                    IN THE COURT OF APPEALS OF IOWA

                                     No. 18-1390
                               Filed November 7, 2018


IN THE INTEREST OF T.J.M.,
Minor Child,

S.M.N. and J.N., Intervenors,
      Appellants.
________________________________________________________________


       Appeal from the Iowa District Court for Linn County, Susan Flaherty,

Associate Juvenile Judge.



       Intervenors appeal the juvenile court decision removing the Iowa

Department of Human Services as the guardian of a child and placing the child in

the guardianship of other relatives. REVERSED AND REMANDED.



       Ellen R. Ramsey-Kacena, Cedar Rapids, for appellants S.M.N. and J.N.

       Angela M. Railsback of Railsback Law Office, Cedar Rapids, for intervenors

B.W. and J.W.

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

General, for appellee State.

       Melody J. Butz of Butz Law Offices, PC, Center Point, guardian ad litem for

minor child.



       Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

        Intervenors S.M.N. and J.N. appeal the juvenile court decision removing the

Iowa Department of Human Services (DHS) as the guardian of a child and placing

the child in the guardianship of other relatives. We conclude DHS did not act

unreasonably, irresponsibly, or contrary to the best interests of the child when it

determined the child should be permanently placed in the home of the maternal

aunt. We reverse the juvenile court’s decision removing DHS as the guardian of

the child and placing the child in the guardianship and custody of the maternal

great-uncle.

        I.      Background Facts & Proceedings

        S.M., mother, and T.J., father, are the parents of T.J.M., born in 2013. The

mother has another child, S.J.M., who was born in 2014. The children were

removed on April 7, 2016, due to the parents’ use of illegal drugs and domestic

violence in the home. T.J.M. was placed with an aunt, Se.M. S.J.M. was placed

with her father, J.S.

        On April 10, 2016, S.M. gave birth to Z.M.S. The father of Z.M.S. is W.G.

The child was born prematurely and had extensive medical problems. Z.M.S.

tested positive for methamphetamine at birth and was removed from the mother’s

care. Z.M.S. was placed with a maternal aunt, S.M.N., and her husband, J.N.1

        Se.M. informed DHS she did not intend to be a long-term placement for

T.J.M. Initially, S.M.N. stated she did not believe she could care for T.J.M. due to

the extensive care Z.M.S. needed.             The DHS caseworker, Debby Bailey,



1
    We will refer to S.M.N. and J.N. together as the maternal aunt.
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approached a maternal great-uncle, B.W., and his wife, J.W.,2 who stated they

could not take T.J.M. immediately because they were moving. In January 2017,

Bailey decided to move T.J.M. to the home of the maternal great-uncle, based on

her belief T.J.M. and Z.M.S. should be in separate homes so they could each get

more individual attention. Within a few days, the maternal aunt stated Z.M.S. had

improved to the point where she could also care for T.J.M. Bailey decided not to

move T.J.M. at that time, stating the child’s permanent placement would be

determined later. She testified she knew she did not have the ability to determine

the child’s permanent placement and this decision would be made by the DHS

adoption unit.

       On July 28, 2017, the juvenile court terminated the parental rights of S.M.,

T.J., and W.G.3 The termination order provided:

             That custody and guardianship of the children is placed with
       the Department of Human Services for purposes of continued
       placement according to the prior orders of this Court and for
       preadoptive placement. The Department of Human Services is
       ordered to prepare an amended case permanency plan within thirty
       days of the date of this order setting out the change to termination of
       parental rights and preadoptive placement.

The court determined S.J.M. “shall continue in the care and custody of her father,”

J.S.

       After the termination, both the maternal great-uncle and maternal aunt

expressed an interest in adopting T.J.M. The case was transferred from Bailey to

Brianne Arends, who worked in the DHS adoption unit. Based on Iowa Code


2
   We will refer to B.W. and J.W. together as the maternal great-uncle.
3
   S.M. appealed the termination of her parental rights. The juvenile court’s decision was
affirmed on appeal. See In re T.J.M., No. 17-1285, 2017 WL 4570514, at *2 (Iowa Ct.
App. Oct. 11, 2017).
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section 232.108 (2017) and DHS guidelines, which state a preference for placing

a child with siblings, Arends determined there needed to be serious consideration

to having T.J.M. and Z.M.S. live in the same home. A physician stated Z.M.S.

should not be exposed to pet dander and the maternal great-uncle has several

pets, so Z.M.S. did not visit the great-uncle’s home. Although T.J.M. had been

spending some time in the maternal aunt’s home on an informal basis, a formal

visitation schedule was initiated in September 2017. T.J.M. developed a strong

bond with Z.M.S. and the maternal aunt’s family.

