In the Interest of A.D., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 24-0232
Filed May 8, 2024

IN THE INTEREST OF A.D.,
Minor Child,

B.D., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Grundy County, Daniel L. Block,

Judge.

A father appeals the termination of his parental rights to his one-year-old

daughter. REVERSED AND REMANDED.

Rachel Antonuccio of Waterloo Juvenile Public Defender’s Office, Waterloo,

for appellant father.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

Jennie Wilson-Moore of Wilson Law Firm, Conrad, attorney and guardian

ad litem for minor child.

Considered by Tabor, P.J., and Badding and Buller, JJ.
2

TABOR, Presiding Judge.

A.D. will turn two this month. In January, the juvenile court terminated the

parental rights of her mother and father—focusing on their history of substance

use and unmet mental-health needs. Her father, Bradlee, appeals the termination,

raising six issues.1 First, he asks for six more months to reunify. Second, he

challenges reasonable efforts. Third, he contests the grounds for termination.

Fourth, he contends that termination is not in A.D.’s best interests. Fifth, he argues

that creating a guardianship for A.D. would be preferable to termination. And sixth,

he seeks reversal based on the court’s reliance on an “invalid” position by the

guardian ad litem (GAL).

After our independent review of the record, we conclude that continuing

A.D.’s relative placement for another six months is appropriate, given Bradlee’s

positive parenting skills and his progress in addressing his substance use and

mental health. See Iowa Code § 232.104(2)(b) (2023). We respect the juvenile

court’s determination that it is not in A.D.’s best interests to wait longer for

permanency. But in our de novo review, we reach a different result.2 Thus, we

reverse the termination order and remand for further proceedings.

I. Facts and Prior Proceedings

A.D.’s mother used methamphetamine while pregnant. After A.D.’s birth,

the placenta tested positive for the drug at an elevated level. On the State’s

1 The mother did not appear at the termination hearing and does not appeal.
2 We review termination proceedings de novo. In re L.B., 970 N.W.2d 311, 313
(Iowa 2022). We respect the juvenile court’s fact findings, especially when they
rest on witness credibility. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). But
we are not bound by them. Id. Our primary concern is the best interests of the
child. Id.
3

petition, the juvenile court adjudicated A.D. as a child in need of assistance (CINA)

in July 2022. After the adjudication, A.D. lived with Bradlee and his mother, April,

under a safety plan developed by the Iowa Department of Health and Human

Services. The grandmother was the primary caretaker, but Bradlee shared

responsibility for meeting his daughter’s daily needs.3

Yet Bradlee’s history of substance use remained an obstacle to resuming

custody of A.D. That summer, MercyOne Hospital referred Bradlee for inpatient

treatment at Pathways Behavioral Services, but he did not follow through. He did

obtain a substance-use evaluation from Pathways in September 2022. The

provider diagnosed him with severe amphetamine-use disorder, substance-use-

related bipolar disorder, and post-traumatic stress disorder. The provider

recommended outpatient treatment. In its December 2022 dispositional order, the

court expressed concern that Bradlee was not engaging in treatment and was not

cooperating with the department’s drug-testing demands.

But the court did find that Bradlee exhibited “many positive parenting skills”

in his daily contact with A.D. That finding was supported by the service provider

progress report affirming that A.D. was healthy and developmentally on track and

“[h]er needs are met by Bradlee and April.”4

Despite that finding, a newly assigned case manager, Darci Hernandez, told

the grandmother in December that she could not continue as a placement for A.D.

3 Bradlee married T.D. in August 2022. She also lived with April, participating in
A.D.’s care. In September, the GAL reported that A.D. was “in a safe environment”
at her grandmother’s home.
4 That’s not to say everything was rosy in that progress report. The service

provider pointed out that Bradlee was not engaged in services.
4

if Bradlee stayed in her home. Hernandez testified that the department believed

that Bradlee could not remain in April’s home because he was not complying with

drug testing and treatment recommendations. Although the department’s

ultimatum surprised April, she asked Bradlee to move out by January 2023. That

request stunned Bradlee who testified that he had been providing much of the

everyday care for A.D.

Shortly after leaving his mother’s home, Bradlee underwent a two-day

psychiatric commitment at Wheaton Franciscan Healthcare in Waterloo. Bradlee’s

hospital records state that “he was using meth when he was placed in jail on

Sunday,” but the hospital toxicology report showed that he was negative for all illicit

substances. The discharge recommendations were for medication management

and outpatient therapy for mental-health issues. But no treatment was

recommended for substance-use issues. On a related note, Bradlee obtained a

medical cannabidiol registration card in February 2023.

