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In the Interest of B.S.

January 9, 2013

IN THE INTEREST OF B.S., MINOR CHILD, M.H. AND J.H., INTERVENORS, APPELLANTS.


Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.

The opinion of the court was delivered by: Mullins, J.

Grandparents, as intervenors, appeal the juvenile court's decision refusing to modify guardianship. AFFIRMED.

Considered by Doyle, P.J., and Mullins and Bower, JJ.

Maternal grandparents, as intervenors, appeal from a juvenile court decision terminating the father's parental rights, and refusing to modify guardianship. The maternal grandparents contend the juvenile court erred when it did not modify placement of the child in their favor. The grandparents argue the juvenile court's refusal to modify placement is contrary to a relative placement preference and not in the child's best interest. We affirm.

I. Background Facts & Proceedings

B.S. was born in December 2007. For much of the child's early life, B.S. and both parents lived with the maternal grandparents. Meanwhile, the parents struggled with a severe addiction to the prescription drug oxycontin-a semi-synthetic opioid with a high potential for abuse.

In April 2010, with the parents' addiction spiraling out of control, the couple began to burglarize homes to support their habit. Later that same month, both parents were arrested and charged with burglary and theft. As a result, authorities removed the child from the parents' custody. In late April 2010, the child was adjudicated a child in need of assistance and the juvenile court placed the child with the maternal grandparents.

On January 25, 2011, the maternal grandparents filed an uncontested motion to intervene. The juvenile court granted the motion.

On April 7, 2011, the juvenile court held a permanency hearing. The court found the father had made substantial progress toward recovery, and placed legal custody and guardianship of B.S. with the father subject to Department of Human Services (DHS) supervision, and subject to B.S. continuing to reside in the household of the maternal grandparents.

In early October 2011, the father tested positive for opiate use in violation of his probation. DHS temporarily removed B.S. from the father's care and thus from residing with the maternal grandparents, and placed B.S. with the child's paternal great aunt and uncle under a safety plan.

On October 10, 2011, the grandparents filed a motion to modify placement. On October 21, 2011, the court held a hearing on the grandparent's motion to modify. During the hearing, the State moved to modify the order that had placed custody and guardianship with father, and urged the court to place custody with the child's paternal great aunt and uncle. The juvenile court denied the grandparent's motion to modify, and granted the State's motion, placing the child with the paternal great aunt and uncle. The child remained in the care of the aunt and uncle throughout the pendency of the proceedings.

On October 27, 2011, the juvenile court terminated the mother's parental rights under Iowa Code section 232.116(1)(d) and (h) (2011). The court ordered DHS to act as guardian.*fn1 On December 5, 2011, the grandparents filed a motion to modify guardianship and a motion for a full evidentiary hearing on their October motion to modify placement.

The father's October 2011 probation violation ultimately resulted in revocation of his probation. He is currently serving a twenty-year prison sentence. The State filed a petition to terminate his parental rights on March 15, 2012.

On April 5, 2012, and May 8, 2012, the juvenile court held a joint hearing on the State's petition to terminate the father's parental rights and on the grandparents' motion to modify guardianship (and presumably on the grandparents' motion for full evidentiary hearing on the October motion to modify placement). During the hearing the father consented to termination. The State, DHS, and the child's guardian ad litem recommended the court place guardianship with DHS. On September 27, 2012, the ...


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