities. As discussed, those concerns were overblown.

3 The grandfather also testified to a 1994 simple misdemeanor domestic abuse
conviction involving his former wife. For purposes of placement, the district court
focused on the felony sex abuse conviction.
4 That provision states:

Any investigation and report required under subsection 1 may be
waived by the juvenile court or court if the adoption petitioner is
related within the fourth degree of consanguinity to the person to be
adopted. However, if an adoption petitioner discloses a criminal
conviction or deferred judgment for an offense other than a simple
misdemeanor or founded child abuse report pursuant to section
600.5, the petitioner shall notify the court of the inclusion of this
information in the petition prior to the final adoption hearing, and the
court shall make a specific ruling regarding whether to waive any
investigation or report required under subsection 1.
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On our de novo review, we conclude the grandparents were the only stable

influence in the children’s lives and uprooting them at this critical juncture would

result in another adverse childhood experience.

We reverse the placement/guardianship decision and remand for waiver of

the placement investigation and report pursuant to Iowa Code section 600.8(12)

and for consideration of the grandparents as adoptive parents or, alternatively, for

appointment of the grandparents as guardians pursuant to Iowa Code section

232D.201(1). We recognize the creation of a guardianship will require the

guardians to file annual reports that “shall not be waived by the court.” See id.

§ 232D.501(1); cf. A.S., 906 N.W.2d at 478 (citing the reporting requirement as

grounds for denying grandparents’ request for a guardianship). But, in our view,

this is a small price to pay for the children’s near and long-term stability.

AFFIRMED ON PARENTS’ APPEALS; REVERSED AND REMANDED

ON INTERVENORS’ APPEAL.