In the Interest of B.P. and S.G., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 22-1605
Filed January 11, 2023

IN THE INTEREST OF B.P. and S.G.,
Minor Children,

S.G., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for O’Brien County, Shawna L.

Ditsworth, District Associate Judge.

A mother appeals the permanency order establishing a guardianship for her

two children. AFFIRMED.

Tobias A. Cosgrove, Sibley, for appellant mother.

Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Tisha M. Halverson, Paullina, attorney and guardian ad litem for minor

children.

Kevin Huyser of Rensink Pluim Vogel & Huyser, Orange City, attorney for

minor children.

Considered by Bower, C.J., and Greer and Badding, JJ.
2

GREER, Judge.

In 2019, the now-named Iowa Department of Health and Human Services

received what it concluded was founded allegations the mother, S.G., was using

methamphetamine and marijuana while caring for B.P. and St.G.1 Subsequently,

various drug paraphernalia was found in the family home. The mother participated

in voluntary services, but the issues crept up again in June of 2020; the department

conducted assessments then and again that July before the children were

adjudicated children in need of assistance (CINA) in August and the mother was

ordered to receive a substance abuse evaluation, comply with the evaluation’s

recommendations, and submit to random drug testing.2 In September, an

additional founded child-abuse assessment was made after the mother’s

paramour pushed her down the stairs with the children in the home; the court

granted a no-contact order against the paramour with the mother and children as

protected parties. The children remained in the mother’s care and custody until

June 2021, when the court modified the CINA dispositional order because the

mother was not meeting the older child’s urgent medical needs, allowing his

condition to worsen.3

But, at the beginning of 2022, the mother began testing positive for

methamphetamine or was refusing tests, though she did have one negative screen

1 B.P. and St.G were twelve and sixteen respectively at the August 2022
permanency hearing.
2 The mother was later directed to also participate in mental-health services.
3 In January 2021, the child was in the .01 percentile for age-appropriate weight

and .08 percentile for age-appropriate height. The child proceeded to miss a
number of appointments despite the potentially fatal nature of the condition.
Continued medical care will be required for the child.
3

in May. She was in a relationship with someone with whom she has a history of

substance abuse and domestic violence; he would occasionally be present during

visits without the department’s approval.4 And as time went on, the mother

struggled to comply with her court-ordered mental-health or substance-abuse

treatment5—the caseworker testified at the permanency review hearing that the

mother went to about half of her individual substance-abuse sessions and she was

not consistently making her mental-health therapy appointments.

The mother did, however, typically comply with Family Centered Services

directives. She also reliably participated in visits with the children. And, the record

establishes a clearly demonstrated bond between the mother and the children,

who have steadfastly stated they wish to return to their mother’s care. In fact, the

older child testified he planned to move back with his mother after turning eighteen.

A permanency hearing was held in August of 2022. The mother asked that

the children be returned to her custody or that she be given another six months to

make the necessary changes for reunification. Instead, the juvenile court placed

the children in a permanent guardianship with their foster parents, who have stated

4 This partner is not the same paramour the department was concerned about in
September 2020.
5 The mother received a substance abuse evaluation in August of 2021. She was

diagnosed with severe methamphetamine and cannabis use disorder and mild
alcohol use disorder. The recommended treatment was extended outpatient
treatment for three to four months and then two to three months of continuing care;
but, as of July 2022, she had not completed her outpatient care because of
nonattendance and the timeframe was extended. She also received a mental-
health evaluation in early 2022 and was diagnosed with post-traumatic stress
disorder, generalized anxiety, major depressive disorder, other stimulant
dependence, and cannabis abuse. Her mental-health care provider noted her
major barrier to care was nonattendance.
4

they would support a relationship between the mother and the children. The

mother appeals.