Belying its earlier explanations, even after Bradlee moved out, the

department decided to end A.D.’s placement with her grandmother. In March 2023

case manager Hernandez decided that the “deplorable” condition of April’s home

was unsafe for a small child. Within hours of the social worker advising April that

her residence would not be approved for a home study in its current condition, the

house caught fire, leaving it uninhabitable. Without stable housing, April was no

longer a placement option for A.D. So the department placed the child with

Bradlee’s cousin and her husband. One month later, the State petitioned for

termination of parental rights.
5

Meanwhile, Bradlee returned to Pathways in April 2023 for another

evaluation. The evaluator recommended intensive outpatient treatment. Bradlee

started attending services consistently and his counselor reported: “Bradlee

appears to be genuinely attempting to participate productively in treatment

services, but mental health symptoms do appear to be a significant barrier to doing

so at this time.”

The court held a hearing on the termination petition in 2023. Case manager

Hernandez recommended termination based on Bradlee’s marijuana use: “I guess

bottom line, [his] denial of wanting to quit marijuana, I don’t think that [A.D.] could

be safely returned to him at this time.” Hernandez acknowledged on cross-

examination that Bradlee had missed only one drug-treatment appointment in

three months but remained skeptical of his commitment: “His attendance is an

improvement, however, I would say his grasp of sobriety is not an improvement.”

Hernandez also agreed that Bradlee was “doing medication management” but

would not concede that he was doing enough to address his mental health.

As for parenting interactions, Hernandez testified on direct examination that

Bradlee had only weekly visits with A.D. But on cross, she conceded that the visits

had actually increased to twice a week—the second visit supervised by the relative

placement. Even with that concession, the case manager testified that the

increased frequency of visits did not indicate “a ton of progress being made.” Yet

Hernandez also admitted on cross that Bradlee had good parenting skills. When

asked if Bradlee was observed “feeding her, changing her diaper, playing with her,

cuddling with her, all of those things,” Hernandez agreed, “Yes, that’s correct.”

Still, in questioning by the GAL, Hernandez predicted that even if Bradlee complied
6

with all department recommendations it would be “at least six months” before he

could move to semi-supervised visits.

The service provider was more willing to credit Bradlee’s progress. He

testified that in the past three months Bradlee had become a more “energetic and

engaged” parent during visitations. And the provider agreed that A.D. is always

happy to see her father. Both Bradlee and his wife, T.D., testified that they had a

strong bond with A.D. She calls Bradlee “dada” and calls T.D. “mommy.” They

described their apartment, which was furnished with a crib, highchair, and other

childhood necessities. Bradlee testified that he never had a founded child abuse

report and intended to cooperate with the department to ensure A.D.’s safety. T.D.

also voluntarily obtained a “hair 5 drug panel” test from Omega Laboratories that

was negative for all illicit substances.5

At the close of the hearing, Bradlee’s counsel asked for “an extension of

time so [Bradlee] could continue to improve and continue to show the court and

parties that he’s able to resume care for his daughter.” The GAL joined in that

request. The court took the matter under advisement.

In early July 2023—before the court ruled—the department filed a

laboratory report from PharmChem, Inc. showing that Bradlee’s “sweat testing”

results were positive for methamphetamine. (The results were negative for

amphetamines, marijuana, and other drugs.) In response, Bradlee’s counsel filed

a notice asserting that a drug prescribed to Bradlee “has been known to cause

false positives for amphetamine.”

5 The parties refer to the Omega Lab screening as a “HairStat” test, so we will use

that description as well.
7

Two days later, the department submitted to the court an email thread

between social workers and lab representatives entitled “Drug testing issue results

and needed support from Lab.” The social work supervisor noted that Bradlee’s

urine tests from May 3 and May 9 were only positive for marijuana, but the sweat

tests from May 30 and June 19 were positive for methamphetamine. The

supervisor also noted that he didn’t see a “positive result for amphetamines.” A

PharmChem senior account manager responded:

I won’t address the urine samples as they have no bearing on
the two sweat patch results. They are not even in the same time
frame. Also note, UA testing is nothing more than spot testing and
patch testing is a continuous collection of a sample that truly
represents a 24/7 monitoring for drugs of abuse. . . . The two
samples meet EVERY qualification to report out the
Methamphetamine POS. The reason why AMP is NEG on the
SCREENING (not confirmation) is due to the fact that the value is
below 10 ng/mL. The only reason AMP is reported out is in relation
to the Methamphetamine POS. The report is indicative of
Methamphetamine use.

