In the Interest of D.M., Minor Child ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 21–0314
Submitted September 15, 2021—Filed October 15, 2021
IN THE INTEREST OF D.M., Minor Child,
D.M., Father,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Warren County, Brendan Greiner,
District Associate Judge.
A father seeks further review of a court of appeals decision reversing the
juvenile court’s permanency order that transferred sole custody of the child to
the father. DECISION OF COURT OF APPEALS AFFIRMED; JUVENILE COURT
JUDGMENT REVERSED AND REMANDED.
Christensen, C.J., delivered the opinion of the court, in which all justices
joined.
Frank Steinbach III of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman,
P.C., West Des Moines, for appellee father.
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Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant
mother.
Magdalena Reese of Juvenile Public Defender, Des Moines, attorney and
guardian ad litem for appellant minor child.
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CHRISTENSEN, Chief Justice.
This case requires us to determine whether the juvenile court was correct
in issuing a permanency order transferring sole legal custody of an eight-year-
old child to Dad when Mom has substantially complied with court-ordered
services and the child could be returned to her care with a short transition. The
State initiated a child-in-need-of-assistance (CINA) proceeding after the parents’
inability to coparent led to numerous reports to the Iowa Department of Human
Services (DHS). At the time, Mom was the primary custodial parent under a
shared parenting schedule between the parents, but she struggled with mental
health issues, housing instability, and ensuring the child made it to school.
Additionally, both parents had difficulty coparenting. Mom participated in
services to reunify with the child and showed great progress. At the permanency
hearing, professionals in the case recommended a brief transition plan to reunify
the child with Mom over the course of a four- to six-week transition.
Nevertheless, the juvenile court determined it was not safe to return the child to
Mom’s home and entered a permanency order transferring sole legal custody of
the child to Dad. Mom and the guardian ad litem (GAL) appealed, and the court
of appeals reversed.
We granted Dad’s further review application. On our de novo review, we
conclude there was convincing evidence to show the child could safely be
transitioned to Mom’s care at the time of the permanency hearing. Therefore, we
affirm the decision of the court of appeals and reverse the juvenile court’s
permanency order transferring sole legal custody of the child to Dad.
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I. Background Facts and Proceedings.
Mom and Dad are the divorced parents of eight-year-old D.M. This case
has been ongoing since the State initiated CINA proceedings in February 2019,
following the completion of several child-protective assessments. Some of these
assessments were founded or confirmed, but most were unfounded. One of the
confirmed assessments named Dad as the perpetrator and one of the founded
assessments named Mom as the perpetrator. The most recent incident occurred
on December 26, 2018, and involved a physical altercation between the parents
that resulted in Mom’s arrest. At the time, the parents had a shared parenting
schedule with Mom as the designated primary custodial parent,1 but the parents
struggled to appropriately coparent D.M.
The parents stipulated to the CINA adjudication, and the juvenile court
placed D.M. in the temporary legal custody of Dad under DHS supervision with
fully-supervised visitation for Mom. In its order, the juvenile court noted a
myriad of concerns. These concerns involved Mom’s inability to understand
D.M.’s medication, use of corporal punishment, mental health issues, criminal
history, and imminent eviction. There were also concerns about D.M.’s anxiety
and fear of being in Mom’s care. Moreover, there were concerns about both
parents’ ability to coparent and how their poor coparenting skills were negatively
impacting D.M.
1The juvenile court and the court of appeals incorrectly stated the parents had shared
physical care of D.M. The district court entered an order on June 19, 2018, indicating Mom is
the designated primary custodial parent with a shared parenting schedule and denying Dad’s
request seeking a temporary change of custody based on an alleged substantial change in
circumstances.
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Although Mom had some setbacks, she gradually participated in services
to improve her mental health issues and parenting skills. Progress was evident
to the juvenile court at a June permanency hearing when the court granted her
an additional six months to work toward reunification. The court reasoned the
need for removal would no longer exist in six months so long as Mom could
“demonstrate the ability to provide a safe and stable home environment for [D.M.]
to live” and “effective co-parenting with [Dad].” The court subsequently
scheduled a permanency hearing for January 2021. Before that hearing, Mom
filed a motion to modify disposition and placement claiming Dad was
undermining her reunification efforts by discouraging D.M.’s relationship with
Mom. Mom also maintained she had engaged in the recommended services and
no safety concerns remained. The juvenile court modified the dispositional order
to grant Mom visitation with D.M. at the discretion of the GAL in consultation
with DHS and declared it would consider the remainder of the motion at the
permanency review.
