In the Interest of N v. Minor Child, S.B. and J.B., Intervenors, M.I., Intervenor ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-2022
Filed February 24, 2016
IN THE INTEREST OF N.V.,
Minor Child,
S.B. and J.B., Intervenors,
Appellants,
M.I., Intervenor,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Susan Flaherty,
Associate Juvenile Judge.
Intervenors contend the juvenile court should have transferred
guardianship of the child to them and, alternatively, should have modified
placement to a relative. REVERSED AND REMANDED WITH INSTRUCTIONS.
Ellen R. Ramsey-Kacena, Cedar Rapids, for intervenors S.B. and J.B.
Caitlin L. Slessor of Shuttleworth & Ingersoll, Cedar Rapids, for intervenor
M.I.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd and
Kathryn K. Lang, Assistant Attorneys General, for appellee State.
Kimberly Opatz of Linn County Advocate, Cedar Rapids, attorney and
guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.
Following the termination of parental rights to a child, the juvenile court
considered the motions of the child’s great-aunt and grandparents to transfer
guardianship of the child from the Iowa Department of Human Services to either
of them or alternatively modify the disposition to have the child placed with one of
them, rather than a non-relative. The juvenile court denied the motions.
Because the department breached its duty to notify relatives of the pending
proceedings, overlooked violations in the foster parent’s in-home daycare center,
and ignored a court order authorizing consideration of relative placements, we
reverse and remand.
I. Background Facts and Proceedings
The child, born in 2010, lived with his mother and the mother’s boyfriend.
The department became involved in 2013 after learning of multiple bruises on the
child. The department issued a founded report of child abuse naming the
mother’s boyfriend as perpetrator.
Three months later, the department was informed that the boyfriend
pushed the child down the stairs and the child sustained a black eye and bruising
all over his body. Again, the department issued a founded report of physical
abuse against the boyfriend.
The State filed a child-in-need-of-assistance petition in February 2014, but
did not seek removal of the child from the mother’s care. Instead, the
department implemented “two rounds of safety services” in the home.
The department received a third complaint of injuries a month later. The
agency determined the complaint was unfounded. At this time, the child’s
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maternal grandfather and step-grandmother took the child into their care to allow
the mother to get her affairs in order. The department was aware of this action
and voiced no objection. Indeed, the department facilitated visits between
mother and child at the grandfather’s home.
The child’s mother, who had a strained relationship with the step-
grandmother, made threats against her. The grandfather reported these threats
to the department and, according to department personnel, said he would return
the child to the mother’s care if the department did not address them. The
department declined to take action. In its view, the dispute “was between [the
mother] and [grandfather].” In the same report, the department acknowledged
the mother wished to have “a family member such as her father or her aunt to be
able to care for [the child] if she is unable to do so.” The department
recommended “[p]lacement with the mother.”
The juvenile court entered an “adjudication/disposition order” stating
“custody of the child [would] remain with his mother under the protective
supervision of the [department].” The mother was to “allow no contact between
the child and [the boyfriend].”
Two months later, the child’s mother was seen with her boyfriend as she
left the home of her daycare provider. Based on the mother’s violation of the no-
contact provision, the court removed the child from the mother’s care and
transferred him to the temporary custody of the department for placement in
foster care. The removal order authorized the department “to utilize a relative
placement for the child[] in lieu of foster family care, so long as criminal history
and child abuse checks are immediately completed regarding every member of
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the household and so long as a completed home study is prepared within 10
days of the date of this order.” This notice was not sent to the great-aunt or
grandfather and the department conceded it failed to separately notify either
relative of the child’s removal from his mother’s care. The department also failed
to investigate the relatives’ homes for potential placement, as authorized by the
court and requested by the mother.
Three months elapsed. The juvenile court issued an order continuing
custody of the child with the department and concluding placement with his
daycare provider was “the least restrictive placement in the child’s best interests.”
Again, the relatives received no notice of this order.
Seven more months elapsed. The grandparents filed a motion to
intervene, asserting the case “may be set to proceed to trial on the termination of
the biological parents’ parental rights” and they wished to have the child placed in
their care and custody and be considered as adoptive parents. They
subsequently sought visitation with the child. The juvenile court summarily
denied the motions. The court expressed a willingness “to reconsider this
request in the event it bec[ame] necessary to litigate permanent custody and
guardianship for [the child] or an application to modify dispositional orders [was]
planned.”
