In the Interest of K.D. and K.D., Minor Children ( 2022 )

IN THE SUPREME COURT OF IOWA
No. 21–1472
Submitted April 20, 2022—Filed June 3, 2022
IN THE INTEREST OF K.D. and K.D., Minor Children.
PAUL L. WHITE, Guardian Ad Litem, and C.H., Intervenor,
Appellants.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Lynn Poschner,
District Associate Judge.
A guardian ad litem and intervenor seek further review of a court of
appeals decision that affirmed the juvenile court’s order maintaining the Iowa
Department of Human Services as the children’s guardian. DECISION OF
COURT OF APPEALS VACATED; JUVENILE COURT JUDGMENT REVERSED
AND REMANDED.
Christensen, C.J., delivered the opinion of the court, in which Appel,
Waterman, and Oxley, JJ., joined. Mansfield, J., filed a dissenting opinion, in
which McDonald and McDermott, JJ., joined. McDonald, J., filed a dissenting
opinion, in which Mansfield and McDermott, JJ, joined.
2
Paul L. White of Des Moines Juvenile Public Defender, Des Moines,
attorney and appellant guardian ad litem for the minor children.
Andrea M. Flanagan of Flanagan Law Group, PLLC, Des Moines, for
appellant intervenor.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena and
Natalie A. Deerr (until withdrawal), Assistant Attorneys General, for appellee
State.
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CHRISTENSEN, Chief Justice.
Just as we authorize the removal of children from their parents’ care when
the parents fail to ensure their children’s welfare, we must also remove the
children’s guardian when the guardian irresponsibly discharges its duties and
acts contrary to the children’s best interests. That is what occurred here when
the Iowa Department of Human Services (DHS), acting as the children’s
guardian, entered the children’s home of approximately eighteen months in the
care of their stepgrandmother on the pretext of a visit and abruptly removed
them from her care to place them in foster care with strangers. One of the
children became so distraught that she vomited, and the other child started
shaking.
DHS took these actions knowing the children’s guardian ad litem (GAL)
and attorney1 had filed a notice seeking a hearing to address “unanswered
questions and concerns” he had about DHS possibly moving the children despite
warning from one of the children’s therapists strongly discouraging additional
placements and trauma. After the stepgrandmother informed the GAL of the
children’s removal the day after it occurred, the GAL filed motions for the
immediate return of the children to their stepgrandmother, for a hearing on
modification of placement, and to remove DHS as guardian. The juvenile court
also allowed the stepgrandmother to intervene.
1In this case, the children’s GAL and attorney are the same person. For brevity, we refer
to him throughout this opinion as the GAL.
4
Following a hearing, the juvenile court concluded DHS acted unreasonably
in failing to provide written notice to the children’s relatives as required under
Iowa Code section 232.84 (2021) but not in moving the children to foster care.
Thus, it declined to remove DHS as the children’s guardian. The GAL and
stepgrandmother appealed, challenging the juvenile court’s decision not to
remove DHS as guardian. A divided court of appeals agreed DHS acted
unreasonably in failing to provide written notice to the children’s relatives and
in removing the children from their stepgrandmother in the manner that it did,
but a majority reasoned DHS was looking out for the children’s best interests
and declined to remove DHS as the children’s guardian. We granted the GAL and
stepgrandmother’s applications for further review.
On further review, we conclude DHS acted unreasonably in (1) failing to
send relative notices and (2) in failing to serve the children’s best interests by
taking such drastic measures to remove the children from their
stepgrandmother’s care without warning only to place them in a foster home with
no assurance of permanency in that home. Although DHS raised some concerns
regarding the stepgrandmother’s care, DHS did little to address these concerns
and failed to “make every effort to establish a stable placement for the child[ren].”
Iowa Code § 232.117(6). Therefore, we vacate the decision of the court of appeals,
reverse the juvenile court’s order, and remand to the juvenile court with
directions to remove DHS as the children’s guardian and determine an
appropriate guardian.
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I. Background Facts and Proceedings.
The children in this case, K.T.D. and K.J.D., have been involved with DHS
for much of their young lives, beginning with the removal from their parents at
ages two and three years old in March of 2018. A juvenile court subsequently
adjudicated the children as children in need of assistance (CINA) due to their
parents’ substance abuse and failure to provide adequate supervision. During
this CINA period, the children were initially placed with their paternal
grandmother but had to move to foster care after roughly one month with the
paternal grandmother because she was dishonest with DHS about who was
living in her home. That CINA case closed through a bridge order giving Dad
custody in late 2019, but this closure was short-lived because of the parents’
domestic violence and continued substance abuse.
On January 23, 2020, the children went to live with their paternal
stepgrandmother,2 and the juvenile court officially authorized their removal from
their parents on February 6. The children remained in the stepgrandmother’s
care for approximately eighteen months, as they lived with her throughout this
second CINA case and after the juvenile court terminated the parents’ rights on
April 14, 2021. DHS’s termination of parental rights (TPR) report notes DHS did
not send relative notices or have anyone fill out relative worksheets in the case
after the children were removed from their parents’ custody because “[t]he
2The paternal stepgrandmother was the partner of the children’s paternal grandfather for
around twenty years until he passed away shortly before the children were placed in her care.
The stepgrandmother was not a placement option during the first CINA case because her partner,
the children’s grandfather, was battling cancer and admittedly used marijuana to build his
appetite during that time.
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relative worksheets are filled out only when children are sent to foster care. In
this situation they were placed with a relative/suitable other which did not
require notices to be sent out.” That placement was the stepgrandmother.
In the juvenile court’s termination order, it concluded, “DHS is in the best
position to act as guardian and to consider and select the children’s adoptive
home” and transferred guardianship and custody of the children to DHS. After
the juvenile court terminated the parents’ rights, and with DHS’s knowledge and
consent, the stepgrandmother started adoption classes through Four Oaks with
the belief that she was a candidate to adopt the children. The children’s attorney
and GAL, Paul White, has been their attorney and GAL for both the 2018 CINA
case and throughout these proceedings and was under the same impression
regarding the stepgrandmother’s adoption of the children.
Due to their history, K.T.D. and K.J.D. both struggle with mental health
issues. K.T.D.’s therapist reported K.T.D. “continues to meet criteria for
Unspecified Trauma and Stressor Related Disorder due to the trauma that she
has experienced and symptoms including avoidance, hypervigilance,
nightmares, and intrusion.” Similarly, K.J.D.’s therapist reported K.J.D.
“continues to meet criteria for Unspecified Trauma and Stressor Related Disorder
related to experiencing significant trauma and symptoms including avoidance,
nightmares, hypervigilance, problems with concentration, and re-enactment of
experienced trauma.” K.T.D. demonstrated an Adverse Childhood Experience
Score (ACES) of 6 out of 10, and K.J.D. demonstrated an ACES of 9 out of 10.
As one of the children’s therapists noted, “Adverse childhood experiences impact
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the development of a child and can increase the likelihood of lifelong mental or
physical health problems.” Because of the children’s history, their therapists
“strongly discouraged” additional placements and transitions and stressed the
importance of consistency in their lives.
On June 9, the GAL filed a notice to the juvenile court regarding the
possible modification of the children’s placement because he received an email
indicating DHS “intended to move these Children from the current relative
placement to foster care.” White explained that he had
unanswered questions and concerns about the need to modify the
placement of these Children. The DHS has not stated an imminent
risk of harm or safety to these Children. Further, the undersigned
seeks current input from the Children’s therapist regarding
modification. The modification of placement from a relative to a
foster care placement is a more restrictive placement. Because
relative placement is mandated over foster care placement, the
undersigned requests that prior to any modification, this matter be
scheduled for hearing before this Court.