The permanency hearing took place over two days in January and
February 2021. By this point, Mom’s visits with D.M. had increased to
incorporate overnight visits, Mom had demonstrated progress with her therapist
in regulating her emotions and learning to coparent, and both parents had
started to participate in family therapy with D.M. At the hearing, DHS
recommended a short period of additional time for Mom and D.M. to work toward
reunification because they had only started family therapy in October. Mom
sought immediate return of D.M. under the parents’ custody arrangement that
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designated her as the primary custodial parent or, alternatively, more time to
transition D.M. back to her care over the course of a few weeks. The GAL
recommended the implementation of a brief plan to transition D.M. back to the
parents’ custody arrangement of shared parenting with Mom as the designated
primary custodial parent. Dad asked the juvenile court to enter a permanency
order leaving D.M. with him and to grant concurrent jurisdiction for him to
obtain a custodial order in district court in conformance with the juvenile court
order.
At the hearing, the GAL reported D.M. initially expressed fear of residing
with Mom but that fear minimized over time. Similarly, D.M.’s therapist testified
that D.M. had some resistance to Mom but that D.M. was “unable to give any
responses” explaining her resistance “outside of, I don’t feel safe, or [s]he hurts
my feelings” when asked why she did not want to live with Mom. The therapist
noted that Mom “has worked very hard to follow through on the
recommendations by [the] Court” and that Mom “has built skills surrounding
taking accountability for the things that she has done that has maybe strained
the relationship with [D.M.] or even others in the family system.” She also
“believe[d] that [Mom] has done the work in individual therapy to work on
building that connection with [D.M.] again” and testified that reunification with
Mom was in D.M.’s best interest. While D.M. had also told a clinical social worker
that she did not feel safe in Mom’s care, the clinical social worker testified that
D.M.’s actions demonstrated the contrary. The clinical social worker and D.M.’s
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therapist both expressed concerns that Dad and his wife were coaching D.M. to
make these statements.
The DHS case manager explained that although Mom was asking for
reunification, DHS was asking for a gradual transition back to her to help D.M.
with the adjustment because an immediate return “would be overwhelming for
[D.M.] . . . and that anxiety would make that very challenging for her.” She noted
the professionals involved in the case were all of the opinion that the barriers
initially causing Mom’s instability no longer existed and described a transition
plan that would involve increasing the frequency of D.M.’s overnight visits with
Mom over the course of four to six weeks until D.M. was back in the parents’
shared parenting schedule under the custody agreement.
By the second day of the hearing in February, the transition plan had
already been initiated, and D.M. was attending overnight visits with Mom twice
per week, which would increase to three overnight visits the following week. On
the second day, the court appointed special advocate (CASA) and the family
centered services (FCS) worker both testified that they did not have any concerns
about returning D.M. to Mom’s care. Two of D.M.’s teachers testified about
concerns they had based on their interactions with Mom during D.M.’s virtual
schooling, with one explaining Mom “appeared” and “sounded angry” during the
one time they met in December 2020 and another teacher expressing concern
that Mom did not have the necessary materials to facilitate D.M.’s virtual
learning. The DHS case manager testified that she did not have the same
concerns as the educators. Finally, Mom’s two estranged sisters testified on
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Dad’s behalf over Mom’s objection about their concerns with Mom, but they both
acknowledged they had not had contact with Mom for years and had only
minimal contact with D.M. through Dad.
The juvenile court issued its permanency order a few weeks after the
permanency hearing, concluding it was in D.M.’s best interest to be placed in
the sole custody of Dad with some visitation for Mom. The juvenile court noted
D.M.’s and Mom’s progress in therapy as well as Mom’s progress on other fronts,
including her progression to unsupervised visitation, which went well for D.M.
and which D.M. enjoyed. Yet, the juvenile court concluded that returning D.M.
to her parents’ shared care “would have harmful effects on [the child’s] mental
and emotional health.” It highlighted Mom’s alleged negative interactions with
the two teachers who testified and indicators from D.M. of trauma while at school
and asserted its belief that Mom was manipulating the professionals in her case
to believe reunification was imminent based on her progress. Further, the
juvenile court reasoned the coparenting issues still remained and would
continue in the future.
