IN THE COURT OF APPEALS OF IOWA

No. 19-2064

Filed April 1, 2020

IN THE INTEREST OF R.C.,

Minor Child,

G.D., Mother,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Cherokee County, Mary L. Timko, 

Associate Juvenile Judge.

In a child-in-need-of-assistance proceeding, the mother challenges the 

district court’s denial of her request for additional visitation and for paternity 

testing to overcome the legal father’s paternity. AFFIRMED IN PART, 

REVERSED IN PART, AND REMANDED.

Harold K. Widdison of Law Office of Harold K. Widdison, P.C., Sioux City, 

for appellant mother.

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

General, for appellee State.

Lesley D. Rynell of Juvenile Law Center, Sioux City, attorney and 

guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., May, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2020).
2

POTTERFIELD, Senior Judge.

R.C., who was born in 2009, is a child with special needs. Child-in-needof-assistance (CINA) proceedings were initiated in 2015 following a founded 

child-abuse assessment against the parents. The Iowa Department of Human 

Services (DHS) was given information that the legal father may not be the child’s 

biological father, but no paternity testing was ordered. 

A permanency order was entered in March 2017. Pursuant to the 

permanency order, R.C. was placed in the custody of his father and lives in a 

residential care facility for children who need constant care and supervision. See 

Iowa Code § 232.104(2)(d)(2) (2015) (providing the court may, after a 

permanency hearing, enter an order transferring sole custody of the child from 

one parent to another parent). With permanency established in the father, the 

juvenile court ended reunification services between R.C. and the mother, and 

R.C.’s guardian ad litem (GAL) and DHS were charged with arranging and 

approving future visitation between R.C. and the mother.

In June 2019, the mother filed a motion in the juvenile court, asking for 

expanded visitation with R.C. She noted she was receiving one four-hour 

supervised visit with R.C. each month and asked for an additional four-hour visit 

that was unsupervised each month. 

In August 2019, the mother filed a second motion, asking the court to 

order paternity testing on R.C. According to the mother, while R.C. was born 

during the mother’s marriage to the father, a different man is the biological father 

of R.C. 
3

The juvenile court took up both issues at the permanency review hearing 

in November 2019. At the hearing, the mother initially testified she thought it 

would be best for R.C. if he could get to know his purported biological father in 

addition to the father he has always known. But later during her testimony, she 

admitted she was angry at the father, to whom she is no longer married, and was 

motivated to file for paternity testing by her desire to get him “completely out of 

the picture,” whether or not it is in R.C.’s best interests. She conceded it would 

likely be confusing for R.C. to learn of another father at this point in life. 

Additionally, she admitted she was trying to fight the father for custody of R.C. in 

district court1 and wanted the juvenile court to order the paternity testing because 

she thought it would help her with her custody case.2 

As for her request for additional visitation time with R.C., the mother 

offered into evidence an email from R.C.’s therapist, written on August 8, 2019, 

stating: 

FYI. As we have had a couple of sessions with [the mother] 

over the last month, it seems that [R.C.] enjoys his time with his 

mother. He is not verbalizing or showing through behaviors that 

 

1 The juvenile court granted concurrent jurisdiction to the district court to allow the 

dissolution proceedings but retained jurisdiction over the issue of custody of R.C. 

No party has appealed the juvenile court’s order limiting the district court’s 

jurisdiction. The mother did not seem to be aware of the limitation on concurrent 

jurisdiction, as she testified several times about seeking custody of R.C. in district 

court.

2 The mother denied seeking the order for paternity testing in juvenile court so 

she would not have to pay for it. But the same month the mother filed the motion 

for paternity testing, she stole a person’s credit or debit card number and then 

used it to purchase lottery tickets. She was later convicted of forgery as a result. 

According to the mother’s testimony at the permanency review hearing, she 

committed the forgery because she “was fighting for a custody battle for [R.C.]” 