A June 10 DHS report discussed two possible adoptive placements for the
children: the stepgrandmother or foster parents who had assisted the family in
the past and had custody of the children’s older half brother. However, those
foster parents withdrew their interest in adopting the children for reasons not
stated in the record sometime shortly after DHS wrote that June report.
The June report noted a few concerns about the children’s placement with
the stepgrandmother. The primary concern was the children’s inconsistent
attendance at therapy, as K.J.D. missed eleven of twenty-four scheduled
sessions and K.T.D. missed ten of twenty-six scheduled sessions. In January
2021, K.T.D.’s therapist documented some missed appointments, though she
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wrote, “The missed appointments have often been due to other scheduling needs
for [K.J.D.], her sibling, or for [the stepgrandmother.]” The stepgrandmother had
a total ankle replacement around late December 2020 or early January 2021
that became infected and affected her mobility, though she has since
participated in therapy to rehabilitate the ankle.
Another concern that DHS had in its June 2021 report included the
stepgrandmother’s possible coaching of the children to tell their therapists that
they did not like the foster parents, who at the time were considered another
adoptive placement for the children, and the stepgrandmother’s disparaging of
those foster parents. Further, DHS expressed concern that the stepgrandmother
was allowing the children to spend time around her daughter-in-law, who had
pending child endangerment and drug charges and a no-contact order with her
own children.
A concern that DHS listed in the March TPR report was that K.J.D. was
not enrolled in school despite being kindergarten-aged and K.T.D. was not in
daycare. The report notes the stepgrandmother did not feel comfortable sending
them due to COVID-19 concerns and she also wanted to give K.J.D. a chance to
establish stability and catch up academically with help from the
stepgrandmother before enrolling her. Although the kindergarten-daycare issue
was listed as a concern by DHS in the March TPR report, and cited by the juvenile
court in its order, it was not included as a concern by DHS in its next report filed
in June. The June report also observed that the children would likely get to see
their father and extended paternal relatives if they remained with their
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stepgrandmother, but they likely would not have contact with their mother or
half-siblings. Nevertheless, the DHS report noted K.T.D’s therapist’s belief that
“the current long-term plan [with the stepgrandmother] is not in the children’s
best interest and would result in them being placed in a home where they have
less of a chance of having any relationship with their parents/extended family.”3
The juvenile court never scheduled a hearing in response to the GAL’s
June 9 notice requesting a hearing prior to placement modification based on his
concerns that DHS might try to move the children to foster care. Instead, it
conducted a “permanency review by paper filing only,” which simply noted the
GAL’s concern in a review order filed on June 11. In that order, the juvenile court
found, “The children’s needs are being met. They are currently residing with
[their stepgrandmother], suitable other placement.”
The only concern from DHS that the juvenile court noted in this order was
the concern from the children’s therapist discussed in the June 10 DHS report
about the stepgrandmother’s possible coaching of the children about what to say
in therapy. The order noted DHS “also considers an alternate placement for the
children,” but it did not include any details that would lead the GAL or
stepgrandmother to believe DHS would soon orchestrate a surprise removal of
the children from the stepgrandmother’s care. This is especially so considering
3It is unclear what information the therapist had about the children’s ability to interact
with their parents and extended family when she made this statement because the record shows
the children had a significant amount of interaction with their paternal relatives in the
stepgrandmother’s care.
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that other foster placement DHS was considering at the time fell through shortly
after this hearing.
On July 26, Riley Hackman, the DHS social work case manager for the
children’s case, texted the stepgrandmother to inform her that she would be
visiting the stepgrandmother’s home with Amra Viso, a DHS adoption worker
who had never met the stepgrandmother. Nobody from DHS contacted the GAL
about the visit, and the stepgrandmother believed they were visiting to discuss
her adoption of the children. Instead, Hackman and Viso arrived at the
stepgrandmother’s home for the meeting with the purpose of removing the
children from the home and taking them to a foster home of strangers to the
children without warning the stepgrandmother, the children, or the GAL.
Hackman later explained that the DHS staff involved did not tell the
stepgrandmother about the removal in advance because they were concerned
“that [she] might make comments to the -- to the girls that would make this
process a little bit more difficult.” At the time of removal, the children had been
in the stepgrandmother’s care for just over eighteen months.
This surprise removal proved “extremely traumatic” for the children, as
Viso acknowledged. Viso admitted that “[i]t was emotionally difficult for the
children to separate from their grandma” and they “were very upset.” K.J.D.
vomited and K.T.D. was shaking. They both did not want to leave the
stepgrandmother, but Viso explained the stepgrandmother handled the situation
well by “prioritiz[ing] the children[‘s] well-being at that moment, and she was able
to control her own feelings and escorted them out of the building, providing
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positive [re]inforcement during that process.” The GAL found out about the
removal from the stepgrandmother after the removal had occurred.
The next day, the GAL contacted Hackman to inquire about the situation.
Hackman informed Viso, and Viso emailed the GAL to indicate this removal was
planned and DHS purposely did not tell the stepgrandmother that they were
going to remove the children when they arranged the meeting with her. On
July 29, the GAL filed a motion for the immediate return of the children to their
stepgrandmother, for a hearing on modification of placement, and to remove DHS
as guardian. The stepgrandmother also filed a motion to intervene, which the
juvenile court granted.
The juvenile court conducted a hearing on the motions on September 1
and 9. Many of the children’s relatives attended. Hackman, Viso, and the
stepgrandmother all testified but the children’s therapists did not. The only input
from the therapists came in the form of letters documenting that the children
were doing well in foster care about one month after they were removed from the
stepgrandmother’s home.
At the hearing, Hackman described various concerns that DHS had about
the stepgrandmother’s care for the children. These included concerns about the
children’s inconsistent therapy participation, the stepgrandmother’s possible
coaching of the children on what to say about their past foster parents, concerns
about the stepgrandmother’s “health interfering with some things[,]
[t]ransportation[,] . . . [a]nd concerns regarding [the stepgrandmother] being
dishonest about a no-contact order that was in place in December” between her
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daughter-in-law and the daughter-in-law’s children. Hackman stated that the
daughter-in-law’s children were with the stepgrandmother at some point in
December and the stepgrandmother did not disclose them to Hackman. It is
unclear from the testimony whether Hackman meant the daughter-in-law’s
children were staying in the stepgrandmother’s home or the stepgrandmother
was simply watching the children in a babysitting capacity. Nevertheless, when
questioned about what evidence DHS had that the stepgrandmother was
allowing “inappropriate people” around the children, Hackman conceded, “We
have suspicions but no evidence.”
When the GAL asked Hackman whether the children’s therapists were
informed of DHS’s intent to remove the children prior to the July 26 removal,
Hackman said they were informed. Upon further questioning from the GAL,
Hackman backtracked this statement in the following exchange:
[GAL:] Okay. So would it surprise you to know that I -- I’ve spoken
with [K.J.D.’s] therapist, and she told me that they were not
informed prior to July 26th?
[Hackman:] That would surprise me, yes.
[GAL:] Okay. So -- so if [K.J.D.’s] therapist, Erin, informed me
that -- that they were not informed of the Department’s action on
July 26th, that would surprise you?
[Hackman:] It’s possible there was a misunderstanding, but I recall
them being aware that this was something we were going to do.
[GAL:] So the therapists, then, were informed that the Department
was gonna take action -- that’s your testimony, the Department was
gonna take action on this July 26th meeting; is that your testimony?
[Hackman:] Let me clarify, if I may.
[GAL:] Certainly.
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[Hackman:] My testimony is not that they knew, this day, this time
this is what we were going to do. They knew we were considering
placing them in the former foster home with the [past foster parents]
and then elsewhere after the [past foster parents] were out of -- were
withdrawing their interest, for lack of a better word.
