January 11, 2017
IN THE INTEREST OF A.V., Minor Child, T.H. and C.H., Intervenors-Appellants.
from the Iowa District Court for Carroll County, Adria
Kester, District Associate Judge.
paternal grandparents of a child appeal the district
court's decision denying termination of a guardianship
and modification of placement. AFFIRMED.
B. Reimer of Cooper, Goedicke, Reimer, & Reese, P.C.,
West Des Moines, for grandparent-intervenors.
J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Christine L. Sand of Wild, Baxter & Sand, P.C., Guthrie
Center, for minor child.
Considered by Vaitheswaran, P.J., and Potterfield and Bower,
and T.H., A.V.'s paternal grandparents, (the
Grandparents), appeal the district court's decision
refusing to place A.V. in their care. We find the Iowa
Department of Human Services (DHS) failed in their duty to
notify the family of a child in need of assistance (CINA)
proceeding involving A.V. but determine DHS should continue
as the child's guardian as it is in A.V.'s best
interests. We also find the district court did not err in
refusing to modify A.V.'s placement with the maternal
Background Facts and Proceedings
was born in 2014, and her biological parents' parental
rights were terminated in April 2016. In re A.V.,
No. 16-0290, 2016 WL 1359140 (Iowa Ct. App. Apr. 6, 2016).
The Grandparents cared for A.V.'s mother during her
pregnancy and after the birth, and they were also caretakers
for A.V. when the mother was unable to care for the child.
The State began removal proceedings in April of 2015. A.V.
was removed from the Grandparent's care and placed with
A.V's maternal aunt, who resides with A.V.'s maternal
Grandparents were not given formal notice of the CINA
proceedings as required under Iowa Code section 232.84
(2016). Paternity was eventually established in October, and
the Grandparents were allowed a short visit in November.
Additional visitation was granted after a request was made in
the CINA proceedings. Visitation became more frequent after
this period but did not include overnight visits, and many
requests for extra time were denied. The inflexibility of
visitation has resulted from the growing tensions between the
two families. During one longer period of visitation, the
Grandparents felt they needed to take A.V. to the emergency
room when they noticed pus draining from A.V.'s ear as a
result of an ear infection. The Grandparents felt the
infection had not been properly treated, although A.V.'s
maternal family stated they had begun treatment and were
following medical advice, which further strained the
relationship with the A.V.'s maternal family.
district court retained DHS as A.V.'s guardian and
refused to modify A.V.'s placement with the maternal
aunt. The Grandparents now appeal.
Standard of Review
review de novo actions seeking to remove DHS as guardian and
challenging custody placement. In re E.G., 738 N.W
.2d 653, 654 (Iowa Ct. App. 2007). We review the facts and
law and adjudicate rights anew but give weight to the
findings of fact of the juvenile court. Id. The
court's core role in these proceedings is to ensure
placement is in the best interests of the child. See
Iowa Code § 232.1; E.G., 738 N.W.2d at 657.
DHS as Guardian
Grandparents claim DHS should be removed as A.V.'s
guardian as DHS failed to provide proper notice of the
termination proceedings to the Grandparents as required under
Iowa Code section 232.84. "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
also Iowa Code § 232.118. The district court
properly noted "this notice requirement is not a
suggestion." Even though the Grandparents were aware the
child was removed from the mother, formal notice is still
required under Iowa law, and by failing to give notice, DHS
acted unreasonably. See Iowa Code § 232.84.
even though DHS acted unreasonably we will not automatically
remove DHS as guardian. See In re X.O., No. 16-0313,
2016 WL 2743445, at *5 (Iowa Ct. App. May 11, 2016) (holding
children's best interest supported retaining DHS as
guardian notwithstanding failure to provide notice.) The
Grandparents wish to remove A.V. from her current home
because they fear they will no longer be able to see the
child after adoption by A.V.'s maternal aunt. This is a
possibility considering the relationship between the maternal
and paternal families. However, the district court noted the
maternal aunt was chosen by the DHS adoption panel "to
limit the trauma to A.V." The district court also stated
"[The Grandparents] presented no evidence that
A.V.'s current placement is unsafe or that A.V. is not
thriving. . . . This placement is reasonable and continues to
be in the best interests of A.V."
DHS as A.V.'s guardian is in A.V.'s best interests as
it will allow the adoption process to continue. A.V.'s
current placement provides stability, continuity, permanency,
and an environment where A.V. is thriving. Additionally,
examining the state of the relationship between the families,
we are unconvinced the paternal family would not use custody
of A.V. as revenge on the maternal family by withholding
visitation. It is unfortunate these families continue to use
A.V. against each other, but causing further instability is
certainly not in A.V.'s best interests. Therefore, we
decline to remove DHS as guardian.
IV. Modification of Placement
Grandparents also claim the district court erred by refusing
to modify A.V.'s placement. Pursuant to Iowa Code section
232.117(3) the court may place the children with DHS, a
suitable child-placing agency, or a relative or other
suitable person. However, "[t]he paramount concern is
the best interest of the children." In re R.J.,
495 N.W.2d 114, 117 (Iowa Ct. App. 1992). The Grandparents
claim it is not in the child's best interest to have
limited contact with them. However, as we noted above, the
district court found placement with the maternal aunt
provides stability, continuity, permanency, and an
environment where A.V. is thriving and has limited the trauma
to A.V. In refusing to modify the placement, the district
court appropriately considered the conflict between the
families, the merits of each placement, and most importantly,
the impact each placement would have on A.V. We agree with
the district court and find the balance of these factors
weighs in favor of the placement remaining with the maternal
aunt. Therefore, the district court did not err by refusing
to modify placement. We affirm the district court.