In the Interest of A v. Minor Child, T.H. and C.H., Intervenors-Appellants.

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1749 Filed January 11, 2017

IN THE INTEREST OF A.V., Minor Child,

T.H. and C.H., Intervenors-Appellants. ________________________________________________________________

Appeal from the Iowa District Court for Carroll County, Adria Kester,

District Associate Judge.

The paternal grandparents of a child appeal the district court’s decision

denying termination of a guardianship and modification of placement.

AFFIRMED.

Penny B. Reimer of Cooper, Goedicke, Reimer, & Reese, P.C., West Des

Moines, for grandparent-intervenors.

Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

Christine L. Sand of Wild, Baxter & Sand, P.C., Guthrie Center, for minor

child.

Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. 2

BOWER, Judge.

C.H. and T.H., A.V.’s paternal grandparents, (the Grandparents), appeal

the district court’s decision refusing to place A.V. in their care. We find the Iowa

Department of Human Services (DHS) failed in their duty to notify the family of a

child in need of assistance (CINA) proceeding involving A.V. but determine DHS

should continue as the child’s guardian as it is in A.V.’s best interests. We also

find the district court did not err in refusing to modify A.V.’s placement with the

maternal aunt.

I. Background Facts and Proceedings A.V. was born in 2014, and her biological parents’ parental rights were

terminated in April 2016. In re A.V., No. 16-0290, 2016 WL 1359140 (Iowa Ct.

App. Apr. 6, 2016). The Grandparents cared for A.V.’s mother during her

pregnancy and after the birth, and they were also caretakers for A.V. when the

mother was unable to care for the child. The State began removal proceedings

in April of 2015. A.V. was removed from the Grandparent’s care and placed with

A.V’s maternal aunt, who resides with A.V.’s maternal grandparents.

The Grandparents were not given formal notice of the CINA proceedings

as required under Iowa Code section 232.84 (2016). Paternity was eventually

established in October, and the Grandparents were allowed a short visit in

November. Additional visitation was granted after a request was made in the

CINA proceedings. Visitation became more frequent after this period but did not

include overnight visits, and many requests for extra time were denied. The

inflexibility of visitation has resulted from the growing tensions between the two

families. During one longer period of visitation, the Grandparents felt they 3

needed to take A.V. to the emergency room when they noticed pus draining from

A.V.’s ear as a result of an ear infection. The Grandparents felt the infection had

not been properly treated, although A.V.’s maternal family stated they had begun

treatment and were following medical advice, which further strained the

relationship with the A.V.’s maternal family.

The district court retained DHS as A.V.’s guardian and refused to modify

A.V.’s placement with the maternal aunt. The Grandparents now appeal.

II. Standard of Review We review de novo actions seeking to remove DHS as guardian and

challenging custody placement. In re E.G., 738 N.W .2d 653, 654 (Iowa Ct. App.

2007). We review the facts and law and adjudicate rights anew but give weight

to the findings of fact of the juvenile court. Id. The court's core role in these

proceedings is to ensure placement is in the best interests of the child. See Iowa

Code § 232.1 ; E.G., 738 N.W.2d at 657.

III. DHS as Guardian The Grandparents claim DHS should be removed as A.V.’s guardian as

DHS failed to provide proper notice of the termination proceedings to the

Grandparents as required under Iowa Code section 232.84. “The juvenile court

retains the authority to remove DHS as guardian if the department acts

unreasonably or irresponsibly in discharging its duties.” In re S.O., No. 13–0740,

2013 WL 3458216, at *2 (Iowa Ct. App. July 10, 2013); see also Iowa Code

§ 232.118. The district court properly noted “this notice requirement is not a

suggestion.” Even though the Grandparents were aware the child was removed 4

from the mother, formal notice is still required under Iowa law, and by failing to

give notice, DHS acted unreasonably. See Iowa Code § 232.84.

However, even though DHS acted unreasonably we will not automatically

remove DHS as guardian. See In re X.O., No. 16-0313, 2016 WL 2743445, at *5

(Iowa Ct. App. May 11, 2016) (holding children’s best interest supported retaining

DHS as guardian notwithstanding failure to provide notice.) The Grandparents

wish to remove A.V. from her current home because they fear they will no longer

be able to see the child after adoption by A.V.’s maternal aunt. This is a

possibility considering the relationship between the maternal and paternal

families. However, the district court noted the maternal aunt was chosen by the

DHS adoption panel “to limit the trauma to A.V.” The district court also stated

“[The Grandparents] presented no evidence that A.V.’s current placement is

unsafe or that A.V. is not thriving. . . . This placement is reasonable and

continues to be in the best interests of A.V.”

Retaining DHS as A.V.’s guardian is in A.V.’s best interests as it will allow

the adoption process to continue. A.V.’s current placement provides stability,

continuity, permanency, and an environment where A.V. is thriving. Additionally,

examining the state of the relationship between the families, we are unconvinced

the paternal family would not use custody of A.V. as revenge on the maternal

family by withholding visitation. It is unfortunate these families continue to use

A.V. against each other, but causing further instability is certainly not in A.V.’s

best interests. Therefore, we decline to remove DHS as guardian. 5

IV. Modification of Placement The Grandparents also claim the district court erred by refusing to modify

A.V.’s placement. Pursuant to Iowa Code section 232.117(3) the court may

place the children with DHS, a suitable child-placing agency, or a relative or other

suitable person. However, “[t]he paramount concern is the best interest of the

children.” In re R.J., 495 N.W.2d 114, 117 (Iowa Ct. App. 1992). The

Grandparents claim it is not in the child’s best interest to have limited contact with

them. However, as we noted above, the district court found placement with the

maternal aunt provides stability, continuity, permanency, and an environment

where A.V. is thriving and has limited the trauma to A.V. In refusing to modify the

placement, the district court appropriately considered the conflict between the

families, the merits of each placement, and most importantly, the impact each

placement would have on A.V. We agree with the district court and find the

balance of these factors weighs in favor of the placement remaining with the

maternal aunt. Therefore, the district court did not err by refusing to modify

placement. We affirm the district court.