In the Interest of T.D. and T.D., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 22-1231
Filed October 5, 2022

IN THE INTEREST OF T.D. and T.D.,
Minor Children,

A.H., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, David F. Staudt,

Judge.

A mother appeals the denial of her request to terminate the guardianship of

her children. AFFIRMED.

Nina Forcier of Forcier Law Office PLLC, Waterloo, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Mark A. Milder of Mark Milder Law Firm, Denver, attorney and guardian ad

litem for minor children.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
2

BADDING, Judge.

On the brink of having her parental rights to her two oldest children

terminated, the mother agreed to a guardianship with the maternal grandmother

under Iowa Code section 232.104(2)(d)(1) (2019). Two years later, the mother

asked the juvenile court to end the guardianship and return the children to her care.

The court denied that request, finding it would not be in the children’s best

interests. The mother appeals.

I. Background Facts and Proceedings

In May 2018, the mother made a bottle for her two-month-old baby, J.W.,

and put him in bed with his father. She woke up her two older children,1 born in

2007 and 2012, before she left for work. A couple of hours after the older children

left for school, the father called the mother because J.W. was vomiting blood. The

mother met the father at urgent care, where the baby was transferred to a hospital.

Once at the hospital, staff discovered J.W. had bilateral subdural hematomas, a

right parietal skull fracture, and retinal hemorrhages, along with healing rib and

femur fractures. A medical team concluded “the child experienced a non-

accidental head trauma (physical abuse).”

The two older children were removed from the mother’s care and eventually

placed with the maternal grandmother. When J.W. was discharged from the

hospital, he was placed into foster care while the Iowa Department of Human

Services2 continued its investigation. Both parents denied knowing the cause of

1Their father is deceased.
2We note the department has since merged with the Iowa Department of Public
Health, thus culminating in the Iowa Department of Health and Human
3

their son’s injuries. The mother also initially denied that the father had a criminal

history, even though she knew that he had spent seventeen years in prison for

abusing an eleven-month-old child. No criminal charges were ever filed, although

the department’s child abuse assessment ultimately concluded a preponderance

of the evidence “point[ed] to [the father] as the person responsible” for the injuries.3

The mother stipulated that the two oldest children, along with J.W., should

be adjudicated as in need of the court’s assistance. As the child-in-need-of-

assistance cases progressed, the infant was transitioned from foster care into his

maternal grandmother’s home, where he has since remained. J.W.’s traumatic

brain injuries have left him with permanent cognitive impairment. He is blind,

unable to walk or talk, and in need of twenty-four-hour care.

Despite her belief that the father caused their son’s injuries, the department

received multiple reports that the mother continued her relationship with him. She

also periodically tested positive for marijuana. And she had a strained relationship

with the oldest child, who wrote a letter in 2018 “requesting not to have visits with

her mother.” The mother and that child participated in counseling with minimal

success. All the child would state is that her mother “has a temper, is domineering,

unapproachable, and controlling.”

Services. See In re D.B., No. 22-0979, 2022 WL 3906768, at *1 n.3 (Iowa Ct. App.
Aug. 21, 2022).
3 A second investigation was opened in November 2018 “after an anonymous

report was made claiming [the mother] dropped [the baby] in a carrier . . . and the
child fell down the stairs before he was placed in the bed with [the father].” The
allegation was not founded because the anonymous reporter “would not step
forward,” according to a report written by a court-appointed special advocate.
4

In May 2019, the department recommended that a petition to terminate both

parents’ rights be filed. The State did so, and a combined permanency and

termination hearing was set for October. Meanwhile, the mother secretly gave

birth to another baby after hiding her pregnancy from the department. The

department learned of the birth and removed that child from the mother’s care.

Though the department suspected that J.W.’s father was also the father of the new

baby, paternity testing showed it was a different man—but one who also had a

violent past. Child-in-need-of-assistance proceedings for that child were started

around the same time the permanency and termination hearings were set for the

three oldest children.

On the day of those hearings, the parties informed the juvenile court they

had agreed that the mother would consent to the termination of her parental rights

to J.W. and guardianship of the two older children with the maternal grandmother.

The court found a guardianship was in the children’s best interests, noting they

had thrived in the grandmother’s care. The court accordingly ordered “pursuant to

Iowa Code section 232.104 that a guardianship within juvenile court is established

for the minor children.” A review hearing was set for September 2020.

By the time of that review hearing, the maternal grandmother had adopted

J.W. The mother was still involved in juvenile court proceedings for the youngest

child. She continued to use marijuana and associate with questionable individuals.