After this denial, the mother’s aunt filed a similar motion to intervene and
for immediate placement of the child with her as well as custody and
guardianship of the child. She attested that she had a close relationship with the
mother and even cared for her during her teenage years. In the months
preceding her motions, she stated the mother “brushed [her] off.” She further
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attested she “had no idea that the court was involved” with the child or had
“removed [the child] from [his mother’s] care.” She said the mother finally agreed
to meet her ten months after the temporary removal order was entered and, at
that time, told her she would be consenting to the termination of her parental
rights and her daycare provider would be adopting the child. The mother asked
her aunt to “promise not to tell her parents.” The aunt did not abide by this
request and informed the grandparents, who proceeded to file their motion to
intervene. Not wishing to complicate matters, the aunt said she waited until their
motions were resolved before filing her own. She began visiting the child shortly
after learning of the mother’s intentions to relinquish her parental rights. The
aunt attested, “Since resuming visits with [the child], I now feel strongly he would
be better off with me.” She separately informed the court of the department’s
failure to notify family members of the child’s removal from her mother.
The court granted the aunt’s motion to intervene “for purposes of
requesting modification of disposition and transfer of custody and guardianship.”
In a separate order, the court declined to consider the aunt’s additional
assertions concerning the statutory notice requirements.
Meanwhile, the court approved the mother’s consent to terminate her
parental rights and noted the issue of “whether guardianship should be placed
with the relative was timely raised and preserved.” The mother’s aunt reasserted
her request for immediate placement of the child with her, again pointing out the
department’s failure to comply with its statutory obligation to notify relatives. She
filed a separate motion for custody and guardianship. The State resisted the
motion, asserting the department “had multiple communications” with the aunt
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“prior to [the child’s] formal removal, and she indicated at the time that she was
not able to care for [the child] due to financial constraints.”
During this phase of the proceedings, the child had visits with all three
relatives. The guardian ad litem noted the child was “happy and excited to spend
time with his grandparents as well as [great-aunt].” The guardian ad litem was
less enthusiastic about the grandparents’ actions toward the daycare provider,
stating they were “borderline harass[ing]” her by surveilling her home and filing
reports “attacking [her] business and character.” It was this surveillance that
uncovered the foster parent’s breaches of protocol in her provision of daycare
services.
Around this time, the grandparents filed another application to intervene.
They stated they “fully support[ed]” the aunt’s motion to intervene but wished to
be considered for immediate and adoptive placement of the child “in the event
the Department believes that [the aunt] is not appropriate.” They alleged the
department had been “hostile to their interests and unwilling to work with them to
allow them regular and ongoing contact.” The State resisted the application.
The State asserted “[t]he Department attempted to preserve [the child’s]
voluntary placement with” them before the temporary removal order was entered
but the grandparents requested removal of the child. The State also cited its
approval of visits between the child and grandparents.
While these intervention motions were pending, the court terminated the
father’s parental rights to the child. A flurry of filings followed.
The grandmother filed an affidavit attesting that the mother informed them
she and the child “were no longer part of [their] family and that [they] would not
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see either of them again.” She further stated the mother threatened them with
physical harm if they did not leave mother and child alone. And, she attested the
mother was “not responsive” to attempts to reach her. Finally, she noted the
department worker “never scheduled or even got back to” them about a home
study after they moved to intervene, even though they gave him “his first choice
of times” to conduct the study. He also failed to approve their home for overnight
visits.
The grandfather attested that, when they cared for the child, the mother
encouraged the child to tell authorities that the grandmother abused him so the
grandmother could be “sen[t] . . . to jail.” He stated he “pressed [the department]
to find a solution to this situation.” The department’s response was to return the
child to the mother. He attested the department “did not respond to repeated
calls and e-mails from [him] to determine why they had directed [him] to return
[the child] to an abusive environment.” Like the grandmother, he further attested
the mother severed her ties with them.
The juvenile court granted the motions to intervene to “fully litigate and
establish permanency for the child.” Following a hearing, the court denied the
applications to transfer custody and guardianship and ordered custody and
guardianship to remain with the department “for purposes of securing an
adoptive placement.” The child’s great aunt and grandparents appealed.
II. Analysis
Both intervenors argue the juvenile court should have transferred
guardianship of the child to them and, alternatively, should have modified
placement to a relative. We find the first issue dispositive.