In Viso’s testimony, she claimed she worked with one of the children’s
therapists on the best way to remove the children and had documentation of her
emails with the therapist. We found no such documentation of this
communication in the record before us on appeal. Upon further questioning from
the GAL, Viso conceded that she could not remember if she informed the
children’s therapists of the planned removal date in advance but someone from
DHS did inform the therapists after the removal had occurred.
Viso explained her understanding of the situation was that DHS asked
Four Oaks to discontinue adoption classes and the home study for the
stepgrandmother. Viso was not sure anyone conveyed this to the
stepgrandmother. When asked why the stepgrandmother was not the preferred
choice to adopt the children, Viso discussed her belief that the stepgrandmother
was sabotaging the plan for the children to go to the foster parents where their
half brother was placed. Viso did not go into specifics and acknowledged she did
not have any firsthand knowledge of this alleged sabotaging behavior. These
foster parents were no longer a placement option for reasons not listed in the
record by the time the children were removed from the stepgrandmother.
Viso indicated the health concern DHS had with the stepgrandmother
included how the stepgrandmother’s foot infection had affected her mobility,
though the stepgrandmother is now back to being mobile. Despite concerns
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about the stepgrandmother’s ability to meet the children’s mental health needs,
Viso admitted upon questioning that she did not ask the children’s current foster
parents directly how familiar they were with the children’s diagnoses and what
kind of therapy the children would require before placing the children in their
care. In the two months between the children’s removal and the hearing, DHS
had only facilitated a total of three sessions with one of the children’s therapists
despite expecting the stepgrandmother to assist with weekly sessions for the
children.
Moreover, Viso testified that the children continue to have visits and a
relationship with the stepgrandmother. Viso remarked,
T[he children] are always sad to leave Grandmother after the visit,
they would like to spend more time with Grandma, but it was very
difficult first few visits, first two visits. They were crying a lot when
Grandma was leaving, and then the last two visits, they are still sad,
but you can see that they are focusing --they love Grandma, but
they are focusing as well on what is going to happen at home when
they come back.
She stated, “That grandma-grandchild relationship . . . that will be
something I will always, as long as she follows the children’s therapists’
recommendations, I will always -- I will always say it’s good for those children.
But -- and will be beneficial for them.” Nevertheless, Viso proclaimed, “The thing
with adoption is once the children are adopted, I don’t guarantee that these
relationships will continue.”
Viso testified:
[The children] are thriving in that foster home, that they are building
this trusting relationship with foster parents. I know that their
family loves them, but it’s the best interest of the children . . . to
have that parent that’s there for them 24/7. That they’ll be
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responsible, that they’ll take care of their needs, that they’ll put
some boundaries as a parent when needed. I think they are in [a]
good place.
With that said, DHS had never placed any children with the foster parents before
and had not discussed with the foster parents whether they are an adoptive
home for the children at the time of the hearing.
The stepgrandmother admitted during her testimony that she sometimes
fell short in making sure the children participated in therapy and did not always
agree with the children’s therapist. Regarding the concerns about her health,
she explained she is mobile again and continues to participate in physical
therapy. The stepgrandmother noted she received a lot of assistance from the
children’s paternal side of the family in caring for the children, so the children
were frequently around their paternal grandmother and cousins.
The juvenile court issued its ruling denying the motions on September 29.
It concluded that “DHS acted irresponsibly when it did not send statutorily
required notices to relatives” and ordered DHS to do so, but it decided DHS “did
not act irresponsibly or unreasonably as guardian in the ultimate decision that
the children should not live with [the stepgrandmother.]” The juvenile court also
determined it was not in the children’s best interests to place them in the
guardianship and custody of the stepgrandmother because she “has not shown
that she is in the best position to act as the children’s decision-maker or person
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vested with meeting their permanency needs.” Both the GAL and
stepgrandmother appealed this order.4
In a split decision, the court of appeals concluded DHS acted unreasonably
when it failed to send the statutorily required relative notices under section
232.84, but the juvenile court’s order for DHS to make those notifications “was
an appropriate remedy.” It also determined DHS acted unreasonably in removing
the children from the stepgrandmother’s care, especially without warning or
communicating its concerns in advance. Nevertheless, the court of appeals
affirmed the juvenile court’s ruling allowing DHS to remain as the children’s
guardian and custodian, proclaiming, “[T]he DHS was acting in the children’s
best interests by placing priority on the children’s mental health and educational
needs when searching for a permanent placement.” A dissenting judge argued
removal of DHS as guardian was in the children’s best interests because DHS
caused “profound” trauma when it “acted egregiously in entering the
grandmother’s home on the pretext of a visit and in snatching the children from
the home.”
The GAL and intervening stepgrandmother both filed applications for
further review, which we granted. In granting further review, we also directed the
parties to file supplemental briefs “on the issues raised on appeal and in the
applications for further review.”
4The GAL’s petition on appeal and the stepgrandmother’s supplemental brief include
information outside of the record about actions that have occurred since the juvenile court’s
ruling, which the State maintains we cannot consider in reaching our decision. We agree with
the State and do not consider that information on appeal.
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II. Standard of Review.
Section 232.118 gives the juvenile court discretion in determining whether
to remove a guardian. Iowa Code § 232.118(1) (“[T]he court having jurisdiction
of the child may, after notice to the parties and a hearing, remove a court-
appointed guardian and appoint a guardian in accordance with the provisions of
section 232.117, subsection 3.”). “[W]here the legislature has clearly vested the
juvenile court with discretion in a specific area, we review the court’s decision
on that matter for an abuse of discretion.” State v. Tesch, 704 N.W.2d 440, 447
(Iowa 2005). With that said, we continue to review the evidence de novo to
determine whether the juvenile court abused that discretion. Id. An abuse of
discretion occurs when the juvenile court “bases its decisions on grounds or
reasons clearly untenable or to an extent that is clearly unreasonable . . . [or] if
it bases its conclusions on an erroneous application of the law.” State v. Thoren,
970 N.W.2d 611, 620 (Iowa 2022) (omission and alteration in original) (quoting
Stender v. Blessum, 897 N.W.2d 491, 501 (Iowa 2017)).5
5This is different from the abuse of discretion cited in Justice McDonald’s dissent, which
ostensibly heightens the bar required to meet the abuse of discretion standard by claiming an
abuse of discretion occurs when a decision is “so flawed and prejudicial to the administration of
justice that this court must provide relief.” (quoting In re 2018 Grand Jury of Dallas Cnty., 939
N.W.2d 50, 66–67 (Iowa 2020) (McDonald, J., concurring in part and dissenting in part)). Under
that standard, it is unclear if a juvenile court’s decision based on an erroneous application of the
law constitutes an abuse of discretion if that erroneous application is not so egregious that it is
“prejudicial to the administration of justice.”
Our court has never applied this standard. In fact, the only time this standard has ever
been so much as described by anyone on our court was in a stand-alone opinion concurring in
part and dissenting in part from Justice McDonald in 2020. See In re 2018 Grand Jury of Dallas
Cnty., 939 N.W.2d at 66–67. “Ultimately, there is a difference between reasoned deference to the
opinions of professionals involved in the case and blind acceptance on substantive matters.” In
re D.D., 955 N.W.2d 186, 197 (Iowa 2021) (Christensen, C.J., concurring specially). The juvenile
court’s conclusion in this case—and the dissents’ approval of it—is more blind acceptance than
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III. Analysis.
