IN THE COURT OF APPEALS OF IOWA

No. 19-0240

Filed June 5, 2019

IN THE INTEREST OF J.C. and O.C.,

Minor Children,

J.C., Father,

Appellant.

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Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, 

District Associate Judge.

A father appeals the juvenile court’s decision to waive the department of 

human services’ obligation to make reasonable efforts towards reunification. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Christine E. Branstad of Branstad & Olson Law Office, Des Moines, for 

appellant father.

Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant 

Attorney General, for appellee State.

Nicole Garbis Nolan of Youth Law Center, Des Moines, attorney and 

guardian ad litem for minor children.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

Three children were removed from parental custody after a state trooper 

saw them in the bed of a pickup truck driven by their father, who appeared to be 

under the influence of drugs. The children were adjudicated in need of assistance.

The children’s attorney and guardian ad litem filed a motion to waive the 

department of human services’ obligation to make reasonable efforts towards

reunification. See generally In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) 

(explaining the obligation and a statutory amendment permitting waiver of the 

obligation). The attorney cited a prior juvenile court action involving the parents of 

these children and their abuse of drugs and asserted there were aggravated 

circumstances warranting the waiver under Iowa Code section 232.104(14)(b)

(2018). The department resisted the motion. In written argument to the court, 

counsel for the department asserted, “The Department does not believe services 

would be futile in this case” and the risk of termination of parental rights if 

reasonable efforts were waived is not a risk that should be taken “at this juncture,”

given the children’s needs and interests, as well as those of the father. Following

an evidentiary hearing, the juvenile court waived the reasonable-efforts obligation. 

The father filed a petition for interlocutory appeal. The Iowa Supreme Court

concluded the question of whether the appealed order was final would be 

determined with the appeal. The appeal was transferred to the court of appeals 

for disposition.

The father argues the juvenile court abused its discretion in waiving 

reasonable efforts. He also asks for bifurcation of the role of the children’s 

attorney, who also serves as guardian ad litem.
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I. Finality of Order Waiving Reasonable Efforts Obligation

Preliminary, we address the supreme court’s inquiry “whether the 

dispositional order waiving reasonable efforts is a final order appealable as a 

matter of right or an interlocutory order.”

Iowa Code section 232.133(1) states in part: “An interested party aggrieved 

by an order or decree of the juvenile court may appeal from the court for review of 

questions of law or fact.” “The statute provides no special basis for an appeal as 

a matter of right. As with all other orders, appealability depends on whether a 

juvenile court order is found to be ‘final.’” In re W.D., 562 N.W.2d 183, 185 (Iowa 

1997). “[A]n appealable order in a juvenile case is one that disposes of all issues, 

including disposition.” In re Long, 313 N.W.2d 473, 476 (Iowa 1981). A child-inneed-of-assistance adjudication without a disposition is not a final order. Id. at 

477; see also In re C.S., 516 N.W.2d 851, 857 (Iowa 1994) (concluding contingent 

order expressing intent to do something further was not a final order).

In this case, the order waiving the department’s obligation to make

reasonable efforts was contained in a dispositional order. Based on Long, we 

conclude the dispositional order was final and appealable. 

We recognize the father only seeks review of that portion of the dispositional 

order waiving the State’s obligation to make reasonable reunification efforts; he 

does not seek review of the court’s placement decision. But in our view, the waiver 

decision was an independent final decision because, under the provision on which 

the child’s attorney relied, an order waiving the reasonable efforts obligation 

triggers termination. See Iowa Code § 232.111(2)(a)(2) (requiring county attorney 

to file termination petition where “[a] court has determined aggravated 
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circumstances exist and has waived the requirement for making reasonable efforts 

under section 232.102 because the court has found the circumstances described 

in section 232.116, subsection 1, paragraph ‘i’, are applicable to the child”). For 

all practical purposes, waiver under this provision precludes the parents from 

reunifying with the child. 

Our conclusion is bolstered by the supreme court’s recent statement 

concerning the scope of the reasonable-efforts obligation. In In re L.T., 924 

N.W.2d 521, 530 (Iowa 2019), the court explained the department’s “reasonable 

efforts obligation continues until either a final written termination order or a waiver 

by the juvenile court.” The court also characterized the obligation “as a part of [the 

State’s] ultimate proof.” L.T., 924 N.W.2d at 528. It follows, then, that a waiver of 

the obligation effectively satisfies the State’s burden of proof on a key element of 

many if not most of the statutory termination provisions. See C.B., 611 N.W.2d at

493. 

