In the Interest of D.M., Minor Child

• Court: Supreme Court of Iowa
• Decided: October 15, 2021
• Docket: 21-0314
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 21–0314

Submitted September 15, 2021—Filed October 15, 2021

IN THE INTEREST OF D.M., Minor Child,

D.M., Father,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Warren County, Brendan Greiner,

District Associate Judge.

A father seeks further review of a court of appeals decision reversing the

juvenile court’s permanency order that transferred sole custody of the child to

the father. DECISION OF COURT OF APPEALS AFFIRMED; JUVENILE COURT

JUDGMENT REVERSED AND REMANDED.

Christensen, C.J., delivered the opinion of the court, in which all justices

joined.

Frank Steinbach III of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman,

P.C., West Des Moines, for appellee father. 2

Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant

mother.

Magdalena Reese of Juvenile Public Defender, Des Moines, attorney and

guardian ad litem for appellant minor child. 3

CHRISTENSEN, Chief Justice.

This case requires us to determine whether the juvenile court was correct

in issuing a permanency order transferring sole legal custody of an eight-year-

old child to Dad when Mom has substantially complied with court-ordered

services and the child could be returned to her care with a short transition. The

State initiated a child-in-need-of-assistance (CINA) proceeding after the parents’

inability to coparent led to numerous reports to the Iowa Department of Human

Services (DHS). At the time, Mom was the primary custodial parent under a

shared parenting schedule between the parents, but she struggled with mental

health issues, housing instability, and ensuring the child made it to school.

Additionally, both parents had difficulty coparenting. Mom participated in

services to reunify with the child and showed great progress. At the permanency

hearing, professionals in the case recommended a brief transition plan to reunify

the child with Mom over the course of a four- to six-week transition.

Nevertheless, the juvenile court determined it was not safe to return the child to

Mom’s home and entered a permanency order transferring sole legal custody of

the child to Dad. Mom and the guardian ad litem (GAL) appealed, and the court

of appeals reversed.

We granted Dad’s further review application. On our de novo review, we

conclude there was convincing evidence to show the child could safely be

transitioned to Mom’s care at the time of the permanency hearing. Therefore, we

affirm the decision of the court of appeals and reverse the juvenile court’s

permanency order transferring sole legal custody of the child to Dad. 4

I. Background Facts and Proceedings.

Mom and Dad are the divorced parents of eight-year-old D.M. This case

has been ongoing since the State initiated CINA proceedings in February 2019,

following the completion of several child-protective assessments. Some of these

assessments were founded or confirmed, but most were unfounded. One of the

confirmed assessments named Dad as the perpetrator and one of the founded

assessments named Mom as the perpetrator. The most recent incident occurred

on December 26, 2018, and involved a physical altercation between the parents

that resulted in Mom’s arrest. At the time, the parents had a shared parenting

schedule with Mom as the designated primary custodial parent,1 but the parents

struggled to appropriately coparent D.M.

The parents stipulated to the CINA adjudication, and the juvenile court

placed D.M. in the temporary legal custody of Dad under DHS supervision with

fully-supervised visitation for Mom. In its order, the juvenile court noted a

myriad of concerns. These concerns involved Mom’s inability to understand

D.M.’s medication, use of corporal punishment, mental health issues, criminal

history, and imminent eviction. There were also concerns about D.M.’s anxiety

and fear of being in Mom’s care. Moreover, there were concerns about both

parents’ ability to coparent and how their poor coparenting skills were negatively

impacting D.M.

1The juvenile court and the court of appeals incorrectly stated the parents had shared physical care of D.M. The district court entered an order on June 19, 2018, indicating Mom is the designated primary custodial parent with a shared parenting schedule and denying Dad’s request seeking a temporary change of custody based on an alleged substantial change in circumstances. 5

Although Mom had some setbacks, she gradually participated in services

to improve her mental health issues and parenting skills. Progress was evident

to the juvenile court at a June permanency hearing when the court granted her

an additional six months to work toward reunification. The court reasoned the

need for removal would no longer exist in six months so long as Mom could

“demonstrate the ability to provide a safe and stable home environment for [D.M.]

to live” and “effective co-parenting with [Dad].” The court subsequently

scheduled a permanency hearing for January 2021. Before that hearing, Mom

filed a motion to modify disposition and placement claiming Dad was

undermining her reunification efforts by discouraging D.M.’s relationship with

Mom. Mom also maintained she had engaged in the recommended services and

no safety concerns remained. The juvenile court modified the dispositional order

to grant Mom visitation with D.M. at the discretion of the GAL in consultation

with DHS and declared it would consider the remainder of the motion at the

permanency review.

