In the Interest of X.O. and J.O., Minor Children, R.O. and J.o, grandparents/intervenors-appellants.

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0313 Filed May 11, 2016

IN THE INTEREST OF X.O. AND J.O., Minor children,

R.O. and J.O, Grandparents/Intervenors-Appellants. ________________________________________________________________

Appeal from the Iowa District Court for Humboldt County, Kurt J. Stoebe,

Judge.

Grandparents appeal the district court’s denial of their motion to remove

the department of human services as guardian of their grandchildren.

AFFIRMED.

Alesha M. Sigmeth Roberts of Sigmeth Roberts Law, P.L.C., Clarion, for

appellants.

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

Attorney General, for appellee State.

Marcy J. Lundberg of Lundberg Law Firm, Des Moines, attorney and

guardian ad litem for minor children.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2

VAITHESWARAN, Presiding Judge.

Maternal grandparents appeal the district court’s denial of their motion to

remove the department of human services as guardian of their grandchildren.

I. Background Facts and Proceedings

A mother had two children, born in 2012 and 2013. The second child was

born with pulmonary issues and a potentially life-threatening condition known as

congenital adrenal hyperplasia, which prevented his body from producing

cortisol. He required interventions by a pulmonary specialist and an

endocrinologist.

When the second child was five months old, the department learned the

mother had neglected to take him to several medical appointments. The State

filed a child-in-need-of-assistance action. The district court adjudicated the child

in need of assistance and ordered him to remain in the mother’s custody under

the protective supervision of the department.

This status was short-lived. Within days, the mother left the children home

alone and the district court ordered them removed from her custody.

Although the mother and grandparents lived in northwest Iowa, the

children were placed in foster care in Des Moines because, in the social worker’s

view, there were no homes available outside the Des Moines area. This was a

two-and-a-half-hour drive away from the grandparents. The children were left in

Des Moines after it became apparent that most of the medical specialists

involved in the younger child’s care were located there. The department failed to

notify the grandparents of the removal. 3

Three months later, the department filed a report stating the mother

“wished to have her parents . . . be considered as a placement option for the

children.” The department did not place the children with them based in part on

the presence of six rescue dogs on their acreage and the endocrinologist’s

concerns about the grandparents’ “absence in the care and assistance of” the

children.

The maternal grandmother moved to intervene in the proceedings. The

court granted the motion. When no additional action was taken, the

grandparents filed a second motion to intervene. The court granted this motion

as well. In a subsequent order, the court determined “[i]t would be superfluous to

conduct a separate hearing on the movant’s request for permanency.” The court

gave the grandparents “the opportunity to appear” at the “hearing for

permanency/termination of parental rights.” Around the same time, the children

were moved to a second foster home in Des Moines. By this time, ten months

had elapsed since the child’s removal.

At the termination hearing, the grandparents appeared without an

attorney. During the grandmother’s cross-examination of the department social

worker overseeing the case, the county attorney objected to questions

concerning the grandparents’ request for placement of the children in their home,

asserting the issue was not properly before the court. The court sustained the

objection. 4

Following the hearing, the district court terminated the mother’s parental

rights and appointed the department to act as guardian of the children.1 This

court subsequently affirmed the termination decision. See In re J.O., No. 15-

0256, 2015 WL 1576419, at *2 (Iowa Ct. App. Apr. 8, 2015).

Less than a month after the termination decision was filed, the

grandparents again moved to intervene and concurrently filed a motion to

remove the department as guardian and custodian. They alleged the department

did not serve “as Guardian in the best interest of the children” because the

agency “failed to seek appropriate permanent placement for the children or a

family placement for the children during the pendency of the CINA cases.” They

further alleged, “DHS . . . failed to follow through with the request of the

Intervenor or the mother for . . . placement of the children with an appropriate

family member prior to placing the children in foster care.” Inexplicably, hearings

on the motion were delayed for seven to ten months.2 The children remained

with the foster parents during this period. Following the hearings, the district

court denied the motion. The grandparents appealed.

II. Removal of Department as Guardian/Custodian

“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

Iowa Code § 232.118 (2015). In assessing an application for removal of a

1 The court also terminated the parental rights of the children’s fathers. 2 Some of the delay was attributable to an appeal from the denial of the grandparents’ request for a hearing, an appeal that was ultimately dismissed. But this delay does not explain an additional six-month delay before the first scheduled hearing and a subsequent delay of three months before the second scheduled hearing. 5

guardian a court will consider (1) the reasonableness of the department’s

actions, (2) the best interest of the children, and (3) whether there has been a

substantial change of circumstances. See In re D.H., No. 10-1313, 2010 WL

4484849, at *6-7 (Iowa Ct. App. Nov. 10, 2010).