Her relationship with a man who was gang-affiliated led to a drive-by shooting at

her home. And she was arrested for operating while intoxicated. All parties agreed

the guardianship for the oldest children should be continued.
5

The mother turned things around in 2021. Permanency in her youngest

child’s case was deferred, and a trial home visit began in April 2021. An August

report to the court noted the mother “has grown into a protective parent and

individual that puts the safety and well-being of her child first.” That child’s case

was accordingly closed. Soon after, ahead of the annual review hearing in the

oldest children’s cases, the mother indicated that she wanted the grandmother’s

guardianship to end.4 After a September report from the children’s guardian ad

litem stated that both children wanted to stay with their grandmother, a hearing

was set to determine whether the guardianship should continue.

The mother’s oldest child was the first witness to testify at the hearing in

February 2022. She explained that she wanted to continue living with her

grandmother because she felt safe there. The child testified that her mother is

“very judgmental. . . . [S]he just makes everything harder than it has to be.” She

also said that she would not feel comfortable or safe living with the mother because

of the “people she hangs around.” The second oldest child did not testify, but he

told the guardian ad litem in an updated report before court that he was happy with

the way things were.

Because the parties could not present all of their evidence at the hearing in

February, the court set another day for mid-March. During that month-long break,

the mother “unfriended” the oldest child on Facebook and cut off contact with both

children. She still saw them at times because she lives across the street from the

4It does not appear from our review of the record that the mother ever filed a formal
motion to terminate the guardianship, instead expressing her intent to do so in an
August motion asking that counsel be appointed to represent her and orally at a
hearing in September.
6

maternal grandmother, but she would only “wave” at them in passing. She

testified, “If they’re not ready to wave and/or speak back, what am I supposed to

do?” The mother also posted on Facebook that she was in a “countdown to

California,” testifying on the second day of the trial that she wanted to move there

at some point.

In July, the juvenile court entered a ruling denying the mother’s request to

terminate the guardianship. The court made strong credibility findings against the

mother, describing her as “deceptive,” “untruthful,” and “selfish” before concluding:

Currently the children are thriving under the care of the grandmother.
Both are attending school, participating in extracurricular activities
and generally behaving themselves as productive young individuals.
The [c]ourt has great difficulty in considering as truthful much of the
testimony by [the mother]. Throughout the history of this case she
has attempted to mislead the [d]epartment . . . , the State and the
[c]ourt through her unfamiliarity with the truth. Not only is [the
mother] untruthful, her actions belie her statements that she intends
to act in the best interest of her children. Most notably to the [c]ourt
and most recently is her act of “unfriending or blocking” her daughter
on Facebook. It appears to the [c]ourt that the only reason she did
so was in retaliation for her daughter’s truthful testimony that she did
not wish to reside with her mother. Attempting to “get even” with your
daughter over a truthful statement is not acting in your child’s best
interest. Given [the mother’s] lack of credibility and her own
inappropriate behaviors and actions, the [c]ourt finds that she has
not proved more likely than not that returning the children to her care
would be in their best interest.[5]

The mother appeals, claiming the court “erred in not dissolving the

[g]uardianship as [she] has made substantial changes” since it was established,

and “[i]t is in the children’s best interests to be returned to” her care.

5We note the mother does not raise any challenge to the burden of proof applied
by the juvenile court.
7

II. Standard of Review

“We review the denial of a motion to modify a permanency order de novo.”

See In re E.R., 973 N.W.2d 889, 893 (Iowa Ct. App. 2021). “We give weight to the

fact findings of the trial court, especially when considering the credibility of

witnesses, but are not bound by them.” In re A.S.T., 508 N.W.2d 735, 737 (Iowa

Ct. App. 1993).

III. Analysis

The mother spends much of her petition on appeal challenging the juvenile

court’s failure to recognize the “measurable changes she has made in her life since

2019 when the guardianship was initially agreed to by the parties.” But a party

“seeking modification of a permanency order does not need to establish that a

substantial change in circumstances has occurred.” E.R., 973 N.W.2d at 893.

Instead, the proper focus is on section 232.104(7) (2021), which states that after

a permanency order is entered,

The child shall not be returned to the care, custody, or control
of the child’s parent or parents, over a formal objection filed by the
child’s attorney or guardian ad litem, unless the court finds by a
preponderance of the evidence, that returning the child to such
custody would be in the best interest of the child.

As we said in E.R.:

Our responsibility in a modification of a permanency order is to look
solely at the best interests of the children from whom the
permanency order was previously entered. Part of that focus may
be on parental change, but the overwhelming bulk of the focus is on
the children and their needs.