Then, in August 2023, Bradlee’s sweat patch tested positive for

methamphetamine, cocaine, and THC. To counter, Bradlee’s counsel filed a

“Motion for Reasonable Efforts”—citing Iowa Code section 232.102(4)(b) and (7).

The motion stated: “The father disputes the results of his sweat patch tests and

has requested hairstat drug testing.” The motion noted that the department had

twice refused to provide the requested testing and asserted: “If the Department is

confident about the sweat patch results, there is no reason to deny the father his

requested hairstat test.”

To address those filings, the court reopened the record and scheduled

another evidentiary hearing for September 2023. At that hearing, Bradlee’s

counsel asked to continue the termination proceedings to allow for HairStat testing.
8

The juvenile court granted that request.6 Omega Laboratories tested Bradlee’s

hair—collected on September 20—and returned negative results for

methamphetamine, amphetamine, and cocaine, but positive for THC.

It was three months before the matter was back in court. On the eve of that

December hearing, the State asked to present the testimony of Dr. Leo Kadehijan,

a toxicologist, either by telephone or Zoom. Bradlee’s counsel objected to the late

notice. The court excluded the witness, ruling that “it was more than can be

expected of counsel to be prepared for that” expert testimony just twenty-four

hours ahead of the hearing.

Instead, the State called case manager Hernandez who testified that, in the

department’s eyes, Bradlee’s negative result for methamphetamine on the

HairStat test did not “negate the positive sweat tests.” When the State asked why,

Hernandez started to say: “It’s well known in the toxicology community that hair

tests—” She was cut off by an objection from Bradlee’s counsel that Hernandez

was not a toxicology expert. The court cautioned the witness to testify only to her

own knowledge and experience. Hernandez then testified that she received

information from PharmChem explaining that Bradlee’s sweat tests were valid.

She also reported that his sweat patches tested positive for methamphetamine and

THC two days before the hearing.

On cross-examination, Hernandez testified that she did not believe it was

relevant that Bradlee’s HairStat test was only positive for THC.

6 The court also continued the hearing so that the GAL could be present.
The GAL
could not attend the hearing because of a scheduled medical procedure. A
substitute GAL attended but lacked familiarity with the case.
9

Q. So the positive drug tests are all relevant but the negative
drug tests or the tests that confirm what [Bradlee] has been saying
to you are not relevant? A. The hair test was positive for THC.
Q. And [Bradlee] has admitted to using THC and has a
medical marijuana card; correct? A. He does have a medical
marijuana card.
Q. The department regularly uses HairStat testing as a
mechanism to determine whether parents are using drugs, don’t
they? A. It’s one test.
Q. And HairStat tests are used to remove kids and terminate
rights or provide proof that parents are dishonest about their claims
about drug use; correct? A. I would say that all testing is used. I
don’t think one outweighs the other on which one is used for what.
Q. But you believe that [Bradlee’s] HairStat that verifies what
he is saying to be true is not valid? A. I don’t know.

The case manager agreed that the department works with parents who

acknowledge “that there is a substance abuse issue” but asserted that Bradlee

showed “zero” follow-through with treatment or relapse prevention. The case

manager also testified that A.D. could not safely be returned to Bradlee’s custody

because of “his lack of consistent engagement in the entirety of a visit.” But she

acknowledged that she had not been to one of his visits with A.D. since October–

almost two months before the termination hearing. And the case manager could

not confirm whether she had seen Bradlee with A.D. more than five times in the

year that she had been assigned to the case; she acknowledged that she had not

consistently been meeting with Bradlee on a monthly basis. In his testimony,

Bradlee denied using methamphetamine or cocaine during the CINA case. He

also testified that his psychiatric provider said his medication could cause false

positives on drug screenings “but upon further testing they should be able to tell.”