Mom and the GAL appealed. The State did not appeal, but it filed a
statement on appeal with our court asserting it “fully agreed with the GAL and
recommended return of the child to the mother’s home” and “d[id] not inten[d]
to file a response defending the juvenile court order with which it disagreed.” The
court of appeals reversed the juvenile court’s permanency order and remanded
the matter back to the juvenile court to enter a permanency order either
returning D.M. to Mom’s care pursuant to the parents’ shared parenting
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schedule or providing Mom additional time to reunify with D.M. Dad filed an
application for further review, which we granted.
II. Standard of Review.
We review CINA proceedings de novo. In re D.D., 955 N.W.2d 186, 192
(Iowa 2021). In doing so, we give the juvenile court’s factual findings weight, but
we are not bound by them. Id. Our “paramount consideration” is protecting the
child’s best interests. Id.III. Analysis.
Mom and the GAL contend that the juvenile court erred in concluding D.M.
could not be returned to Mom’s care and in transferring custody from Mom to
give Dad sole legal custody.2 Under Iowa Code section 232.104(2) (2020), the
juvenile court must exercise one of the following options after a permanency
hearing: (a) enter an order returning the child to the child’s home (meaning the
parents’ shared care with Mom as the primary custodial parent in this case); (b)
continue the child’s placement for an additional six months based on an
enumeration of “the specific factors, conditions, or expected behavioral changes
which comprise the basis for the determination that the need for removal of the
child from the child’s home will no longer exist at the end of the additional six-
month period;” (c) direct the State to initiate termination proceedings; or (d)
2Mom also argues that the juvenile court erred in overruling her objections at the
permanency hearing to allowing her two sisters to testify. The court of appeals concluded that
Mom waived this argument by failing to cite any relevant legal authority to support her argument.
“We have discretion to choose which issues we review when we take a case on further review”
and choose to let the court of appeals decision stand on this issue. Holmes v. Pomeroy, 959
N.W.2d 387, 389 (Iowa 2021).
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transfer sole custody of the child from one parent to another. Iowa Code §
232.104(2)(a)–(d). Although the juvenile court has the authority to transfer
custody to the noncustodial parent, “[a]ny such placement is subject to the
constraints in section 232.102, including the goal of returning the child to the
original custodian as quickly as possible.” In re Blackledge, 304 N.W.2d 209, 214
(Iowa 1981) (reversing the juvenile court’s transfer of custody of the children from
Mom to Dad while the children were adjudicated CINA due to Mom’s parenting
struggles and criticizing the juvenile court for letting a comparison of the parents’
homes influence its decision). Here, the juvenile court chose to transfer sole
custody of D.M. to Dad. To do so, the juvenile court needed “convincing evidence”
that termination of D.M.’s relationship with Mom was not in D.M.’s best interest,
the family was offered services to correct the situation that led to D.M.’s removal
from Mom’s home, and D.M. could not be returned to Mom’s home. Iowa Code
§ 232.104(4). “When the evidence shows the [child’s] return will not produce
harm, the child is to be reunited with the [custodial] parent.” In re Blackledge,
304 N.W.2d at 214.
When the juvenile court granted Mom an additional six months to work
toward reunification in June 2020, it directed Mom to show that she could
“provide a safe and stable home environment for [D.M.] to live” and “demonstrate
effective co-parenting with [Dad.].” Mom made the most of those additional six
months, as she alleviated the concerns about being able to provide a safe and
stable home environment for D.M. and made significant progress toward her goal
of reunifying with D.M. By the second day of the permanency hearing, D.M. was
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already attending overnight visits with Mom twice per week, and those visits were
set to increase to three nights per week beginning the following week.
The record overwhelmingly supports the conclusion that D.M. could be
returned to Mom’s care, preferably through a gradual transition lasting about a
month to six weeks to assuage D.M.’s anxiety surrounding this change. The only
reason the professionals advocated for a gradual transition rather than
immediate reunification was for D.M.’s benefit, not because Mom lacked the
parenting skills to reunify with D.M. As D.M.’s therapist explained, D.M. needed
time to adjust to her “new normal” because she has struggled with “the unknown
of the future and what’s going to happen and changes that happen of different
movings and transitions.” Yet, the therapist had no concerns about reunifying
D.M. with Mom and asserted reunification was in D.M.’s best interest.
