IN THE COURT OF APPEALS OF IOWA

No. 15-1384

Filed October 14, 2015

IN THE INTEREST OF E.B., V.B.,

D.B., and M.E.-B.,

Minor Children

B.B., Mother,

Appellant,

S.E., Father,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Deborah Farmer 

Minot, District Associate Judge. 

A mother and father each appeal from the permanency order changing the 

case permanency goal for three of the children from reunification to another 

planned permanent living arrangement. AFFIRMED ON BOTH APPEALS.

Joseph C. Pavelich of Mellon & Spies, Iowa City, for appellant-mother.

Sally H. Peck, Iowa City, for appellant-father.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney 

General, Janet Lyness, County Attorney, and Patricia Weir, Assistant County 

Attorney, for appellee.

Anthony Haughton, Linn County Advocate, guardian ad litem for minor 

children.

Lynn M. Rose of Mears Law Office, Iowa City, for minor children.

Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.

Brenda, the mother of the four children in interest, and Stephen, the father 

of the youngest child, each appeal from the permanency order changing the case 

permanency plan goal for three of the children from reunification to another 

planned permanent living arrangement (“APPLA”), denying the parents’ requests 

for an additional six months to work toward reunification, and directing the State 

and guardian ad litem (GAL) to consider whether termination of parental rights 

would be in the best interests of any of the children. The mother also contends 

the court abused its discretion in denying her request to reopen the record.

I.

The mother has four children: E.B. (born 1998), V.B. (born 2002), D.B. 

(born 2004), and M.E.-B.1(born 2007). The family came to the attention of the 

Iowa Department of Human Services (“IDHS”) in October 2011 after D.B. 

attempted suicide by hanging himself in the back yard. He was removed from 

the home in November and placed in a psychiatric medical institute for children 

(“PMIC”). The State petitioned to have all four children adjudicated in need of 

assistance in December. In March 2012, the court adjudicated E.B. and D.B. in 

need of assistance as to their fathers (by default) pursuant to Iowa Code section 

232.2(6)(c)(2) and (6)(f) (2011). In May, the court adjudicated all four children in 

need of assistance pursuant to section 232.2(6)(c)(2), and E.B. and D.B. also 

pursuant to section 232.2(6)(f). The court continued D.B.’s PMIC placement and 

 

1 Virtually all of the record references to this child give her name as M.E.-B. or just M.B., 

but the challenged permanency order inexplicably reverses the order of the family 

names to M.B.-E. For consistency, this opinion uses M.E.-B. when referring to this child.
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allowed the other three children to remain in the family home under the protective 

supervision of the IDHS. The court observed:

Parental mental illness and medical conditions, lack of follow 

through with recommended services, failure to appropriately 

supervise and discipline the children, resistance to intervention, and 

inability or unwillingness to recognize and acknowledge these 

issues has, over a period of many years, created a stressful, 

chaotic, and unpredictable home which has negatively impacted all 

the children to various degrees. All of the children have received 

mental health diagnoses warranting psychiatric or remedial 

services. The three older children[, including D.B.,] have special 

educational and emotional needs, which are well-documented.

Without intensive services, the children’s problems, as well as the 

conditions that have prevailed in the home for the past several 

years, will certainly fail to improve and will likely worsen.

The July dispositional order concerning E.B., V.B., and M.E.-B. continued their 

placement in the family home.

In September 2012, Stephen was removed from the home and a nocontact order entered following an incident of domestic violence. After a review 

hearing in November, the court issued a review order in December that 

continued the placement of E.B., V.B., and M.E.-B. with their mother. The court 

expressed a number of concerns, including the mother’s “well-documented” 

instability and parenting deficits “in large part due to her multiple medical and 

mental health diagnoses” and the lack of any indication the parents were 

complying with the court’s order to “develop and use consistently a system of 

behavior management, behavior modification, and discipline for the children.”

Proceedings concerning D.B., the only child not in the home at that time, 

followed a separate track. The court held a contested permanency hearing 

concerning D.B. on November 5, 2012, and January 2 and 13, 2013, and issued 
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its permanency order on March 19. His disruptive behaviors had escalated 

significantly in direct correlation to the amount of time he spent with his mother. 

