In the Interest of L.S., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 23-1511
Filed January 10, 2024

IN THE INTEREST OF L.S.,
Minor Child,

K.N. and Z.P., Intervenors,
Appellants.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Romonda Belcher,

District Associate Judge.

Intervenors appeal the juvenile court’s denial of their motion to modify

placement. AFFIRMED.

Erin E. Jordan of Hope Law Firm & Associates, P.C., West Des Moines, for

appellants.

Brenna Bird, Attorney General, and Michelle R. Becker, Assistant Attorney

General, for appellee State.

Jane White of Gribble, Boles, Stewart & Witosky Law, Des Moines, attorney

and guardian ad litem for minor child.

Considered by Tabor, P.J., and Badding and Chicchelly, JJ.
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BADDING, Judge.

The importance of sibling relationships is emphasized by statute and case

law. See In re I.P., No. 19-0715, 2019 WL 3317922, at *4 (Iowa Ct. App.

July 24, 2019); see also Iowa Code § 232.108 (2023). But does the importance

given to that relationship mean the Iowa Department of Health and Human

Services acts unreasonably and irresponsibly when it fails to place a child with the

adoptive parents of a half-sibling? Because of the deference given to the

department’s decision for placement of a child, and the overriding concern for the

child’s best interests, we conclude the answer to that question is no. We

accordingly affirm the juvenile court’s dispositional order denying the intervenors’

motion to modify placement.

I. Background Facts and Proceedings

L.S. was born in November 2022. He has two older half-siblings, whose

parents’ rights were terminated in 2019 and 2021. One of L.S.’s siblings was

adopted by the mother’s sister and her husband. The other, T.P.,1 was adopted in

May 2022 by Katie and Zachary—the intervenors in this proceeding.

While their adoption of T.P. was pending, Katie and Zachary learned the

mother was expecting another child. They told the department caseworker who

had been involved in their case that they were interested in caring for that child if

the child was removed from the parents’ care. That worker encouraged Katie and

Zachary to renew their foster care license because she believed a juvenile court

case would likely be opened for the infant.

1 This is the child whose parents’ rights were terminated in December 2021.
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But two weeks after L.S. was born, the department conducted an

assessment and determined court involvement was unnecessary because the

child was “born negative for all illegal substances, the parents [were] sober for [a]

period of one year, and mom [was] working with services providers addressing her

mental health concerns.” Unfortunately, the parents’ sobriety did not last.

In March 2023, the department applied for temporary removal of the child

because of parental substance abuse. Rather than placing L.S. with Katie and

Zachary, the department elected to place him with a paternal aunt and uncle,

Carmen and Jose, who had “cared for him on a consistent basis” before the

removal. The department found these relatives were suitable through a search of

the child abuse registry and a criminal records search, although the latter showed

that Jose had an operating-while-intoxicated conviction in 2021.2

The juvenile court’s March 3 removal order placed the child in the temporary

custody of the department “for placement with an adult relative of the child

including but not limited to adult siblings and parents of siblings.” The court

ordered the department to comply with the relative-notice requirements of Iowa

Code section 232.84(2), which includes “parents of the child’s siblings.” The order

also noted the department “may share information as necessary to explore a

child’s potential placement with any adult relative who may receive notice pursuant

to subsection 2.” See Iowa Code § 232.84(4). The court confirmed the removal

and relative placement in a later order after a formal hearing.

2 The document attached to the removal affidavit from Iowa Courts Online shows

this was originally charged as a second offense, but the ultimate conviction was
for a first offense.
 4

Even though they had been in contact with the department before L.S. was

born, Katie and Zachary did not learn about his removal until the beginning of April

when they received the relative notice from the department. On April 11, they filed

a “motion to intervene and request for placement of the child” in their home with

his biological brother. Their motion noted they “are committed to maintaining

family relationships between the minor children and other relatives, and have

maintained contact with” the third sibling. The child’s guardian ad litem did not

resist intervention, agreeing the intervenors have “an excellent and safe home”

and should be considered a concurrent option. But she did not believe changing

the child’s placement would be in his best interests given the care the paternal

aunt provided to the child, even before the proceedings.