Yet the department offered no further testing. Bradlee was also scheduled to

restart substance-use treatment at Pathways.
10

The parties filed written closing arguments. Bradlee requested A.D.’s return

to his custody under Iowa Code section 232.104(2)(a). Alternatively, he asked the

court to defer permanency for six months under section 232.104(2)(b). As part of

that deferral, he sought four services:

a. An immediate increase in visit frequency;
b. Permission for [T.D.] and [April] to supervise interactions
and/or a decrease from supervised to semi-supervised visitation;
c. Monthly meetings with the Department to assess progress,
timely and directly communicate any concerns, and ensure the
parties continue to move forward;
d. An order requiring the Department to perform further testing
on any patch that comes back positive for a substance other than
THC.

On the other side, the State advocated for termination, urging that neither

parent could provide a safe home for A.D.: “Substance abuse issues demonstrated

by positive sweat patch results and refusal to engage in substance abuse

treatment by [Bradlee] paint a picture of an environment that is not conducive to

the well-being of the child.”

After the deadline for submitting closing arguments, the GAL filed a three-

sentence report joining the State’s recommendation to terminate parental rights.

In January 2024, the juvenile court terminated Bradlee’s parental rights

under Iowa Code section 232.116(1), paragraphs (e), (h), and (l). The court did

not believe that Bradlee was being honest about his drug use:

[He] continues to test positive for marijuana and
methamphetamines. [He] believes his psychotropic medications are
responsible for his positive drug tests for methamphetamines. [He]
denies any current use of methamphetamines. [He] has proven to
not be a reliable reporter. Until [he] acknowledges his substance
abuse he is unable to overcome his addiction.

Bradlee appeals.
11

II. Analysis

Bradlee first requests a “six-month extension to work toward permanency

with A.D.” To continue placement, the court must determine the need for removal

will no longer exist at the end of the extension. See Iowa Code § 232.104(2)(b).

In making that prediction, the court must consider Bradlee’s past performance and

current progress. See In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005)

(“Under some circumstances extensions could be appropriate.”).

The juvenile court rejected Bradlee’s plea for more time, relying on the

GAL’s revised recommendation:

The child’s attorney and [GAL] initially requested that
permanency be deferred at the hearing on June 13, 2023, however,
after nearly six more months of services while the subsequent
hearing was scheduled on December 19, 2023, the [GAL] is joining
in the State’s recommendations for termination of parental rights. It
is not in the child’s best interests that proceedings be continued an
additional six months. The father’s request that he be given an
additional six months is without merit. The family has received
services through the Juvenile Court for over one and one-half years.
[Bradlee] refuses to acknowledge the concerns which led to the
child’s removal, the effects his substance abuse and unmet mental
needs have on his parenting abilities.

Bradlee claims the court did not properly consider his improved

performance—notably substance-use evaluations and treatment, medication

management for his mental health, increased visitations, and stable housing.

Beyond those considerations, Bradlee challenges the court’s reliance on

the GAL’s recommendation because—in his view—the GAL did not comply with

statute setting out the duties of that appointed position.

Unless otherwise enlarged or circumscribed after a finding of good
cause by a court or juvenile court having jurisdiction over the child or
by operation of law, the duties of a guardian ad litem with respect to
a child shall include the following:
12

(1) Conducting in-person interviews with the child, if the child’s
age is appropriate for the interview, and interviewing each parent,
guardian, or other person having custody of the child, if authorized
by counsel.
(2) Conducting interviews with the child, if the child’s age is
appropriate for the interview, prior to any court-ordered hearing.
(3) Visiting the home, residence, or both home and residence
of the child and any prospective home or residence of the child,
including each time placement is changed.
(4) Interviewing any person providing medical, mental health,
social, educational, or other services to the child, before any hearing
referred to in subparagraph (2).
(5) Obtaining firsthand knowledge, if possible, of the facts,
circumstances, and parties involved in the matter in which the person
is appointed guardian ad litem.
(6) Attending any hearings in the matter in which the person
is appointed as the guardian ad litem.
....
(8) Submitting a written report to the juvenile court and to each
of the parties detailing compliance with this subsection. . . . A written
report shall be submitted for each court hearing unless otherwise
ordered by the court.

Iowa Code § 232.2(25)(b).7

The definition of GAL also addresses the best-interests determination,

identifying the chief objective as reunification over termination:

In determining the best interests of the child, rather than
relying solely on a guardian ad litem’s life experiences or instinct, a
[GAL] shall, with the primary goal of achieving permanency for the
child by preserving the child’s family or reunifying the child with the
child’s family, do all of the following:
(1) Determine the child’s circumstances through a full,
independent, and efficient investigation, including the information
gathered from the child’s medical, mental health, and education
professionals, social workers, other relevant experts, and other
sources obtained in accordance with this subsection.
(2) Assess the child and the totality of the child’s
circumstances at the time of each placement determination,
including any potential trauma to the child that may be caused by any
recommended action.