The permanency hearing took place over two days in January and

February 2021. By this point, Mom’s visits with D.M. had increased to

incorporate overnight visits, Mom had demonstrated progress with her therapist

in regulating her emotions and learning to coparent, and both parents had

started to participate in family therapy with D.M. At the hearing, DHS

recommended a short period of additional time for Mom and D.M. to work toward

reunification because they had only started family therapy in October. Mom

sought immediate return of D.M. under the parents’ custody arrangement that 6

designated her as the primary custodial parent or, alternatively, more time to

transition D.M. back to her care over the course of a few weeks. The GAL

recommended the implementation of a brief plan to transition D.M. back to the

parents’ custody arrangement of shared parenting with Mom as the designated

primary custodial parent. Dad asked the juvenile court to enter a permanency

order leaving D.M. with him and to grant concurrent jurisdiction for him to

obtain a custodial order in district court in conformance with the juvenile court

order.

At the hearing, the GAL reported D.M. initially expressed fear of residing

with Mom but that fear minimized over time. Similarly, D.M.’s therapist testified

that D.M. had some resistance to Mom but that D.M. was “unable to give any

responses” explaining her resistance “outside of, I don’t feel safe, or [s]he hurts

my feelings” when asked why she did not want to live with Mom. The therapist

noted that Mom “has worked very hard to follow through on the

recommendations by [the] Court” and that Mom “has built skills surrounding

taking accountability for the things that she has done that has maybe strained

the relationship with [D.M.] or even others in the family system.” She also

“believe[d] that [Mom] has done the work in individual therapy to work on

building that connection with [D.M.] again” and testified that reunification with

Mom was in D.M.’s best interest. While D.M. had also told a clinical social worker

that she did not feel safe in Mom’s care, the clinical social worker testified that

D.M.’s actions demonstrated the contrary. The clinical social worker and D.M.’s 7

therapist both expressed concerns that Dad and his wife were coaching D.M. to

make these statements.

The DHS case manager explained that although Mom was asking for

reunification, DHS was asking for a gradual transition back to her to help D.M.

with the adjustment because an immediate return “would be overwhelming for

[D.M.] . . . and that anxiety would make that very challenging for her.” She noted

the professionals involved in the case were all of the opinion that the barriers

initially causing Mom’s instability no longer existed and described a transition

plan that would involve increasing the frequency of D.M.’s overnight visits with

Mom over the course of four to six weeks until D.M. was back in the parents’

shared parenting schedule under the custody agreement.

By the second day of the hearing in February, the transition plan had

already been initiated, and D.M. was attending overnight visits with Mom twice

per week, which would increase to three overnight visits the following week. On

the second day, the court appointed special advocate (CASA) and the family

centered services (FCS) worker both testified that they did not have any concerns

about returning D.M. to Mom’s care. Two of D.M.’s teachers testified about

concerns they had based on their interactions with Mom during D.M.’s virtual

schooling, with one explaining Mom “appeared” and “sounded angry” during the

one time they met in December 2020 and another teacher expressing concern

that Mom did not have the necessary materials to facilitate D.M.’s virtual

learning. The DHS case manager testified that she did not have the same

concerns as the educators. Finally, Mom’s two estranged sisters testified on 8

Dad’s behalf over Mom’s objection about their concerns with Mom, but they both

acknowledged they had not had contact with Mom for years and had only

minimal contact with D.M. through Dad.

The juvenile court issued its permanency order a few weeks after the

permanency hearing, concluding it was in D.M.’s best interest to be placed in

the sole custody of Dad with some visitation for Mom. The juvenile court noted

D.M.’s and Mom’s progress in therapy as well as Mom’s progress on other fronts,

including her progression to unsupervised visitation, which went well for D.M.

and which D.M. enjoyed. Yet, the juvenile court concluded that returning D.M.

to her parents’ shared care “would have harmful effects on [the child’s] mental

and emotional health.” It highlighted Mom’s alleged negative interactions with

the two teachers who testified and indicators from D.M. of trauma while at school

and asserted its belief that Mom was manipulating the professionals in her case

to believe reunification was imminent based on her progress. Further, the

juvenile court reasoned the coparenting issues still remained and would

continue in the future.