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Iowa Code section 232.117(3) (2015) governs transfer of guardianship
and custody of a child following termination of parental rights. The provision
authorizes placement with the department, another agency, facility, or institution,
or “other relative, or other suitable person.” Iowa Code § 232.117(3)(c). After
termination, the statute “gives no preference to any person or entity.” In re D.H.,
No. 10-1313, 2010 WL 4484849, at *4 (Iowa Ct. App. Nov. 10, 2010); see also In
re R.J., 495 N.W.2d 114, 117 (Iowa Ct. App. 1992) (stating section 232.117(3)
affords “no statutory preference for a relative”). The statute also does not set
forth criteria for removal of a guardian. See D.H., 2010 WL 4484849, at *4 (citing
sections 232.117(3) and 232.118(1)). In the absence of statutory criteria, this
court has examined the reasonableness of the current guardian’s actions and the
best interests of the child. See In re E.G., 745 N.W.2d 741, 744 (Iowa Ct. App.
2007) (citing absence of proof of either “unreasonable actions on the part of the
Department” or failure to look out for child’s “best interests”).
A. Reasonableness of Department Actions
Both intervenors argue the department acted unreasonably in (1) failing to
notify them of the child’s removal from the mother’s care, (2) failing to consider
breaches of protocol in the foster parent’s provision of daycare services, (3)
failing to follow the court order relating to relative home studies, and (4) directing
the child’s therapist to enhance the bond between foster parent and child with the
knowledge they were seeking custody of the child.
1. Notice
Iowa Code section 232.84(2) states:
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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.
This “language places the onus on the department rather than the parents to
identify relatives subject to notification.” In re R.B., 832 N.W.2d 375, 380 (Iowa
2013).
A department employee conceded the department failed to provide this
notice despite its knowledge of and interaction with the three relatives during the
voluntary phase of the proceedings and despite its documentation of the
mother’s wish to have the great aunt or grandfather serve as a placement. The
department attempted to justify its omission by suggesting the relatives were
aware of the proceedings. While it is clear the grandparents knew of the
voluntary services the department provided when the child was in the mother’s
care, the department did not refute the relatives’ assertions that they were
unaware of the child’s transfer from the mother to the daycare provider. This is
the transfer that triggered the notification requirement under section 232.84(2).
But, even if the relatives were informally aware of the child’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. There must be:
a. A statement that the child has been or is being removed
from the custody of the child’s parent or parents.
b. An explanation of the options the relative has under
federal, state, and other law to participate in the care and
placement of the child on a temporary or permanent basis
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[including] assistance and support options, options for participating
in legal proceedings, and any options that may be lost by failure to
respond to the notice.
c. A description of the requirements for the relative to serve
as a foster family home provider or other type of care provider for
the child and the additional services, training, and other support
available for children receiving such care.
d. Information concerning the option to apply for kinship
guardianship assistance payments.
Iowa Code § 232.84(3). The department failed to apprise the relatives of these
options.
The department’s fallback position is that it would not have placed the
child with the relatives even if they had received the notice and come forward
because the child’s daycare provider lived in Vinton and the relatives lived in
Cedar Rapids. As the court stated in In re R.B., this post-hoc rationalization
“places the cart before the horse.” 832 N.W.2d at 382. “Relative notification
does not turn on whether relatives would ultimately prove to be viable placement
options; notification affords the relatives an opportunity to come forward so that it
can be determined whether they are viable placement options.” Id.
In any event, the relatives testified that they would have come forward and
would have attempted to pursue placement had they been apprised of the child’s
removal. The child’s great aunt expressed shock on learning the child had been
living with the daycare provider. She testified, “I just assumed if [the department]
was involved that they would have contacted family, but I had not heard anything.
No one had told me anything.” This response was consistent with her prior
experience. When she learned the department was investigating a complaint of
abuse, she reported her concerns to the department. She said, “I never heard
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back” and “[n]o one ever contacted me . . . to let me know that it had been
dismissed or founded, nothing.”
The grandfather also testified he would have come forward had he
received notice. In his words, the child could have been placed with him at the
time of removal “beyond a shadow of a doubt,” if the department had been willing
to manage his daughter’s accusations against the step-grandmother, which could
have jeopardized her therapist license. As noted, the department stated this was
a matter between the mother and grandfather. Like the great-aunt, the
grandfather attempted to communicate with the department after the child was
returned to the mother. The department refused to respond to those
communications.
