In the Interest of C.S., Minor Child

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0607 Filed July 20, 2022

IN THE INTEREST OF C.S., Minor Child

J.S., Intervenor, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Cynthia S. Finley,

District Associate Judge.

The maternal grandfather appeals the district court decision denying his

petition to remove the Iowa Department of Human Services as the child’s guardian.

AFFIRMED.

Alexander S. Momany of Howes Law Firm, P.C., Cedar Rapids, for

appellant.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Julie Gunderson Trachta, Cedar Rapids, attorney and guardian ad litem for

minor child.

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

SCHUMACHER, Judge.

The maternal grandfather, J.S., appeals the juvenile court decision denying

his petition to remove the Iowa Department of Human Services (DHS) as the legal

guardian of C.S. following the termination of the parental rights of the child’s

parents. DHS did not act unreasonably or irresponsibly, and the maternal

grandfather has not shown DHS failed to act in the child’s best interests by placing

the child with the maternal grandmother. We affirm the decision of the juvenile

court.

I. Background Facts & Proceedings

B.S. is the mother of C.S., who was born in 2017. On December 18, 2019,

the child was adjudicated to be in need of assistance (CINA) due to the mother’s

use of methamphetamine. The CINA adjudication order noted the child had been

voluntarily placed with J.S., the maternal grandfather.1 The disposition order

formally placed custody of the child with DHS for the purpose of relative care. The

child continued in the grandfather’s care throughout the CINA proceedings.

B.S.’s parents are divorced. The maternal grandmother is remarried and

lives in Texas. After the child’s birth, the mother and the child resided with the

maternal grandmother. The maternal grandmother also provided care for the child

while the mother was at work prior to the mother and child’s move to Iowa. The

grandmother maintained contact with the child while the child was living with the

grandfather. In addition, the child spent two vacations—one for ten days and one

for three weeks—with the grandmother in Texas.

1On October 9, 2019, the child was placed with a maternal uncle. The child was moved to the home of the maternal grandfather on November 1. 3

The mother’s parental rights were terminated on January 25, 2021.2 The

termination order provided DHS was the custodian of the child and was appointed

guardian of the child. The grandfather and grandmother both stated they would

like to be considered as a placement option for the child. The grandfather took

classes to become a licensed foster parent. Each grandparent participated in an

adoptive home study.

A DHS report dated May 14 stated the grandfather was able to provide for

the child’s needs but also stated:

I do have concerns about [the grandfather’s] past history with [the mother], and the inappropriate arguing and name calling they’ve both done with each other in front of [the child] in the past. I also have concerns about the ongoing face-to-face contact [the grandfather] is currently allowing [the mother] to have with [the child], without the prior knowledge of this worker.

The report noted, “[The grandfather] feels that it’s okay for [the mother] to have

nightly FaceTime calls with [the child] and spend face-to-face time with [the child]

as long as [the grandfather] is around also, so [the grandfather], [the mother] and

[the child] would all spend time together.” The grandfather and the mother were

considered to have “a very dysfunctional father-daughter relationship.” The report

also noted the grandmother was able to provide for the child’s needs and stated,

“[The grandmother] has very firm boundaries with [the mother], and she has been

able to keep [the mother] at a safe distance while she focuses on [the child].”

2 The father of the child is unknown. The parental rights of all putative fathers were terminated. 4

The mother gave birth to another child, N.S.3 A DHS report dated

September 9, stated the grandfather no longer permitted in-person contact

between the mother and child, but allowed occasional FaceTime calls. The child

stated, however, that he saw his mother and N.S. at Thanksgiving and on other

occasions.

In December, DHS conducted interviews with the grandfather and

grandmother. The adoption team supervisor, an adoption team member, and a

DHS social worker, as well as the child’s guardian ad litem (GAL), were present

for the interviews. The adoption team reviewed the home studies and discussed

the matter. They concluded the grandmother was the best placement for the child.