Following the guardian ad litem’s report, and later withdrawal due to a

conflict of interest, a combined hearing on adjudication, intervention, and

disposition was set for June 1. Two days before the hearing, the intervenors filed

a “motion for temporary placement pursuant to [section] 232.78(8) and

continuance of disposition.” In that motion, they asked the court to review the

department’s initial placement decision, asserting “the department failed to act in

[L.S.]’s best interests by unreasonably failing to consider Katie and Zack for

temporary placement under [section] 232.78(8) when [L.S.] was removed.” As the

sibling’s adoptive parents, the intervenors argued they were adult relatives with

superior priority for placement over the paternal relatives. The intervenors also

complained that the department “made no efforts whatsoever to place” the child

with them, “despite being notified immediately that Katie and Zack would be happy

to provide a temporary placement,” nor did it facilitate visits between the siblings.
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After the hearing,3 the court adjudicated the child as in need of assistance, granted

the motion to intervene, continued disposition, and ordered that the child remain in

relative placement pending disposition.

At the dispositional hearing on July 24, Katie testified that the child and his

half-sibling should be raised together. She contended that the department did not

properly consider her and Zachary as a potential placement either before or after

removal, nor did it facilitate sibling contact. Katie testified she was “absolutely

shocked” when she learned of the child’s removal from the relative notice since

she had been in contact with the department before then. Katie immediately

contacted the caseworker assigned to L.S.—JoAnna Demaria. She testified that

Demaria seemed confused about the sibling relationships and incorrectly told her

on two occasions that she could not discuss the case without parental releases.

Despite Katie’s repeated requests for placement and physical contact with

L.S., she said that Demaria took no action until a short home visit on May 30, where

she sat on a chair in Katie’s living room for fifteen or twenty minutes and asked

questions for her social history report:

She didn’t look around my house. She didn’t look for sleeping
arrangements, baby equipment. It did not seem to be a vetting. It
was, she was preparing a social history and so she was asking me
factual information. It was not really for the purpose of exploring
placement or there was no discussion of, you know, why I would be
qualified to take placement.

Fed up, Katie emailed Demaria’s supervisor in mid-June. That exchange

was followed by a staffing on June 22, at which Katie said the department

“appeared to be very against the two siblings initiating contact” because “they were

3 We have no transcript for the June 1 hearing.
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fearful of creating a bond and severing a bond.” The department begrudgingly,

according to Katie, authorized a one-hour sibling visit once each month, the first of

which occurred on June 23 and was semi-supervised. Katie said she asked for

more visitation, but her request was denied. James, the adoptive father of the

child’s other half-sibling, testified he contacted the department after receiving a

relative notice, but he was also not investigated as a potential placement. The

department caseworker did not testify at the hearing.

At the close of evidence, the court allowed the parties to file written closing

arguments on the placement issue. The mother objected to modifying the child’s

placement, arguing the intervenors failed to show the initial placement decision

was unreasonable or irresponsible. The State echoed the mother’s arguments and

noted the child’s “placement with his paternal aunt and uncle is also providing him

with a cultural connection to his Hispanic heritage and his father’s side of the

family.” And in a report filed before the hearing, the guardian ad litem stated that

moving the child away from Carmen, who had cared for the child since before his

removal, was not in his best interests.

In their written closing argument, the intervenors argued the department’s

placement decision was unreasonable or irresponsible because (1) they had

statutory priority over the current placement; (2) placement with them would be

less restrictive; (3) the department violated its own policies by failing to vet the

current placement for criminal history and substance abuse,4 failing to investigate

4 In support of this ground, the intervenors factually argued (for the first time) that

the paternal uncle had two prior operating-while-intoxicated convictions, and the
“record is devoid of any evidence that the [department] commenced any
investigation regarding [his] history of substance abuse.”
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the intervenors as a potential placement, and failing to place the child with a sibling;

and (4) the department advocated against the stated public policy of keeping

siblings together.

