In the Interest of A.A. and S.A., Minor Children

• Court: Court of Appeals of Iowa
• Decided: November 2, 2022
• Docket: 22-1121
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1121 Filed November 2, 2022

IN THE INTEREST OF A.A. and S.A., Minor Children,

S.T., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, Jennifer S.

Bailey, District Associate Judge.

A mother appeals a permanency order denying her request for six more

months to reunify with two of her children and placing guardianship with an aunt.

AFFIRMED.

Ryan D. Gerling of Cray Law Firm, PLC, Burlington, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Heidi D. Van Winkle, Burlington, attorney and guardian ad litem for minor

children.

Considered by Bower, C.J., and Tabor and Ahlers, JJ. 2

TABOR, Judge.

All parties asked the juvenile court in April 2022 to grant the parents of one-

year-old A.A. and three-year-old S.A. a six-month deferral of permanency. The

children had been out the home for nearly a year. Their mother, Samantha, had

struggled with methamphetamine addiction and other mental-health issues. But

the Department of Health and Human Services (DHHS) focused on her recent

progress—successfully completing substance-abuse treatment, testing drug free

for four months, participating in services, and securing employment. So the DHHS

recommended more time for reunification.

Despite that recommendation, the juvenile court went another direction. It

declined to delay permanency and instead established a guardianship with the

paternal aunt who has been caring for A.A. and S.A.1 On appeal, Samantha

argues the court should have given her six more months to reunify with her son,

A.A., and her daughter, S.A. She also contests an evidentiary ruling. On that

ruling, we detect no abuse of discretion. On the overarching claim, we find the

permanency option chosen by the juvenile court served the “unique dynamics” of

this family and promoted the best interests of the children. Thus, we affirm the

permanency order.

1 Samantha is the only party to appeal the permanency order. The children’s father, Andrew, does not challenge the order. The State filed a statement taking no position on the appeal. The permanency hearing also addressed the custody of Samantha’s older sons, J.G. and V.E. The order placing them in the sole custody of their fathers is not the subject of this appeal. 3

I. Facts and Prior Proceedings

This family is not new to the juvenile court. Samantha’s son, G.A., tested

positive for methamphetamine at birth in 2017. In that case, Samantha consented

to termination. G.A. was adopted by Andrew’s parents.

S.A. was born in March 2019; her brother A.A. was born in November 2020.

A.A. tested positive for marijuana at birth. The parents agreed to voluntary

services in early 2021. When both Andrew and Samantha tested positive for

methamphetamine that April, the DHHS developed a safety plan, placing the

children in the home of their paternal aunt. In May 2021, the parents took the

children from a visit without permission, prompting the DHHS to seek a removal

order. The court adjudicated S.A. and A.A. as in need of assistance (CINA) in

June 2021.

Ever since, S.A. and A.A. have remained in their aunt’s care. The young

children are comfortable in that home, and the aunt has expressed a long-term

commitment to their well-being. The relative placements also ensured that the

younger siblings had visits with their older brothers.

Meanwhile, Samantha made little progress toward reunification with the

children. In a July 2021 dispositional order, the court offered this assessment:

Samantha and Andrew clearly continue to struggle with their addiction to methamphetamine and there is no doubt to this judge that they are current users. Samantha adamantly denies methamphetamine usage, despite all signs to the contrary. It is disheartening that a mother as experienced as Samantha in the world of Child in Need of Assistance proceedings is still unable to admit that she is using and ask for help.

Both parents tested positive for methamphetamine in July. Because of the

parents’ continued use of illegal drugs, the court set a permanency hearing for 4

November 2021. But when the parents attained sobriety in early fall of 2021, the

court redesignated the November proceeding as a review hearing to provide them

more time to provide a safe living environment for the children. At that review

hearing, the court received Samantha’s recent mental-health evaluation, which

revealed several diagnoses, including borderline personality disorder; post-

traumatic stress disorder; persistent depressive disorder; anxiety disorder; and

stimulant use disorder, amphetamines, in remission. She had previously been

diagnosed with anxiety, obsession compulsive disorder, depression, reactive

attachment disorder, oppositional defiance disorder, and ADHD.