The GAL and intervening stepgrandmother argue the juvenile court should
have removed DHS as the children’s legal guardian and returned the children to
their stepgrandmother’s care. In terminating the parents’ rights to the children,
the juvenile court ordered the children to remain in the guardianship and
custody of DHS under Iowa Code section 232.117(3)(a). Nevertheless, the
juvenile court has the authority to remove an appointed guardian “[u]pon
application of an interested party or upon the court’s own motion” and appoint
a new “guardian in accordance with the provisions of section 232.117,
subsection 3.” Id. § 232.118(1).
Section 232.118 offers “no preference to any person or entity.” In re N.V.,
877 N.W.2d 146, 150 (Iowa Ct. App. 2016) (quoting In re D.H., No. 10–1313, 2010
WL 4484849, at *4 (Iowa Ct. App. Nov. 10, 2010)). Nor does it provide any
statutory criteria for courts to consider in deciding whether to remove a
guardian. Although this is our first opportunity to examine an application to
remove a court-appointed guardian under section 232.118, the court of appeals
has dealt with this issue on various occasions and established the criteria we
now adopt in analyzing the applicants’ request to remove DHS as the children’s
guardian. See, e.g., id. at 150.
Specifically, two elements must exist to warrant removal: (1) the current
guardian’s actions were unreasonable or irresponsible; and (2) the current
reasoned deference in choosing to overlook DHS’s multiple violations of internal procedures and
statutory obligations as the children’s guardian.
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guardian’s actions did not serve the children’s best interests. See, e.g., id.; In re
E.G., 745 N.W.2d 741, 744 (Iowa Ct. App. 2007). Even when a guardian’s actions
are unreasonable, we will not remove the guardian unless doing so is in the
children’s best interests. In re N.V., 877 N.W.2d at 150. We do not treat this
request for the removal of DHS as guardian as a custody battle between DHS
and the stepgrandmother. “Rather, in the context of this case, [we] must focus
on the process DHS 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.” In re J.L., 21–0968,
2022 WL 246170, at *9 (Iowa Ct. App. Jan. 27, 2022). The GAL and
stepgrandmother, as the ones who moved for the removal of DHS as guardian,
have the burden to prove DHS acted unreasonably by a preponderance of the
evidence. Id.; see also Iowa R. App. P. 6.904(3)(e)–(f). “A preponderance of the
evidence is the evidence ‘that is more convincing than opposing evidence’ or
‘more likely true than not true.’ ” Martinek v. Belmond–Klemme Cmty. Sch. Dist.,
772 N.W.2d 758, 761 (Iowa 2009) (quoting Holliday v. Rain & Hail L.L.C., 690
N.W.2d 59, 63–64 (Iowa 2004)).
There are two separate DHS actions at issue here in considering whether
to remove DHS as the children’s guardian. First, we must address the failure of
DHS to send relative notices. Second, we must review DHS’s actions in abruptly
removing the children from the stepgrandmother’s home to place them in a foster
home with strangers without an adequate permanency plan in place to establish
a stable placement for the children. To the extent the parties also argue the
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juvenile court did not identify a substantial change in circumstances after the
termination order to justify removing the children from the stepgrandmother’s
care, we need not address this issue because we are reversing the juvenile court’s
ruling on other grounds.
A. Failure to Send Relative Notices. The GAL and stepgrandmother
contend DHS acted unreasonably by failing to send relative notices as required
under Iowa Code section 232.84(2). This section 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.
Id. The DHS worker in this case testified that she never sent relative notices
because she only fills out relative worksheets when the children are sent to foster
care in lieu of relative or suitable other placement. However, there is no statutory
exception to the relative notice requirement. “[E]ven if the relatives were
informally aware of the child[ren]’s transfer to foster care, the burden remained
with the department to formally notify them of the transfer. The contents of the
notice are statutorily prescribed and are specific and detailed.” In re N.V., 877
N.W.2d at 151.
On appeal, the State “does not dispute that [DHS] acted unreasonably
when it failed to send relative notices,” but it maintains that “removal of DHS as
the guardian is not the appropriate remedy.” We agree that this failure to send
relative notices alone does not warrant the removal of DHS as the children’s
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guardian. See, e.g., In re I.P., 19–0715, 2019 WL 3317922, at *3 (Iowa Ct. App.
July 24, 2019) (“[A] case worker’s failure to provide timely statutory notice to
relatives is not a basis to remove the DHS as guardian.”). The juvenile court’s
order for DHS to send belated relative notifications is an appropriate remedy for
this statutory violation.
B. Removal of the Children from Their Stepgrandmother’s Home. The
GAL and stepgrandmother assert DHS acted unreasonably, and thus should be
removed as the children’s guardian, because it removed the children from the
stepgrandmother without adequate transition planning. The stepgrandmother
stresses DHS’s failure to fulfill its “responsibilities flowing from Iowa Code
§ 232.117(6)–(9), which provide for ongoing post-termination court supervision,”
claiming DHS disregarded its duty “to diligently pursue and place children in
their permanent home.” The State maintains DHS acted reasonably in removing
the children from the stepgrandmother’s home based on its concerns about the
stepgrandmother’s ability to care for the children. Alternatively, even if we
conclude DHS acted unreasonably, the State contends it is not in the children’s
best interests to remove DHS as the children’s guardian.
Before we begin our analysis, we stress that our focus is on more than the
act of DHS’s removal of the children from their stepgrandmother. The removal
itself is just one piece of the puzzle. Instead, we are examining the puzzle as a
whole, also reviewing DHS’s actions in reaching its removal decision and the
steps DHS took to transition the children and establish a stable placement for
them.
22
DHS’s procedures and Iowa Code section 232.117(6) are especially
relevant in determining whether DHS acted unreasonably in this case. DHS’s
own transition planning procedures provides, “The period for transferring a
child’s case responsibility from a [social work case manager] to an adoption
worker is 45 days from electronic filing of the order for termination of parental
rights.” Iowa Dep’t of Hum. Servs., Employees’ Manual: Adoption Permanent
Placement Procedures 10 (2022). The procedures also establish the joint
responsibility of the social work case manager and adoption worker to
“[c]omplete a joint visit with the child and child’s placement provider within 45
days of termination of parental rights.” Id. at 13. Yet, DHS did not transfer the
case to the adoption worker, Viso, until the first or second week of July—well
past forty-five days after the juvenile court filed the April 14, 2021 TPR order—
and Viso testified that she had never met the stepgrandmother before she arrived
to remove the children from her care. Further, the social work case manager
incorrectly informed Viso that there were no other relatives available for
placement when this assertion was unsupported because the case manager
failed to send the statutorily-required relative notices that would have clarified
DHS’s placement options for the children. See Iowa Code § 232.84.
More importantly, DHS failed to meet its obligations under section
232.117(6). This section states, “[T]he guardian shall submit a case permanency
plan to the court and shall make every effort to establish a stable placement for
the child by adoption or other permanent placement.” Id. § 232.117(6). There are
23
no exceptions to these statutory requirements that DHS failed to meet here
through its poorly planned transition process.
DHS adoption worker Viso testified that she had no conversation with the
receiving foster parents as to whether they wished to become the children’s
adoptive parents and DHS had never placed any child with these foster parents
before. Further, despite DHS’s concerns about the stepgrandmother’s ability to
consistently meet the children’s mental health needs, Viso admitted in her
testimony that she did not ask the new foster parents how familiar they were
with the children’s mental health diagnoses or the mental health therapy that
the children required. DHS made these decisions without consulting the
children’s GAL, who had been involved with this family longer than the DHS
social work case manager and adoption worker.
