                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-2082
                                 Filed May 2, 2018


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

D.S., Minor Child,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Johnson County, Jason A. Burns,

District Associate Judge.



       A child, through his attorney, appeals the permanency order entered by the

juvenile court placing him with his father. AFFIRMED.



       Natalie H. Cronk of Cronk & Waterman, P.L.C., Iowa City, for appellant

minor child.

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

General, for appellee State.

       Amy L. Evenson of Larson & Evenson, Iowa City, guardian ad litem for

minor child.



       Considered by Danilson, C.J., Bower, J., and Mahan, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
                                           2


MAHAN, Senior Judge.

         A child, through his attorney, appeals a permanency order entered by the

juvenile court placing him with his father. Upon our review, we affirm the court’s

order.

I.       Background Facts and Proceedings

         In January 2016, D.S. and his sibling were removed from their mother’s care

upon reports of abuse on the children; the mother was charged with child

endangerment and violation of a no-contact order stemming from the incident.

D.S. was placed in family foster care under the custody of the department of human

services (DHS), where he has remained since removal.

         The father was first served notice of these proceedings on February 9,

2016. The father, who lives in Mississippi, was not listed on the child’s birth

certificate, but the parties did not dispute he was D.S.’s biological father. Although

the father and mother ended their relationship before the child’s birth in 2007, they

had been in contact over the years and the father consistently paid child support

for D.S.

         The child was adjudicated a child in need of assistance later that month; the

father did not appear at the hearing. On March 3, 2016, the father filed a financial

affidavit and request for counsel; the court entered an order appointing counsel

that same day. Through his attorney, the father filed a motion for an interstate

compact home study and a request for services, including initiation of contact with

D.S. The father participated in the hearings that followed. He began visiting the

child in the summer of 2016, and he had contact with the child through written

correspondence and phone calls.
                                            3


       The father continued to reside in Tupelo, Mississippi, where he was born

and raised. The father has a large family support network in Tupelo. He lives with

his sister and her children in a house owned by their mother. He has worked for

the same employer since 2012. The father has six other children whom he pays

child support for; the father has contact with all but one of those children, attends

their sporting events, and participates “in their everyday lives” in Mississippi. The

father volunteers for his church and coaches youth football. He is described as

“soft spoken,” “selfless,” “patien[t],” “supportive,” and “hard work[ing].”

       In March 2017, the Mississippi home study resulted in a denial of

placement. This conclusion was based in part on defects in the home study—

including use of the wrong date of birth for the father (which resulted in reporting

an incorrect criminal history) and the wrong date of birth for the child—as well as

the father’s failure to respond accurately to some questions on the study.1 Service

providers agreed “that it was a very poor home study” and another should be

ordered, but there was no telling how long that would take. As of December 2017,

another home study had yet to be completed.

       Meanwhile, the court extended the permanency goal of reunification for six

additional months several times. The mother remained without stable housing or

employment, but she engaged in semi-supervised visits with the child. During the

course of this proceeding, the child understandably “change[d] his mind frequently”

about where he wanted to live, including with his mother, with his half-sister and


1
  When answering social history questions, the father’s girlfriend was not living with him;
he reported she moved in during the pendency of the home study. The father also failed
to disclose his minor criminal history prior to 2008, which he acknowledged was a “mistake
on his part.”
                                          4


her father in Indiana, with his father, and with his foster family. D.S. has explained

that he likes his father and his foster parents both “110%” and, although he felt

comfortable in his school and current placement, he desired the court make the

placement decision for him. After an extended visit to Mississippi in the summer

of 2017, D.S. reported he had a “lot of fun” and he wanted to live with his father.

At that point, the child’s attorney and guardian ad litem requested her role be

bifurcated and a new guardian ad litem be appointed to represent D.S. The court

granted that request.

       The permanency hearing took place over two days in September and

December 2017. The court granted the foster parents’ motion to intervene. They

expressed an interest in adopting D.S. if his parents’ parental rights were

terminated. The father requested the child be placed with him, and he indicated

he was ready and able to care for the child in Mississippi. The State and the

guardian ad litem recommended the court place the child with the father. DHS

recommended       termination    of   parental   rights   but    acknowledged      its

recommendation was premised on the child’s need for permanency and the fact

that the Mississippi home study was still incomplete. The mother opined the child

should be placed with the father if he could not be returned to her care. The child’s

attorney recommended termination of parental rights, or alternatively, a

guardianship with the foster parents. The foster parents requested the court

establish a guardianship.