      DHS issued a case plan on January 2, 2018, stating:

               After much contemplation regarding the best interest of both
      children, both in the short term and long term, the Department has
      officially selected [the maternal aunt] as the adoptive placement for
      both [T.J.M.] and [Z.M.S.]. This was a difficult decision based upon
      the amount of time [T.J.M.] has spent in the home of [the maternal
      great-uncle] and their great care of [T.J.M.] during the time she has
      been in their home. The decision was made for the following
      reasons:
               (1)    [The maternal aunt] had expressed a desire to be a
      placement option for [T.J.M.], including at court early on in the case;
      however, for unknown reasons [T.J.M.] was not placed with [the
      maternal aunt] at that time. [The maternal aunt] has shown a desire
      and ability to maintain a relationship with [T.J.M.] while [T.J.M.] was
      placed with [the maternal great-uncle]
               (2)    Each party has expressed that [T.J.M.] and [Z.M.S.]
      are bonded and that they love each other. It is apparent from this
      worker’s direct observation that this is true. While each of the
      children was born prematurely and [Z.M.S.] was born positive for
      methamphetamine, they do not have current special needs that
      prevent them from being able to be located together safely and still
      have each of their individual needs met. [The maternal aunt] ha[s]
      expressed that [she is] aware of behaviors that could develop and
      [is] prepared to handle them if they do by reaching out to community
      resources and other family members as needed.
               (3)    [T.J.M.] appears comfortable with [the maternal great-
      uncle] and provides them with affection and also appears
      comfortable with [the maternal aunt] and provides them with
      affection. [T.J.M.] appears to love and is bonded to both couples.
      [T.J.M.] appears to be capable of secure attachments and has
                                          5


      developed this type of attachment with both couples, and it appears
      that she identifies that regardless of where she is staying her needs
      will be met. For this reason, the Department has determined that
      while [T.J.M.] will be sad and will miss [the maternal great-uncle], it
      will not be unduly difficult for her to transition fully into [the maternal
      aunt’s]’s care on a permanent basis. This transition will be made
      even easier if both couples remain committed to maintaining family
      connections for [T.J.M.] throughout the transition and post-adoption.

      The maternal great-uncle filed a motion to intervene in the juvenile court

proceedings. He claimed T.J.M. began “showing signs of significant emotional

stress and trauma,” when DHS increased her visits with the maternal aunt and

asked to have the visits stayed. The maternal great-uncle claimed DHS should be

removed as the custodian and guardian of T.J.M. and the child should be placed

in his custody. DHS resisted the motion to intervene, noting T.J.M. had “already

been informed of the selection decision and ha[d] already started to transition into

the selected home.”      Additionally, the maternal aunt filed an application to

intervene and requested T.J.M. be immediately placed in her care. The guardian

ad litem (GAL) recommended T.J.M. remain with the maternal great-uncle, stating

Z.M.S. had significant medical needs and because of this T.J.M. may not get

adequate attention in the home of the maternal aunt.

      A combined hearing on these matters was held over a period of three days.

Testimony was provided by B.W., J.W., S.M.N., J.N., J.S., Se.M., Bailey, Arends,

the child’s preschool teacher, an expert on sibling bonds, and a former DHS worker

who assessed only the bond between T.J.M. and the great-uncle.