In the past, the court of appeals has approvingly cited DHS testimony
explaining there is “research that shows children can be successfully transferred
. . . and still show few or no long-term effects when it’s done properly, slowly,
and with the support of all of the adults in the child’s life.” In re I.P., 2019 WL
3317922, at *3. That sort of transfer clearly did not happen here when DHS
workers arrived at the stepgrandmother’s home on the pretext of a seemingly
routine visit only to surprise the stepgrandmother and children by removing the
children from their home. This problematic approach is only compounded by the
children’s mental health issues that have led their therapists to caution against
“[a]dditional placements and transitions . . . to prevent further trauma.”
24
For example, in a report filed the month before termination, K.T.D.’s
therapist wrote,
Given [K.T.D.]’s trauma history, developmental stage, and her
attachment needs[,] it is imperative that a plan be developed to
provide [K.T.D.] with a long-term option for a safe and nurturing
home. It will be important that this plan include a caregiver who
understands [K.T.D.]’s physical, emotional, and developmental
needs and can consistently provide for these needs. It is important
that this caregiver be open to a therapeutic parenting approach and
be open to working closely with this therapist regarding the impact
of developmental trauma on [K.T.D.] in order to establish and
maintain parenting approaches that will be trauma informed and
meet her developmental needs.
Given the therapists’ recommendations, we struggle to see how it was in
the children’s best interests to abruptly remove the children from their long-term
home only to place them in a home with strangers who DHS had not so much as
asked about their familiarity with the children’s mental health diagnoses or
therapy requirements. The evidence is conflicting about the extent to which DHS
even communicated with the children’s therapists about the removal plan before
abruptly removing the children, as Hackman testified that the therapists were
aware that DHS was considering moving the children to another placement while
Viso claimed she worked with one of the children’s therapists on the removal
plan. The record does not support Viso’s claim and falls short of demonstrating
an adequate transition plan.
While there were some concerns about the stepgrandmother’s ability to
permanently care for the children, DHS never effectively communicated these
concerns to the stepgrandmother in an attempt to maintain the children in a
stable relative placement. Moreover, there is no evidence to support some of the
25
concerns that DHS claims—and the dissents now repeat—warranted the
surprise removal of the children from their stepgrandmother. For example,
Hackman testified about their concerns that the stepgrandmother was allowing
the children to be around or cared for by “inappropriate people,” specifically
discussing a daughter-in-law who had pending criminal charges and a no-
contact order with her own children.
Likewise, the dissents rely on the juvenile court’s observation that the
stepgrandmother allowed the children to spend time, including overnight visits,
at their paternal grandmother’s home despite concerns about the children’s
father living there. But nothing indicates DHS ever discussed this concern with
the stepgrandmother, and Hackman conceded at the hearing that DHS had only
“suspicions but no evidence” that the stepgrandmother was actually allowing
inappropriate people around the children. See In re X.O., 16–0313, 2016 WL
2743445, at *5 (Iowa Ct. App. May 11, 2016) (concluding the foster care social
worker acted unreasonably in the posttermination phase of the proceedings by
making unsupported representations to the adoption team). In fact, Hackman
testified that she did not even know these overnight visits were occurring until
the time of the hearing.
After the juvenile court entered the TPR order and just a few months before
the removal at issue, the juvenile court—based in part on DHS reports—declared
in terminating the parents’ rights that “[the children] have had consistency in
their relationship with [the stepgrandmother.] [The stepgrandmother] continues
to provide for the children’s needs. The children are safe with [the
26
stepgrandmother].” While the TPR order noted K.J.D. “has not been attending
therapy consistently, which needs to be corrected,” there was no mention of any
attendance issues for K.T.D. in attending therapy. On the contrary, the TPR order
reported K.T.D. was “making progress in therapy.”
DHS’s TPR report noted DHS had approved the stepgrandmother for
adoptive placement. It is troubling that most of the concerns DHS now cites in
defending its removal of the children from the stepgrandmother existed when it
wrote its TPR report and the juvenile court issued its TPR order. In spite of these
apparent concerns, DHS continued to approve the stepgrandmother for
placement at that point.
DHS also contributed to some of its stated concerns through its own failure
to effectively communicate to the stepgrandmother, like the issue of the
stepgrandmother not placing the children in school or daycare. In fact, it is unfair
to heap all of the blame on the stepgrandmother for declining to place the
children in school or daycare. The parents’ rights were not terminated until April
2021, approximately three months before the removal of the children from the
stepgrandmother. As the juvenile court explained, “All of the responsibility for
the children’s education during the open CINA did not rest on [the
stepgrandmother]. The children’s guardians were still their parents, and DHS
was to oversee the children’s wellbeing.”
Iowa Code section 232.2(21)(b)(6) provides that “the rights and duties of a
guardian with respect to a child” include the duty “[t]o make other decisions
involving protection, education, and care and control of the child.” (Emphasis
27
added.) Thus, K.J.D.’s parents and later DHS as her court-appointed guardian
bore the legal responsibility for K.J.D.’s lack of school enrollment, not the
stepgrandmother. In any event, DHS removed the children from the
stepgrandmother’s care in July—a time period when the children presumably
would not have been in school due to summer break. Moreover, we fail to see an
issue with the stepgrandmother’s decision not to send K.T.D. to daycare. We
should not fault any caregiver who chooses and is able to stay home with a child
instead of sending the child to daycare.
The dissents’ emphasis on the stepgrandmother’s lack of credibility is
misplaced because she was not the one acting as the children’s legal guardian.
DHS—not the stepgrandmother—is the party with credibility on the line. The
reasons the stepgrandmother offered at the hearing to explain why K.J.D. was
not enrolled in school may be helpful in determining custody, but this appeal is
focused on the role of guardian. At the time of removal from her care, the
stepgrandmother was not the legal guardian with the rights or duties to make
educational decisions for the children. See Iowa Code § 232.2(21)(b)(6). Those
rights and duties fell to DHS as the legal guardian once the juvenile court
terminated the parents’ rights and any failure in fulfilling those rights and duties
accordingly rests with DHS.
The fact of the matter is that DHS had oversight of the children’s wellbeing
from the time they were removed from their parents by court order in February
2020 and through the termination of the parents’ rights in April 2021 and the
September hearing in this case. Despite expecting the stepgrandmother to assist
28
the children with weekly therapy appointments, DHS had only facilitated a total
of three sessions with one of the children’s therapists in the two months following
the children’s removal from the stepgrandmother. If the stepgrandmother failed
to meet the children’s needs because she did not assist them with weekly
sessions then the same is true for DHS when it failed to meet at least one of the
children’s therapy needs.
Instead of attempting to address its concerns with the stepgrandmother in
a way that perhaps could have preserved the children’s relative placement, DHS
largely ignored them until a foster home became available that could take the
children at least temporarily. The children had been in the stepgrandmother’s
care since January 23, 2020, and the juvenile court recognized this placement
when it officially authorized the children’s removal from their parents a few
weeks later on February 6. In the almost eighteen months that the children were
in their stepgrandmother’s care before DHS removed them, the juvenile court
conducted at least six hearings concerning the children where only minor issues,
if any, were raised about the stepgrandmother’s caretaking abilities.
Even in the juvenile court’s “permanency review by paper filing only” in
the month before the removal at issue, the juvenile court found, “The children’s
needs are being met. They are currently residing with [their stepgrandmother],
suitable other placement.” It is telling that DHS did not cite any apparent new
concerns that arose within the next month that would warrant the immediate
removal of the children from their stepgrandmother’s home.