Given the department’s unresponsiveness, the relatives reasonably could
have concluded additional efforts to communicate with the agency would have
proved unavailing. The statutorily-prescribed notice would have clarified their
options with respect to the child. The department’s failure to provide the notice
prejudiced their rights. Under these circumstances, we conclude the department
acted unreasonably in refusing to notify the relatives of the child’s removal from
the mother’s care.
2. Daycare Provider
After the juvenile court removed the child from the mother, the department
placed him with the unrelated daycare provider, notwithstanding a statutory
preference for placement of children with relatives during the child-in-need-of-
assistance phase of the proceedings. See 42 U.S.C. § 671(a)(19) (requiring the
State to “consider giving preference to an adult relative over a non-related
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caregiver when determining a placement for a child”); see also R.B., 832 N.W.2d
at 381. In doing so, the department overlooked significant protocol violations in
the foster mother’s in-home daycare center. The foster mother conceded that
three months before the guardianship hearing she had up to fifteen children in
her care, with some staying overnight. Even after the department informed her
that the maximum number was five, she continued to violate the rule. The
department turned a blind eye to the violation.
By the time of the hearing on the relatives’ motions for a change of
custody and guardianship, the foster parent had time on her side. She was the
person who had cared for the child for over a year and she was the person who
had developed a close relationship with the department. The relationship was so
close that when she asked a department employee whether she should tell the
relatives of the child’s transfer to her care, the employee told her “she didn’t want
them notified.” In the employee’s view, the decision whether to tell them of the
change in custody rested with the mother. The department’s position is refuted
by the statutory notice requirement.
We conclude the department acted unreasonably in placing the child with
the unrelated daycare provider without investigating the provider’s daycare
center and by telling the provider she need not inform the relatives of the
transfer.
3. Home Study
The relatives contend the department should have performed home
studies on their homes. We agree. As noted, relative placements are preferred
over non-relative placements during the child-in-need-of-assistance phase of the
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proceedings. See 42 U.S.C. § 671(a)(19). The juvenile court authorized the
department to investigate the relatives’ homes at the time of the temporary
removal. No action was taken despite the department’s documentation of the
mother’s wish to have the child placed with them. Even after the grandparents
moved to intervene, the department declined to visit their home for possible
placement or, indeed, for overnight visits. We conclude the department’s refusal
to consider the relatives as a placement option at the time of removal was
unreasonable.
4. Therapist
The relatives contend the department authorized the child’s therapist to
engage in bonding therapy with the child and daycare provider. They argue this
instruction was unreasonable in light of their expressed interest in adopting the
child. We, too, question the department’s instruction in advance of an adoption
decision. To the department’s credit, however, the agency later involved the
relatives in the child’s therapy. Accordingly, we are not persuaded the
department’s instruction to the therapist warrants reversal of the guardianship
motions.
B. Best Interests
The department’s actions must serve the best interests of the child. D.H.,
2010 WL 4484849, at *6. In this case, they did not. The department declined to
notify relatives who previously expressed an interest in the child, who were
identified by the mother as potential placements, and who were statutorily
preferred over non-relatives. The department also placed the child with a non-
relative who violated protocols governing in-home daycare and the agency
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informed the non-relative to refrain from telling the relatives of the child’s
placement. As a result, the relatives lost contact with the child for ten months.
Given the relatives’ active participation in the child’s life prior to the removal, this
disruption of contact was not in the child’s best interests.
We reverse the juvenile court’s denial of the relatives’ motion for
guardianship and custody. Because the grandparents fully supported the great-
aunt’s motion for guardianship and custody and viewed their motions as a
standby option if the court denied her motion, we remand for entry of an order (1)
directing the department to conduct a home study of the great-aunt’s residence,
including criminal history and child abuse checks, and (2) transferring
guardianship and custody of the child to the child’s great-aunt if the home study
finds her suitable.
This resolution is not inconsistent with E.G., 745 N.W.2d at 744. There,
we reversed the district court’s termination of guardianship with the department,
because the “action was not based upon any proof of unreasonable actions on
the part of the Department.” Here, the intervenors proved unreasonable actions
on the part of the department.
REVERSED AND REMANDED WITH INSTRUCTIONS.