We review permanency orders de novo. In re K.C., 660 N.W.2d 29, 32

(Iowa 2003). We give weight to the juvenile court’s finding of facts but are not

bound to them. Id. Iowa Code section 232.104(2)(d)(2) (Supp. 2022) allows the

juvenile court to enter a permanency order establishing a guardianship; but, under

section 232.104(4), the court can only do so if convincing evidence shows

termination of parental rights “would not be in the children’s best interests,” the

parent was offered services to fix the situation requiring removal, and the children

cannot be returned home. “When the evidence shows the [children’s] return will

not produce harm, the [children are] to be reunited with the [custodial] parent.” In

re D.M., 965 N.W.2d 475, 480 (Iowa 2021) (third alteration in original) (citation

omitted).

The mother first argues the juvenile court should have returned custody of

the children to her. But she concedes that she has unresolved addiction and

mental-health concerns. See In re A.B., 815 N.W.2d 764, 776 (Iowa 2012) (“We

have long recognized that an unresolved, severe, and chronic drug addiction can

render a parent unfit to raise children.”); cf. In re J.S., 846 N.W.2d 36, 42 (Iowa

2014) (“[W]e do not believe general statements about methamphetamine addiction

are enough by themselves to prove that a child is imminently likely to suffer

physical harm [in the form of a nonaccidental injury] . . . . [But] a juvenile court

could reasonably determine that a parent’s active addiction to methamphetamine

is ‘imminently likely’ to result in harmful effects to the physical, mental, or social

wellbeing of the children in the parent’s care.”). The mother had positive tests for
5

methamphetamine from samples collected in January and March of 2022. Since

that time, she provided one negative drug screen and has otherwise refused to

test, including in the weeks leading up to the permanency hearing. Courts may

presume, as we do here, that missed tests would have been positive. See In re

R.A., No. 21-0746, 2021 WL 4891011, at *1 (Iowa Ct. App. Oct. 20, 2021)

(collecting cases). Overall, the mother has consistently struggled with attendance

in her substance-abuse and mental-health treatment, leaving unremedied the

concerns that have been present throughout the children’s CINA adjudication.6

See In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App. 1995) (noting children

cannot be returned to their parents’ home if adjudicatory harms still exist),

overruled on other grounds by In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). On our

de novo review, we affirm the juvenile court’s determination the children could not

be returned to the mother.

The mother next argues she should have been granted an additional six

months to work toward reunification. See Iowa Code § 232.104(2)(b) (allowing a

court, following a permanency hearing, to continue the children’s placement for six

months if the juvenile court can “enumerate 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”). In this case, following years of services,

the mother had not demonstrated an ability to maintain sobriety or meaningfully

6This is particularly troubling because of the mother’s previous inability to get the
older child to necessary medical appointments, which led to greater health
concerns.
6

participate in treatment for her substance abuse or mental health. The record

gives us no confidence that the adjudicatory harms would cease to exist by the

end of six months.

The mother also makes an argument that placing the children in a

guardianship will eventually separate the siblings because of the older child’s plan

to return to his mother’s home following his eighteenth birthday. It is true that there

is a declared a preference for keeping siblings together, but once the older child

reaches adulthood, we could not compel where the older adult child might live

under a juvenile court order in any event. See In re J.E., 723 N.W.2d 793, 800

(Iowa 2006); see also In re J.J., No. 22-0046, 2022 WL 951030, at *3 n.12 (Iowa

Ct. App. Mar. 30, 2022) (noting the relationship of the older child, on the verge of

adulthood, with the younger siblings would no longer depend on preserving the

mother’s parental rights). And “this preference is not absolute”; we must still

consider the best interests of both children. J.E., 723 N.W.2d at 800; see also In

re K.N., 625 N.W.2d 731, 733 (Iowa 2001) (“As in all juvenile proceedings, our

fundamental concern is the best interests of the child.”); cf. Iowa Code

§ 232.116(2) (“[T]he court shall 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.”). We

find that the guardianship created by the juvenile court supports the best interests

of the children.
7

Because the children could not be returned to their mother’s care, there was

no evidence that barriers to reunification would be dismantled within six months,

and the guardianship was in the children’s best interests, we affirm.

AFFIRMED.