In its dispositional order, the juvenile court declined to modify placement,

concluding the intervenors did not “meet their burden to show the department failed

to act in the child’s best interest by unreasonably or irresponsibly failing to

discharge its duties in selecting a suitable placement for the child in interest.”

While the court acknowledged a preference to place siblings together, it observed

that preference is not absolute. The court also observed the child was in a relative

placement that the department found was appropriate and safe; the child was more

familiar with those relatives; and placement with the “paternal relative also

preserves the father’s heritage.” Though the court agreed the department

“admittedly at times did not follow its own policies and procedures, their failure to

do so does not amount to a lack in providing for the child’s best interest nor calls

for a remedy of the child’s change in placement.” Finally, the court ordered that

the case permanency plan “developed by the Department and the child’s parents,

filed herein is hereby adopted and incorporated hereto as if set forth in full herein,

[and] shall be complied with by all parties.”

The intervenors appeal, claiming (1) the court erred in denying their motion

to modify placement, (2) race and national origin were impermissible placement

considerations, and (3) the court improperly adopted a “non-existent” case

permanency plan.5

5 In their petition on appeal, the intervenors state that all the arguments raised in

their thirty-page written closing argument in the juvenile court “should be
 8

II. Standard of Review

Child-in-need-of-assistance proceedings are reviewed de novo. In re

J.S., 846 N.W.2d 36, 40 (Iowa 2014). The juvenile court’s factual findings are

given weight, although they are not binding. Id. The child’s best interests are the

primary concern. Id.

III. Analysis

A. Motion to Modify Placement

Once the child was placed in the department’s legal custody upon removal,

physical placement of the child was within the department’s discretion, subject only

to the juvenile court’s review. See Iowa Code § 232.2(12)(b); In re L.A.,

No. 18-2200, 2019 WL 719057, at *1 (Iowa Ct. App. Feb. 20, 2019); In re L.B.,

No. 18-1165, 2018 WL 4361066, at *2 (Iowa Ct. App. Sept. 12, 2018). At all times

between removal and disposition,

[t]he court shall give deference to the department’s decision for
placement of a child. A party opposed to the department’s placement
of a child shall have the burden to prove the department failed to act
in the child’s best interests by unreasonably or irresponsibly failing
to discharge its duties in selecting a suitable placement for the child.

Iowa Code §§ 232.78(8)(b)(2) (ex parte removal), .95(6)(a)(2) (continued

removal), .96(11)(b) (adjudication), .102(1)(b)(2) (disposition).

In other words, the burden is on the intervenors to show the department

acted unreasonably or irresponsibly and contrary to the child’s best interests in

incorporated by reference.” While the new rules of appellate procedure have not
yet taken effect—one of which provides that “[n]o authorities or argument may be
incorporated into the brief by reference to another document” (new rule
6.903(2)(a)(8)(3))—random mention of an issue will still not prompt appellate
review. See Soo Line R. Co. v. Iowa Dep’t of Transp., 521 N.W.2d 685, 697
(Iowa 1994).
 9

selecting a placement. Cf. In re J.L., 973 N.W.2d 895, 908 (Iowa Ct. App. 2022)

(noting decision of whether to remove department as guardian for unreasonable

or irresponsible discharge of duties “must focus on the process [the department]

used and the actions it took in reaching the placement decision and then determine

whether those were unreasonable (or irresponsibly undertaken)—all with the best

interests of the child in mind”). We agree with the juvenile court that the intervenors

failed to meet that burden.

The intervenors primarily argue the juvenile court erred in concluding the

department did not act unreasonably and irresponsibly by refusing to follow sibling-

preference mandates provided by statute, regulation, caselaw, and department

policy. According to the intervenors, their status as the parents of the child’s sibling

gives them placement priority. Thus, they contend the department was

unreasonable and irresponsible in not placing the child with them.

To begin, the applicable statutes initially place the intervenors and the

current placement on equal footing as “adult relative[s] of the child including but

not limited to adult siblings and parents of siblings.” See Iowa Code

§§ 232.78(8)(a)(1), .95(2)(c)(1), .102(1)(a)(1); see also id. § 232.96(11)(a).

