In the Interest of M.G. and S.R., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0004
Filed April 13, 2022
IN THE INTEREST OF M.G. and S.R.,
Minor Children,
STATE OF IOWA,
Appellant,
KATIE REIDY ABEL, Guardian Ad Litem,
Appellant.
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Appeal from the Iowa District Court for Cedar County, Gary P. Strausser,
District Associate Judge.
A guardian ad litem and the State of Iowa appeal the order denying a
petition to terminate parental rights. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellant State.
Katie Reidy Abel of Beine & Abel Law Firm PLC, Tipton, attorney and
guardian ad litem for minor children.
Mark J. Neary of Neary Law Office, Iowa City, for appellee father of M.G.
Brian James Metcalf of Metcalf, Conlon & Siering, P.L.C., Muscatine, for
father of S.R.
Lanny M. Van Daele of Van Daele Law, LLC, North Liberty, for mother.
Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.
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CHICCHELLY, Judge.
This appeal concerns two children—M.G., now eight, and S.R., now
eleven—whom the juvenile court adjudicated as children in need of assistance
(CINA) in September 2017. The children’s guardian ad litem and the State of Iowa
appeal the December 2021 order denying the petition to terminate the parental
rights of their mother and their respective fathers. Although the juvenile court
found clear and convincing evidence to terminate,1 it instead placed the children
in a long-term guardianship with their maternal aunt and denied the petition under
Iowa Code section 232.116(3)(a). We review the order de novo. See In re A.S.,
906 N.W.2d 467, 472 (Iowa 2018).
Iowa Code section 232.116(3)(a) states that the court “need not terminate
the relationship between the parent and child if the court finds . . . [a] relative has
legal custody of the child.”2 The decision to avoid termination based on relative
1 The juvenile court found clear and convincing evidence to terminate the mother’s
parental rights to both children under Iowa Code section 232.116(1)(e) and (f)
(2020). It found clear and convincing evidence to terminate the parental rights of
M.G.’s father to M.G. under Iowa Code section 232.116(1)(e) and (f) and the
parental rights of S.R.’s father to S.R. under section 232.116(1)(b) and (d). These
findings are not in dispute on appeal, and the record supports them.
2 There is a dispute over whether this section applies based on discrepancies in
the wording of various orders. Section 232.116(3)(a) applies when a relative has
legal custody of the child, not when the Iowa Department of Humans Services
(DHS) places a child in the care of a relative. See In re A.B., 956 N.W.2d 162, 170
(Iowa 2021) (stating section 232.116(3)(a) “can come into play only when a relative
has ‘legal custody’”); In re A.M., 843 N.W.2d 100, 105, 113 (Iowa 2014) (finding
that, although the DHS placed A.M. in the care of her grandparents,
section 232.116(3)(a) did not apply because she was not in their legal custody).
The adjudicatory order places the children in the custody of the maternal aunt,
“subject to supervision by the [DHS].” This language is repeated in other orders.
But a dispositional review order entered in June 2019 states the children “are
placed in the custody of the [DHS] for placement in family foster care.” An
October 2019 permanency review order returns to the language placing the
children in the maternal aunt’s custody. And a January 2020 permanency order
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custody is “permissive, not mandatory.” Id. at 475. We use our discretion to
determine whether to save the parent-child relationship under the facts before us.
Id.The children have lived with their maternal aunt since the CINA
adjudication. There is no question that the maternal aunt can keep the children
safe and provide them with stability. The children have bonded with her and are
doing well. By all indications, they wish to remain in her care. The maternal aunt
testified at the termination hearing that she would continue to allow the children to
have contact with their parents and extended family:
I’m not going to cut any ties with any of them, the grandmother, the
mother, the father. That’s all I’ve been trying do, especially, working
with all them. But I do think that, you know, it’s just going to have to
work around all their schedules to do so. But we’ll do the best we
can. I don’t want any of them not to see them. That’s their parents.
But I do truly believe that, you know, I’m the best thing for them right
now. And I’ll go do whatever I need to do to keep them safe and,
you know, happy. So that’s all that’s got to be.
The juvenile court found her testimony credible.
In deciding to apply section 232.116(3)(a) to avoid termination, the juvenile
court found a long-term guardianship with the maternal aunt would provide the
same safety and stability as termination. We disagree. Our courts do not prefer
guardianship over adoption. See id. at 477. As the supreme court noted in A.S.,
simply states that “the children are continued in their current custodial and service
placement.” The order denying the termination petition places the children “in the
custody and guardianship of [the maternal aunt], subject to supervision by the
[DHS].” But after the guardian ad litem applied for order nunc pro tunc because of
concerns about eligibility for a subsidized guardianship, the court corrected the
order to “place the children in the custody of the [DHS] for continued foster care
placement with [the maternal aunt].” But we need not resolve the issue; even if
the children are in relative custody as contemplated under section 232.116(3)(a),
we decline to apply the section to avoid termination for the reasons below.
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a guardianship requires annual reports to the court until the children reach the age
of majority. Id. at 477-78. Until that time, the court may end the guardianship or
appoint a different guardian. Id. at 478. For that reason, a guardianship inherently
offers less permanency than adoption. But see In re B.T., 894 N.W.2d 29, 33 (Iowa
Ct. App. 2017) (holding, under the specific facts of that case, that placing the child
in a guardianship with his grandmother was no less permanent than requiring the
grandmother to adopt).
If termination is appropriate, a relative’s willingness to take the children will
not change that. See A.S., 906 N.W.2d at 475. The deciding factor is the children’s
best interests. See id. In determining best interests, we consider the children’s
safety, “the best placement for furthering the long-term nurturing and growth,” and
their “physical, mental, and emotional condition and needs.” In re P.L., 778 N.W.2d
33, 37 (Iowa 2010) (quoting Iowa Code § 232.116(2)). The “defining elements”
are the children’s safety and “need for a permanent home.” In re H.S., 805 N.W.2d
737, 748 (Iowa 2011) (citation omitted).
Turning to the children’s best interests, we agree with the guardian ad litem
and the State that termination is necessary. As the juvenile court recognized,
these children “are struggling with the length of time that this case has been
pending.” The service provider testified that the children told her “that they just
want it to get over, they want it to end. They want to know what is going on and
. . . that they will be with [the maternal aunt]. They . . . don’t quite get why it’s taking
so long or just the turmoil.” The maternal aunt is able and willing to adopt.
Terminating parental rights to allow her to do so will give the children the
permanency they need. And because the maternal aunt supports continued
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contact between the children and their parents, this permanency can be afforded
without completely severing established relationships between the children and
their relatives. The DHS, family support specialist, guardian ad litem, and foster
care review board agree that terminating parental rights to allow the maternal aunt
to adopt is in the children’s best interests.
Because terminating parental rights is in the children’s best interests, we
reverse the juvenile court’s order and remand for an order terminating parental
rights.
REVERSED AND REMANDED.