Adding an extra consideration, that fall Samantha was pregnant with twins,

who were born in March 2022. She then lived with the twins’ father, Patrick, whose

other children had been adjudicated as CINA in a separate action involving

allegations of physical abuse and methamphetamine use.

The court held the permanency hearing in April 2022. Samantha testified

she had not used methamphetamine since late June 2021. But an exhibit offered

by the State showed results from her November 2021 hair stat test were positive

for methamphetamine. Samantha doubted the accuracy of that test, so she paid

for her own. But the court would not allow her attorney to offer the results as an

exhibit, ruling “foundation has not been laid for the admission of the hair stat test.”

At the hearing, the State offered an exhibit in which the DHHS

recommended the court grant a six-month extension for determining permanency

for S.A. and A.A. The worker expressed that Samantha had “made progress.” But

it was not an unqualified endorsement of her prospects, noting that her behavior

pattern was to do well when the DHHS and court were involved. The worker was 5

concerned that Samantha would be overwhelmed providing care to four children

under the age of three. “Her support system is limited. The relationship that she

is in with Patrick has a history of arguments.”

The guardian ad litem (GAL) was also “torn between termination and

extension for six months.” The GAL’s report shared her concern that the parents

would not be ready to reunite with the children in six months, saying she believed

they had done “barely enough to receive additional time to get done what they

need to raise their children.” The GAL said at the hearing: “The only reason why I

was willing to agree with six more months is we weren’t modifying where the

children were at. They are in a stable place where my understanding is, regardless

of the outcome of this, in six months they will remain.”

In the permanency ruling, the court did not opt to move toward termination

of parental rights. But neither did it decide that Samantha could reunite with the

children if permanency was deferred for six months. Picking a third option, the

court placed the children in a guardianship with their paternal aunt, reasoning:

[T]he unique complexion of this case necessitates a unique permanency plan. A guardianship will ensure permanency. It will protect a bond between the children and the parents, who would be part of their life regardless. It also acknowledges that Samantha and Andrew have not done the work to show that they can safely raise these kids now or in six months.

Samantha appeals.

II. Scope and Standards of Review

We review permanency orders de novo. In re D.M., 965 N.W.2d 475, 479

(Iowa 2021). But we review evidentiary rulings for an abuse of discretion. In re

N.N., 692 N.W.2d 51, 54 (Iowa Ct. App. 2004). An abuse of discretion occurs 6

when the juvenile court’s ruling is unreasonable, unsupported by substantial

evidence, or results from a faulty application of the law. In re E.H., 578 N.W.2d

243, 246 (Iowa 1998).

III. Analysis

A. Refusal to Admit Lab Report Offered by Mother’s Counsel

As her first claim, Samantha confronts the court’s refusal to admit as an

exhibit the laboratory report from a hair stat test she obtained at her own expense.

She asserts the ruling was an abuse of discretion, citing Iowa Code

section 232.99(2) (2021) (“All relevant and material evidence shall be admitted.”).

At the permanency hearing, the mother’s counsel offered an exhibit from

Quest Diagnostics showing Samantha’s hair specimen collected on November 30,

2021, tested negative for methamphetamine. The document noted: “specimen

received and processed in the Lenexa DHHS certified laboratory.” The assistant

county attorney objected to its admission on lack of foundation, arguing no doctor

testified as to the laboratory and nobody testified to the chain of custody. Counsel

replied, “[M]y client testified that she got the test. These are the results.” Counsel

also argued that he “just learned of this specific issue” and did not have time to call

additional witnesses to lay foundation.