       The juvenile court entered its permanency order on December 18, 2017.

Having determined termination of parental rights is not in the child’s best interests

at this time and that “the mother is not a safe and stable placement for the child at
                                            5


this time,” the court proceeded to the question of whether placement with the father

is a safe option that would serve the child’s best interests. Ultimately, the court

ordered custody of the child to be placed with the father and changed the

permanency goal to “remain with father.” The court ordered the effective date for

the transfer of custody to take place between December 22, 2017 and January 12,

2018, in order “to allow the child to finish school and prepare for the move to

Mississippi.” The court further ordered the father to enroll D.S. in school, maintain

insurance for D.S., and arrange therapy for D.S. in Mississippi.

       The child’s attorney appealed the permanency order. The child’s attorney

also filed a motion to stay the proceedings. On December 28, the supreme court

ordered the matter “temporarily stayed pending further order of this court” and

allowed the parties until January 5 to respond to the child’s attorney’s motion to

stay. The State and DHS filed a collective response requesting the motion for stay

be granted, pointing out “Iowa DHS has a request currently pending before the

State of Mississippi for a new home study,” but Mississippi “has not yet issued an

approved home study,” which was needed in order for DHS to approve D.S.’s

placement with the father.

       The father resisted the motion to stay and requested “custody of the child

be transferred to [him] as ordered.” The guardian ad litem also filed a resistance

to the motion for stay, opining, “If a stay were granted pending the appeal, this

would delay the child moving schools and integrating into his new home and family.

This is clearly not in the child’s best interests.”
                                          6


       On January 9, the supreme court entered an order denying the motion to

stay. The court transferred the case to this court. Additional facts will be discussed

below as are relevant to the issues raised on appeal.

II.    Standard of Review

       We review permanency orders de novo. In re K.C., 660 N.W.2d 29, 32

(Iowa 2003). We give weight to the juvenile court’s findings of fact but are not

bound by them. Id. The child’s best interests are our paramount concern. Id.

III.   Consideration of the Father as a “Parent”

       The child’s attorney challenges the court’s consideration of the father as a

“parent” within the meaning of Iowa Code chapter 232 (2016). Specifically, the

child’s attorney contends the juvenile court erred by “improperly considering [the]

unestablished biological father as [a] ‘parent’ where the child was born out of

wedlock and [the] biological father did not acknowledge paternity within a

reasonable amount of time.”

       This claim was neither raised before, nor addressed by, the juvenile court.

See Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995)

(holding an issue must be presented to and passed upon by the trial court before

it may be raised and adjudicated on appeal). We determine this issue has not

been preserved for our review. Moreover, even if error had been preserved on this

claim, it is unpersuasive.    See Iowa Code §§ 232.2(39) (“‘Parent’ means a

biological or adoptive mother or father of a child; or a father whose paternity has

been established . . . by administrative order when authorized by state law.”),

232.104(2)(d)(2) (allowing for “[t]ransfer of sole custody of the child from one

parent to another parent”).
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IV.    Permanency Order

       The child’s attorney challenges the juvenile court’s failure to make a

determination that termination of parental rights was not in the child’s best interests

before entering the permanency order. See id. § 232.104(4)(a) (“Prior to entering

a permanency order pursuant to subsection 2, paragraph ‘d,’ convincing evidence

must exist showing . . . [a] termination of the parent-child relationship would not be

in the best interest of the child.”). Specifically, the child’s attorney contends,

       While the juvenile court found that D.S. could not be returned home
       under [section] 232.104(2)(a) and continued placement was not an
       option under [section] 232.104(2)(b), the court failed to direct the
       filing of a termination of parental rights or explain why termination
       would not be in the child’s best interest before proceeding under
       [section] 232.104(2)(d).