7 This code section was revised in 2022 to expand the GAL duties.
See In re N.W.,
No. 22-1946, 2023 WL 1813629, at *2 (Iowa Ct. App. Feb. 8, 2023). It was
renumbered in 2023 from Iowa Code section 232.2(22) to section 232.2(25).
13

(3) Examine all options available to the child in light of the
permanency plans.
(4) Incorporate a child’s expressed wishes in
recommendations and reports.

Id. § 232.2(25)(e).

Bradlee asserts that the GAL’s September 2023 report to the court did not

comply with the Code.8 Plus, the GAL filed no report before the December hearing.

Bradlee adds: “The GAL did not make a recommendation at the hearing or update

the court with information about her contact with the child or any of the other

information statutorily required.” When the GAL finally filed a report on December

28, 2023, it concluded that termination was in A.D.’s best interests without any

supporting information.9 As his bottom line, Bradlee contends: “There is no clear

record of whether the GAL had any direct contact with her client or any information

explaining the basis of her decision to recommend termination, yet her position

was cited in the court’s ruling for termination.”

8 That report stated:

1. That since the time of the termination hearing, new positive
drug screens have been filed for the father.
2. That the undersigned is no longer in support of six more
months.
3. That the undersigned joins in the recommendation of [the
department] for termination.
9 That report stated:

1. That the undersigned attended the termination hearing on
December 19, 2023.
2. That the undersigned joins in the recommendation of [the
department] for termination.
3. That the undersigned believes that termination is in the
child’s best interest.
14

The State does not contest that the court considered the GAL report in

making its termination decision.10 Rather, the State maintains that the GAL

complied with section 232.2(25)(b)(8): “The December report simply reiterated the

position from the September report.” The State adds that “while a written report to

show compliance with the subsection is required, the code section is silent on

when it is required to be filed.” The State suggests that guardians ad litem might

want to wait until hearing all the testimony before formulating their

recommendation.

The State construes the GAL’s duties too narrowly. It is not enough for the

GAL to passively take in the evidence at the termination hearing and later share a

recommendation with the court. The statute directs the GAL to submit a written

report “for each court hearing.” Id. § 232.2(25)(b)(8). The report is to “detail

compliance” with the GAL’s information-gathering duties in section 232.2(25)(b),

paragraphs (1) through (5). Those duties “include conducting interviews, making

home visits, attending hearings, and conducting fact-finding to enable the GAL to

represent the child’s best interests.” See State v. Lopez, 872 N.W.2d 159, 176

(Iowa 2015) (explaining the duties of a GAL appointed to a juvenile crime victim by

citing Iowa Code chapter 232 provisions). The GAL must submit the report to the

court and to each of the parties. Iowa Code § 232.2(25)(b)(8).

10 The State challenges error preservation. But the record shows that the parents’
attorneys both discussed the GAL’s responsibilities at the September 2023 hearing
and the court found: “It is the guardian ad litem’s statutory duty to file a report
before hearing and no report has been filed.” And the father pointed out in his
written closing argument that the September report does not adhere to reporting
requirements and no GAL report was filed before the termination hearing. He also
criticized the GAL for not updating the court on any information about her contact
with the child.
15

The GAL’s barebones reports did not meet the statutory requirements.

Their content did not show that the GAL fulfilled their investigative role. The reports

did not mention interviews or visits with the child or placement or other fact-finding

beyond “speaking with” the department and reviewing reports. As for the timing,

we interpret the phrase “for each court hearing” as requiring the GAL to submit a

report to the court and other parties before each hearing, unless the court makes

a good cause finding circumscribing that duty. See N.W., 2023 WL 1813629, at

*2 (finding good cause to waive written report and allow GAL to give oral report at

the hearing because she injured her wrist). If a statute contains ambiguity, we give

the language “a sensible, practical, workable, and logical construction.” Taft v.

Iowa Dist. Ct. ex rel. Linn Cnty., 828 N.W.2d 309, 317 (Iowa 2013). And in this

context, “for” each hearing most logically means “in preparation for or anticipation

of” that hearing. See Jennings v. Rodriguez, 583 U.S. 281, 301 (2018) (citing 6

Oxford English Dictionary 24 (2d ed. 1989)).

