Opinion
23-1290
10-25-2023
IN THE INTEREST OF J.T., Minor Child, M.G., Guardian, Appellant.
Jody R. Rowe, Davenport, for appellant guardian. Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney General, for appellee State. G. Brian Weiler, Davenport, attorney and guardian ad litem for minor child.
Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.
A grandmother appeals a juvenile court order removing her as guardian in a child-in-need-of-assistance proceeding.
Jody R. Rowe, Davenport, for appellant guardian.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney General, for appellee State.
G. Brian Weiler, Davenport, attorney and guardian ad litem for minor child.
Considered by Greer, P.J., Buller, J., and Mullins, S.J. [*]
MULLINS, SENIOR JUDGE.
A grandmother appeals a juvenile court order removing her as guardian in a child-in-need-of-assistance (CINA) proceeding. Finding removal of the grandmother was in the child's best interests and therefore did not amount to an abuse of discretion, we affirm.
I. Background
J.T. was born in 2019. As an infant, he suffered a traumatic brain injury due to physical abuse by his mother. As a result, he is a wheelchair-bound quadriplegic, blind, and non-verbal. He requires specialized, around-the-clock care and primarily receives his sustenance through a gastronomy feeding tube. In mid-2021, the mother's rights were terminated, and a guardianship was established in the paternal grandmother while the father remained in federal prison. The grandmother also served as the child's placement.
The records from the prior CINA and termination proceedings are not before us. It's unclear why this permanency option was chosen given the limited facts we do know, namely that the father has never cared for the child on his own and was serving a lengthy federal prison sentence that would be consecutively followed by a state sentence.
In September 2022, the Iowa Department of Health and Human Services applied for temporary removal of the child from the grandmother, citing her recent arrest on drug charges and ongoing concerns since July regarding her neglect of the child's significant medical needs. As to the child's needs, there had been multiple founded child-abuse assessments relative to the grandmother failing to ensure the child attended necessary medical appointments and received proper nutrition through his feeding tube. Among other things, the department learned the grandmother had not filled or administered the child's prescription formula in more than one month. As to the drug charges, the grandmother was arrested on an interstate detainer; a tax-stamp violation; and multiple charges of possession of a controlled substance, one being with intent to deliver. According to law enforcement, the following substances were found in the grandmother's vehicle upon her arrest: 3.5 grams of marijuana, two bags containing a total of 29.0 grams of methamphetamine, eleven Vyvanse pills, ten unknown amphetamine pills, eight Hydrocodone pills, and seventeen Adderall pills. Officers also found drug paraphernalia and a digital scale.
The court entered an order for temporary removal, placing the child in foster care with limited guardianship to the department "for the purpose of meeting [the child's] needs while the guardian is unavailable." Following removal, the child was placed in a foster home that could meet his special needs on a short-term basis, and a bed was located for him in a long-term medical treatment facility for children with special needs. The grandmother tested positive for methamphetamine shortly after removal.
In its October order confirming removal following a formal hearing, the court observed that the grandmother performed satisfactorily in her role as guardian at first, but then "[t]hings started to fall apart in June 2022" in relation to the child's medical and nutritional needs. While the court saw some improvements with the help of voluntary services, it noted the grandmother was then arrested and remained homeless. So the court ordered continued removal and ordered the child to be placed in the special treatment facility for children. The child was moved to that facility shortly thereafter, where he has since remained and all of his special needs are unquestionably met.
By the time of the adjudication hearing in November, the grandmother maintained she had no issues with drugs and submitted, even if she did, it did not affect the child's wellbeing. While the court agreed the grandmother loved the child and had "been dedicated to providing him a safe and loving home life" in the past, it found a risk of adjudicatory harm was present given the issues with the grandmother's drug use and neglect of the child's special needs. So the court adjudicated the child as a CINA and directed the grandmother to address her mental-health and substance-abuse issues.
By January 2023, the child remained at the medical facility, where he continued to receive around-the-clock care and management of all of his medical needs. The child is also authorized frequent familial contact in the facility. Given the grandmother's ongoing housing instability, lack of accountability, and inability to demonstrate meaningful and consistent interest in the child's well-being, the department recommended that the court consider appointing an alternate guardian with long-term placement of the child in the medical facility as a concurrent permanency option.