The grandparents contend the department acted unreasonably and not in

the children’s best interest by (A) failing to notify relatives of the removal and

(B) failing to consider them as a placement option while at the same time placing

unreasonable burdens on them and showing bias against them.

A. Notice

Iowa Code section 232.84 provides:

Within thirty days after the entry of an order under this chapter transferring custody of a child to an agency for placement, the agency shall exercise due diligence in identifying and providing notice to the child’s grandparents, aunts, uncles, adult siblings, parents of the child’s siblings, and adult relatives suggested by the child’s parents, subject to exceptions due to the presence of family or domestic violence.

The notice must contain:

a. A statement that the child has been or is being removed from the custody of the child’s parent or parents. b. An explanation of the options the relative has under federal, state, and other law to participate in the care and placement of the child on a temporary or permanent basis. The options addressed shall include but are not limited to assistance and support options, options for participating in legal proceedings, and any options that may be lost by failure to respond to the notice. c. A description of the requirements for the relative to serve as a foster family home provider or other type of care provider for the child and the additional services, training, and other support available for children receiving such care. d. Information concerning the option to apply for kinship guardianship assistance payments. 6

Iowa Code § 232.84(3). The statute “places the onus on the department . . . to

identify relatives subject to notification.” In re R.B., 832 N.W.2d 375, 380 (Iowa

Ct. App. 2013). The department social worker overseeing the case conceded the

mother told her she wished to have the children placed with the grandmother.

She also conceded the section 232.84 notice was not sent to the grandparents or

other relatives. When the guardian ad litem asked her whether the notice would

have been a “silly formality” because she was already in touch with the

grandparents, she responded, “Yes.” A department supervisor also

characterized the notice as simply “an option.”

To the contrary, formal notice was required “even if the relatives were

informally aware of the child’s transfer to foster care.” In re N.V., ___ N.W.2d

___, ___, 2016 WL 757423, at *5 (Iowa Ct. App. 2016). “The statutorily-

prescribed notice would have clarified their options with respect to the child.” Id.

at *6; see In re N.P., No. 12-0805, 2012 WL 3196125, at *2 (Iowa Ct. App. Aug.

8, 2012) (“Had the grandmother received the 232.84 notice with the information

the statute requires, she would have been informed of her options to participate

in the care and placement of the children. She would have been informed about

available assistance and support options. And most importantly, she would have

been informed of her options for participating in the legal proceedings.”). The

grandmother in this case testified that she only learned of these options after she

retained an attorney following the termination proceeding. By this time, almost a

year had passed since the child’s removal. We conclude the department acted

unreasonably in failing to notify the grandparents and other relatives of their

rights as required by section 232.84. 7

B. Placement

The children’s guardian has the duty and right “to choose a specific

placement for [a child.]” In re E.G., 745 N.W.2d 741, 744 (Iowa Ct. App. 2007).

See also In re D.H., No. 12-1387, 2012 WL 5954633, at *4 (Iowa Ct. App. Nov.

29, 2012). There is “a statutory preference for placement of children with

relatives during the child-in-need-of-assistance phase of the proceedings.” N.V.,

2016 WL 757423, at *6; see 42 U.S.C. § 671(a)(19) (requiring the State to

“consider giving preference to an adult relative over a non-related caregiver when

determining a placement for a child”); see also R.B., 832 N.W.2d at 381. There

is no such preference after termination. In re R.J., 495 N.W.2d 114, 117 (Iowa

Ct. App. 1992); S.O., 2013 WL 3458216, at *1.

The grandparents assert the department acted unreasonably in failing to

place the children with them before and after the termination ruling. They cite a

number of factors, which we will address together.

The department social worker in charge of the case testified she

considered the grandparents as a placement option before termination. While

she stated she did not have a good first impression of the grandmother, she

agreed to check the home and perform background checks on both

grandparents.

As noted, the home check revealed the presence of six rescue dogs on

the acreage. Although the grandmother was willing to consign some of the dogs

to the mud room and have some of them live outdoors, the social worker said

that the dogs would exacerbate the younger child’s pulmonary issues. She

expressed no such concern with respect to the three cats in the first foster 8

parents’ home. As for the background checks, she agreed they did not uncover

anything that “would have prevented the [d]epartment from moving forward” with

placing the children in their home.