While two of D.M.’s teachers expressed concerns about Mom and testified
that D.M. told them she did not like visiting Mom, this testimony carries little
weight because it concerned only isolated incidents based largely on the
teachers’ limited interactions with Mom through virtual schooling and D.M.
almost always completed virtual schooling in Dad’s home with Dad or Stepmom
in the vicinity. Likewise, the negative testimony about Mom from her sisters is of
little to no value because the sisters have not had contact with Mom in years and
were not around to witness Mom’s progress or interactions with D.M. Similarly,
Dad’s past investigations by DHS3 are given little to no value because they
3These investigations include a confirmed report for denial of critical care in 2013 naming
him as the perpetrator for pushing Mom to the ground and causing her to almost land on then
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occurred years before. In contrast, the GAL, clinical social worker, FCS worker,
DHS case manager, D.M.’s therapist, Mom’s therapist, and CASA—all
professionals who have had far greater and more recent interactions with Mom
and D.M. throughout this case—supported reunifying D.M. with Mom. See, e.g.,
In re A.S., 906 N.W.2d 467, 476 (Iowa 2018) (explaining we give weight to the
testimony and recommendations of professionals like the DHS case manager and
GAL who personally observe interactions between the parent and child).
Some coparenting issues still remained at the time of the permanency
hearing, but it’s not for a lack of progress by Mom. The word “coparenting”
implies that an effort will be made by more than just one parent. At the
permanency hearing, the State, the GAL, and various professionals raised
concerns about Dad’s negative impact on D.M. in terms of hindering a
relationship between D.M. and Mom. As the State declared in closing, “The
Department [of Human Services] has no safety concerns with Mother in her
residence, nor has FCS. I think the concerns are the comments that are made
and things that are said by Dad and Dad’s wife that has caused this case to go
longer.” Both D.M.’s therapist and clinical social worker expressed concerns that
Dad and his wife were directly or indirectly coaching D.M. to undermine Mom’s
reunification efforts through comments about Mom and actions surrounding
D.M.’s visits with Mom, such as making D.M. wash her clothes and toys upon
returning from Mom’s house and claiming they smelled or were dirty. The
seven-month-old D.M. and a family assessment in 2014 after D.M. received burn marks around
her neck from getting tangled in a dog leash while she was in Dad’s care.
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therapist and clinical social worker both testified that D.M.’s behavior
demonstrates her desire to be with Mom and comfort around Mom, while her
words contradicted these actions at times.
The GAL astutely observed,
This family needs to work together, but it cannot say it all falls on
[Mom] to say that she has a deficiency as it relates to the co-
parenting issue. I think most of all that came to me—that became
apparent to me by Father calling the mother’s estranged relatives to
testify that [D.M.] is currently having contact with those relatives. If
nothing else, that certainly shoots up red flags for me as a Guardian
ad Litem as it relates to this family’s ability to co-parent.
This behavior on Dad’s part is especially concerning given Dad was on probation
at the time of the permanency hearing for threatening and harassing behavior
directed at an ex-girlfriend.
Mom should not be penalized for Dad’s lack of effort and progress in
coparenting. Cf. In re J.H., 952 N.W.2d 157, 171 (Iowa 2020) (“[I]n termination
of parental rights proceedings each parent’s parental rights are separate
adjudications, both factually and legally.” (quoting In re D.G., 704 N.W.2d 454,
459 (Iowa Ct. App. 2005))). Notably, both parents were ordered to complete
intensive coparenting instruction, but only Mom completed it. The FCS worker
took responsibility for Dad’s failure to complete the class, but it was clear from
the worker’s testimony that Dad actually was responsible for failing to complete
it. The worker explained that he had given Dad the coparenting materials and
met with Dad and his wife “a couple of times” but that “[b]oth times[,] they hadn’t
had the opportunity to review [it],” so the worker essentially did not continue to
raise the issue with him. Dad’s failure to complete the material was due to his
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own failure to prioritize it. The FCS worker made it available to Dad with
instructions on how it should be completed. He chose to take a shortcut from
the FCS worker’s instruction plan for the court-ordered coparenting class by
choosing not to read the material as instructed and relying instead on the FCS
worker’s attempted summary. Overall, Mom demonstrated a greater willingness
to work on the coparenting issue than Dad and, in turn, demonstrated
substantial progress on this front.