After the first day of the hearing, D.B. ran in front of a moving school bus 

because he wanted to kill himself. The court found D.B. could not be returned 

home “now or at any time in the foreseeable future,” but the court also found 

termination was not in his best interest because of the strong familial identity, his 

relationship with his siblings, and his age. The court changed the permanency 

goal for D.B. from reunification to APPLA. This court affirmed on appeal. In re 

D.A.B., No. 13-0513, 2013 WL 3458148, at *4 (Iowa Ct. App. July 10, 2013). 

The permanency goal for D.B. has remained APPLA since then.

Following a review hearing in April 2013, the court noted a continued lack 

of progress despite extensive services. The court scheduled a modification 

hearing in May “to determine whether one or more of the children need a 

different placement and/or whether other services should be offered or changes 

should be made to the Case Permanency Plan.” Following a hearing on July 2, 

the court issued its review order on August 8. The court noted the State and the 

GAL were not recommending modification. The court continued the prior 

dispositional orders that E.B., V.B., and M.E.-B. remain with their mother under 

the protective supervision of the IDHS. The court observed, however:

The Court continues to find that the situation at home is tenuous, 

that minimal progress is being made, and that these children are at 

high risk for not having their needs met, for physical and emotional 

abuse, and for denial of critical care. Further, their emotional health 

is clearly in jeopardy. The family is well-intentioned, they love each 

other, they are bonded to each other, and Brenda is perhaps 

functioning to the best of her ability. However, it remains an open 
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question as to whether this will be enough to preserve the physical, 

mental, and emotional health of these vulnerable children.

On November 4, the court held a review hearing and received evidence 

V.B. should be removed from the home and placed in foster care after an 

incident of domestic violence between her and her stepfather, Stephen. The 

court ordered V.B.’s placement in temporary shelter care pending foster-care 

placement. This court affirmed the modification order on appeal. In re V.B., No. 

14-0315, 2014 WL 2600318, at *5 (Iowa Ct. App. June 11, 2014). She has 

remained out of the home since her removal.

A February 11, 2014 review order concerning E.B. and M.E.-B. continued 

their placement with their mother and their permanency goal as “maintain family 

unification.” An April 14 order following an updated progress report from the 

IDHS continued V.B.’s placement in foster care and scheduled a modification 

hearing concerning E.B. and M.E.-B. to determine whether they should be 

removed from the mother’s care. On May 20, after the scheduled modification 

hearing was not completed, the court entered a temporary shelter/modification 

order placing E.B. and M.E.-B. in temporary shelter care, based on a finding the 

children

cannot any longer remain safely in the family home and that 

remaining in the home would be contrary to the children’s best 

interests due to repeated episodes of physical violence between 

family members, failure of the mother to meet the need of the 

children for appropriate supervision and discipline, and that the 

children’s mother has demonstrated, over an extended period of 

time, a complete failure to manage the behavior of the children in 

such a way as to ensure even their basic physical safety.

The court further found: 
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[The IDHS] has made reasonable efforts to prevent the removal of 

the children from the home. In fact, the panoply of services that 

have been provided to this family can only be described as 

extraordinary. Virtually every conceivable service has been made 

available to the family. None of these services have resulted in 

anything more than temporary improvement in some of the 

expectations of the Case Permanency Plan. Further, there is 

overwhelming evidence that the home life of these children has 

continued to deteriorate over the past several months to the point 

whether their physical and emotional health and safety are at

imminent risk.

The court ordered E.B.’s placement in a youth shelter so he could finish the 

school year in the same school. The court ordered M.E.-B.’s placement in foster 

care “in light of [her] young age.” Following completion of the evidentiary hearing 

in late May, the court filed its order modifying disposition of E.B. and M.E.-B. to 

place them in the guardianship of the IDHS for placement in foster family care. 

They have remained out of the home since their removal.

All of the children’s cases came on for permanency review in March 2015, 

but because Brenda requested an evidentiary hearing, the court scheduled a 

contested permanency hearing in May. After various motions and continuances, 

the court heard evidence on June 19 and 23 and issued the permanency order 

giving rise to this appeal on July 31.