While the grandmother completed a substance-abuse evaluation in early 2023, she never began substance-abuse treatment. And while she agreed she was "surrounded by methamphetamine users," she continued to deny being a user herself. In its February dispositional order, the court advised the grandmother there was limited time and she needed "to take positive action now." This included submitting to random drug testing. The grandmother evaded the department's first three attempts to obtain drug samples thereafter. When the grandmother finally submitted to testing in late March, she tested positive for methamphetamine and amphetamines.
By May, the grandmother had yet to begin substance-abuse treatment or find stable housing. She became much less consistent in prioritizing her opportunities to visit the child. And she was largely unreachable when providers tried to make contact with her to weigh in on pertinent and time sensitive medical and educational decisions relating to the child. As a result, the department caseworker opined the grandmother "is not in a place now or close to being in a place to meet [the child's] extensive needs." Given the grandmother's inattentiveness to the child's needs and apparent unavailability, the court decided to establish a limited guardianship with the department for purposes of making all medical and educational decisions for the child. As for concurrent permanency options, the department recommended that the child remain in his facility with guardianship being transferred to the foster family he was with prior to entering the facility, which would allow him "to be part of a stable family who can keep track of his needs, be part of his medical decisions, advocate for [him], and provide . . . family style interactions."
By July, the grandmother had not increased her participation in services. She missed hearings in both the juvenile proceeding and her own criminal case, which resulted in a warrant issuing for her arrest. She had only visited the child once since April. She still had not found stable housing, and she decided to continue her unemployment because she was afraid her wages would be garnished to cover fines. On the other hand, the former foster family began to visit the child at his facility, and the department reported they were up to date on his care and felt prepared to be guardians.
At the permanency hearing-for which the grandmother failed to appear- the State and department asked the court to remove the grandmother as guardian and replace her with the child's former foster parents. The guardian ad litem agreed this would be a "great option" for the child. In its ensuing permanency order, the court determined the child could not be placed with the grandmother and the appointment of the new guardians was in the child's best interests. The court reasoned the grandmother remained unstable, while the proposed guardians lived near the child's treatment providers, were licensed foster parents, had experience with children with special needs, and could serve as stable guardians that would meet the child's needs into adulthood. So the court removed the grandmother as guardian and appointed the guardians proposed by the remaining parties in her stead.
The grandmother appeals.
II. Standard of Review
While the juvenile court enjoys discretion in removing and appointing guardians in proceedings under Iowa Code chapter 232 (2023), "we continue to review the evidence de novo to determine whether the juvenile court abused that discretion." In re K.D., 975 N.W.2d 310, 319 (Iowa 2022). "An abuse of discretion occurs when the juvenile court 'bases its decisions on grounds or reasons clearly untenable or to an extent that is clearly unreasonable . . . [or] if it bases its conclusions on an erroneous application of the law.'" Id. (alterations in original) (citation omitted).
III. Discussion
On appeal the grandmother simply argues the juvenile court's decision was not in the child's best interests. While the State doesn't stress the point, we conclude from the outset that the grandmother failed to preserve error on her claim since she did not appear for the permanency hearing and her counsel did not object to removal of the grandmother as guardian. See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012) (""[T]he general rule that appellate arguments must first be raised in the trial court applies to CINA and termination of parental rights cases."); cf. In re K.W., No. 15-0790, 2015 WL 4642786, at *1 (Iowa Ct. App. Aug. 5, 2016) (finding challenge to termination not preserved where parent did not appear at hearing and "[t]here was no objection to the termination of her parental rights made during the hearing"); In re C.T., No. 14-0243, 2014 WL 1714958, at *1 (Iowa Ct. App. Apr. 30, 2014) (same); In re P.S., No. 11-0516, 2011 WL 2714169, at *1 (Iowa Ct. App. July 13, 2011) (same).
In her words, the grandmother questions "whether the juvenile court's termination of [her] guardianship was in the best interests of" the child. We note that the guardianship was not terminated. Instead, the grandmother was removed and replaced as guardian. See Iowa Code § 232.118(1).