Meanwhile, the social worker’s doubts about the grandparents prompted

her to impose two additional prerequisites to placement: participation in foster

care classes and a formal home study. She also required the grandparents to

attend all the second child’s medical appointments.

The grandparents delayed participation in the classes, completing them

only after the termination hearing. The home study was also performed after the

termination hearing. As for the medical appointments, the endocrinologist’s

nurse reported the grandparents only attended three of the twenty-seven

scheduled visits. The grandmother testified that neither the foster parents nor

the department notified her of all the appointments and scheduled them at their

convenience without consulting her. The social worker responded by recounting

the number of hours the first set of foster parents spent addressing the younger

child’s medical needs and suggested the maternal grandparents were ill-

equipped to expend the same number of hours.

On our de novo review, we conclude the department acted reasonably in

declining to place the children with the grandparents during the child-in-need-of-

assistance proceedings notwithstanding the statutory preference for relative

placement at this stage. While the department social worker’s first impression of

the grandmother appeared to color her subsequent interactions with the

grandparents, we conclude the initial placement decision was justified based on 9

the younger child’s medical needs and the foster parents’ proximity to most of his

physicians.3

We turn to the post-termination placement decision. The grandparents

contend the foster care social worker continued to handle the adoption

proceedings in contravention of department policy, which requires a case to be

transferred to an adoption worker within “45 days from receipt of the order for

termination of parental rights.” Iowa Dept. of Human Servs. Title 17: Ch. F(1):

Permanent Placement Procedures. This violation, they argue, and the social

worker’s bias against them rendered the placement decision unreasonable.

They also suggest their completion of the foster care classes amounted to a

substantial change of circumstances.

The foster care social worker stated she remained on the case after

termination because of its complexity and her knowledge of the circumstances.

We assume without deciding she could circumvent departmental policy in this

fashion, and we decline to conclude her decision to participate in the adoption

proceeding per se rendered the department’s actions unreasonable.

We are less sanguine about certain unsupported representations she

made to the adoption team. For example, she reported the grandmother had

“not attempted to have more contact with the children or ask[ed] . . . for visits with

the children.” In fact, the record is replete with evidence of the grandmother’s

requests for additional time with the children. She (1) asked the social worker “to

allow [her] to come for visits with the children”; (2) “called today,” wanting “to see

3 The grandparents argue the child’s condition was manageable. That is true. But management required three shots a day and regular appointments with the Des Moines medical team, in addition to surgical intervention in Iowa City. 10

the grandkids”; (3) “contacted [the social worker] asking for visits”; (4) “requested

visitation unsupervised for her[self] and her husband”; (5) asserted, “I haven’t

seen [the older child] since . . . September and [the younger child] since his last

doctor’s appointment . . . . Can you tell me what you decided and if I can see

them”; (6) stated she “did not like that the kids were so far away”; (7) “said she

cares about her grandkids so much and wants them to be with her”; (8) said, “I

do not want to lose my grandchildren”; and (9) asked, “Can I see them one last

time at least?” In the face of this overwhelming evidence refuting some of the

foster care social worker’s representations to the adoption committee, we

conclude she acted unreasonably in the post-termination phase of the

proceedings.

That said, the decision to place the children with the foster parents after

termination was based on more than the foster care social worker’s

representations. As noted, the grandparents failed to attend all of the second

child’s medical appointments and the child’s endocrinologist expressed concerns

about their engagement with the child’s needs. These factors overrode the

grandparents’ completion of foster care classes, which they allege amounted to a

substantial change of circumstances. Because the adoption team relied on these

additional factors in declining to place the children with the grandparents, we

conclude the foster care social worker’s unsupported representations do not

render the post-termination placement decision unreasonable.

We are left with the primary consideration—the best interest of the

children. By all accounts, both children were thriving in a stable home at the time

of termination. And, as noted, the home was close to the younger child’s medical 11

team. Under these circumstances, we conclude the post-termination placement

decision was in the children’s best interest notwithstanding the foster care social

worker’s failure to provide the section 232.84 notice and her unsupported

representations to the adoption team. See N.P., 2012 WL 3196125, at *3

(“Addressing the failings of the adults in this case by a reversal of the juvenile

court’s termination order would run counter to the over-arching consideration in

all termination of parental rights cases—the best interests of the children.”). We

affirm the district court order declining to remove the department as guardian or

custodian of the children.