Assuming we are incorrect on the finality of the order waiving reasonable 

efforts and its appealability as a matter of right when it is contained within a 

dispositional order and is based on section 232.104(14)(b), we alternatively 

conclude the ruling is of sufficient import that the father’s request for interlocutory 

appeal should be granted. Specifically, the “welfare of the child[ren] . . . is at stake 

here” and “it is desirable that an early and final resolution of this matter be made 

without the delay that would be occasioned by our rejection of this appeal.” Long, 

313 N.W.2d at 477. We turn to the merits.
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II. Waiver of Reasonable-Efforts Requirement

“‘[R]easonable efforts’ means the efforts made to preserve and unify a 

family prior to the out-of-home placement of a child in foster care or to eliminate 

the need for removal of the child or make it possible for the child to safely return to 

the family’s home.” Iowa Code § 232.102(12)(a). The court may waive the 

reasonable-efforts requirement “[i]f the court determines by clear and convincing 

evidence that aggravated circumstances exist, with written findings of fact based 

upon evidence in the record.” Id. § 232.102(14). “The existence of aggravated 

circumstances is indicated by” one of several statutory circumstances. Id. 

The juvenile court correctly noted that the statutory list of circumstances 

warranting waiver is not exclusive. But the child’s attorney only relied on section 

232.104(14)(b). That provision requires a court finding that “the circumstances 

described in section 232.116, subsection 1, paragraph ‘i’, are applicable to the 

child.” Id. § 232.102(14)(b). Section 232.116(1)(i), in turn, requires a court finding 

that all of the following have occurred:

(1) The child meets the definition of child in need of assistance 

based on a finding of physical or sexual abuse or neglect as a result 

of the acts or omissions of one or both parents.

(2) There is clear and convincing evidence that the abuse or 

neglect posed a significant risk to the life of the child or constituted 

imminent danger to the child.

(3) There is clear and convincing evidence that the offer or 

receipt of services would not correct the conditions which led to the 

abuse or neglect of the child within a reasonable period of time.

The children in this case were not adjudicated in need of assistance based 

on “a finding of physical or sexual abuse or neglect.” See id. § 232.2(6)(b) (defining 

a child in need of assistance as a child “[w]hose parent, guardian, other custodian, 

or other member of the household in which the child resides has physically abused 
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or neglected the child, or is imminently likely to abuse or neglect the child”). They 

also were not adjudicated under section 232.2(6)(d) (defining a child in need of 

assistance as a child “[w]ho has been, or is imminently likely to be, sexually abused 

by the child’s parent, guardian, custodian, or other member of the household in 

which the child resides”). They were adjudicated under subsection (c)(2), which 

refers to “the failure of the child’s parent, guardian, custodian, or other member of 

the household in which the child resides to exercise a reasonable degree of care 

in supervising the child.” They also were adjudicated under subsection (n), which 

refers to a child “[w]hose parent’s or guardian’s mental capacity or condition, 

imprisonment, or drug or alcohol abuse results in the child not receiving adequate 

care.” Neither is a finding of abuse or neglect. See In re J.S., 846 N.W.2d 36, 41 

(Iowa 2014) (stating “‘physical abuse or neglect’ and ‘abuse or neglect’ are terms 

of art in this context” and “mean ‘any nonaccidental physical injury suffered by a 

child as the result of the acts or omissions of the child’s parent, guardian, or 

custodian or other person legally responsible for the child.’”). The absence of a 

finding of abuse or neglect precludes a finding of aggravated circumstances under 

section 232.102(14)(b) and precludes waiver of the reasonable-efforts obligation. 

The evidentiary record also supports the department’s position that waiver 

of the reasonable-efforts requirement was not warranted. The department case 

manager recommended ongoing services for the father because he was 

“genuinely trying to work through things.” She stated she had good communication 

with him and the communication continued to improve the more she worked on the 

case.
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On our de novo review, we conclude the department’s obligation to make 

reasonable reunification efforts should not have been waived. We reverse the

portion of the dispositional order granting the children’s waiver motion and remand 

for reinstatement of reasonable reunification services and further proceedings 

consistent with this opinion.

III. Bifurcation of Role of Children’s Attorney 

The father summarily argues that the court should not have declined his 

request to bifurcate the roles of the children’s attorney and guardian ad litem. See 

In re T.P., 757 N.W.2d 267, 274 (Iowa Ct. App. 2008) (stating an attorney and a 

guardian ad litem have differing duties). He premises the argument on the court’s 

waiver of the reasonable-efforts obligation. The father’s concerns are resolved 

through our reversal of that portion of the dispositional order, and we find it 

unnecessary to also reverse the juvenile court’s denial of his request for 

bifurcation.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.