Assuming without deciding that the sibling-preference statute—section

232.108(1)6—gives the intervenors a bump in priority, the juvenile court correctly

6 Section 232.108(1) provides:

If the court orders the transfer of custody of a child and siblings to
the department or other agency for placement under this chapter, the
department or other agency shall make reasonable efforts to place
the child and siblings together whenever possible if such placement
is in the best interests of each child. The requirement of this
subsection remains applicable to custody transfer orders made at
separate times provided the requirement will not jeopardize the
 10

observed the sibling preference is not absolute. Whether it stems from statute,

regulation, policy, or jurisprudence, the preference always gives way to the best

interests of the child. See Iowa Code § 232.108(1) (conditioning preference for

sibling placement on the best interests of each child); In re J.E., 723 N.W.2d

793, 800 (Iowa 2006) (“We have previously stated a preference to keep siblings

together. However, this preference is not absolute. Our ultimate concern is the

best interests of the child.”); see also In re J.T., No. 23-1290, 2023 WL 7015734,

at *4 n.4 (Iowa Ct. App. Oct. 25, 2023) (discussing recently enacted statutory

“priority preferences for purposes of guardianship and custody” and noting,

“[d]espite that priority assignment, a child’s best interests may override a familial

preference”). By relying almost solely on the sibling relationship, the intervenors

miss that key consideration—what is in the best interests of this child?

Here, the juvenile court found the child’s current placement was in his best

interests:

The Department continues to have a duty to provide reasonable
efforts to the parents for reunification and given such, determined
that it was in the child’s best interest to have the child placed in the
Department’s custody for purposes of relative foster care, with
paternal relatives. . . . This Court finds placing the child with a
paternal relative, that the Department deemed to be appropriate and
safe, was in the child’s best interest to preserve the family
connections where there had been interactions prior to removal and
the child was familiar with the paternal relatives, and where there had
not been any ongoing contact with a half-sibling in the Intervenor[s’]
care.

stability of placements and is in the best interests of each child. The
requirement of this subsection also applies in addition to efforts made
to place the child with an adult relative.
(Emphasis added.)
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Citing our decision in In re J.B., the intervenors argue it was the

department’s own fault that they did not have a relationship with the child, so the

department cannot now justify its placement decision based on the child’s

relationship with the paternal relatives. No. 18-1177, 2018 WL 4362753, at *3

(Iowa Ct. App. Sept. 12, 2018) (“But the department’s only best-interests argument

was premised on the bond the two siblings developed with their foster parents,

which was an issue of the department’s own making. Department personnel had

the opportunity to place all three children in the intervenors’ home when the

children were first removed. They chose not to.”). But unlike the three siblings in

J.B., who were removed at the same time and placed in different foster homes, the

siblings here never lived together or had contact before L.S.’s removal from his

parents’ care. Id. at *2–3. Perhaps more importantly, the foster parents in J.B.

had no relationship with the children pre-removal while here, the relative placement

did. And that was the reasoning behind the department’s decision to utilize the

paternal relative placement from the start, which we do not find was unreasonable

or irresponsible.

The intervenors also rely on the department’s failure to follow factors in its

policy manual,7 which is not in the record before us, “for determining placement in

L.S.’s best interest.” Those factors include the child’s “need for appropriate and

stable educational setting, the ability of the placement resource to sustain the

7 At the end of the dispositional hearing, the court declined to admit the exhibits

the intervenors filed the day before as untimely. Those exhibits included the entire
department policy manual. While the intervenors suggest this was improper, they
do not raise the issue as one of their specific assignments of error, so we do not
discuss it further.
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placement, the success of the placement resource in serving children with similar

needs, expected length of placement or the cost of the placement and availability

of funding for the placement.” But beyond the intervenors’ successful adoption of

L.S.’s brother, there was no evidence about any of these factors for either

placement option or the department’s investigation of these factors. Indeed, when

asked at the hearing whether Carmen was an appropriate placement, Katie

responded: “I don’t have any information firsthand to know if she is or is not.”

