                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-2064
                                Filed April 1, 2020


IN THE INTEREST OF R.C.,
Minor Child,

G.D., Mother,
      Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Cherokee County, Mary L. Timko,

Associate Juvenile Judge.


       In a child-in-need-of-assistance proceeding, the mother challenges the

district court’s denial of her request for additional visitation and for paternity

testing to overcome the legal father’s paternity.        AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.


       Harold K. Widdison of Law Office of Harold K. Widdison, P.C., Sioux City,

for appellant mother.

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

General, for appellee State.

       Lesley D. Rynell of Juvenile Law Center, Sioux City, attorney and

guardian ad litem for minor child.


       Considered by Vaitheswaran, P.J., May, J., and Potterfield, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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POTTERFIELD, Senior Judge.

       R.C., who was born in 2009, is a child with special needs. Child-in-need-

of-assistance (CINA) proceedings were initiated in 2015 following a founded

child-abuse assessment against the parents. The Iowa Department of Human

Services (DHS) was given information that the legal father may not be the child’s

biological father, but no paternity testing was ordered.

       A permanency order was entered in March 2017.              Pursuant to the

permanency order, R.C. was placed in the custody of his father and lives in a

residential care facility for children who need constant care and supervision. See

Iowa Code § 232.104(2)(d)(2) (2015) (providing the court may, after a

permanency hearing, enter an order transferring sole custody of the child from

one parent to another parent). With permanency established in the father, the

juvenile court ended reunification services between R.C. and the mother, and

R.C.’s guardian ad litem (GAL) and DHS were charged with arranging and

approving future visitation between R.C. and the mother.

       In June 2019, the mother filed a motion in the juvenile court, asking for

expanded visitation with R.C.      She noted she was receiving one four-hour

supervised visit with R.C. each month and asked for an additional four-hour visit

that was unsupervised each month.

       In August 2019, the mother filed a second motion, asking the court to

order paternity testing on R.C. According to the mother, while R.C. was born

during the mother’s marriage to the father, a different man is the biological father

of R.C.
                                          3


       The juvenile court took up both issues at the permanency review hearing

in November 2019. At the hearing, the mother initially testified she thought it

would be best for R.C. if he could get to know his purported biological father in

addition to the father he has always known. But later during her testimony, she

admitted she was angry at the father, to whom she is no longer married, and was

motivated to file for paternity testing by her desire to get him “completely out of

the picture,” whether or not it is in R.C.’s best interests. She conceded it would

likely be confusing for R.C. to learn of another father at this point in life.

Additionally, she admitted she was trying to fight the father for custody of R.C. in

district court1 and wanted the juvenile court to order the paternity testing because

she thought it would help her with her custody case.2

       As for her request for additional visitation time with R.C., the mother

offered into evidence an email from R.C.’s therapist, written on August 8, 2019,

stating:

           FYI. As we have had a couple of sessions with [the mother]
           over the last month, it seems that [R.C.] enjoys his time with his
           mother. He is not verbalizing or showing through behaviors that


1 The juvenile court granted concurrent jurisdiction to the district court to allow the
dissolution proceedings but retained jurisdiction over the issue of custody of R.C.
No party has appealed the juvenile court’s order limiting the district court’s
jurisdiction. The mother did not seem to be aware of the limitation on concurrent
jurisdiction, as she testified several times about seeking custody of R.C. in district
court.
2 The mother denied seeking the order for paternity testing in juvenile court so

she would not have to pay for it. But the same month the mother filed the motion
for paternity testing, she stole a person’s credit or debit card number and then
used it to purchase lottery tickets. She was later convicted of forgery as a result.
According to the mother’s testimony at the permanency review hearing, she
committed the forgery because she “was fighting for a custody battle for [R.C.]”
When asked again, the mother agreed she committed the forgery to secure
financing for a custody battle in district court.
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          this increased contact is negatively impacting him. I have seen
          no reaction from him that causes concerns with their contact.
                  I would recommend increasing his supervised visitation
          at [the residential facility] home with mom.

The State offered more of the string of emails into evidence, noting that the

question of the mother’s visits’ impact on R.C. was ongoing. In an August 19

email, the therapist stated:

       [R.C.] had a visit with his mom this past Saturday (8/17/19). It was
       noted that during the visit she had him laying on the floor like an
       infant to clean him after using the restroom. My staff have seen an
       increase in defiant behaviors since the visit. He is refusing to
       shower, he is struggling with personal space (more than normal),
       he is not wanting to listen or complete his schedule. He will [throw]
       his food in the trash so that he can watch TV. He will go into the
       restroom, but doesn’t do anything and when asked if he needs help
       he won’t respond. [R.C.] is a child that normally needs prompts to
       stay on task, but after the weekend it has come to an all time high.