29
As the GAL aptly maintains, “DHS’s erroneous action is even more
egregious when viewed under the lens of the changing juvenile landscape with
the onset of the Family First Prevention Services Act [FFPSA],” which created
opportunities for states to receive federal funding for services that support and
preserve family connections. Bipartisan Budget Act of 2018, Pub. L. No. 115–
123, §§ 50701–50782, 132 Stat. 64, 232–268; see also Iowa Dep’t of Hum. Servs.,
Family First: Overview (2022) https://dhs.iowa.gov/Child-Welfare/FamilyFirst
[https://perma.cc/5T5F-VXTM] (explaining that FFPSA prioritizes the
placement of children removed from their parents in this order: relative or fictive
kin, licensed foster family, congregate care). We recognize that our current
statute does not mandate a preference for relative placement after the
termination of parental rights. See In re N.V., 877 N.W.2d at 150. But it is
troubling that DHS took virtually no effort to maintain the children’s relative
placement or attempt to determine another relative placement given FFPSA’s
emphasis on improving outcomes for children removed from their home by
prioritizing relative or fictive kin placements.
All things considered, the process DHS used and the actions it took in
reaching its decision to remove the children from their stepgrandmother by
surprise and place them with strangers in foster care was unreasonable and
irresponsibly undertaken. Nevertheless, we still must consider whether those
actions served the children’s best interests. See id. In analyzing the children’s
best interests, we “give primary consideration to the child’s safety, to the best
placement for furthering the long-term nurturing and growth of the child, and to
30
the physical, mental, and emotional condition and needs of the child.” Iowa Code
§ 232.116(2).
The State largely relies on events that occurred after the children were
moved to foster care by discussing the progress the children have made in school
and therapy. By all means, the juvenile court was free to consider the events that
transpired after DHS removed the children from the stepgrandmother in deciding
whether to remove DHS as the children’s guardian. We simply do not believe
these postremoval events carry much weight in this case because there was still
no sense of permanency in the children’s new placement.
In other appellate cases reviewing an action to remove DHS as guardian,
the events that transpired after a party files a motion to remove DHS as guardian
may be more relevant. For example, in In re I.P., DHS removed the child from
unrelated foster parents so that the child could be adopted by the same parents
who adopted the child’s half sister. 2019 WL 3317922, at *3–4. While the foster
parents’ motion to intervene and to remove DHS was still pending, DHS
completed a home study for the half sister’s adoptive parents and the study
recommended transitioning the child into their home as a preadoptive
placement. Id. at *2. The foster parents filed their motion to intervene in August
2018, but the juvenile court’s hearing did not conclude until January 2019. Id.In that situation, around five months had passed between the motions and the
hearing on them and there were no doubts that—if the juvenile court maintained
DHS as guardian—the child would be placed in an adoptive home with his half
31
sister. Id. Those are definitely facts to consider in determining whether DHS
acted reasonably and in the child’s best interests.
In contrast, this case involves a hearing that occurred less than two
months after the children were removed from their stepgrandmother and placed
in a foster home with no real permanency plan in place. DHS had never placed
children in the care of the foster parents whom it entrusted the girls to, and DHS
adoption worker Viso testified that she had not asked the children’s foster
parents about the possibility of adopting the children before removing them from
the stepgrandmother’s home. Nor did DHS ask the foster parents how familiar
they were with the children’s mental health diagnoses or the therapy the children
required.
This approach directly contradicts the children’s best interests because it
ignores the advice of the children’s therapists despite DHS’s contention that a
primary reason for removing the children from their stepgrandmother was due
to the stepgrandmother’s failure to meet the children’s therapeutic needs.
K.T.D.’s therapist in particular stressed in reports that she needs a parent who
understands her mental health needs and is “open to a therapeutic parenting
approach” and “working closely with [the] therapist regarding the impact of
[K.T.D.’s] developmental trauma.” There is no evidence that DHS honored or even
considered these recommendations. Any stability the children might have felt or
progress they might have made in their foster home upon removal from the
stepgrandmother may be little more than a brief honeymoon period because they
remain susceptible to being moved again to yet another placement.
32
Children seeking adoptive homes face an increased risk of disruption,
which occurs “after the child is placed in an adoptive home and before the
adoption is legally finalized, resulting in the child’s return to (or entry into) foster
care or placement with new adoptive parents.” Krysten E. Beech, The Perfect
Storm: When Failing Adoptions Collide with an Ineffective Legal System, Re-
Homing Emerges as a Viable Option for Adoptive Parents—Suggestions for Fixing
a Broken System, 46 U. Tol. L. Rev. 449, 451 (2015) (quoting Child Welfare Info.
Gateway, Adoption Disruption and Dissolution 1 (2012)). This risk increases
“when [the] children . . . have emotional and/or behavioral issues” and “when
agencies provide inadequate information regarding the child or the child’s
history” or “inadequate preparation, training, and support for [potential] adoptive
parents.” Id. Here, DHS moved children with mental health concerns from their
home of eighteen months where they were surrounded by family only to place
them in the home of strangers who had not been asked about their familiarity
with the children’s mental health diagnoses and no assurance that the foster
home would become the children’s permanent home. This created yet another
possibility of disruption in the children’s already unstable lives. Altogether, DHS
failed to serve the children’s best interests in acting as their guardian.
“As tempting as it is to resolve this highly emotional issue with one’s heart,
we do not have the unbridled discretion of a Solomon. Ours is a system of law
. . . .” In re B.G.C., 496 N.W.2d 239, 241 (Iowa 1992) (en banc). In this case, DHS
did not meet its legal obligations as the children’s guardian to “make every effort
to establish a stable placement for the child[ren] by adoption or other permanent
33
placement.” Iowa Code § 232.117(6). It also disregarded its own transition
planning procedures. In summary, DHS violated two statutory obligations—the
obligation to send relative notices and the obligation to “make every effort to
establish a stable placement for the child[ren]”—and at least two of its own
transition planning procedures. Id. §§ 232.84, 117(6). Accordingly, we hold the
juvenile court abused its discretion when it declined to remove DHS as the
children’s guardian based on an erroneous application of the law.
DHS failed to act in the children’s best interests because it directly harmed
the children and only added to their trauma when it uprooted them from their
stepgrandmother’s home by surprise and placed them with foster parents who
were seemingly unaware of the children’s mental health issues or therapeutic
needs. It also disregarded the advice from the children’s therapists about their
mental health needs through its actions in this case. Even Justice Mansfield’s
dissent acknowledges that “DHS behaved badly and probably deserves to lose
its status as guardian.” If an agency’s failure to abide by the law and its own
procedures is not enough to warrant its removal as the children’s guardian, then
it is difficult to imagine what meets the dissents’ high burden for removal.
Ironically, one of DHS’s primary reasons for removing the children from
their stepgrandmother was DHS’s belief that the stepgrandmother was not
providing for the children’s mental health needs. Despite the therapists’
warnings against additional placements and assertions about the children’s need
for stability, DHS did not so much as discuss the possibility of the receiving
foster parents’ interest in adopting the children before making the sudden
34
change to the children’s placement. The need for a permanent home is one of
“the defining elements in a child’s best interests,” and DHS failed to act
accordingly in this case. In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J.,
concurring specially). Essentially, when it comes to the needs of the children,
DHS took the “do as we say, not as we do” approach. It is unfortunate that the
dissents do not hold DHS to the same standard that it expected the
stepgrandmother to meet.
With that said, we do not treat this removal as a custody battle between
DHS and the stepgrandmother as competing possible guardians. The children
have been out of their stepgrandmother’s care for almost a year, and the
appellate record does not indicate whether their current foster home is willing to
adopt the children or inform us of what has transpired since DHS presumably
sent relative notices. It would certainly not be in the children’s best interests for
us to simply order that the juvenile court appoint the stepgrandmother as
guardian when we have no information about what has transpired in the past
year since this appeal commenced. Such an important decision demands a
thorough consideration of the situation as it exists today, not as it existed when
this appeal started.
