In re Interest of K.D.
| Decision Date | 03 June 2022 |
| Docket Number | 21-1472 |
| Citation | 975 N.W.2d 310 |
| Parties | In the INTEREST OF K.D. and K.D., Minor Children. Paul L. White, Guardian Ad Litem, and C.H., Intervenor, Appellants. |
| Court | Iowa Supreme Court |
Paul L. White of Des Moines Juvenile Public Defender, Des Moines, attorney and appellant guardian ad litem for the minor children.
Andrea M. Flanagan of Flanagan Law Group, PLLC, Des Moines, for appellant intervenor.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena and Natalie A. Deerr (until withdrawal), Assistant Attorneys General, for appellee State.
Just as we authorize the removal of children from their parents’ care when the parents fail to ensure their children's welfare, we must also remove the children's guardian when the guardian irresponsibly discharges its duties and acts contrary to the children's best interests. That is what occurred here when the Iowa Department of Human Services (DHS), acting as the children's guardian, entered the children's home of approximately eighteen months in the care of their stepgrandmother on the pretext of a visit and abruptly removed them from her care to place them in foster care with strangers. One of the children became so distraught that she vomited, and the other child started shaking.
DHS took these actions knowing the children's guardian ad litem (GAL) and attorney1 had filed a notice seeking a hearing to address "unanswered questions and concerns" he had about DHS possibly moving the children despite warning from one of the children's therapists strongly discouraging additional placements and trauma. After the stepgrandmother informed the GAL of the children's removal the day after it occurred, the GAL filed motions for the immediate return of the children to their stepgrandmother, for a hearing on modification of placement, and to remove DHS as guardian. The juvenile court also allowed the stepgrandmother to intervene.
Following a hearing, the juvenile court concluded DHS acted unreasonably in failing to provide written notice to the children's relatives as required under Iowa Code section 232.84 (2021) but not in moving the children to foster care. Thus, it declined to remove DHS as the children's guardian. The GAL and stepgrandmother appealed, challenging the juvenile court's decision not to remove DHS as guardian. A divided court of appeals agreed DHS acted unreasonably in failing to provide written notice to the children's relatives and in removing the children from their stepgrandmother in the manner that it did, but a majority reasoned DHS was looking out for the children's best interests and declined to remove DHS as the children's guardian. We granted the GAL and stepgrandmother's applications for further review.
On further review, we conclude DHS acted unreasonably in (1) failing to send relative notices and (2) in failing to serve the children's best interests by taking such drastic measures to remove the children from their stepgrandmother's care without warning only to place them in a foster home with no assurance of permanency in that home. Although DHS raised some concerns regarding the stepgrandmother's care, DHS did little to address these concerns and failed to "make every effort to establish a stable placement for the child[ren]." Iowa Code § 232.117(6). Therefore, we vacate the decision of the court of appeals, reverse the juvenile court's order, and remand to the juvenile court with directions to remove DHS as the children's guardian and determine an appropriate guardian.
The children in this case, K.T.D. and K.J.D., have been involved with DHS for much of their young lives, beginning with the removal from their parents at ages two and three years old in March of 2018. A juvenile court subsequently adjudicated the children as children in need of assistance (CINA) due to their parents’ substance abuse and failure to provide adequate supervision. During this CINA period, the children were initially placed with their paternal grandmother but had to move to foster care after roughly one month with the paternal grandmother because she was dishonest with DHS about who was living in her home. That CINA case closed through a bridge order giving Dad custody in late 2019, but this closure was short-lived because of the parents’ domestic violence and continued substance abuse.
On January 23, 2020, the children went to live with their paternal stepgrandmother,2 and the juvenile court officially authorized their removal from their parents on February 6. The children remained in the stepgrandmother's care for approximately eighteen months, as they lived with her throughout this second CINA case and after the juvenile court terminated the parents’ rights on April 14, 2021. DHS's termination of parental rights (TPR) report notes DHS did not send relative notices or have anyone fill out relative worksheets in the case after the children were removed from their parents’ custody because That placement was the stepgrandmother.
In the juvenile court's termination order, it concluded, "DHS is in the best position to act as guardian and to consider and select the children's adoptive home" and transferred guardianship and custody of the children to DHS. After the juvenile court terminated the parents’ rights, and with DHS's knowledge and consent, the stepgrandmother started adoption classes through Four Oaks with the belief that she was a candidate to adopt the children. The children's attorney and GAL, Paul White, has been their attorney and GAL for both the 2018 CINA case and throughout these proceedings and was under the same impression regarding the stepgrandmother's adoption of the children.
Due to their history, K.T.D. and K.J.D. both struggle with mental health issues. K.T.D.’s therapist reported K.T.D. "continues to meet criteria for Unspecified Trauma and Stressor Related Disorder due to the trauma that she has experienced and symptoms including avoidance, hypervigilance, nightmares, and intrusion." Similarly, K.J.D.’s therapist reported K.J.D. "continues to meet criteria for Unspecified Trauma and Stressor Related Disorder related to experiencing significant trauma and symptoms including avoidance, nightmares, hypervigilance, problems with concentration, and re-enactment of experienced trauma." K.T.D. demonstrated an Adverse Childhood Experience Score (ACES) of 6 out of 10, and K.J.D. demonstrated an ACES of 9 out of 10. As one of the children's therapists noted, "Adverse childhood experiences impact the development of a child and can increase the likelihood of lifelong mental or physical health problems." Because of the children's history, their therapists "strongly discouraged" additional placements and transitions and stressed the importance of consistency in their lives.
A June 10 DHS report discussed two possible adoptive placements for the children: the stepgrandmother or foster parents who had assisted the family in the past and had custody of the children's older half brother. However, those foster parents withdrew their interest in adopting the children for reasons not stated in the record sometime shortly after DHS wrote that June report.
The June report noted a few concerns about the children's placement with the stepgrandmother. The primary concern was the children's inconsistent attendance at therapy, as K.J.D. missed eleven of twenty-four scheduled sessions and K.T.D. missed ten of twenty-six scheduled sessions. In January 2021, K.T.D.’s therapist documented some missed appointments, though she wrote, "The missed appointments have often been due to other scheduling needs for [K.J.D.], her sibling, or for [the stepgrandmother.]" The stepgrandmother had a total ankle replacement around late December 2020 or early January 2021 that became infected and affected her mobility, though she has since participated in therapy to rehabilitate the ankle.
Another concern that DHS had in its June 2021 report included the stepgrandmother's possible coaching of the children to tell their therapists that they did not like the foster parents, who at the time were considered another adoptive placement for the children, and the stepgrandmother's disparaging of those foster parents. Further, DHS expressed concern that the stepgrandmother was allowing the children to spend time around her daughter-in-law, who had pending child endangerment and drug charges and a no-contact order with her own children.
A concern that DHS listed in the March TPR report was that K.J.D. was not enrolled in school despite being kindergarten-aged and K.T.D. was not in daycare. The report notes the stepgrandmother did not feel...
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