The juvenile court agreed with the State that “the foundation has not been

laid for the admission of the hair stat test.” Recognizing that the State had offered

its own exhibit showing laboratory results of a positive test, without any testimony,

the court added: “The State didn’t have to go through that because it was agreed

to by the mother that it be entered and it was offered by a laboratory which is used

by the Department of Human Services in all cases.” We are unaware of any 7

authority supporting the court’s latter proposition—that the State is excused from

laying foundation for exhibits from certain approved laboratories. See generally In

re H.V., No. 20-0934, 2020 WL 6157826, at *5 (Iowa Ct. App. 2020) (noting that

Iowa Rule of Evidence 5.901(a) requires proponent of exhibit to produce evidence

to support finding that item is what proponent claims it is). But we acknowledge

that Samantha did not object to the State’s proposed exhibits.

As to the court’s ruling on Samantha’s exhibit, we are not convinced that

section 232.99(2), directing juvenile courts to admit “all relevant and material

evidence,” allows a party to bypass laying foundation for an item’s authenticity.

We have held that foundational witnesses are necessary in CINA cases. See, e.g.,

In re A.B., No. 21-1495, 2022 WL 108586, at *3 (Iowa Ct. App. Jan. 12, 2022); In

re A.C., No. 13-1045, 2013 WL 5962918, at *2 (Iowa Ct. App. Nov. 6, 2013). So

the court was correct in entertaining the State’s objection.2 But one means to

authenticate evidence is the testimony of a person with knowledge that the exhibit

is what the proponent claims it to be. Iowa R. Evid. 5.901(a)(1); see State v.

Musser, 721 N.W.2d 734, 750 (Iowa 2006) (rejecting challenge that witness did

not conduct lab tests, never examined person tested, and knew nothing about test

protocols or method of record keeping). Yet Samantha does not argue on appeal

that her own testimony was sufficient to lay foundation. Without that argument, we

affirm the juvenile court’s evidentiary ruling.

2 In her petition on appeal, Samantha argues that “as a policy matter” we should not require a parent to follow “detailed foundation requirements” for admitting lab reports into evidence. Because that argument was not advanced in the juvenile court, we cannot consider it on appeal. 8

B. Denial of Request for Six-Month Delay of Permanency

As her more consequential issue, Samantha contends the juvenile court

erred in finding that she had not made sufficient strides to merit a delay in

permanency.3 See Iowa Code § 232.104(2)(b) (2022). Samantha stresses that

all parties had “good reason to think that [she] would be able to remediate the need

for removal with an additional six months.” She criticizes the court for disregarding

her “substantial, if imperfect, progress.”

Contrary to Samantha’s criticism, the court did not disregard the information

provided by the DHHS or the GAL (neither of which gave a full-throated

endorsement of the parents’ request for more time). Rather, it recognized its

responsibility under section 232.104(2)(b) to “make the requisite findings” that the

need for removal would “no longer exist at the end of the additional six-month

period.” See In re W.T., 967 N.W.2d 315, 323 (Iowa 2021). The court had an in-

depth understanding of Samantha’s family history and could not find that she had

made substantial progress in addressing her long-standing methamphetamine

addiction or unstable mental health. The court acknowledged that Samantha was

“a good mother, when she is stable and sober.” And the court lauded her strong

bond with the children.

But the court chronicled Samantha’s methamphetamine addiction, fueled

by her mental-health issues, which has led her to a “life of chaos.” The court

recalled Samantha’s earlier efforts to manipulate her drug tests by bleaching her

3 In her issue heading, Samantha adds that the court erred in finding the department made reasonable efforts at reunification. But she does not discuss that claim in the body of her petition on appeal. So likewise we do not address reasonable efforts. 9

hair and her “fits of rage” described by Andrew. The court also worried about

Samantha’s new boyfriend, Patrick, who has a history of methamphetamine use

and physical abuse. And the court noted that Samantha’s recent psychological

evaluation cautioned that she “evidenced little insight into the impact of her choices

on the health and safety of her children.” Also concerning mental health, the court

had “great concern” that Samantha had not kept up her medication management

since 2019 and was not participating in counseling. Tying those threads together,

the court reasoned: “Samantha’s sobriety being new and tenuous, and her mental

health needs being virtually unaddressed, casts even greater light upon the fact

that [Patrick] is an unhealthy partner.”