The court’s order carefully and thoroughly reviews the history of this family 

and IDHS’s efforts to keep this family intact. The court noted Brenda’s lack of 

progress in dealing with her mental and physical health issues, in completing the 

goals of the case permanency plan, or in remedying her parenting deficiencies. 

It also noted Stephen was “technically homeless” and unemployed. The court 

concluded:
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There is no evidence that shows that the children can be returned 

home now or in the foreseeable future, or ever. Nothing has 

changed from the observations made by the Court in its July 7, 

2014 ruling regarding modification of prior dispositional orders for 

[E.B. and M.E.-B.]. Nothing has really changed since the beginning 

of these cases, except that the futility of pursuing the goal of 

reunification has now been established beyond all doubt. Brenda 

and Stephen are profoundly disabled adults. They cannot take 

care of themselves. They cannot take care of the children. There 

is virtually no chance this will ever change.

The court expressed optimism for the children, however, noting their 

“remarkable capacity for change.” Once removed from Brenda’s care, “the 

children began to make notable physical, medical, and developmental progress,” 

to the point that “almost all their medical problems have been resolved and their 

medications have been reduced or even eliminated.” Despite the children’s 

emotional needs being “much more complex and much less easily resolved, the 

outlook is more promising than ever.” The court found termination was not in the 

children’s best interests, “due to their strong familial identity, and their 

relationship with each other and the other siblings.” It further found termination 

was not in E.B.’s or V.B.’s interest because of their age, but termination and 

adoption should be considered as a permanency option for D.B. and M.E.-B. 

The court, “pursuant to stipulation of the parties,” continued both E.B. and 

D.B. in the custody and guardianship of the IDHS, left D.B.’s APPLA permanency 

goal unchanged, and changed E.B.’s permanency goal to APPLA. “Based on the 

findings and conclusion” the court made, it continued V.B. and M.E.-B. in the 

custody and guardianship of the IDHS and changed their permanency goals to 

APPLA. It also directed the IDHS, county attorney, and GAL to consider whether 
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termination would be in the best interests of any of the children and, if so, to file 

termination petitions or reports and recommendations.

II.

Review of permanency orders is de novo. In re A.A.G., 708 N.W.2d 85, 

90 (Iowa Ct. App. 2005). We review both the facts and the law and adjudicate 

rights anew on the issues properly presented. Id. We give weight to the juvenile 

court’s findings, but are not bound by them. Id.

III.

After a permanency hearing, the court has a number of options. See Iowa 

Code § 232.104(2)(a)-(d). It can return the child home; continue placement for 

six months if it finds the need for removal will no longer exist after six additional 

months; direct the State to pursue termination; or, if it finds termination is not in 

the child’s best interests, services were offered to correct the circumstances 

leading to removal, and the child cannot be returned home, order guardianship 

and custody transferred to a suitable person, order sole custody with the other 

parent, or order APPLA. See id. § 232.104(2)-(3).

A.

Stephen contends clear and convincing evidence does not support the 

court’s finding he had not made any progress since the adjudication hearing, 

resulting in (1) the court’s denial of his request for additional time and (2) the 

court’s order changing the permanency goal to APPLA and directing investigation 

whether termination was in M.E.-B.’s best interest. He argues he has complied 

with requests for training, has completed his training as a chef, and has been 
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receiving regular care for his psychological and physical ailments. He disagrees 

with the court’s findings he has not made sufficient progress on IDHS 

expectations, his job seeking attempts are only recent, he declined parentpartner services, and M.E.-B. was regularly abused by V.B.

From our review of the record, we conclude M.E.-B. could not have been 

placed in Stephen’s care at any time since he left the family home following the 

domestic violence incident. In order to extend the time for reunification, clear and 

convincing evidence would have to support a finding the need for removal would 

no longer exist at the end of the six-month extension. See Iowa Code 

§ 232.104(2)(b). A year before the challenged permanency order, the court 

stated, “Steve will need to demonstrate the ability to maintain a safe and stable 

home, to participate in and benefit from parenting and other services, and to be 

honest. To date, there is no evidence indicating any of these changes can or will 