Therefore, we reverse and remand for the juvenile court to remove DHS as
guardian and appoint a suitable new guardian upon assessing the children’s
best interests. The dissents’ focus on whether there is a suitable candidate for
guardian other than the stepgrandmother overlooks the existence of at least one
capable legal guardian for the children in the GAL, who has been involved in
35
these children’s lives since their first removal in 2018. See Iowa Code
§ 232.117(3)(c) (authorizing the juvenile court to transfer guardianship to any
“other suitable person”). Overall, we trust that the juvenile court will assess the
available guardians and choose wisely.
Finally, we close with a reminder to the juvenile court and DHS that DHS
is still required to “obtain a judicial determination that it has made reasonable
efforts to finalize the permanency plan that is in effect” “at least once every twelve
months thereafter while the child[ren] [are] in foster care” to receive federal
funding for the children. See 45 C.F.R. § 1356.21(b)(2)(i) (2020). Although no
longer guardian, DHS’s obligations as an agency to these children who have not
yet achieved permanency remain by statute.
IV. Conclusion.
For the foregoing reasons, we vacate the decision of the court of appeals,
reverse the juvenile court’s order, and remand for further proceedings consistent
with this opinion.
DECISION OF COURT OF APPEALS VACATED; JUVENILE COURT
JUDGMENT REVERSED AND REMANDED.
Appel, Waterman, and Oxley, JJ., join this opinion. Mansfield, J., files a
dissenting opinion, in which McDonald and McDermott, JJ., join. McDonald, J.,
files a dissenting opinion, in which Mansfield and McDermott, JJ, join.
36
#21–1472, In re K.D.
MANSFIELD, Justice (dissenting).
I respectfully dissent. The majority opinion does a very good job of showing
that the Department of Human Services (DHS) bungled the July 26, 2021
removal of K.J.D. and K.T.D. from their stepgrandmother. It does a less good job
of following the statute, Iowa Code section 232.118(1) (2021). It does an even less
good job of giving appropriate deference to the fact-findings made by the
experienced juvenile judge who heard this case.
Because I agree with the juvenile court and the court of appeals that it was
not in the best interests of K.J.D. and K.T.D. at the time of the hearing to remove
DHS as guardian and substitute the stepgrandmother or another relative, I
would affirm.
I. The Juvenile Court Properly Made the Best Interests Determination
as of the Time of the Hearing.
Iowa Code 232.118(1) provides,
Upon application of an interested party or upon the court’s own
motion, the court having jurisdiction of the child may, after notice
to the parties and a hearing, remove a court-appointed guardian and
appoint a guardian in accordance with the provisions of section
232.117, subsection 3.
This section offers no substantive guidance for the juvenile court, but
procedurally it clearly contemplates a hearing, after which the juvenile court may
simultaneously remove the existing guardian and appoint another guardian.
On the subject of substantive standards, the court of appeals has
observed, “The statute also does not set forth criteria for removal of a guardian.
In the absence of statutory criteria, this court has examined the reasonableness
37
of the current guardian’s actions and the best interests of the child.” In re N.V.,
877 N.W.2d 146, 150 (Iowa Ct. App. 2016) (citation omitted). This is a logical
approach, and the majority endorses it on paper but doesn’t follow it in reality.
Best interests of the child should be decided at the time of the hearing.
See In re Marriage of Dawkins, 285 N.W.2d 8, 9 (Iowa 1979) (“Some question was
raised in this case whether the court must confine itself to circumstances
existing at the time the petition for modification was filed or whether it could
consider all facts up to the time of hearing. We believe the latter is the correct
view, and we now adopt it as the rule in such cases.”); In re D.M.J., 780 N.W.2d
243, 245 (Iowa Ct. App. 2010) (explaining that grounds for termination must
exist at the time of termination, not when the petition was filed).
However, the majority focuses not on the children’s best interests at the
time of the section 232.118 hearing, which is the relevant inquiry, but instead
on whether the specific act of removal of the children from the stepgrandmother
served their best interests at that moment. This collapses the two factors—
reasonableness of DHS’s actions and best interests of the children—into one. I
disagree with what the majority has done. We should be looking at the overall
best interests of the children as of the guardianship hearing, which is exactly
what the juvenile court did here.
The majority’s approach also leads it into a curious remand order. The
guardian ad litem and the stepgrandmother sought an order removing DHS as
guardian and making the stepgrandmother guardian. But the majority gives them
only a half a loaf. It orders DHS removed while not deciding who should replace
38
DHS. Instead, it directs the juvenile court, on remand, to appoint anyone but
DHS. This isn’t contemplated by the statute, which couples removal of an
existing guardian with appointment of a new one. The two decisions ought to be
made together. How can you assess the best interests of the children in a
guardianship situation without knowing who the new guardian might be?
Instead, my colleagues force the juvenile court to immediately choose a private
guardian who will have custody and control of the children, regardless of whether
there exists a suitable candidate to be such a guardian.
II. The Juvenile Court Made Thorough and Careful Fact-Findings
Which Should Be Given Deference.
In concluding that the best interests of the children did not warrant a
change of guardianship, the juvenile court found that the stepgrandmother’s
“care was lacking in terms of the children’s mental health care, her judgment in
setting and maintaining boundaries, and providing for educational and
developmental services and stability.”6
These findings, to which we owe deference, are supported by the record.
See In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022) (“We are not bound by the juvenile
court’s findings of fact, but we do give them weight, especially in assessing the
credibility of witnesses.” (quoting In re D.W., 791 N.W.2d 703, 706 (Iowa 2010))).7
6The juvenile court added that “[i]t is also not in the children’s best interest for the court
to place the children in the guardianship of an adult relative yet to be identified.” Its order noted
specific concerns with other adult relatives with whom the children had been spending time.
7The juvenile court made a specific credibility finding adverse to the stepgrandmother,
namely, that her “motivation . . . seems to be [to] gain custody of the children regardless of
whether she must be deceptive to do so.”
39
The juvenile court order is impressive in the care and detail with which it was
written. Let me try to summarize a few points.
Both children had a large number of missed or canceled therapy
appointments. This occurred even though the appointments were being held
virtually; all the stepgrandmother had to do was to log in. The stepgrandmother
claimed that after she became aware that it was a “problem” for the children to
miss therapy, the only sessions the children missed were due to “technical
difficulties with the equipment.” The technical difficulties excuse seems
implausible given the large number of missed appointments. It also begs the
question why the stepgrandmother, who had a background as a nurse, would
have thought it was acceptable for the children to miss so much therapy in the
first place.8
K.J.D. missed eleven out of twenty-four appointments. The
stepgrandmother acknowledged she “didn’t see eye to eye sometimes” with
K.J.D.’s therapist. K.J.D.’s therapist reported that following the removal of K.J.D.
to a foster family the appointments were able to occur in person.
K.T.D.’s therapist also reported multiple missed appointments while the
children were with the stepgrandmother. She noted,
Since entering foster care [K.T.D.] has been able to attend in
person therapy. This had not been an option previously due to her
grandmother’s mobility concerns. [K.T.D.] has done well in person
and has been more open and engaged in person. A consistent theme
has emerged in [K.T.D.]’s play as well. [K.T.D.] has created multiple
narratives where her grandmother is “always in bed” due to her bad
8The stepgrandmother testified she is no longer employed and receives disability
payments.
40
foot. . . . It should be noted that it was the observation of this
therapist that each time a telehealth session began or ended
Grandma was in her bed and [K.T.D.] came to her for assistance.
As for maintaining boundaries, the juvenile court pointed out that the
stepgrandmother allowed the daughters of her daughter-in-law to stay with her,
K.J.D., and K.T.D. after the daughter-in-law had been charged with child
endangerment and drug related charges and a no-contact order had been
entered. Their stay wasn’t disclosed to DHS, even though the criminal case began
because the two daughters had been found smoking marijuana.