Yet on appeal, the intervenors argue Carmen was not an appropriate

placement8 because of her husband Jose’s two operating-while-intoxicated

convictions. Relying solely on the criminal-history attachment to the removal

application, they speculate that the department only knew about one of those

convictions and did not assess whether he had a problem with substance abuse.

Like with the policy manual violations, no evidence was presented to show that the

department was unaware of Jose’s criminal history, that it did not thoroughly vet

him about this history, or that he has a substance-abuse problem.

In any event, this is not a custody battle between two competing parties.

See J.L., 973 N.W.2d at 907. “Once the juvenile court selected [the department]

8 In their petition on appeal, the intervenors complain the juvenile court thought

only Carmen and not Jose was the placement. But Katie agreed with that in her
testimony. And the remaining record shows the child was placed with Carmen as
the responsible party, although it is assumed Jose also lives in the home.
In a similar vein, the intervenors complain that the juvenile court didn’t have
much to say about Zachary and “improperly discussed the ‘Intervenor’ and
referenced the party as ‘she.’” The implication seems to be that the court didn’t
consider Zachary to be an intervenor, even though the court granted intervention
by both. References to Katie were likely because she took the reins in providing
the substantive testimony and engaging with the department. Zachary provided
only corroborative testimony at the hearing.
 13

to serve as the child’s custodian, it was not the juvenile court’s place to select the

particular physical placement of the child.” L.A., 2019 WL 719057, at *1 (citation

omitted). Instead, as the child’s custodian, the department “was vested with the

authority to select the particular foster care placement subject to the juvenile

court’s review.” Id. (citation omitted). And we must give deference to that decision.

See Iowa Code §§ 232.78(8)(b)(2), .95(6)(a)(2), .102(1)(b)(2); see also id.

§ 232.96(11)(b).

It is that statutorily mandated deference—and the child’s best interests—

that guide our decision to affirm the juvenile court’s denial of the intervenors’

motion to modify placement. While the department may have made some

mistakes in its communication with the intervenors, that does not equate to a failure

to act in the child’s best interests by unreasonably or irresponsibly failing to

discharge its duties in selecting a suitable placement for the child. Cf. In re

N.V., 877 N.W.2d 146, 151–53 (Iowa Ct. App. 2016) (finding intervenors, who had

an established relationship with the child, met their burden to prove the department

acted unreasonably by failing to notify them of the child’s removal, consider

breaches of protocol in the foster parent’s provision of daycare services, and follow

the court order for relative home studies). Because there is no affirmative evidence

in the record to support a finding that the placement is not suitable or is contrary

to the child’s best interests, we affirm the juvenile court’s denial of the intervenors’

motion for modification of placement.

B. Propriety of Placement Considerations

The intervenors next argue “[t]he court and the department impermissibly

relied upon race and national origin as factors in determining L.S.’s placement,
 14

which violates federal law and department policy.” Their argument comes from

passing references to “heritage” in the county attorney’s written closing argument

and the court’s ruling. Because the intervenors raised this argument for the first

time on appeal, they did not preserve error for our review. See In re A.B., 815

N.W.2d 764, 773 (Iowa 2012).

C. Permanency Plan

Lastly, the intervenors argue “[t]he court improperly adopted [the

department’s non-existent ‘permanency plan.’” As the State points out, the

department’s dispositional and social investigation reports equated to a case

permanency plan, which the court adopted in its dispositional order. See Iowa

Code § 232.2(4) (defining case permanency plan). The intervenors, who were

indexed on the case, had access to these documents and did not register any

complaints about their sufficiency, other than Katie’s suggestion in her testimony

that they contained factual inaccuracies. We accordingly reject this claim as well.

IV. Conclusion

On our de novo review of the record, we find the intervenors did not meet

their burden to prove that the department failed to act in the child’s best interests

by unreasonably or irresponsibly failing to discharge its duties in selecting a

suitable placement for the child. As a result, we affirm the juvenile court’s denial

of their motion to modify placement and reject their ancillary claims.

AFFIRMED.