The grandfather moved to intervene and stay placement. He claimed it was

not in the child’s best interests to be moved to Texas and placed in the care of the

grandmother. The court denied the motion for stay of placement, stating it did not

have the authority to dictate placement. The child was moved to the grandmother’s

care on December 31. Reports from DHS and the GAL showed the child was

doing very well in the grandmother’s care.

In January 2022, the grandfather filed a motion to remove DHS as the

guardian of the child. He asked to have the child placed in a guardianship with

him. A hearing was held on March 14. The grandfather testified he believed the

mother and N.S. should have contact with the child. He stated that while he and

the mother previously had a dysfunctional relationship, they were now getting

along and talked on the phone three or four times a day. The mother testified she

3 There was a CINA adjudication for N.S. At the time of these proceedings, N.S. remained in the mother’s custody. 5

would prefer to have the child placed with the grandfather, as she has a strained

relationship with the grandmother.

Melissa Clifton, the DHS supervisor for the adoption unit, testified the

grandmother was a “very steady, stable person.” She believed the grandmother

would do what was necessary for the child. Clifton stated it was not clear the

grandfather would be able to set boundaries for the mother. She stated N.S. and

the child should have a relationship. She testified the relationship between the

siblings did not require the involvement of the mother and DHS did not support

including the mother in their FaceTime calls.

On March 23, the juvenile court granted the motion to intervene, limited to

the March 14 hearing. The court stated, “[T]he ability and willingness of [the

grandmother] to set appropriate boundaries with [the mother] and her age-

appropriate expectations of [the child] was determined to make selection of her to

adopt [the child] the appropriate choice.” The court concluded it could not “find

any evidence that, in making the choice [DHS] made in this case, it deviated from

its established processes or acted in any way that was irresponsible or

unreasonable, or in fact, acted in anything other than the best interest of [the

child].” The court denied the motion to terminate the guardianship of DHS. The

grandfather appeals.

II. Standard of Review

The Iowa Supreme Court recently stated:

[Iowa Code] [s]ection 232.118 [(2022)] 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 6

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)).

In re K.D., 975 N.W.2d 310, 319 (Iowa 2022).

III. Analysis

The grandfather claims the juvenile court abused its discretion by denying

his motion to terminate the guardianship of the child with DHS. He asks to be

named as the child’s guardian. The grandfather points out that the child lived with

him during the CINA proceedings. He contends that if the child was placed in his

care in Iowa, it would be easier for the child to maintain a relationship with N.S.

and extended family members. He asserts that DHS did not act in the child’s best

interests by placing the child with the grandmother.

“When DHS is a child’s guardian, it determines the specific adoptive home

for the child.” In re J.H., No. 20-0081, 2020 WL 2988758, at *3 (Iowa Ct. App.

June 3, 2020) (quoting In re T.J.M., No. 18-1390, 2018 WL 5840806, at *3 (Iowa

Ct. App. Nov. 7, 2018)). “It is DHS’s duty and right, however, to choose the

placement for these children.”4 In re S.O., No. 13-0740, 2013 WL 3458216, at *2

(Iowa Ct. App. July 10, 2013).

4 As the special concurrence in J.H. states, In terms of the court’s involvement in ruling on the application to remove the DHS, this is not a custody battle between the two 7

DHS follows a selection process and criteria set out in the Iowa

Administrative Code. J.H., 2020 WL 2988758, at *3 (citing Iowa Admin. Code r.

441-200.4(3)). The adoption selection committee looks for a “family that can best

meet the needs of the child.” Iowa Admin. Code r. 441-200(4)(3)(a). Under Iowa

Code section 232.117(6), DHS has a legal obligation to “make every effort to

establish a stable placement for the child[ ] by adoption or other permanent

placement.” K.D., 975 N.W.2d at 322.

Section 232.116 provides that a court may remove DHS as the guardian for

a child if it finds “(1) the current guardian’s actions were unreasonable or

irresponsible; and (2) the current guardian's actions did not serve the child[ ]’s best

interests.” Id. at 320. “[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.” Id. (quoting In re J.L., No. 21–0968, 2022 WL 246170, at *9 (Iowa Ct.

