In re Interest of J.L.

• Decision Date: 27 January 2022
• Docket Number: 21-0968
• Citation: 973 N.W.2d 895
• Parties: In the INTEREST OF J.L., Minor Child, S.C. and K.C., Intervenors-Appellants, E.S., Intervenor-Appellee.
• Court: Iowa Court of Appeals

973 N.W.2d 895

In the INTEREST OF J.L., Minor Child,

S.C. and K.C., Intervenors-Appellants,

E.S., Intervenor-Appellee.

No. 21-0968

Court of Appeals of Iowa.

Filed January 27, 2022

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for intervenors-appellants.

Patricia Reisen-Ottavi, Dubuque, for intervenor-appellee.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant Attorney General, for appellee State.

Kristy L. Hefel, Public Defender Supervisor, Dubuque, attorney and guardian ad litem for minor child.

Considered by Bower, C.J., and Greer and Badding, JJ.

GREER, Judge.

A "forever home" decision warrants more thought than the rote application of a rule. The juvenile court, evaluating the process used for an adoption placement, agreed. It all began when the juvenile court terminated the parental rights of J.L.’s biological mother and father in September 2020 and appointed the Iowa Department of Human Services (DHS) the guardian of the child. Shortly after, the intervenor-foster parent and the guardian ad litem (GAL) each filed a motion to remove DHS as guardian. Following a hearing in spring of 2021, the juvenile court concluded DHS acted unreasonably in discharging its duties as guardian to find a suitable adoptive home for the child, granted the motions to remove DHS, and appointed the intervenor-foster parent as guardian instead.

The intervenor-maternal relatives, who DHS had chosen as the pre-adoptive placement for J.L., appeal the juvenile court's ruling.¹ They challenge the court's decision to remove DHS as guardian and argue the juvenile court improperly usurped DHS's role by substituting its judgment for that of DHS.

I. Background Facts and Proceedings.

Even before J.L.’s birth in September 2019, DHS contacted the child's maternal relatives² to gauge their interest in becoming his possible adoptive family.³ The relatives lived in Florida and were already caring for J.L.’s maternal half-siblings.⁴ They anticipated adopting those children and responded they were willing to adopt J.L. if the need arose.

J.L. was removed from his parents’ care a few days after his birth and placed with a local licensed foster parent, E.S. The foster parent was told J.L.’s relatives expected to adopt him and that the child would likely be in her care for just six months—until termination took place. See Iowa Code § 232.116(1)(h) (2020). But the expected termination did not proceed on schedule.

During the first six months of the child's life, the aunt and uncle had no contact with the foster parent or the child.⁵ Then, from March to June 2020, the foster parent facilitated monthly video calls between J.L. and the relatives in Florida. The aunt was supposed to come to Iowa to meet J.L. in person in June 2020, but one of the family members contracted COVID-19 and the trip had to be cancelled.

The termination trial took place in August 2020, and the aunt attended in person. While in Iowa for a few days, she spent approximately thirty minutes with the child. The uncle and the half-siblings remained in Florida.

The juvenile court ordered the termination of parental rights in September—approximately one year after J.L. came to live with the foster parent. By this point, the foster parent also wanted to be considered for J.L.’s adoptive placement.

The same month, the foster parent took the child to a therapist, Yvette Saeugling, for an assessment of the foster parent's bond with the child.⁶ Saeugling administered the Marschak Interaction Method, which—according to her report—"is an assessment utilized world wide" that "may only be administered by a certified Theraplay practitioner through the Theraply Institute." Saeugling, who had "worked in foster care and adoption field for 25 years," later provided a written report in which she opined that J.L. should remain with the foster parent. Saeugling explained:

My recommendations are that [J.L.] needs to remain with his foster [parent]. Again, I did not know [her] prior to her first appointment. I have had no contact with [the child's] [maternal aunt] and no one has spoken unfavorably about her ability to raise [J.L.] and the environment he would live in. It is important to consider the fact he would be with his half-sisters and they should be an important part of his life.

The problem becomes that [J.L.] has not spent time with his aunt and uncle nor his siblings. Essentially, he would be entering a home of strangers with no one he could possibly trust yet to help him regulate. Again, this is not about being a "good enough" parent or a very loving parent. He will experience fear and anxiety and will not have established the level of trust needed to self-regulate such a major transition, one of great loss and confusion.