       This claim is not supported by the record. At the permanency hearing, the

court repeatedly acknowledged termination of parental rights as a potential issue,

and the court received the parties’ respective positions on the issue. The question

before the court turned to whether placement with the father was in the child’s best

interests,2 but only after the court concluded termination of parental rights was not

in the child’s best interests at that time:

              The Court declines to order the State or any party to file a
       termination of parental rights petition. The Court has serious doubts
       that any ground for termination exists by clear and convincing
       evidence. Neither parent has abandoned the child as they have not
       evidenced any intent to abandon the child and both seek custody.
       While the children were removed initially due to concerns of physical
       abuse, there is no evidence that either parent poses a current risk of
       physical abuse to the child. The father has not been accused of any
       child abuse, and no evidence has been presented that there is any
       risk of physical abuse if the child was in his care. The evidence

2
  At the permanency hearing, DHS recommended termination of parental rights. By the
time of this appeal, however, DHS joined the State’s recommendation that termination of
parental rights was not in the child’s best interests.
                                   8


regarding the risk if returned to the mother is not as clear, but she
has received services for almost two years in this case. The Court
is not presented with any indication that the receipt of services was
not effective; and the FSRP reports do not include any significant,
recent safety concerns.
        The child’s attorney states that a termination petition would
also be supported under the theory that the father has not maintained
significant and meaningful contact with the child under Iowa Code
section 232.116(1)(e). The father has not taken advantage of every
opportunity to be actively involved in [D.S.]’s life, but he has made
an effort to be involved within the past year. He has made a genuine
effort to complete the requirements of the case permanency plan and
to complete the orders of the Court. The Court must also recognize
the significant barriers between the father and the child due to
distance and financial constraints. In an ideal world, the father would
have been able to visit the child more often. Reality, however, does
not make this a possibility. It is true that the father should have made
more of an effort to call or write to the child, but he has made some
efforts. Most significantly, he has done visitations in Iowa and
Mississippi when possible, and he has made a genuine effort to
complete the expectations of the permanency plan and the Court.
He attempted to complete the home study, and the issues raised
regarding the home study do not appear to be wholly attributable to
the father. Though somewhat belated, he has made the necessary
inquiries regarding school, insurance, and counseling for the child,
despite his limited financial means.
        Likewise, the Court has doubts about whether termination
would be appropriate under Iowa Code section 232.116(1)(f),
232.116(1)(i), or 232.116(1)(l). The Court again points to the lack of
any indication that the father, or even the mother at this point,
continues to pose a safety concern to the child. While the mother
cannot currently provide a safe home for the child, the evidence is
that the father has the capability to provide a safe home and has an
extensive network of family to assist. There is also no evidence,
currently, that any parent suffers from a diagnosed mental health or
substance abuse condition.
        The Court understands that the permanency hearing was not
a trial on a petition to terminate parental rights and there may be
different evidence presented at such a hearing than what was offered
here. The preliminary considerations of the grounds for termination
listed above are not intended to be a ruling of the applicability of
those grounds to a possible future termination petition. The
comments above are simply intended to demonstrate the lack of a
clear ground presented at the permanency hearing.
        Though the Court has indicated a lack of an obvious ground
for termination, the real evidence weighing against termination is that
there is a parent who is ready, willing, and able to take the child into
                                          9


       his custody. The bulk of the argument of those in favor of termination
       seems to be that one group of people, the foster parents, are “better”
       parents than the child’s biological parents and therefore a return to a
       biological parent would not be in the child’s best interest. There is
       an obvious danger to this line of reasoning. The Court has removed
       the child from a biological parent due to a specific concern. The child
       was at imminent risk when he was taken from his mother and placed
       into the custody of the State. Like so many parents who come before
       the Court, this child’s parents come from limited financial means. A
       parent in this situation may still have the capability of providing a
       nurturing home for the child. Many of the people who open their
       homes to children in need as foster parents are at the opposite end
       of the financial spectrum. There is a danger in comparing financial
       stability, and all of the associated benefits, in making a “best
       interests” determination. If there is a biological parent who is able to
       take care of the child with no safety concern, then that is who should
       parent the child. To view it otherwise would lead to a system where
       children, who often come from homes that struggle financially, are
       removed and placed into wealthier homes where they remain
       indefinitely. There is a statutory preference for placement of children
       with relatives during the child-in-need-of-assistance proceedings. In
       re N.V., 877 N.W.2d 146 (Iowa Ct. App. 2016). This statutory
       framework demands that relative placement be considered before
       non-relative placement. It codifies the approach of this Court—when
       possible, children should be with their parents.