One of the reports offered into evidence by the State included an update from the

therapist, sent September 27, 2019. The update noted that R.C.’s “unsupervised

contact with his mother [over the holidays in late 2018] triggered negative

feelings and behaviors.” As a result, the therapist recommended only supervised

visits between the mother and R.C. Additionally, it stated:

       [R.C.] continues to be defiant and have behavioral issues. He has
       also continued to exhibit inappropriate boundaries with others and
       touch himself sexually. In therapy, we have continued to explore
       feelings. . . . Sessions with [the mother] have been appropriate.
       [R.C.] expresses that he likes having session with his mother and
       there haven’t been any boundary issues observed by this
       therapist. . . . [R.C.] no longer expresses missing his mother. With
       [his] continued defiant and inappropriate behaviors, it is unclear
       whether this is because he wants to see his mother more or if
       seeing her triggers negative memories that cause negative
       behaviors. He has essentially been able to see his mother twice
       monthly for the last couple of months. Seeing her more often
       doesn’t appear to be helping to reduce the negative behavior.
                                         5


The GAL maintained that it was not in R.C.’s best interests to expand the

mother’s visitation.   She questioned whether the mother was motivated to

request more time in an effort to better situate herself for the custody case she

planned to pursue. Additionally, the GAL noted that the mother failed to attend

R.C.’s annual review at the residential home on September 17, even though

       the review is very detailed and includes all of his medical,
       vocational, educations, and mental health needs. The team reviews
       all of his special needs and each service that is provided to . . .
       specifically address each need. It also sets forth the treatment plan
       for the next year in anticipation of his future needs.

       In its written ruling, the court denied both of the mother’s requests, finding

neither paternity testing nor expanded visitation was in R.C.’s best interests. The

mother appealed.

       Our review of CINA proceedings is de novo. In re D.D., 653 N.W.2d 359,

361 (Iowa 2002). “The most important consideration in any CINA case is the

best interests of the child.” Id. at 362. The mother’s requests amount to an

attempt to modify the permanency order; “[w]hen considering the modification of

a permanency order, we ‘look solely at the best interests of the child[] for whom

the permanency order was previously entered.’” In re J.M., No. 19-0772, 2019

WL 3317430, at *2 (Iowa Ct. App. July 24, 2019) (quoting In re A.S.T., 508

N.W.2d 735, 737 (Iowa Ct. App. 1993)).

       While the mother admitted during her testimony that her request for

paternity testing was motivated by anger, she wanted the father out of R.C.’s life,

and she did not care if it was in R.C.’s best interests, the court should have

ordered the requested paternity testing. See Iowa Code §§ 600B.41A(3)(a)(1)

(noting the mother of the child may file a petition to overcome paternity before the
                                             6


child reaches majority); 600B.41A(3)(e) (including as one of the conditions to

overcome paternity “[b]lood or genetic testing in accordance with section

600B.41”); see also 600B.41(1) (“In a proceeding to establish paternity in law or

in equity the court may on its own motion, and upon request of a party shall,

require the child, mother, and alleged father to submit to blood or genetic test.”

(Emphasis added.)). This statute does not specifically authorize the mother to

challenge paternity in the juvenile court, but, as we noted before, the juvenile

court has retained jurisdiction over R.C.

       We understand the juvenile court’s concern regarding whether parental

upheaval is in the best interests of R.C., as the father continues to be an active

part of R.C.’s life and seems to want to maintain his role as R.C.’s father. Even

assuming the genetic testing establishes that the father is not biologically related

to R.C., the court may ultimately dismiss the action to overcome paternity and

maintain the father’s rights after further proceedings. See id. § 600B.41A(6)(a)

(allowing the court to preserve the paternity of the established father when the

established father requests that the parent-child relationship continue and the

court finds it is in the child’s best interest to do so).

       This case does not involve termination of parental rights since

permanency      has     been    established      pursuant   to   Iowa   Code   section

232.104(2)(d)(2) However, we note that Iowa Code section 232.111(4)(b)(1)

requires a petition for termination parental rights to include “[t]he names,

residences, and domicile, of any…[l]iving parents of the child.” Section 232.112

states those individuals
                                          7


       shall be necessary parties to a termination of parent-child
       relationship proceeding and are entitled to receive notice and an
       opportunity to be heard, except that notice be dispensed with in the
       case of any such person whose name or whereabouts the court
       determines is unknown and cannot be ascertained by reasonably
       diligent search.

In addition,

       A diligent search is measured not by the quantity of the search but
       the quality of the search. In determining whether a search is
       diligent, we look at the attempts made to locate the missing person
       or entity to see if attempts are made through channels expected to
       render the missing identity.

In re S.P., 672 N.W.2d 842, 846 (Iowa 2003) (quoting Qualley v. State Fed. Sav.

& Loan, 487 N.W.2d 353, 355 (Iowa Ct. App. 1992)).                “Any hearings or

proceedings . . . subsequent to the filing of a [CINA] petition shall not take place

without the presence of the child’s parent . . . .” Iowa Code § 232.91(1).