973 N.W.2d at 893–94 (cleaned up).

It’s true the mother has made positive changes in her life since the

guardianship was established, as the juvenile court recognized in finding that she
8

“was able to care for the infant well enough that custody could be returned to her.”

Yet that does not mean it was in the oldest two children’s best interests to be

returned as well. See, e.g., In re C.W., No. 20-1545, 2021 WL 377468, at *2 (Iowa

Ct. App. Feb. 3, 2021) (noting “the ability to care for one child does not equate with

an ability to care for” other children).

On that issue, the mother argues she is “better suited to care for the

emotional, moral, social, and educational needs of the children,” pointing to various

factors including her “stricter rules,” the older child’s absences from school, that

child’s caretaking of J.W., and the grandmother’s interference with contact

between the mother and children.6 But as the court and other professionals

involved in the case pointed out, many of these positions were inconsistent. For

instance, while the mother insisted the oldest child wanted to stay with the

grandmother because she had more freedom there, the mother also complained

the grandmother forced the oldest child to care for J.W. As far as the mother’s

6 The mother also suggests the juvenile court should have afforded her the
constitutional “parental preference” recognized in In re Guardianship of L.Y., 968
N.W.2d 882, 897–98 (Iowa 2022)—a case interpreting Iowa Code section
232D.503. Trouble is, while the mother raised this argument in her written closing
argument, the court did not address it, and she did not file a motion requesting a
ruling. See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“It is a
fundamental doctrine of appellate review that issues must ordinarily be both raised
and decided by the district court before we will decide them on appeal. When a
district court fails to rule on an issue properly raised by a party, the party who raised
the issue must file a motion requesting a ruling in order to preserve error for
appeal.” (citation omitted)). Although the State concedes error was preserved on
the mother’s claims, we disagree as to this issue. See State v. Bergmann, 633
N.W.2d 328, 332 (Iowa 2001). Even if the issue had been raised, “we are
ultimately guided by consideration” of the children’s best interests. In re P.S., No.
22-0077, 2022 WL 1234120, at *2 (Iowa Ct. App. Apr. 27, 2022); accord In re L.H.,
No. 20-1144, 2021 WL 211136, at *2 (Iowa Ct. App. Jan. 21, 2021) (“Even if a
statutory preference for placement of a child exists, the placement must still be in
the child’s best interests.”).
9

contact with the children, in one breath, the mother complained that she was never

allowed to see them while in the next she asserted that she saw them every day.

Her complaints about the grandmother’s caretaking simply rang hollow because,

as the juvenile court found, she was “quite dependent” on the grandmother “and

her own children for the care of her infant,” who she would often drop off with the

grandmother.

The grandmother has cared for the children for more than four years. By

all accounts, except the mother’s, the children are doing very well there. While the

oldest child has missed some school because of illnesses and vacations, she is

getting mostly good grades and received a student of the month award. Both

children were described as mature, intelligent, and happy. See In re A.R., 932

N.W.2d 588, 592 (Iowa Ct. App. 2019) (considering these factors and others in

examining preferences of minor children). If the mother managed to get the

children back in her care, and she followed through on her desire to move to

California, they would be separated from J.W. and uprooted from all they know.

See In re J.E., 723 N.W.2d 793, 800 (Iowa 2006) (noting a preference to keep

siblings together).

In the end, we agree with the guardian ad litem’s assessment that while the

mother “loves her kids fiercely,” and they love her back, the mother “is primarily

focused . . . on what she is missing out on by not having the kids in her care. . . .

[H]er own feelings and wishes detract from her ability to recognize that the children

are happy and in a good, stable situation.”7 In contrast, according to the guardian

7The mother objected to admission of the guardian ad litem’s reports as hearsay.
The juvenile court overruled her objections, finding the reports were admissible
10

ad litem, the grandmother “has a clear grasp on the reality of the family’s situation.

She is supportive of [the mother], but she has a deep and abiding understanding

for who the children are and what they need. Her focus remains [on] doing what

is best for them.” We agree and affirm the juvenile court’s ruling denying the

mother’s request to end the guardianship.

AFFIRMED.

under Iowa Code section 232.104(8), which allows the consideration of all
“relevant and material evidence” in a proceeding to modify a permanency order.
The mother passively raises the same argument on appeal, but she provides no
substantive analysis or cites authority in support of it, so we consider the issue
waived. See Iowa R. App. P. 6.903(2)(g)(3); L.N.S. v. S.W.S., 854 N.W.2d 699,
703 (Iowa Ct. App. 2013).