IN THE COURT OF APPEALS OF IOWA
No. 17-0406
Filed May 17, 2017
IN THE INTEREST OF L.K.,
Minor Child,
S.S., Mother,
Appellant,
K.K., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A mother and father appeal orders transferring their child from relatives to
non-relative foster care. The mother also appeals the court’s denial of a motion
to intervene filed by the relatives. REVERSED AND REMANDED ON BOTH
APPEALS.
Seth J. Harrington of Harrington Law L.C., Clive, for appellant mother.
Nicholas J. Einwalter, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Kimberly S. Ayotte of Youth Law Center, Des Moines, guardian ad litem
for minor child.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
VAITHESWARAN, Presiding Judge.
A mother and father appeal juvenile court orders transferring their child
from relatives to non-relative foster care. The mother also appeals the court’s
denial of the relatives’ motion to intervene in the child-in-need-of-assistance
proceedings.
I. Background Facts and Proceedings
A child, born in November 2016, tested positive for methamphetamine and
morphine. The child’s mother admitted to using both drugs during her
pregnancy. The father, who was on probation for a drug crime, tested positive
for methamphetamine.
The parents signed a safety plan proffered by the department of human
services (DHS). They agreed the child would be discharged to her paternal aunt
and uncle. They further agreed their contact with the child would be “supervised
by [the relatives] or another approved family member.” Under the heading, “How
plan is monitored,” the document stated the relatives would “communicate with
DHS about cooperation with safety plan and any concerns.” The parents
consented to—and the juvenile court ordered—the temporary removal of the
child from their custody.
An adjudication hearing scheduled for a Wednesday was postponed for
six days. The postponement order stated, “Before the next hearing the following
shall be completed: . . . Current custodians and adults residing in the home shall
provide a drug screen today.” The order was not served on the current
custodians and relatives in the home.
3
At the rescheduled adjudication hearing, the State requested “placement
continue provided that a clean drug screen is provided.” The State informed the
court that the relatives underwent urine tests the night before but the results were
not back. Without holding an evidentiary hearing, the juvenile court deemed the
relatives’ failure to obtain drug screens the previous Wednesday to be “missed
drug screens” and, therefore, “positive drug screens.” Based on this premise, the
court stated, “[W]e need to figure out a different placement.” The court
questioned the attorneys about the extent of visitation that had occurred between
the parents and child and, in light of discrepancies in their statements, found the
relatives had been “dishonest with the department of human services regarding
the parents’ contact with this child.” The court ordered the child transferred from
the relatives to non-relative foster care. At this point, the child had been with her
aunt and uncle for sixty-five days.
The relatives moved to intervene and to modify the placement. The
juvenile court denied the intervention motion on the ground that “the intervenors’
rights [were] being adequately represented” and it was “not in the child’s best
interest because these custodians have demonstrated an unwilling[ness] or
inability to abide by the Court’s directives and have not been forthcoming
regarding the contact with the parents as reported by the parents.” With respect
to the modification motion, the court held an evidentiary hearing, at which the
aunt and department social worker testified. The court concluded it was “not in
the child’s best interest to be placed in [the relatives’] custody any longer”
because they lacked “capacity to protect this child from the parents’ ongoing
substance abuse issues.”
4
As noted, both parents appealed. We find it unnecessary to address the
mother’s challenge to the intervention ruling because our resolution of the
parents’ challenge to the court’s transfer decision is dispositive.
II. Child Placement
“When the dispositional hearing is concluded the court shall make the
least restrictive disposition appropriate considering all the circumstances of the
case.” Iowa Code § 232.99(4) (2016). “The home of a relative is considered less
restrictive than placement in a private agency, facility or institution or placement
with the department of human services.” In re N.M., 528 N.W.2d 94, 97 (Iowa
1995) (citing Iowa Code §§ 232.99(3), .102(1)). “Thus, chapter 232 favors
relative placements over nonrelative placements.” Id.
The juvenile court did not honor this preference in favor of relatives. On
our de novo review, we disagree with the transfer decision.
