In the Interest of D.G. and D.G., Minor Children

• Court: Court of Appeals of Iowa
• Decided: July 3, 2024
• Docket: 24-0562
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0562 Filed July 3, 2024

IN THE INTEREST OF D.G. and D.G., Minor Children,

C.G., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Keokuk County, Patrick McAvan,

Judge.

A mother appeals from permanency orders relating to two of her children.

AFFIRMED.

Cynthia D. Hucks of Box and Box Attorneys, Ottumwa, for appellant mother.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

Denise M. Gonyea of McKelvie Law Office, Grinnell, attorney and guardian

ad litem for minor children.

Considered by Ahlers, P.J., and Chicchelly and Buller, JJ. 2

AHLERS, Presiding Judge.

Two children are at the center of these proceedings. The Iowa Department

of Health and Human Services became involved with their family following reports

that their father sexually abused their sibling.1 The children were adjudicated as

children in need of assistance (CINA) as a result. After the CINA cases had been

open for more than a year, the juvenile court determined the children would be best

served by establishment of guardianships and entered corresponding permanency

orders.2

The children’s mother appeals. She argues that the department did not

make reasonable efforts to facilitate the family’s reunification, contends that she

should be given additional time to work toward reunification, and claims that

establishment of guardianships is not in the children’s best interests.

We review CINA proceedings de novo. In re K.B., 753 N.W.2d 14, 15 (Iowa

2008). Though not bound by them, we give weight to the factual findings of the

juvenile court. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). At a permanency

hearing, the State’s burden to show that a guardianship should be established

rather than returning a child to a parent’s custody is by convincing evidence, not

clear and convincing evidence. See Iowa Code § 232.104(4) (2024); In re A.D.,

489 N.W.2d 50, 52 (Iowa Ct. App. 1992) (“The State on a permanency hearing

1 Later, another sibling also accused the father of sexually abusing her.The father was eventually charged with eight counts of sexual abuse—four counts for each of the siblings accusing him—and was awaiting trial at the time of the permanency hearing. 2 With respect to one child, the permanency order established a guardianship with

the child’s foster parents. With respect to the other child, the permanency order changed the permanency goal from reunification with the parents to establishment of a guardianship in the future. 3

needs only show the children cannot be returned by convincing evidence, not by

both clear and convincing evidence.”). Reunification is an important part of CINA

proceedings, but our primary concern is the best interests of the child. In re C.B.,

611 N.W.2d 489, 493 (Iowa 2000).

We begin by addressing the mother’s contention that the department failed

to make reasonable efforts to facilitate reunification. In addressing this contention,

we note the mother does not identify what specific services she should have

received and did not. See In re N.S., No. 23-1865, 2024 WL 1297596, at *2–3

(Iowa Ct. App. Mar. 27, 2024). Instead, she largely focuses on the fact that she

had recently completed a psychological evaluation, argues the department should

have done more to tailor reunification efforts in light of her evaluation, and contends

that following up on the issues identified in the psychological evaluation requires

additional time.

To the extent the mother suggests a specific and necessary service is

lacking and that is why reunification is not possible, we disagree. Reunification is

not possible because the mother has not demonstrated sufficient protective

capacity, not because the department has failed to provide the family with some

service. Cf. In re M.G., No. 18-0650, 2018 WL 3912192, at *2 (Iowa Ct. App.

Aug. 15, 2018) (recognizing that the department is only required to provide

services that would eliminate the barriers to reunification).

We turn to the mother’s main contention that she should have been given

additional time to work toward reunification because establishment of

guardianships is not in the children’s best interests. Following a permanency

hearing, Iowa Code section 232.104(2)(b) permits the court to enter an order to 4

“continue placement of the child for an additional six months at which time the court

shall hold a hearing to consider modification of its permanency order.” That order

must “enumerate the specific factors, conditions, or expected behavioral changes

which comprise the basis for the determination that the need for removal of the

child from the child’s home will no longer exist at the end of the additional six-

month period.” Iowa Code § 232.104(2)(b).

We understand the mother recently completed a psychological evaluation,

and she views this as a potential turning point for her. While we commend the

mother for eventually completing the evaluation, we do not share her optimistic

viewpoint that she will be in a position to safely parent in six months given her

sustained resistance to meaningfully engage in services over the life of this case.

The psychological evaluation revealed that although the mother is attending

individual counselling she reports “not gaining much” from it. The resulting report

recommends that the mother participate in “regular and intensive outpatient

counseling.” It goes on to recognize that the mother’s progress would likely be

slow and uneven and notes “there is no guarantee that she [would] choose to do

the hard work” that would be necessary to make meaningful progress. This

recognition of the mother’s limitations contributes to our conclusion that the

evidence does not support a finding that the need for removal would no longer

exist at the end of an additional six-month period if the mother was given that

additional time. As a result, we decline to grant the mother additional time to work

toward reunification.

Finally, the mother contends the establishment of guardianships for the

children is not in their best interests. When making a best-interests determination, 5

we “give primary consideration to the child[ren]’s safety, to the best placement for

furthering the long-term nurturing and growth of the child[ren], and to the physical,

mental, and emotional condition and needs of the child[ren].” In re P.L., 778

N.W.2d 33, 40 (Iowa 2010) (quoting Iowa Code § 232.116(2)). We agree with the

juvenile court that the establishment of guardianships is in the children’s best

interests. This provides the children with the stability they require while also

preserving legal ties between the mother and the children. Taking this route, the

children’s needs can be met while the mother is able to focus on caring for and

improving herself. If at some point in the future either guardianship is no longer

necessary, it can be terminated.

We affirm the juvenile court.