In the Interest of T.F.-M., T.M., G.M., and A.G., Minor Children ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0153
Filed June 19, 2019
IN THE INTEREST OF T.F.-M., T.M., G.M., and A.G.,
Minor Children,
F.F., Intervenor,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A paternal grandmother appeals the juvenile court’s order denying her
motion to intervene in pending child-welfare cases. AFFIRMED.
Magdalena Reese of Cooper, Goedicke, Reimer & Reese, P.C., West Des
Moines, (until withdrawal) and Ronald E. Langford of Langford Law Office, LLC,
Des Moines, for appellant intervenor.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem
for minor children.
Karl Wolle of the Des Moines Juvenile Public Defender, Des Moines,
attorney for minor child A.G.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
2
TABOR, Judge.
A grandmother, Frances, challenges the juvenile court’s order denying her
motion to intervene in the child-welfare cases involving four children: T.F-M, T.M.,
G.M., and A.G.1 Although Frances loves these children, her efforts to provide them
a home came long after their removal from parental custody. In addition, the
guardian ad litem (GAL) questioned Frances’s capacity to protect the children
given her unwillingness to accept that her son, Brian, was responsible for the death
of another child and posed a risk of sexually abusing children. In light of these
facts, we find no error in the juvenile court’s denial of the motion to intervene.
I. Facts and Prior Proceedings
The grandmother’s delay in seeking intervention concerned the juvenile
court. Indeed, it has been two years since the Iowa Department of Human
Services (DHS) opened child-in-need-of-assistance (CINA) cases for A.G., G.M.,
and T.M. in June 2017 because of their parents’ ongoing struggles with substance-
abuse and mental-health issues. The CINA disposition occurred in September
2017. The DHS removed the youngest child, T.F.-M., from the parents’ custody in
February 2018, two days after her birth.
One month later, the DHS launched its search for kinship placements,
sending out notices to relatives, including Frances. Frances did not respond. In
June 2018, the children’s mother, Sadie, expressed concern the DHS had not
contacted the grandmother. Sadie also told the DHS that she and Brian
considered “signing over guardianship” to Frances. The DHS worker verified
1
Only three of the children are her son’s biological offspring. A.G. has the same mother
but a different father than the other three children.
3
Frances had received notice of the children’s removal; Frances decided not to get
involved because “Brian wanted to handle this situation as a man.” Frances
conveyed a willingness to be a placement for her biological grandchildren, but not
for A.G. because of the child’s behavioral challenges.
In assessing whether the grandmother would be a viable placement option,
the DHS worker explored Frances’s view of the family dynamics. Frances reported
in the past Brian had been “a really good dad” and she could not believe “he would
hurt the kids.” Despite Brian’s conviction for manslaughter in connection with the
October 2000 shaken-baby death of his two-month-old child, Frances insisted,
“Brian did not hurt that baby.” Frances also described Brian’s founded child-abuse
investigation as the child’s mother “getting even with Brian,” and refused to believe
Brian might be selling drugs to pay for the family’s living expenses.
The case moved forward without much progress toward reunification by the
parents. The DHS placed T.F-M, T.M., and G.M. in foster homes where they
became integrated into those families.2 In July 2018, the State petitioned to
terminate parental rights. That same month, Frances, without an attorney, asked
the court to consider her as a “good candidate” for care of the children. The court
held an initial hearing on the grandmother’s request in August 2018.3 Without
reaching a decision, the court assured Frances “even the parties [who] have
indicated they don’t believe that you should be granted the request don’t dispute
2
Since birth, T.F.-M. lived in foster care with one of his siblings. The DHS placed the
oldest child, A.G., in shelter care but had an open foster-care referral at the time of the
intervention hearing.
3
Changing her earlier position, Frances told the court she was willing to care for all four
children, including A.G., who was not her biological grandchild, recognizing the nine-year-
old had “been through a lot” and was “part of us.”
4
that you love the kids and that you want a relationship and that you are well
intended so [the] court will consider your motion submitted.”