As discussed, the court order requiring the relatives to undergo the drug
tests was filed six days before the adjudication hearing and was not served on
the relatives. Notwithstanding the absence of formal notification, the relatives
complied with the order on the day before the hearing. The following morning—
just six days after the court entered the order requiring drug testing—the juvenile
court transferred the child out of the relatives’ care. Later the same day, the
department received the aunt and uncle’s negative test results for all illegal
substances. An adult daughter living in the home also tested negative for illegal
substances.
At the subsequent evidentiary hearing, the department social worker
assigned to the case testified the department placed the child with her aunt and
5
uncle “[b]ecause we always try to keep our kids with relatives.” She visited the
home of these relatives and expressed no concerns.
With respect to the drug-testing order, the social worker testified to
advising the parents about the urgency of having the relatives comply “within the
next 24 hours.” There is no indication she directly informed the relatives of such
a deadline. A report the social worker authored stated only that she called the
relatives on the day the order was entered and “left a specific message . . . as to
directions to do the drug test.”
The child’s aunt essentially confirmed that this was the sum and
substance of the telephone message. She testified she was at a doctor’s
appointment for the child on the day the order was entered and the message she
received did not contain a deadline for complying. In the aunt’s words, the
department employee “didn’t give me a date, time frame or [tell me] I have to do .
. . this before the court date.” The aunt “thought we can go do it any time” and,
because her family was “clean,” she had no understanding the test result was
“going to be used for this court . . . .” The aunt contacted the department social
worker two days after receiving the message to obtain clarification. She was
unable to reach the social worker and left a message. The worker returned the
call three days later. The aunt and uncle underwent testing that day. The social
worker did not dispute that she was unavailable when the relatives called her,
admitted the aunt and uncle submitted to drug tests on the day before the
rescheduled adjudication hearing, and admitted the test results were negative for
any illegal substances. We conclude the relatives’ failure to obtain the drug test
on the day the court ordered it was not grounds to transfer placement.
6
The juvenile court also relied on the relatives’ “dishonesty” with respect to
visits. But under the safety plan approved by the department at the time the child
was placed in their care, the relatives were the individuals designated to
supervise visits. Later, the aunt was told that if the parents wished to visit the
child, they needed to contact the service provider assigned to the case.
According to the aunt, the parents attempted to do so, but the service provider
never responded.
Although there was some difference of opinion about who was responsible
for the lack of communication between the parents and service provider, the
child’s attorney essentially confirmed that the relatives stood in as supervisors
simply because no one else stepped forward. At the adjudication hearing, she
stated “[v]isits have been supervised by the relative placement, but there have
not been any [service provider]-supervised visits because the [service] provider
hasn’t been able to get ahold of the parents.” The department social worker
agreed, stating, “[M]y understanding was that it was approved for [the parents] to
be coming—going over to the placement and seeing the child there.”
In sum, we discern no dishonesty on the relatives’ part with respect to
parental visits. At worst, the aunt and uncle received mixed signals as to who
was to supervise visits and they filled the void by conducting the supervision
themselves. The department was well aware they were providing supervision
and, indeed, authorized them to do so at the outset. The record contains no
evidence that they failed to provide adequate supervision. We conclude the
manner in which visits were conducted was not a basis for transferring placement
from the relatives to non-relative foster care.
7
On a related matter, the court found the relatives struggled “to set
appropriate boundaries.” The issue arose because the relatives went out of their
way to facilitate visits between the parents and child. We see their actions as a
positive rather than a negative factor in light of the department’s authorization of
visits. Again, there is no evidence that the relatives jeopardized the health or
safety of the child by facilitating visits at the convenience of the parents.
Finally, the court suggested a transfer was appropriate because the
relatives did not recognize the risk posed by the parents. To the contrary, the
aunt testified she understood precisely why the child was removed from the
mother’s care and stated she would be able to recognize if someone was under
the influence. She expressed a willingness to abide by any restrictions on
parental contact recommended by the department.
We conclude the child’s paternal aunt and uncle were the least restrictive
placement. Accordingly, we “reverse and remand so the juvenile court can order
a custody arrangement in the best interests of the child[] considering [the aunt
and uncle] as the least restrictive placements.” In re K.P., No. 11-1869, 2012 WL
2122227, at *9 (Iowa Ct. App. June 13, 2012).
REVERSED AND REMANDED ON BOTH APPEALS.