Mom and the GAL appealed. The State did not appeal, but it filed a

statement on appeal with our court asserting it “fully agreed with the GAL and

recommended return of the child to the mother’s home” and “d[id] not inten[d]

to file a response defending the juvenile court order with which it disagreed.” The

court of appeals reversed the juvenile court’s permanency order and remanded

the matter back to the juvenile court to enter a permanency order either

returning D.M. to Mom’s care pursuant to the parents’ shared parenting 9

schedule or providing Mom additional time to reunify with D.M. Dad filed an

application for further review, which we granted.

II. Standard of Review.

We review CINA proceedings de novo. In re D.D., 955 N.W.2d 186, 192

(Iowa 2021). In doing so, we give the juvenile court’s factual findings weight, but

we are not bound by them. Id. Our “paramount consideration” is protecting the

child’s best interests. Id.

III. Analysis.

Mom and the GAL contend that the juvenile court erred in concluding D.M.

could not be returned to Mom’s care and in transferring custody from Mom to

give Dad sole legal custody.2 Under Iowa Code section 232.104(2) (2020), the

juvenile court must exercise one of the following options after a permanency

hearing: (a) enter an order returning the child to the child’s home (meaning the

parents’ shared care with Mom as the primary custodial parent in this case); (b)

continue the child’s placement for an additional six months based on an

enumeration of “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;” (c) direct the State to initiate termination proceedings; or (d)

2Mom also argues that the juvenile court erred in overruling her objections at the permanency hearing to allowing her two sisters to testify. The court of appeals concluded that Mom waived this argument by failing to cite any relevant legal authority to support her argument. “We have discretion to choose which issues we review when we take a case on further review” and choose to let the court of appeals decision stand on this issue. Holmes v. Pomeroy, 959 N.W.2d 387, 389 (Iowa 2021). 10

transfer sole custody of the child from one parent to another. Iowa Code §

232.104(2)(a)–(d). Although the juvenile court has the authority to transfer

custody to the noncustodial parent, “[a]ny such placement is subject to the

constraints in section 232.102, including the goal of returning the child to the

original custodian as quickly as possible.” In re Blackledge, 304 N.W.2d 209, 214

(Iowa 1981) (reversing the juvenile court’s transfer of custody of the children from

Mom to Dad while the children were adjudicated CINA due to Mom’s parenting

struggles and criticizing the juvenile court for letting a comparison of the parents’

homes influence its decision). Here, the juvenile court chose to transfer sole

custody of D.M. to Dad. To do so, the juvenile court needed “convincing evidence”

that termination of D.M.’s relationship with Mom was not in D.M.’s best interest,

the family was offered services to correct the situation that led to D.M.’s removal

from Mom’s home, and D.M. could not be returned to Mom’s home. Iowa Code

§ 232.104(4). “When the evidence shows the [child’s] return will not produce

harm, the child is to be reunited with the [custodial] parent.” In re Blackledge,

304 N.W.2d at 214.

When the juvenile court granted Mom an additional six months to work

toward reunification in June 2020, it directed Mom to show that she could

“provide a safe and stable home environment for [D.M.] to live” and “demonstrate

effective co-parenting with [Dad.].” Mom made the most of those additional six

months, as she alleviated the concerns about being able to provide a safe and

stable home environment for D.M. and made significant progress toward her goal

of reunifying with D.M. By the second day of the permanency hearing, D.M. was 11

already attending overnight visits with Mom twice per week, and those visits were

set to increase to three nights per week beginning the following week.

The record overwhelmingly supports the conclusion that D.M. could be

returned to Mom’s care, preferably through a gradual transition lasting about a

month to six weeks to assuage D.M.’s anxiety surrounding this change. The only

reason the professionals advocated for a gradual transition rather than

immediate reunification was for D.M.’s benefit, not because Mom lacked the

parenting skills to reunify with D.M. As D.M.’s therapist explained, D.M. needed

time to adjust to her “new normal” because she has struggled with “the unknown

of the future and what’s going to happen and changes that happen of different

movings and transitions.” Yet, the therapist had no concerns about reunifying

D.M. with Mom and asserted reunification was in D.M.’s best interest.