App. Jan. 27, 2022)). The party seeking the removal of DHS as a child’s guardian

has the burden to prove both elements by a preponderance of the evidence. Id.

We have previously stated:

In considering whether DHS should be removed as the guardian of a child, we have looked at whether it has engaged in “unreasonable actions.” [In re E.G., 745 N.W.2d 741, 744 (Iowa Ct. App. 2007)]. We have also looked at whether “the Department in

competing parties. The juvenile court is not permitted to make its own independent decision as to which family the child should be placed with for adoption. That duty lies with the DHS, as the guardian of the child. . . . The appointed guardian, not the juvenile court, is responsible for making important decisions that have a permanent effect on the life and development of the child and promoting the general welfare of the child. 2020 WL 2988758, at *9–10 (Ahlers, J., specially concurring) (citation omitted). 8

any way failed in its guardianship duties or in looking out for [the child’s] best interests.” Id.; accord [S.O., 2013 WL 3458216, at *2] (“The juvenile court retains the authority to remove DHS as guardian if the department acts unreasonably or irresponsibly in discharging its duties.”). The actions of DHS “must serve the best interests of the child.” In re N.V., 877 N.W.2d 146, 153 (Iowa Ct. App. 2016); accord In re C.L.C., 479 N.W.2d 340, 345 (Iowa Ct. App. 1991) (noting “the overall principle of chapter 232 [is] to seek the best interests of the child”).

T.J.M., 2018 WL 5840806, at *3.

We do not find DHS acted unreasonably or irresponsibly by having the child

live with the grandfather for a period of time but then explore other options when

considering the best placement for adoption. See id. at *5 (finding DHS did not act

unreasonably by failing to give deference to one relative because the child

previously had been placed in his care); see also In re I.P., No. 19-0715, 2019 WL

3317922, at *5 (Iowa Ct. App. July 24, 2019) (“[P]roviding a good foster home does

not create a legal ground to remove the DHS as guardian after termination.”).

The DHS adoption team followed the proper protocol in determining to place

the child with the grandmother. See K.D., 975 N.W.2d at 320 (noting the court

“must focus on the process DHS used and the actions it took”). The adoption team

considered the home studies for each grandparent, interviewed the grandparents,

then discussed the matter prior to reaching a decision. Clifton, the adoption team

supervisor, gave thoughtful reasons for the placement with the grandmother,

stating the grandmother was a “very steady, stable person,” and she would do

what was necessary for the child. On the other hand, there were concerns about

the grandfather’s close but problematic relationship with the mother. The

grandfather had the burden to show by a preponderance of the evidence that DHS 9

acted unreasonably or irresponsibly. See id. We conclude he has not met his

burden on this issue.

Furthermore, the grandfather did not meet his burden to show DHS failed

to act in the child’s best interests. The mother’s parental rights were terminated

under section 232.116(1)(h) because she “has not demonstrated that she can be

a consistent, safe, sober care giver for [the child].” The court found termination of

the mother’s parental rights was in the child’s best interests, stating:

It is in [the child’s] best interest for termination of parental rights to occur. He is three years old and needs permanency now for his long-term growth and development. His mother has not shown herself capable of maintaining her sobriety for any significant length of time. She has admitted to use of methamphetamine as recently as approximately two weeks prior to the date of the trial while pregnant with another child. [The child] should not have to wait longer for his permanency needs to be met.

Despite these problems with the mother’s care of the child, the grandfather

testified he did not understand why the mother was not supposed to have ongoing

contact with the child after the termination. A DHS worker told the grandfather that

he should no longer allow contact between the mother and child, but he continued

to allow FaceTime calls, stating he did not believe it constituted contact. Although

the FaceTime calls were ostensibly for the child and N.S. to maintain contact, the

grandfather stated the child would talk to the mother during these calls.

We conclude DHS was acting in the child’s best interests by placing the

child with the grandmother. The grandmother was able to set boundaries for the

mother, which the grandfather was unable to do. We affirm the juvenile court’s

decision denying the grandfather’s motion to remove DHS as the child’s guardian.