Because the GAL did not meet the statutory requirements, we agree with

Bradlee that the juvenile court was remiss in relying on the GAL’s position that

termination is in A.D.’s best interests. The district court also was remiss in relying

on the case manager’s recommendation considering her limited contact with

Bradlee and A.D., her unwillingness to consider the negative results on the

HairStat test, and her reluctance to move beyond supervised visitation despite

Bradlee’s progress.

“Termination is a drastic, final step which improvidently employed can be

fraught with danger. Termination must only occur where more harm is likely to

befall the child by staying with his or her parents than by being permanently
16

separated from them.” In re H.H., 528 N.W.2d 675, 677 (Iowa Ct. App. 1995). We

cannot yet say A.D. faces greater harm from delaying permanency than being

permanently separated from her father. A.D. is comfortable in her relative

placement and enjoys visits with her father and stepmother. Nothing in our record

suggests that continuing this arrangement for another six months would harm the

two-year-old in any way. But more time would allow Bradlee to show that he is not

using illicit drugs and is making serious efforts to address his history of substance

use.

Granted, “[t]his father is not perfect, but the law does not require perfection.”

See In re M.S., 889 N.W.2d 675, 686 (Iowa Ct. App. 2016). Bradlee has struggled

with his mental health and substance use. But this record shows that he has the

potential to be a capable father. He helped the grandmother care for A.D. as an

infant and developed a bond with her. Early in the case, service providers

documented Bradlee’s “positive parenting skills.” Bradlee has continued regular

visitation with A.D. in her new relative placement, increasing those interactions to

twice weekly. And Bradlee attends A.D.’s doctor’s appointments. In June 2023,

the service provider testified that Bradlee had become a more engaged parent

during his visits with A.D. He also appears to have stabilized his mental health.

Under these circumstances, we conclude Bradlee should have been afforded

another six months to attempt reunification.

Our decision to continue placement is also influenced by Bradlee’s

reasonable-efforts argument. At the September 2023 hearing, Bradlee’s counsel

asked the court for hair testing to confirm or discredit the sweat patch tests:
17

If they want to continue testing the method that they’re using, then
we would ask that they do further testing upon completing those
initial tests. We thought a HairStat would be just kind of a
straightforward method to address whether there’s been any use in
the past ninety days, which is why we recommended it.

At the end of the hearing, the court granted Bradlee’s request:

I will order a HairStat test be completed. I’m not saying that that’s
going to be a final resolution of the issues that come before the court
but, you know, I guess we can address that issue through the
HairStat testing. But I guess my expectation would be, Ms.
Hernandez, that you continue to do all the tests, whether it’s sweat,
urine, HairStat, until we come back to court.

Yet, as Bradlee notes on appeal, the department “failed to perform any further

testing on [his] positive tests, which precluded the court and parties from obtaining

a more accurate picture of the situation.”11 While the department did perform a

HairStat test the day after the September hearing, contrary to the juvenile court’s

order, all the remaining tests after that point were sweat patches. The juvenile

court focused its termination decision on the fact that Bradlee continued to test

positive for methamphetamine but denied using that drug, blaming the positive

tests on “his psychotropic medications.” Given the questions raised by Bradlee

11 The State contends that Bradlee did not preserve his reasonable-efforts claim

because he did not address the department’s lack of compliance at the December
2023 hearing. But Bradlee’s attorney extensively cross-examined case manager
Hernandez about drug testing and the information from Bradlee’s psychiatric
provider about the danger of false positives from his medication. Bradlee also
testified that the department did not offer him further testing. In written closing
arguments, Bradlee’s counsel stated: “Although Bradlee’s psychiatric provider
indicated that further testing should clear up any question about whether results
for meth and cocaine were false positives (See Father’s Exhibit I), the Department
has never requested further testing.” We find error was preserved. It is enough for
the parent to identify additional services that are needed and for the court to order
those services be provided. See Iowa Code § 232.99(3); In re J.L., 868 N.W.2d
462, 467 (Iowa Ct. App. 2015) (granting relief on reasonable-efforts claim when
parent raised department’s refusal to furnish a sign language interpreter).
18

concerning the possibility of false positive drug tests caused by his prescription

medications, additional testing would provide more information to ensure the

accuracy of the sweat patch test results.

REVERSED AND REMANDED.