       Contrary to the claim of the child’s attorney, we conclude the court made

detailed findings on whether termination of the parent-child relationship would not

be in the best interests of the child. See Iowa Code § 232.104(4)(a). We affirm

on this issue.

V.     Preference for Relative Placement

       The child’s attorney claims the juvenile court erred in giving preferential

status to relative placement at the permanency stage, rather than focusing solely

on D.S.’s best interests. Specifically, according to the child’s attorney, “Even

assuming the court properly employed the permanency framework in determining

termination of parental rights was not appropriate, the court erred when it
                                         10


improperly analyzed permanency under [section] 232.104(2)(d) and afforded the

biological father preference superior to and contrary to the best interests of D.S.”

       Indeed, the child’s best interests govern the ultimate decision of the court in

determining placement of the child in a child-in-need-of-assistance case. See In

re D.W., No. 07-1028, 2007 WL 2492454, at *3 (Iowa Ct. App. Sept. 6, 2007) (“In

considering a long-term placement for a child, the child’s best interests must

prevail.”).   But there is “a statutory preference for placement of children with

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

877 N.W.2d at 152; 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 In re X.O., No. 16-0313, 2016 WL

2743445, at *3 (Iowa Ct. App. May 11, 2016) (same); In re R.B., 832 N.W.2d 375,

381 (Iowa Ct. App. 2013) (same). Moreover, “[t]here is a rebuttable presumption

that the child’s best interests are served by parental custody.” In re N.M., 528

N.W.2d 94, 96 (Iowa 1995).

       The child’s attorney contends, “The court’s reliance on In re N.V. is

misplaced in the permanency context,” and points to the court’s ruling in D.W. as

support for its claim. See D.W., 2007 WL 2492454, at *3 (“We believe that under

section 232.104(2)(d), a relative should be given the same consideration as any

other ‘suitable person’ and is not entitled to preferential status.”). Insofar as this

court’s recent decision in N.V., 877 N.W.2d at 152, is at odds with the court’s prior

unpublished decision in D.W., 2007 WL 2492454, at *3, we believe the court’s

reasoning in N.V. is persuasive and in line with controlling authority, see 42 U.S.C.
                                           11

§ 671(a)(19), as well as more applicable under the facts of this case. 3 See X.O.,

2016 WL 2743445, at *3; R.B., 832 N.W.2d at 381 (“[T]here is no better place to

begin the search for relatives than with the parents themselves.”). We affirm on

this issue.

VI.    Best Interests

       The child’s attorney further contends, “Even if the court properly gave

preferential status to [the] biological father at permanency,” the court’s

permanency decision is not in the best interests of D.S. Specifically, the child’s

attorney claims the court’s “conclusions regarding [the] biological father’s safety

and stability are not supported by this record.”

       We acknowledge the father had literally no involvement in the child’s life

until after the child’s removal from the mother’s care in 2016. The mother admitted

she never contacted the father about D.S., she never made any effort to involve

the father in D.S.’s life, and she did not provide the father’s name or contact

information to DHS during prior proceedings involving the children, despite the

facts that the father consistently made child support payments for D.S. and the

mother and father were in contact with each other “off and on,” approximately every

“six months.” However, since the father received legal notice of the child-in-need-

of-assistance proceedings in Iowa, he worked to establish a role in the child’s life,

notwithstanding significant logistical and financial barriers. At the permanency




3
 As the State points out, D.W. concerned a relative placement rather than a non-custodial
parent placement, and termination-of-parental-rights proceedings had been initiated in
D.W. See 2007 WL 2492454, at *1-3. N.V. concerned a relative placement with the child’s
great aunt or grandparents versus a non-relative placement with a daycare provider. See
877 N.W.2d at 151-52.
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hearing, the mother testified she “w[ould] rather [D.S.] be with his father” if the court

determined D.S. could not be returned to her care.