Yet, one would not know this from reading the juvenile court’s permanency
order. In finding D.M. could not safely be returned to Mom, the juvenile court
notes the “most convincing evidence” is the testimony of two of D.M.’s teachers
based on isolated incidents that occurred during virtual schooling, some of which
occurred at Dad’s home. The juvenile court offers no other support in its analysis
as to why D.M. cannot be returned to Mom. As we have already noted, the
teachers’ testimony has little relevance and is contrary to the observations and
recommendations for D.M.’s return to Mom from the many professionals who
have long been involved in this case.
The juvenile court’s permanency order also substantially disregards Dad’s
role in how this case came to the DHS’s attention. As the CPS assessment that
led to this case documented,
There have been 15 allegations reported into DHS regarding [D.M.’s]
care in these parents[’] homes. DHS has completed 7 assessments
with an additional assessment open at this time. . . . [D.M.] has been
participating in counseling, however this is not consistent as the
parents have disagreed on counselors for her to where this has
changed providers hindering [D.M.’s] ability to connect and develop
a relationship with a counselor. The D[HS] has previously not been
able to intervene with this family as there has not been an incident
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that has risen to the level of child abuse. . . . [The parents] need to
be able to co-parent this child. They need to be able to have healthy
communication regarding their child and leave her out of their
personal conflicts. The parents need to participate with services to
address these concerns.
(Emphasis added.) While it is true that the CINA petition resulted from a CPS
assessment in which Mom was at fault and Mom was the less stable parent of
the two at the time, Dad’s actions also contributed to the turbulent family
dynamics that D.M. was forced to endure for several years. By no means was
Dad an innocent bystander throughout all of this.
Ultimately, Mom took the steps required of her to reunify with D.M. and it
is compelling that none of the professionals who have worked with Mom and
D.M. throughout this case have concerns about returning D.M. to the custodial
arrangement in place at the time of removal. It is clear from the record that D.M.
could safely be returned to Mom’s home at the time of the permanency hearing
under the parents’ shared parenting schedule with Mom as the primary custodial
parent. See In re Blackledge, 304 N.W.2d at 214 (“When a child is removed from
the home, services are provided to the parent to facilitate the child’s return.
When the evidence shows the return will not produce harm, the child is to be
reunited with the parent.”). Nevertheless, DHS’s involvement with the family did
not end at the permanency hearing and we do not have a record of whether
transition-aimed visitation has continued or what has transpired since the
February 2021 permanency order. Consequently, we reverse the juvenile court’s
permanency determination and remand the matter to the juvenile court to enter
a permanency order either returning D.M. to Mom’s physical care pursuant to
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the parents’ shared parenting schedule or granting Mom additional time for
gradual reunification based on our determination that further transition
planning would terminate the need for removal within six months.
We close with a reminder for juvenile courts. The primary goal of the
juvenile court in CINA proceedings is reunification when parties have specifically
complied with court-ordered services, not establishing or modifying custody.
“The parent’s right to have a child returned . . . is not measured by comparing
the parent’s home to the [other parent’s] or an ideal home. Rather the parent’s
right is established by negating the risk of recurrence of harm.” Id. at 214–15
(holding the juvenile court erred in comparing the mother’s home to the father’s
home in determining the best interests of the children required transferring legal
custody and placement to the father). “[T]he spirit of assistance proceedings is
to improve parenting skills and maintain the parent–child relationship.” In re
M.S., 889 N.W.2d 675, 686 (Iowa Ct. App. 2016) (en banc).
When the juvenile court granted Mom an additional six months, it stated
the need for removal would no longer exist in six months if Mom could
“demonstrate the ability to provide a safe and stable home environment for [D.M.]
to live” and “demonstrate effective co-parenting with [Dad].” Mom took those
words to heart by taking the steps she needed to alleviate these issues and
cannot be held solely responsible for any lingering coparenting issues that stem
from Dad’s role in the parenting relationship. “[Mom] is not perfect, but the law
does not require perfection.” Id. When Mom met the juvenile court’s directives, it
should have taken the steps necessary to return the family to its original custody
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agreement with Mom as the primary custodial parent and left the parents’
custody issues for district court. To do otherwise was an unauthorized
modification of the custody agreement by the juvenile court. Therefore, we
reverse the judgment of the juvenile court.
IV. Conclusion.
For these reasons, we affirm the decision of the court of appeals, reverse
the judgment of the juvenile court, and remand this matter for further
proceedings consistent with this opinion.
DECISION OF COURT OF APPEALS AFFIRMED; JUVENILE COURT
JUDGMENT REVERSED AND REMANDED.