The juvenile court then held termination hearings in August and September
2018. After those hearings, in early November 2018, Frances—with the
assistance of counsel—filed a motion to intervene.4 Before turning its attention to
the intervention question, the court issued its ruling terminating parental rights in
late November 2018.5 About one week later, the court held a hearing on the
grandmother’s motion to intervene. The court denied the motion in early January
2019. Frances now appeals.
II. Scope and Standards of Review
In most child-welfare appeals, our review is de novo—looking at the facts
and law anew. In re J.C., 857 N.W.2d 495, 500 (Iowa 2014). But we review the
juvenile court’s denial of a motion to intervene only for the correction of legal error.
In re H.N.B., 619 N.W.2d 340, 342–43 (Iowa 2000). Although our review is on
error, we accord discretion to the juvenile court’s determination whether the person
seeking to intervene is “interested” in the matter being litigated. Id. As always, our
fundamental concern is the best interests of the children. J.C., 857 N.W.2d at 500.
III. Analysis
Intervention is governed by Iowa Rule of Civil Procedure 1.407. While not
all rules of civil procedure automatically apply in child-welfare proceedings, Iowa
4
Sadie and Brian joined in Frances’s motion.
5
In March 2019, we issued two decisions affirming the termination of Brian’s parental
relationship with his three biological children. In re T.M., No. 18-2137, 2019 WL 1055683,
at *2 (Iowa Ct. App. Mar. 6, 2019); In re A.G., G.M., and T.M., 18-2130, 2019 WL 1055876,
at *2 (Iowa Ct. App. Mar. 6, 2019).
5
courts have used the intervention rule to decide motions by individuals “interested”
in the subject matter of cases under Iowa Code chapter 232. See, e.g., H.B.N.,
619 N.W.2d at 343 (noting “we are to liberally construe the rule of intervention” but
“must be certain that the applicant has asserted a legal right or liability that will be
directly affected by the litigation”).
Here, Frances expressed a general desire to intervene in the open child-
welfare cases. Because Iowa Code section 232.102(1)(a) extends relatives a
“legal right” to be considered for custody in the dispositional phase of a CINA
proceeding, a grandparent has an interest in the outcome of the dispositional
hearing and, thus, a right to intervene. In re A.G., 558 N.W.2d 400, 404 (Iowa
1997). But when the motion to intervene is filed long after the dispositional hearing,
the interest in the outcome of that hearing no longer exists. In re J.J., No. 10-0999,
2010 WL 3157770, at *3 (Iowa Ct. App. Aug. 11, 2010). Frances filed her motion
to intervene more than one year after the disposition order in the CINA cases.
Given its belated nature, the juvenile court properly determined the grandmother’s
motion to intervene in the CINA matters was untimely.
We next consider the grandmother’s right to intervene in the termination
proceedings under Iowa Code section 232.117(3).6 She filed her motion after the
termination hearing but before the court issued its order. For the open question of
ongoing placement, her motion was timely. See In re C.L.C., 479 N.W.2d 340,
6
That provision directs the juvenile court, after termination, to transfer guardianship and
custody of the children to one of the following: (1) the DHS, (2) a child-placing agency, or
(3) a non-custodial parent, other relative, or other suitable person. Iowa Code
§ 232.117(3)(a)–(c).
6
344 (Iowa Ct. App. 1991) (holding petition to intervene after termination of parental
rights was timely because questions of guardianship and custody remained).
In addition to timeliness, we address the separate question whether
Frances had a right to intervene in the case involving A.G., given that the child was
not her biological granddaughter. The State argued at the intervention hearing
that Frances “did not have a legal interest because she was not a relative.” But to
the extent Frances was a “suitable person” under section 232.117(3)(c), she had
a legal right to be considered as guardian or custodian of the child following the
termination of the parental rights, even if she was not a blood relative.7 Id. at 343
(finding couple had an interest in intervening because they had “functioned as the
children’s ‘de facto psychological parents’”).