The problem arises is that if [J.L.] would not be able to remain with [the foster parent], [he] would suffer two broken maternal bonds a little over one year apart. It is not a matter of whether he would be affected it is a matter of how he would be affected. Keep in mind, especially at [J.L.’s] age, attachment is about both his psychological and neurobiological well-being. So, essentially a priority of relationships need to be established. At this age, [his] innate need is for a primary caregiver.

Saeugling also recommended a transition plan in case DHS chose to place J.L. with his family members in Florida:

Any change in primary caregiver is traumatic. A caring transition

cannot prevent the trauma of loss, but it is the most effective way to minimize the damage. Failure to transition properly jeopardize[s] the child's continued ability to attach to anyone, including the ability to form a new secure attachment to [the] relative. Because visiting simply is not the same as providing day-to-day care, this includes return to a birth parent or relative who has been visiting consistently and appropriately. There will inevitably be trauma when the child is moved to a different day-to-day caregiver, especially when the child has formed an attachment to the current caregiver.

....

Toddlers:

How often: 2 to 4 visits per week; each 60-90 minutes

Where: Home or homelike environment; doctor appointments

When preparing a child for a new placement or home, it is good to start weeks before the move. Children 8 months to 15 months should have twice as many visits than infants 2-8 months old. These visits should be held no more than 1 to 2 days apart.

Planned transitions involve a very gradual introduction of the child to the new family and an ON-GOING contact with the prior family. Development of a constructive relationship between the two families.

Obviously, transitioning to Florida would be very[,] very difficult. Meeting once or twice a year would not suffice for on-going contact for a child [J.L.’s] age.

On November 6, the GAL submitted a written recommendation to the adoption selection committee,⁷ advocating for the foster parent to be chosen as J.L.’s pre-adoptive placement:

I believe that [J.L.] should be adopted by [the] foster mother, the only mother that he has known since his discharge from the hospital after his birth, and the person that [he] is bonded to and looks to for comfort and security as his mother. I believe that each family would be loving and supportive for [the child]. The [maternal relatives] are very good people and have many fine qualities. The reason that I make my recommendation has nothing to do with [them]. The reason I make my recommendation is based on my concern for the best interest of [J.L.’s] long term mental and emotional well-being. It is my belief that his long-term best interest supersedes placement with his two half-sisters and the maternal aunt due to the potential trauma that another removal would have upon [his] future growth, development and mental health.

....

... Though both families, the [maternal family] and the [foster parent], are exceptional families, the maternal aunt has had very little personal contact with [J.L.], having come to Dubuque for one in-person visit and video [calls] since the case has begun and birth of [J.L.] due to their residence in ... Florida. The distance between the families has not only made it difficult for the maternal aunt and family to bond with [the child] and develop a "significant relationship," it will also make any slow transition to their home prohibitive. If the Adoption Selection Committee were to select the maternal aunt's family in Florida, [the child] would likely be removed from the [foster parent] and moved to the maternal aunt's home with very little transition time allowed resulting in confusion and trauma for this small child. Even if a slower transition

period occurred, this would still result in a 2nd removal for a one-year old child, once from his mother in the hospital and one time from the foster mother that he identifies as his mother. [The foster parent] has provided him with love, nurturing, and security, resulting in him flourishing in [her] home.

....

... Even though the [maternal relatives] are related and would have been an excellent choice if [he] could have transitioned to their home soon after birth and established a significant relationship with them, that did not happen.

On November 8, the foster parent submitted Saeugling's report to DHS. She also submitted a letter from J.L.’s pediatrician, who "support[ed] ... keeping [J.L.] with his foster parents," and noted J.L. had attended all of his medical appointments "with his foster parents often in conjunction with his biological parents." Additionally, the adoptive parents of one of J.L.’s paternal half-siblings, with whom J.L. attended daycare and spent time each day, wrote a letter indicating their support of their foster parents and stating both families intended to continue the familial relationship between the half-sibling and J.L.

The adoption selection committee—consisting of five DHS workers⁸ —met on November 9 and interviewed the foster parent and the maternal relatives. The GAL was present to witness but not allowed...