      The juvenile court entered a decision on July 30, 2018. The court stated,

“[T.J.M.] has two sets of appropriate, loving maternal relatives seeking to adopt

her.” The court found, however, the maternal great-uncle had been led to believe
                                          6


if T.J.M. was not returned to her mother, she would be permanently placed with

him. The court concluded:

       [T]he actions of the Department of Human Services in disrupting the
       concurrent plan for this child was not reasonable under the
       circumstances. It is not reasonable that a concurrent plan developed
       and, in fact, implemented, by the Department of Human Services
       prior to the termination of parental rights, is then discarded as not in
       the child’s best interest, by the same Department of Human Services
       in the adoption selection process. . . . [DHS] should provide
       consistency in the decision making for the life of the case, particularly
       in critical areas that affect attachments and bonding. Here, clearly,
       that continuity in decision making and concurrent planning failed and
       such a failure is unreasonable under the circumstances.

The court determined DHS should be removed as the guardian of the child and the

maternal great-uncle should be granted custody and guardianship of T.J.M. The

maternal aunt appealed the decision of the juvenile court.

       II.    Standard of Review

       “Our review of this juvenile case is de novo.” In re E.G. (E.G. II), 745 N.W.2d

741, 743 (Iowa Ct. App. 2007). “We review both the facts and the law and

adjudicate rights anew.” Id. “Although we give weight to the juvenile court’s

findings of fact, we are not bound by them.” Id.

       III.   Removal of Guardian

       Throughout the juvenile court proceedings, T.J.M. was under the

guardianship of DHS. We have stated, “The legislature, while giving the juvenile

court continuing oversight consistent with the best interest of the child, did not give

the juvenile court the right to establish custody or consent to adoption. Rather,

these rights were specifically granted to the guardian.” In re E.G. (E.G. I), 738

N.W.2d 653, 657 (Iowa Ct. App. 2007). When DHS is a child’s guardian, it

determines the specific adoptive home for the child. Id. The juvenile court has the
                                          7


ability to monitor the placement, but it does not have the authority “to direct a

specific placement.” Id.; accord In re C.D.P., 315 N.W.2d 731, 733 (Iowa 1982).

       In order to divest DHS of this responsibility, it must be removed as the child’s

guardian. See E.G. I, 738 N.W.2d at 657 n.10 (noting a procedure for removal of

a guardian in juvenile court proceedings). The removal of a guardian is governed

by section 232.118(1), which provides, “Upon application of an interested party or

upon the court’s own motion, the 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 of section 232.117, subsection 3.”

       In considering whether DHS should be removed as the guardian of a child,

we have looked at whether it has engaged in “unreasonable actions.” E.G. II, 745

N.W.2d at 744. We have also looked at whether “the Department in any way failed

in its guardianship duties or in looking out for [the child’s] best interests.” Id.;

accord In re S.O., No. 13-0740, 2013 WL 3458216, at *2 (Iowa Ct. App. July 10,

2013) (“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”).

       We turn then to the issue of whether DHS acted unreasonably,

irresponsibly, or contrary to the child’s best interests in this case. In making its

determination of the best placement for a child, DHS is required to follow section

232.108, which provides:
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              (1)       If the court orders the transfer of custody of a child and
       siblings to the department or other agency for placement under this
       division, . . . the department or other agency shall make a
       reasonable effort to place the child and siblings together in the same
       placement. The requirement of this subsection remains applicable
       to custody transfer orders made at separate times and applies in
       addition to efforts made by the department or agency to place the
       child with a relative.
              (2)       If the requirements of subsection 1 apply but the
       siblings are not placed in the same placement together, the
       department or other agency shall provide the siblings with the
       reasons why and the efforts being made to facilitate such placement,
       or why making efforts for such placement is not appropriate.

       Iowa Code section 232.108(1) “requires the department to ‘make a

reasonable effort to place the child and siblings together in the same placement.’”

In re J.B., No. 18-1177, 2018 WL 4362753, at *2 (Iowa Ct. App. Sept. 12, 2018)

(quoting Iowa Code § 232.108(1)). “[T]he importance of sibling relationships has

been statutorily recognized in section 232.108.” In re M.D., No. 17-1893, 2018 WL

739351, at *2 (Iowa Ct. App. Feb. 7, 2018). “[T]he overall thrust of section 232.108

[is] to maintain sibling relationships absent clear and convincing evidence it would

be detrimental.” In re A.J., No. 13-0216, 2013 WL 1227360, at *3 (Iowa Ct. App.