          We acknowledge concerns with regard to the father’s arrest for possession

of marijuana on his drive back from Iowa in January 2017, but we observe the

father pled guilty to the charge and paid the fine. The father admitted to using

marijuana recreationally, but he testified, “I can give it up. . . . [I]t’s not a habit or

anything.” He stated he had not used marijuana since September 2017, and he

would not use marijuana if D.S. was in his care. The father testified he took a drug

test in November 2017, which came back negative.

          The child’s attorney also claims the father “had not sought corrections to the

[Mississippi] home study to assist the court in ascertaining his appropriateness for

placement.” To the contrary, the father testified he and his attorney had attempted

to contact the Mississippi DHS with regard to the home study, but they “haven’t . .

. received a call” and they “can’t get any contact with [any]one.” The situation

regarding the Mississippi home study is troubling, and, unfortunately, we believe it

stifled the amount of progress the father and D.S. could have made sooner in this

case.4 The Mississippi home study was completed in March 2017, “roughly a full

year” after it was requested. Moreover, the home study recommended denial of


4
    The State acknowledges in its brief:
         Despite the State of Iowa’s best efforts, the State of Mississippi had not yet
         issued an approved home study on D.S.’s father’s home. As such, DHS
         cannot recommend immediate placement of D.S. with his father.
                 ....
                 [However], the State would note as a practical matter that, given
         this Court’s denial of the Appellant’s request for a stay, Iowa DHS complied
         with the juvenile court’s permanency order, and D.S. moved to his father’s
         home in Mississippi on January 13, 2018. D.S. is now enrolled in school in
         Mississippi. Iowa DHS continues to monitor this placement by staying in
         touch with D.S., D.S.’s father, and D.S.’s school.
                                         13


the father as a placement option, but the recommendation was due to defects in

the home study, including use of the wrong date of birth for the father (which

resulted in reporting an incorrect criminal history) and the wrong date of birth for

the child. The Iowa caseworkers were in agreement “that it was a very poor home

study” and another one should be ordered, but there was no telling how long that

would take. The Iowa DHS caseworker acknowledged the father’s contact with

the child waned temporarily after the home study was denied, but she explained,

“I could see that as being discouraging to somebody.” She further explained the

father reinitiated his involvement: “I see it as someone who said, oh, maybe I

misunderstood, and maybe I should go back to doing what I was doing.”

       The father made efforts to travel from Mississippi to Iowa to attend court

hearings and to visit D.S.—most recently over Thanksgiving weekend in November

2017, when the father made two round trips between Mississippi and Iowa to take

D.S. to Mississippi to spend the holiday with his family. 5       D.S. also took an

extended visit with the father in Mississippi over the summer.            The father

communicated with health providers in Mississippi to arrange for medical and

therapy appointments for D.S., and he made arrangements for D.S. to have

insurance coverage. The father visited the local middle school to organize the

documents necessary to enroll D.S. after winter break in January 2018, and he

planned for D.S. to attend the boys and girls club after school, where D.S. had

enjoyed spending time when he visited during the summer.             The father had




5
 We particularly commend the father’s efforts in this regard considering he became ill
during the weekend with the flu, including sustaining a high fever over several days.
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appropriate housing, a steady job, and a familial support network. As the juvenile

court found:

             [The father] has asked the Court to place [D.S.] with him. The
      Court has a parent who is willing and able to take the child, and
      nothing suggests that the child would be placed at risk of harm if
      placed there. The best interests of the child determination requires
      a balancing of the benefits of a family placement and the placement
      of a child into a perhaps more stable foster home. The Court
      believes, consistent with the statutory preferences, that the benefits
      of a family placement in a home with no safety concerns outweighs
      the other benefits presented in keeping the child in foster care.

      We concur with the juvenile court’s determination, including the court’s

finding that “there are no safety concerns with the father.” The DHS caseworker

opined the father “is committed to [D.S.],” and he “step[ped] up [to] be a dad” as

soon as he realized the court was involved. In sum, the father is ready, able, and

willing to meet the needs of D.S.; has made an effort to be there for D.S.; has

attended visitations which have gone well; and has a support network in place to

help raise D.S. On our de novo review of the evidence, we determine placement

of D.S. with his father was in the child’s best interests, and we affirm the

permanency order entered by the juvenile court.

      AFFIRMED.