While two of D.M.’s teachers expressed concerns about Mom and testified

that D.M. told them she did not like visiting Mom, this testimony carries little

weight because it concerned only isolated incidents based largely on the

teachers’ limited interactions with Mom through virtual schooling and D.M.

almost always completed virtual schooling in Dad’s home with Dad or Stepmom

in the vicinity. Likewise, the negative testimony about Mom from her sisters is of

little to no value because the sisters have not had contact with Mom in years and

were not around to witness Mom’s progress or interactions with D.M. Similarly,

Dad’s past investigations by DHS3 are given little to no value because they

3These investigations include a confirmed report for denial of critical care in 2013 naming him as the perpetrator for pushing Mom to the ground and causing her to almost land on then 12

occurred years before. In contrast, the GAL, clinical social worker, FCS worker,

DHS case manager, D.M.’s therapist, Mom’s therapist, and CASA—all

professionals who have had far greater and more recent interactions with Mom

and D.M. throughout this case—supported reunifying D.M. with Mom. See, e.g.,

In re A.S., 906 N.W.2d 467, 476 (Iowa 2018) (explaining we give weight to the

testimony and recommendations of professionals like the DHS case manager and

GAL who personally observe interactions between the parent and child).

Some coparenting issues still remained at the time of the permanency

hearing, but it’s not for a lack of progress by Mom. The word “coparenting”

implies that an effort will be made by more than just one parent. At the

permanency hearing, the State, the GAL, and various professionals raised

concerns about Dad’s negative impact on D.M. in terms of hindering a

relationship between D.M. and Mom. As the State declared in closing, “The

Department [of Human Services] has no safety concerns with Mother in her

residence, nor has FCS. I think the concerns are the comments that are made

and things that are said by Dad and Dad’s wife that has caused this case to go

longer.” Both D.M.’s therapist and clinical social worker expressed concerns that

Dad and his wife were directly or indirectly coaching D.M. to undermine Mom’s

reunification efforts through comments about Mom and actions surrounding

D.M.’s visits with Mom, such as making D.M. wash her clothes and toys upon

returning from Mom’s house and claiming they smelled or were dirty. The

seven-month-old D.M. and a family assessment in 2014 after D.M. received burn marks around her neck from getting tangled in a dog leash while she was in Dad’s care. 13

therapist and clinical social worker both testified that D.M.’s behavior

demonstrates her desire to be with Mom and comfort around Mom, while her

words contradicted these actions at times.

The GAL astutely observed,

This family needs to work together, but it cannot say it all falls on [Mom] to say that she has a deficiency as it relates to the co- parenting issue. I think most of all that came to me—that became apparent to me by Father calling the mother’s estranged relatives to testify that [D.M.] is currently having contact with those relatives. If nothing else, that certainly shoots up red flags for me as a Guardian ad Litem as it relates to this family’s ability to co-parent.

This behavior on Dad’s part is especially concerning given Dad was on probation

at the time of the permanency hearing for threatening and harassing behavior

directed at an ex-girlfriend.

Mom should not be penalized for Dad’s lack of effort and progress in

coparenting. Cf. In re J.H., 952 N.W.2d 157, 171 (Iowa 2020) (“[I]n termination

of parental rights proceedings each parent’s parental rights are separate

adjudications, both factually and legally.” (quoting In re D.G., 704 N.W.2d 454,

459 (Iowa Ct. App. 2005))). Notably, both parents were ordered to complete

intensive coparenting instruction, but only Mom completed it. The FCS worker

took responsibility for Dad’s failure to complete the class, but it was clear from

the worker’s testimony that Dad actually was responsible for failing to complete

it. The worker explained that he had given Dad the coparenting materials and

met with Dad and his wife “a couple of times” but that “[b]oth times[,] they hadn’t

had the opportunity to review [it],” so the worker essentially did not continue to

raise the issue with him. Dad’s failure to complete the material was due to his 14

own failure to prioritize it. The FCS worker made it available to Dad with

instructions on how it should be completed. He chose to take a shortcut from

the FCS worker’s instruction plan for the court-ordered coparenting class by

choosing not to read the material as instructed and relying instead on the FCS

worker’s attempted summary. Overall, Mom demonstrated a greater willingness

to work on the coparenting issue than Dad and, in turn, demonstrated

substantial progress on this front.