Mar. 27, 2013).

       DHS followed this statutory mandate and determined T.J.M. and Z.M.S.

should be placed together if feasible.4 It determined there might be short-term

problems for T.J.M. in moving her from the home of the maternal great-uncle but

concluded it would be in her long-term best interests to grow up in a home with her




4
   The children’s other sibling, S.J.M., lived with her father, J.S., who was not the father
of T.J.M. or Z.M.S. J.S. testified he was not in a position to be a permanent placement for
T.J.M. or Z.M.S. He stated S.J.M. should have visits with her siblings, and both the
maternal aunt and maternal great-uncle agreed there should be visits between all of the
siblings.
                                         9


sibling.   The juvenile court did not find the home of the maternal aunt was

unsuitable, stating:

              [T.J.M.] has two sets of appropriate, loving maternal relatives
       seeking to adopt her. Each family clearly loves [T.J.M.] and has a
       bond with her. They each have the ability to provide a home and
       meet the child’s basic needs. Each prospective adoptive family also
       has a biological connection to [T.J.M.’s] mother. There are pros and
       cons to each potential placement.

The court also found:

       Although there has been speculation that [Z.M.S.’s] medical needs
       would prevent the [maternal aunt] from adequately caring for
       [T.J.M.], there is no convincing evidence to support the conclusion
       that [T.J.M.] has been unsafe or uncared for while with the [maternal
       aunt] or that [Z.M.S.’s] needs have taken priority over [T.J.M.’s] when
       she is in the [maternal aunt’s] home.

The juvenile court did not conclude DHS failed to act in the child’s best interests

when placing the child in the home of the maternal aunt.

       Instead, the court’s decision finding DHS acted unreasonably was based on

its disagreement with the process through which the decision was made. The court

specifically found the maternal great-uncle had been led to believe the placement

of T.J.M. in his home would be permanent. The court found DHS “should provide

consistency in the decision-making for the life of the case, particularly in critical

areas that affect attachments and bonding.” The court’s conclusions ignore the

work of the DHS adoption unit in the process.

       A similar situation was addressed in E.G. II, 745 N.W.2d at 742, where a

foster mother who had cared for a child for a lengthy period of time challenged

DHS’s decision to place the child with a different family for adoption.          We

recognized the foster mother’s bond with the child but stated this did not give her

any enforceable rights to the child. Id. at 744. We affirmed the decision of DHS,
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finding “[t]here is no evidence the Department in any way failed in its guardianship

duties or in looking out for [the child’s] best interests.” Id.; accord In re R.S., No.

15-1244, 2015 WL 5578273, at *1 (Iowa Ct. App. Sept. 23, 2015) (noting DHS

does not have a statutory duty “to preserve a pre-adoptive foster care placement

following removal of the child from the placement”).

       Although E.G. II and R.S. involve foster parents rather than a relative

placement, these cases show there is no statutory authority giving the maternal

great-uncle as the placement for the child during the juvenile court proceedings

any greater rights to the child than the maternal aunt. We determine the juvenile

court improperly found DHS acted unreasonably by not giving more deference to

the maternal great-uncle because the child had been previously placed in his care.

       In addition, we note the lengthy statement given by DHS in support of its

decision shows the decision to move T.J.M. to the home of the maternal aunt was

not made lightly. We do not agree with the court’s findings DHS made an “abrupt

change.” DHS’s decision, as guardian of T.J.M., was made after considering

several relevant factors in an attempt to act in the child’s best interests. We also

note Z.M.S.’s medical concerns, which were the primary reason T.J.M. and Z.M.S.

were initially placed separately, have now largely abated.

       In our de novo review of the facts and the law, we conclude DHS did not act

unreasonably, irresponsibly, or contrary to the best interests of T.J.M. when it

determined the child should be permanently placed in the home of the maternal

aunt. We reverse the juvenile court’s decision removing DHS as the guardian of

the child and placing the child in the guardianship and custody of the maternal
                                    11


great-uncle. We remand with directions to the court to reinstate DHS as the

guardian of T.J.M.

      REVERSED AND REMANDED.