Badding, J., concurs; Buller, J., partially dissents.
19

BULLER, Judge (concurring in part, dissenting in part).

I concur in the judgment to give the father additional time based on the

peculiar record in this appeal. But I dissent from the majority’s analysis concerning

the guardian ad litem (GAL) reports on the issues of error-preservation and

remedy.

I would find no error was preserved. The father did nothing seeking

corrective action below—he did not move for a continuance, move to compel the

GAL to file a report, ask the court to hold the GAL in contempt, or seek to exclude

the GAL’s recommendation from the juvenile court’s consideration. Cf. In re N.W.,

No. 22-1946, 2023 WL 1813629, at *2 (Iowa Ct. App. Feb. 8, 2023) (parent sought

continuance when GAL did not timely file report). I take issue with the majority’s

footnote 12, which contends error was preserved because the attorneys

“discussed the GAL’s responsibilities” and the juvenile court noted no report was

filed. That’s true as far as it goes. But here is what the father’s written closing

argument actually said, contained in its entirety in a footnote with no substantive

argument above the line:

The last GAL report was filed on September 11, 2023. That report
does not adhere to the reporting requirements of
[section] 232.2(22)(b). No GAL report was filed prior to the hearing
that took place on 12/19/23. The GAL did not make a
recommendation at the hearing or update the court with information
about her contact with the child or any of the other information
statutorily required under [section] 232.2(22)(b).

This is not an objection. Nor is it a request for any remedy. A juvenile judge

reading this footnote would have no reason to think the parent was asking the court

to do anything. And musings about the law do not preserve error, for they do not

seek any action by the court. See, e.g., State v. Krogmann, 804 N.W.2d 518, 524
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(Iowa 2011) (finding error not preserved when a filing “did not request the district

court to take action”). In similar circumstances, this court concluded error was not

preserved when the department did not fulfill its duty to timely file reports and the

parent did not “articulate a remedy for the omission, or state how he was

prejudiced.” In re J.V., No. 21-0806, 2021 WL 4891063, at *3 (Iowa Ct. App. Oct.

20, 2021) (internal quotation marks omitted). I would follow J.V.’s reasoning to

conclude error was not preserved here, rather than reach out to decide and

address an arguable issue of first impression interpreting the scope of duties under

the revised statute.

It is a little unclear to me whether the majority considers the GAL’s failure

to fulfill its duties as an independent basis for reversal. To the extent future litigants

might construe the majority finding “the juvenile court was remiss in relying on the

GAL’s position” suggests any shortcoming by a GAL carries exclusion of the

recommendation and reversal as a remedy, I specifically reject that interpretation

of the statute. We are only empowered to reverse based on errors that are

prejudicial, see Iowa Code §§ 619.16, 624.15 (2023), and I see no prejudice to the

parent here from the incomplete report.

I also worry about consequences beyond this case. First and foremost,

reversing juvenile proceedings without finding prejudicial error undermines the

stability we intend these proceedings to offer, with a consequence of further

traumatizing children caught in the system. Second, GALs are court-appointed

attorneys, for which we have a shortage across this state, and I doubt a ticky-tack

approach to their duties will result in more attorneys willing to do that work at the

paltry hourly rate. And third, I doubt strict compliance and automatic reversible
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error carries out the General Assembly’s intent in modifying the list of GAL duties

in 2022. See 2022 Iowa Acts ch. 1098, §§ 6–9. For example, the revised statute

includes as one of the “duties” that the GAL submit a written report “detailing

compliance with this subsection.” Iowa Code § 232.2(25)(b)(4), (8). The statute

does not explain the extent of detail the written report must include. Must there be

dates of every interview conducted, which potentially includes every teacher,

nurse, and dentist that has contact with the child? See id. § 232.2(25)(b)(1). If the

report only indicates an interview took place without summarizing the content of

the conversation, does it fail to “detail[ ] compliance” with the statute? These

unanswered questions give me pause.

In a broad sense, well-done GAL reports give the court a window into the

child’s world and aid the court in making critical decisions that alter the course of

a family’s lives. The statute appears designed to promote useful reporting, and

the reports in this case fall short of that goal. But I do not think the General

Assembly intended that we reverse every juvenile proceeding where the GAL has

not exhaustively reported their actions to an unspecified degree. Because I would

find error was not preserved and I believe the majority’s remedy suggestion carries

negative consequences contrary to legislative intent, I dissent in part.