The juvenile court also observed that the stepgrandmother allowed K.J.D.
and K.T.D. to spend considerable time, including overnight visits, at their
paternal grandmother’s home during the spring and summer of 2021. These
visits occurred even though the children’s father was living there, had unresolved
domestic violence and drug issues, and had an outstanding warrant for his
arrest. The DHS worker testified she didn’t know that these visits were occurring
until the time of the guardianship hearing. The stepgrandmother testified
otherwise, but the juvenile court found her testimony not credible.
Lastly, regarding school, it is undisputed that the stepgrandmother had
not enrolled K.J.D. in any kind of school for the 2020–2021 school year, even
virtual school, although she had turned five before the beginning of the year. The
stepgrandmother testified that K.J.D. “was behind academically, and socially,
she wasn’t ready for that.” The juvenile court acknowledged that DHS had some
responsibility for this situation, but it rightly noted that the stepgrandmother’s
testimony “sheds light on [her] approach to parenting the children.” As the
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juvenile court put it, “[I]f [K.J.D.] seemed academically and socially delayed a
structured educational setting is what she needed.”
The juvenile court concluded,
It is not in the children’s best interest to place them in the
guardianship and custody of [the stepgrandmother]. [The
stepgrandmother] has not shown that she is in the best position to
act as the children’s decisionmaker or person vested with meeting
their permanency needs. Despite eighteen months of placement with
[the stepgrandmother] with the supervision and support of DHS, in-
home workers, and juvenile court, deficits in [the
stepgrandmother]’s ability to meet the children’s needs for
consistency, stability, and mental health care persisted. There were
shortfalls in her judgment as caregiver. [The stepgrandmother]
continues to be dependent on other family members to care for the
children. Every parent or grandparent who cares for children full
time needs help—often. The problem here is that the people [the
stepgrandmother] relies upon have their own deficits in safety,
judgment, and setting boundaries. Further, [the stepgrandmother]
doesn’t just rely on these individuals, . . . she depends on them.
DHS behaved badly and probably deserves to lose its status as guardian.
But “[j]uvenile law is not a fault-based edifice like tort law.” In re A.B., 956 N.W.2d
162, 169 (Iowa 2021) (quoting In re Z.P., 948 N.W.2d 518, 523 (Iowa 2020)).
Because we must consider what is best for the children, and afford proper
deference to the juvenile court that oversaw this case from start to finish, I would
affirm.
McDonald and McDermott, JJ., join this dissent.
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#21–1472, In re K.D.
McDONALD, Justice (dissenting).
Under an abuse of discretion standard, this court must affirm the district
court’s discretionary ruling absent a firm and definite conviction the ruling is
“ ‘beyond the pale of reasonable justification under the circumstances’
presented—a decision so flawed and prejudicial to the administration of justice
that this court must provide relief.” See In re 2018 Grand Jury of Dallas Cnty.,
939 N.W.2d 50, 66–67 (Iowa 2020) (McDonald, J., concurring in part and
dissenting in part) (quoting Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir.
2000)). Stated differently, this court must affirm a discretionary ruling unless
the district court “exercised its discretion on ‘grounds or for reasons clearly
untenable or to an extent clearly unreasonable.’ ” In re J.A.L., 694 N.W.2d 748,
751 (Iowa 2005) (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)). The
appellants have not established the district court’s decision to deny their motion
to remove the Iowa Department of Human Services (department) as guardian for
these children was beyond the pale of reasonable justification or for reasons
clearly untenable. Therefore, I respectfully dissent.
Because we are an appellate court rather than part of the executive
branch, it is not our role to dictate how the department should be managed.
Taking on that role would be both unfair and unjudicial. The department
frequently is faced with difficult circumstances and frequently is forced to pick
the least-bad alternative in trying to do what is in the best interest of the children
under its supervision. It is not the judicial branch’s function to micromanage the
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department’s conduct as guardian in navigating these fraught and difficult
situations. Courts are not empowered to replace a guardian because of mere
disagreement with the guardian’s placement decision. See In re J.H., No. 20–
0081, 2020 WL 2988758, at *8 (Iowa Ct. App. June 3, 2020) (Ahlers, J., specially
concurring); In re T.J.M., No. 18–1390, 2018 WL 5840806, at *5 (Iowa Ct. App.
Nov. 7, 2018) (stating a court’s mere disagreement with the department’s
placement decisions is not a basis for removal of the department as guardian).
Instead, courts should intervene only where the department as guardian has so
failed in the discharge of its duties that a new guardian must be appointed. See
In re J.H., 2020 WL 2988758, at *9–11. The proper judicial role in these cases is
to afford the guardian discretion to act within the wide parameters established
by law.
On a fair evaluation of the evidence, the appellants failed to show the
department acted outside the parameters of its discretion as established by law
and so failed in the discharge of its duties that a new guardian should have been
appointed. On the contrary, a fair evaluation of the evidence shows the
department acted in the best interest of the children in a difficult situation.
Rather than rehashing all of the evidence here, I simply quote the conclusion
from the more balanced decision of the court of appeals:
Still, we reach the same conclusion as the juvenile court—the
DHS was acting in the children’s best interests by placing priority
on the children’s mental health and educational needs when
searching for a permanent placement. The record does not support
the assertion by White and [C.H.] that by removing the girls from
their grandmother’s care, the DHS has cut[] off their ties to extended
family. In fact, [C.H.] has had visitation since their removal. In sum,
the unreasonable actions by the DHS did not undermine its core
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mission of “looking out for [the children’s] best interests.” See [In re
E.G., 745 N.W.2d 741, 744 (Iowa Ct. App. 2007)]; see also In re R.S.,
No. 15–1244, 2015 WL 5578273, at *2 (Iowa Ct. App. Sept. 23, 2015)
(finding DHS action was “reasonable, responsible, and in the child’s
best interests” despite trauma caused by removal of child from foster
family, with whom the child had bonded).
....
Despite concluding that the DHS acted unreasonably at times,
we must consider the overall best interests of the children. At the
time of the hearing, the children had been with the new foster family
for about a month. The children’s therapists reported their
consistent attendance and noted that they could hold sessions in
person, something that was impossible when the children lived with
[C.H.], who lived farther away and had her own mobility issues.
Hasley reported [K.T.D.] was happy to be attending daycare, and she
hoped it would promote more positive social-emotional development.
Helleso reported [K.J.D.] felt secure and connected to her current
living arrangement. She was enrolled in kindergarten and enjoying
it. Viso testified the girls were “thriving.” The record offers no
information that a different placement would be better for their
short- or long-term nurturing and growth. It may be true, as White
and [C.H.] point out, that no other relative placements have been
identified because the DHS did not send the notices during the CINA
case. But the existing record shows no other permanent placement
options. So it is in the girls’ best interests for the DHS to remain as
guardian and custodian.
(Fourth alteration in original.)
In my view, the juvenile court correctly denied the application to remove
the department as guardian. More important, for the purposes of the actual issue
presented in this case, I cannot conclude the district court’s decision to deny the
application to remove the department as guardian constituted an abuse of
discretion. Eleven judges, including the district court, have looked at the
application to remove the department as guardian for these children. Six of the
eleven judges (the district court, two judges on the court of appeals, and the
three dissenters here) that have looked at the file have concluded the department
45
should not be removed as the guardian of these children. I am hard-pressed to
conclude the district court’s decision to deny the application to remove the
department as guardian was beyond the pale of reasonable justification or clearly
untenable when a majority of judges that have looked at the file have concluded
the department should not have been removed as the guardian for these
children. I respectfully dissent.
Mansfield and McDermott, JJ., join this dissent.