In any event, the grandmother only argues the court's decision was contrary to the child's best interests. One of the requirements for removal of a guardian under section 232.118 is that the guardian's actions did not serve the child's best interests. K.D., 975 N.W.2d at 320. In analyzing what is in a child's best interests, we "give primary consideration to the child's safety, to the best placement for furthering the long-term nurturing and growth of the child, and to the physical, mental, and emotional condition and needs of the child." Id. at 325 (quoting Iowa Code § 232.116(2)).
The other requirement is that "the current guardian's actions were unreasonable or irresponsible." K.D., 975 N.W.2d at 320. The grandmother does not dispute the existence of that requirement.
First, the grandmother appears to argue the child's guardian should be family, so the court's removal of her and appointment of non-family guardians was contrary to the child's best interests. In doing so, the grandmother focuses on the bond between her and the child and her acceptable care for him before she fell on "hard times." But the bond between the child and his family was the main reason the court exercised this permanency option. It provided for the father's retention of his parental rights and the ability of the family, including the grandmother, to continue to exercise large amounts of contact with the child at his placement while putting in place responsible decision makers.
A de novo review of the evidence discloses the grandmother has neglected not only her care of the child, but also her important decision-making responsibilities, which has compromised the child's best interests. So we reject the claim that the grandmother's status as a relative demands that she remain as guardian despite her actions contrary to the child's best interests. As to the grandmother's later claim that "as a matter of public policy we must assure that [children with special needs] have every opportunity to have family make decisions about their institutionalized care," the department explored those opportunities here. The grandmother proved herself unsuitable, and various other family members were not interested. The only one that was interested was recently diagnosed with a rare blood disease that rendered her unable to serve as guardian. Circling back to the grandmother's reference to her prior suitable care before she fell on "hard times," suitable performance of a guardian in the past does not equate to suitable performance of a guardian at present or in the future. Cf. In re Guardianship of Johnson, No. 22-0562, 2023 WL 2396534, at *1 (Iowa Ct. App. Mar. 8, 2023) (noting mother previously served as a "wonderful guardian" but affirming her removal and appointment of successor guardian where mother's mental health deteriorated and affected her ability to serve as guardian).
Under former law, section 232.118 offered "no preference to any person or entity" when it came to appointment of guardians. K.D., 975 N.W.2d at 320. But, effective July 1, 2022, section 232.117(3)-which impacts appointment of guardians under section 232.118-was amended to provide priority preferences for purposes of guardianship and custody, including one for "[a]n adult relative of the child." See 2022 Iowa Acts ch. 1098, § 60. Despite that priority assignment, a child's best interests may override a familial preference. See In re D.S., 806 N.W.2d 458, 478 (Iowa Ct. App. 2011).
Next, the grandmother submits she "has made progress toward case plan goals," namely that she completed a substance-abuse evaluation, participated in wellness court, and attended visits. But these items relate to the return of the child to her custody-which the grandmother does not dispute cannot happen-not her status as guardian. And, in reality, none of these items were meaningful steps toward case plan goals. While the grandmother completed a substance-abuse evaluation, she did not participate in treatment thereafter and tested positive for methamphetamine. As to wellness court, the grandmother agrees she did "not regularly" participate. As to visits, the grandmother had largely discontinued exercising her many opportunities for interactions by the time of the permanency hearing.
The grandmother also discusses the possibility of additional time for the return of the child to her custody while at the same time acknowledging that the child cannot not be placed in anyone's custody outside of his treatment facility, an acknowledgment with which we agree. We likewise note this relates to custody placement, which the grandmother does not challenge, and not her status as guardian. To the extent the grandmother requests additional time "to demonstrate her ability to act as guardian but non-physical custodian" of the child, she had the opportunity to do so during these proceedings and only showed she was unable to serve as a consistent and responsible guardian.
In all, based on our de novo review of the evidence, we agree with the juvenile court that removal of the grandmother as guardian was in the child's best interests and was therefore not an abuse of discretion. We affirm.
AFFIRMED.
[*]Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2023).