Being frank, the court decided that after six months it would not be in a

better position to decide whether her sobriety “was going to stick this time around.

In fact, all indications point to a relapse.” The court could not envision Samantha

raising four children under the age of three. The court allowed that for children as

young as A.A. and S.A., “adoption may seem like an appropriate permanency

goal.” See In re A.S., 906 N.W.2d 467, 477 (Iowa 2018) (reiterating guardianship

is not legally preferable alternative to termination). But still the court steered

toward a guardianship to honor the bond that Samantha has “cultivated with both

children.” The court stated:

[A]lthough not the preferred method for establishing permanency for such young children, a guardianship ensures that, if Samantha or Andrew do attain prolonged stability and sobriety, then the guardianship may be terminated. It is also acknowledges the change in Iowa Code Chapter 232D, which grants exclusive jurisdiction to the juvenile court to review said cases, ensuring that annual reports and any requests for modification, will be monitored by the very court that ordered the guardianship. 10

In support of a guardianship, the court explained that the paternal aunt—

who has declining health—receives considerable support from Andrew’s mother,

who has adopted Samantha’s now five-year-old son, G.A. The court believed that

“the unique complexion of this case necessitates a unique permanency plan.”

Although our review is de novo, we lack the insight that the juvenile court

brings after five years of observing this family. Using that insight, the court gave

compelling reasons for not granting Samantha a six-month extension. From our

more distant vantage point, we reach the same conclusion. And we agree that the

children’s best interests are served by remaining in the care of their aunt. 4 As it

stands, Samantha may have lost this battle, but she could still win the war. As the

juvenile court highlighted, a guardianship, rather than termination of parental

rights, keeps alive the prospect that Samantha could reunite with her children

again. We decline to disturb the permanency order.

Bower, C.J., concurs; Ahlers, J., concurs specially.

4 Samantha does not directly challenge the establishment of a guardianship. In fact, she embraces the fact that the children remain in the care of their aunt: “Particularly in light of the guardianship disposition, there was little reason for the Court to rush to permanency in the matter. . . . [T]he children had been in the guardian’s care for nearly their entire lives, continuing for another six months would have made little difference on their care or their ability to move forward.” 11

AHLERS, Judge (specially concurring).

I have no disagreement with the well-written majority opinion. In fact, I join

the opinion without reservation. I write separately to highlight the juvenile court’s

thorough work in crafting the permanency order.

In my view, it was not a particularly close call to deny the request to give the

parents an additional six months to work toward reunification. The more difficult

call was deciding not to direct the county attorney or the attorney for the child to

start termination-of-parental rights proceedings pursuant to Iowa Code

section 232.104(2)(c) (2021). Choosing the permanency option of establishing a

guardianship rather than directing the initiation of termination proceedings is not a

routine call. In fact, with children as young as this, it is a tough sell given our case

law opposing long-term guardianships. See, e.g., In re W.M., 957 N.W.2d 305,

315 (Iowa 2021) (reiterating opposition to “a long-term guardianship” and

reinforcing the principle that “a guardianship is not a legally preferable alternative

to termination”).

Besides not being legally preferable to termination, a guardianship is not

even a permissible permanency option unless the juvenile court first finds that

termination would not be in the children’s best interest. See Iowa Code

§§ 232.104(2)(d)(1) (allowing establishment of a guardianship as a permanency

option), .104(4)(a) (only permitting permanency options under

section 232.104(2)(d) upon showing that termination of parental rights is not in a

child’s best interest). Despite my initial hesitation to approve a guardianship for

such young children, the juvenile court’s thorough, articulate, and focused

explanation of why termination is not in the children’s best interest and why the 12

unique circumstances of this case call for establishment of a guardianship despite

the young ages of the children persuades me that this is the right result. Therefore,

I join in the majority opinion.