Yet, one would not know this from reading the juvenile court’s permanency

order. In finding D.M. could not safely be returned to Mom, the juvenile court

notes the “most convincing evidence” is the testimony of two of D.M.’s teachers

based on isolated incidents that occurred during virtual schooling, some of which

occurred at Dad’s home. The juvenile court offers no other support in its analysis

as to why D.M. cannot be returned to Mom. As we have already noted, the

teachers’ testimony has little relevance and is contrary to the observations and

recommendations for D.M.’s return to Mom from the many professionals who

have long been involved in this case.

The juvenile court’s permanency order also substantially disregards Dad’s

role in how this case came to the DHS’s attention. As the CPS assessment that

led to this case documented,

There have been 15 allegations reported into DHS regarding [D.M.’s] care in these parents[’] homes. DHS has completed 7 assessments with an additional assessment open at this time. . . . [D.M.] has been participating in counseling, however this is not consistent as the parents have disagreed on counselors for her to where this has changed providers hindering [D.M.’s] ability to connect and develop a relationship with a counselor. The D[HS] has previously not been able to intervene with this family as there has not been an incident 15

that has risen to the level of child abuse. . . . [The parents] need to be able to co-parent this child. They need to be able to have healthy communication regarding their child and leave her out of their personal conflicts. The parents need to participate with services to address these concerns.

(Emphasis added.) While it is true that the CINA petition resulted from a CPS

assessment in which Mom was at fault and Mom was the less stable parent of

the two at the time, Dad’s actions also contributed to the turbulent family

dynamics that D.M. was forced to endure for several years. By no means was

Dad an innocent bystander throughout all of this.

Ultimately, Mom took the steps required of her to reunify with D.M. and it

is compelling that none of the professionals who have worked with Mom and

D.M. throughout this case have concerns about returning D.M. to the custodial

arrangement in place at the time of removal. It is clear from the record that D.M.

could safely be returned to Mom’s home at the time of the permanency hearing

under the parents’ shared parenting schedule with Mom as the primary custodial

parent. See In re Blackledge, 304 N.W.2d at 214 (“When a child is removed from

the home, services are provided to the parent to facilitate the child’s return.

When the evidence shows the return will not produce harm, the child is to be

reunited with the parent.”). Nevertheless, DHS’s involvement with the family did

not end at the permanency hearing and we do not have a record of whether

transition-aimed visitation has continued or what has transpired since the

February 2021 permanency order. Consequently, we reverse the juvenile court’s

permanency determination and remand the matter to the juvenile court to enter

a permanency order either returning D.M. to Mom’s physical care pursuant to 16

the parents’ shared parenting schedule or granting Mom additional time for

gradual reunification based on our determination that further transition

planning would terminate the need for removal within six months.

We close with a reminder for juvenile courts. The primary goal of the

juvenile court in CINA proceedings is reunification when parties have specifically

complied with court-ordered services, not establishing or modifying custody.

“The parent’s right to have a child returned . . . is not measured by comparing

the parent’s home to the [other parent’s] or an ideal home. Rather the parent’s

right is established by negating the risk of recurrence of harm.” Id. at 214–15

(holding the juvenile court erred in comparing the mother’s home to the father’s

home in determining the best interests of the children required transferring legal

custody and placement to the father). “[T]he spirit of assistance proceedings is

to improve parenting skills and maintain the parent–child relationship.” In re

M.S., 889 N.W.2d 675, 686 (Iowa Ct. App. 2016) (en banc).

When the juvenile court granted Mom an additional six months, it stated

the need for removal would no longer exist in six months if Mom could

“demonstrate the ability to provide a safe and stable home environment for [D.M.]

to live” and “demonstrate effective co-parenting with [Dad].” Mom took those

words to heart by taking the steps she needed to alleviate these issues and

cannot be held solely responsible for any lingering coparenting issues that stem

from Dad’s role in the parenting relationship. “[Mom] is not perfect, but the law

does not require perfection.” Id. When Mom met the juvenile court’s directives, it

should have taken the steps necessary to return the family to its original custody 17

agreement with Mom as the primary custodial parent and left the parents’

custody issues for district court. To do otherwise was an unauthorized

modification of the custody agreement by the juvenile court. Therefore, we

reverse the judgment of the juvenile court.

IV. Conclusion.

For these reasons, we affirm the decision of the court of appeals, reverse

the judgment of the juvenile court, and remand this matter for further

proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS AFFIRMED; JUVENILE COURT