occur.” Nothing changed in the ensuing year. Stephen has not had a home for 

M.E.-B. nor means of supporting her. Neither we nor the district court could 

make the required finding the need for removal would no longer exist after an 

additional six months.. See id. § 232.104(2)(c); In re J.E., 723 N.W.2d 793, 798 

(Iowa 2006) (stating we look to a parent’s past performance “because it may 

indicate the quality of care the parent is capable of providing in the future”). We 

agree with the court’s determination termination was not in the children’s best 

interest at the time of the permanency hearing, and we affirm the order changing 

the permanency goal for M.E.-B. to APPLA. Stephen’s challenge to that portion 

of the order directing continued consideration whether termination would be 
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appropriate is without merit. See id. § 232.104(2)(c) (providing the court can 

direct that termination proceedings be instituted). We affirm the permanency 

order on Stephen’s appeal.

B.

Brenda challenges the court’s modification of the permanency goal for 

V.B. and M.E.-B from reunification to APPLA. Alternatively, she seeks a sixmonth extension of time for reunification with V.B. and M.E.-B.

Over the four-year course of these proceedings, Brenda has repeatedly 

demonstrated her inability to parent her four children, either as a single parent or 

while married to Stephen. The court and IDHS worked extremely diligently to 

keep the children in the family home. One year prior to the order challenged in 

this appeal, the court explained, “With the benefit of hindsight, it seems that the 

fierce devotion to the goal of family unification, pursued with the best and noblest 

of intentions, has resulted in substantial harm to these children. Whether that 

harm can be addressed, ameliorated, or healed is an open question.” At that 

time, D.B. and V.B. were already out of the home, and the court removed E.B. 

and M.E.-B. In the ensuing year, the record shows the children were healing 

both emotionally and physically in large part because they were out of Brenda’s 

care. Brenda has mental and physical issues that affect her ability to manage all 

the children. Clear and convincing evidence supports a finding the children could 

not be returned to Brenda’s care at the time of the permanency hearing. 

Considering both her past performance and the lack of any significant change in 

the year prior to the permanency hearing, we conclude neither the court nor we 
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could make the required finding the need for removal “would no longer exist” at 

the end of an additional six months. See Iowa Code § 232.104(2)(c). 

Consequently, there is no basis to extend the time for permanency by six 

months.

Considering E.B.’s and V.B.’s age, the children’s familial identity, their 

continued bond with Brenda (with perhaps the exception of D.B.), and with each 

other, we agree termination was not in the children’s best interests at the time of 

the permanency hearing. The resulting modification of the permanency goals for 

E.B., V.B., and M.E.-B. to APPLA was appropriate. We affirm the change in 

permanency goals.

C.

Brenda contends the court abused its discretion in denying her request to 

reopen the record and allow testimony and evidence concerning changing E.B.’s 

permanency goal to APPLA and continuing D.B.’s goal as APPLA. The district 

court denied the request to reopen the record after Brenda had changed her 

position on the issue several times resulting in delay of these proceedings. 

In considering an application to reopen the record, the district court is in 

the best position to determine what is “necessary and appropriate to achieve 

substantial justice.” State v. Long, 814 N.W.2d 572, 576 (Iowa 2012). To that 

end, the district court has broad discretion to reopen the record and consider 

additional evidence, and its “decision will ordinarily not be interfered with by a 

reviewing court.” Id. (citation omitted); see also In re J.R.H., 358 N.W.2d 311, 

318 (Iowa 1984).
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The permanency order sets forth in detail the events surrounding the 

multiple permanency hearings. Based on Brenda’s initial stipulation of 

agreement concerning E.B. and D.B., the State did not present evidence 

concerning them because their permanency was uncontested. At the next 

hearing, E.B. was no longer present and the hearing concerned Stephen’s 

challenge to the proposed change in M.E.-B.’s permanency goal. Brenda 

reversed her decision to stipulate and sought to introduce evidence to contest the 

permanency goals for E.B. and D.B. Under the circumstances, we cannot say 

the court abused its broad discretion in denying Brenda’s application.

IV.

For the foregoing reasons, we affirm the permanency order and the court’s 

denial of Brenda’s request to reopen the record.

AFFIRMED ON BOTH APPEALS.