Addressing the overall merits of the grandmother’s motion, the juvenile
court identified Frances’s “primary reason for requesting intervention” was so she
could be considered as a placement option for the children. The court denied
intervention because the DHS spent “considerable time vetting relative placement
options for these children, including [Frances]” and, based on its investigation, the
DHS determined she was “not an appropriate placement for these children.” The
7
Some states have added the definition of “fictive kin” to their child-welfare statutes. See,
e.g., Fla. Stat. Ann. § 39.4015 (2018) (“‘Fictive kin’ means an individual who is unrelated
to the child by either birth or marriage, but has such a close emotional relationship with
the child that he or she may be considered part of the family.”); Ga. Code Ann. § 20-1-15(2017) (“‘Fictive kin’ means an individual who is known to a child as a relative but is not in
fact related by blood or marriage to such child and with whom such child has resided or
had significant contact.”); Nev. Rev. Stat. Ann. § 424.090 (2017) (“‘fictive kin’ means a
person who is not related by blood to a child but has a significant emotional and positive
relationship with the child”).
7
court noted the children’s GAL agreed with the DHS assessment Frances would
not be a suitable caretaker.8
To justify denying the grandmother’s intervention request, the juvenile court
listed four reasons: (1) her criminal record, (2) the inadequate space in her home
for the children, (3) her refusal to believe her son Brian was responsible for the
death of an infant and inappropriate sexual activity with another child,9 and (4) the
DHS’s reluctance to disrupt the existing foster-care placements of the children that
showed promise for long-term stability through adoption. As we examine the third
and fourth reasons, we find no error in the juvenile court’s denial of Frances’s
intervention request.
Intervention must be “compatible” with the children’s best interests. H.N.B.,
619 N.W.2d at 344. We will not “elevate the grandparent[’s] interests above . . .
the interests of the child.” Id. In this case, the best interests of the four children
preclude placement with Frances because of unresolved doubts about her ability
to shield them from harm, particularly given her son’s history of troubling behavior.
The juvenile court aptly summarized this concern:
[Frances] does not believe [Brian] was responsible for the death of
his child D.M. [Brian] was charged with a criminal act regarding the
child’s death and spent time in prison after his conviction to a less
serious offense. Further, she similarly does not believe [Brian]
engaged in inappropriate sexual activity with a minor, despite a
8
The GAL told the court her “biggest concern” was the family’s belief Brian did not pose
any risk to the children: “They believe he took the rap for the death of his child for the
baby’s mother. They don’t believe that he is a sex-offending risk and that’s the biggest
barrier to me. They can’t be protective if they don’t understand the dangers that he poses.”
A.G. had a separate GAL, who believed it was in that child’s best interests to grant the
motion to intervene. A.G.’s GAL told the court the nine year old considered Frances to be
her grandmother and wanted to be with her rather than in shelter care.
9
The juvenile court acknowledged Frances’s convictions (for assault and driving while
barred) were “dated” (having occurred twenty years earlier) but opined her criminal record
“may be significant enough to bar adoption.”
8
founded Child Protective Assessment. She also states she was
unaware of [Brian] having any substance[-]abuse issues. The [c]ourt
must rely on . . . caretakers to exercise appropriate [judgment] when
determining who is safe for children to be around. The [c]ourt finds
[Frances’s] inability or unwillingness to acknowledge these issues
directly impacts her ability to act in an appropriate protective capacity
on the children’s behalf.
Although the record shows Frances loves the children, her inclination to ignore her
son’s faults leaves too much uncertainty about their future safety. Under these
circumstances, Frances did not have a sufficient interest in the section 232.117(3)
proceedings to intervene. See H.N.B., 619 N.W.2d at 345 (finding potential
intervenors who were not suitable caretakers did not have a legal right directly
affected by the litigation).
Finally, we share the juvenile court’s reluctance to disturb the children’s
long-term placements in preadoptive homes. For young children removed from
their parent’s custody, time marches swiftly. Frances chose not to intervene
earlier, deferring to her son’s desire to handle the removal on his own. But her
choice left three of the children in foster homes, where they are now comfortable
and integrated into those families. “When a court terminates parental rights, there
is no statutory preference for placement with a relative.” In re A.S., 906 N.W.2d
467, 477 (Iowa 2018). In addition, the grandmother’s belated request to intervene
does not trump the value in maintaining a stable environment for the children.
Frances’s intervention at this late stage was not in the children’s best interests.
AFFIRMED.