       The State concedes it knew the legal father of the child is not his biological

father. Indeed, days after the State filed its CINA petition in late 2015, a report

stated as much. Similar statements appeared in 2016 and 2017 reports. The

mother testified DHS was “aware that [the legal father] was not [the child’s]

biological father from day one.”

       Despite this knowledge, DHS took no action to ascertain the name,

residences, or domicile of the biological father. Notably, the putative biological

father filed an affidavit in connection with the mother’s motion for paternity testing

attesting he might be the biological father and stating he “went to the Juvenile

Offices in Sioux City, Iowa” more than eighteen months earlier to inquire “about a

paternity test” but was told he “wasn’t listed on the birth certificate” and he would

need to get the legal father’s permission for testing.       The putative biological
                                           8


father stated, “I knew he would never give me permission, so I didn’t ask.”

Assuming DHS lacked the ability to glean the biological father’s identity from

other sources such as the legal father and biological mother, the affidavit

afforded the agency actual notice of the putative father’s identity. When the

affidavit was filed, the biological father was not just a living parent whose identity

should have been reasonably ascertained, but a “known” parent who was entitled

to “[n]otice of the pendency of the case.” Id. § 232.37(1).3

         The affidavit of the purported biological father was not filed until 2019. But

the onus was not on the putative father to make his whereabouts known so that

he could participate in the proceedings but on the State to notify him of the

proceedings. Of course, the putative father’s claim that he was the father would

have to be established. See id. § 232.2(39) (“‘Parent’ means a biological or

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

established . . . by order of a court of competent jurisdiction, or by administrative

order when authorized by state law.”); In re J.C., 857 N.W.2d 495, 501–02 (Iowa

2014).

         We recognize the mother may have raised the paternity issue out of

animus toward the legal father.       But her motives did not obviate the State’s

obligation to establish the biological parents of children in need of assistance and

to provide them with notice and an opportunity to be heard.            See S.P., 672

N.W.2d at 845 (“Notice of the hearing and an opportunity to be heard appropriate

to the nature of the case is the most rudimentary demand of due process of law


3 We recognize this statute is part of the division on juvenile delinquency
proceedings.
                                         9

in proceedings affecting parental rights to children.” (quoting Stubbs v.

Hammond, 135 N.W.2d 540, 543 (1965))).

       We agree with the juvenile court that the mother failed to meet her burden

to prove that expanding her visitation time with R.C. is in R.C.’s best interests.

See In re D.S., 563 N.W.2d 12, 15 (Iowa Ct. App. 1997) (considering whether the

parent met their burden to modify the permanency order). R.C.’s therapist was

unable to determine whether R.C.’s negative behaviors were directly or indirectly

related to the time he sees the mother. But the mother has not taken advantage

of all of the visits she is currently scheduled with R.C.; she admitted she missed

her October visit with him, and she did not attend his annual review, which took

place in September. The mother loves R.C., but it is not clear that additional time

with the mother is good for him.

       The juvenile court should have ordered paternity testing, so we reverse

and remand on this issue.      We otherwise affirm the juvenile court order on

permanency review, including the denial of the mother’s request for expanded

visitation. R.C. remains in the custody of the father.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

       Vaitheswaran, P.J., concurs; May, J., partially dissents.
                                          10


MAY, Judge (concurring in part and dissenting in part).

       The mother gave the juvenile court no reason to believe that any statute

required court-ordered paternity testing. She cited no statute in her motion or at

the hearing. So I would not reverse on statutory4 grounds, none of which were

presented to the juvenile court. See State v. Thompson, 836 N.W.2d 470, 491

(Iowa 2013) (“On appeal, Thompson relies on Iowa Rule of Criminal Procedure

2.24(2)(b)(6) and State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). However,

Thompson’s counsel never cited that rule or Ellis in his posttrial motion or during

the hearing on that motion in district court. . . . We agree with the State that

Thompson failed to preserve error on his claim the district court applied the

wrong standard under rule 2.24(2)(b)(6).”); State v. Hernandez-Lopez, 639

N.W.2d 226, 234 (Iowa 2002) (concluding an alleged violation of statutory rights

was not preserved where it was raised for the first time on appeal); see also Top

of Iowa Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (“In view

of the range of interests protected by our error preservation rules, this court will

consider on appeal whether error was preserved despite the opposing party’s

omission in not raising this issue at trial or on appeal.”).

       As to this issue, I respectfully dissent.       Otherwise, I concur with the

majority opinion.



4 My colleagues point to certain provisions within Iowa Code chapters 232 and
600B (2015). Even if those provisions had been raised below, it is not clear to
me that they would have required the juvenile court to order paternity testing in
this child-in-need-of-assistance case. Sections 232.111(4)(b)(1) and 232.112
relate to termination of parental rights proceedings. Section 232.37 relates to
juvenile delinquency proceedings.         Chapter 600B actions are “ordinary
proceedings” that “shall be brought in the district court.” Iowa Code § 600B.10.