When asked again, the mother agreed she committed the forgery to secure 

financing for a custody battle in district court.
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this increased contact is negatively impacting him. I have seen 

no reaction from him that causes concerns with their contact.

I would recommend increasing his supervised visitation 

at [the residential facility] home with mom.

The State offered more of the string of emails into evidence, noting that the 

question of the mother’s visits’ impact on R.C. was ongoing. In an August 19 

email, the therapist stated:

[R.C.] had a visit with his mom this past Saturday (8/17/19). It was 

noted that during the visit she had him laying on the floor like an 

infant to clean him after using the restroom. My staff have seen an 

increase in defiant behaviors since the visit. He is refusing to 

shower, he is struggling with personal space (more than normal), 

he is not wanting to listen or complete his schedule. He will [throw]

his food in the trash so that he can watch TV. He will go into the 

restroom, but doesn’t do anything and when asked if he needs help 

he won’t respond. [R.C.] is a child that normally needs prompts to 

stay on task, but after the weekend it has come to an all time high.

One of the reports offered into evidence by the State included an update from the 

therapist, sent September 27, 2019. The update noted that R.C.’s “unsupervised 

contact with his mother [over the holidays in late 2018] triggered negative 

feelings and behaviors.” As a result, the therapist recommended only supervised 

visits between the mother and R.C. Additionally, it stated:

[R.C.] continues to be defiant and have behavioral issues. He has 

also continued to exhibit inappropriate boundaries with others and 

touch himself sexually. In therapy, we have continued to explore 

feelings. . . . Sessions with [the mother] have been appropriate. 

[R.C.] expresses that he likes having session with his mother and 

there haven’t been any boundary issues observed by this 

therapist. . . . [R.C.] no longer expresses missing his mother. With 

[his] continued defiant and inappropriate behaviors, it is unclear 

whether this is because he wants to see his mother more or if 

seeing her triggers negative memories that cause negative 

behaviors. He has essentially been able to see his mother twice 

monthly for the last couple of months. Seeing her more often 

doesn’t appear to be helping to reduce the negative behavior.
5

The GAL maintained that it was not in R.C.’s best interests to expand the 

mother’s visitation. She questioned whether the mother was motivated to 

request more time in an effort to better situate herself for the custody case she 

planned to pursue. Additionally, the GAL noted that the mother failed to attend 

R.C.’s annual review at the residential home on September 17, even though 

the review is very detailed and includes all of his medical, 

vocational, educations, and mental health needs. The team reviews 

all of his special needs and each service that is provided to . . . 

specifically address each need. It also sets forth the treatment plan

for the next year in anticipation of his future needs.

In its written ruling, the court denied both of the mother’s requests, finding 

neither paternity testing nor expanded visitation was in R.C.’s best interests. The 

mother appealed.

Our review of CINA proceedings is de novo. In re D.D., 653 N.W.2d 359, 

361 (Iowa 2002). “The most important consideration in any CINA case is the 

best interests of the child.” Id. at 362. The mother’s requests amount to an 

attempt to modify the permanency order; “[w]hen considering the modification of 

a permanency order, we ‘look solely at the best interests of the child[] for whom 

the permanency order was previously entered.’” In re J.M., No. 19-0772, 2019 

WL 3317430, at *2 (Iowa Ct. App. July 24, 2019) (quoting In re A.S.T., 508 

N.W.2d 735, 737 (Iowa Ct. App. 1993)).

While the mother admitted during her testimony that her request for 

paternity testing was motivated by anger, she wanted the father out of R.C.’s life, 

and she did not care if it was in R.C.’s best interests, the court should have 

ordered the requested paternity testing. See Iowa Code §§ 600B.41A(3)(a)(1) 

(noting the mother of the child may file a petition to overcome paternity before the 
6

child reaches majority); 600B.41A(3)(e) (including as one of the conditions to 

overcome paternity “[b]lood or genetic testing in accordance with section 

600B.41”); see also 600B.41(1) (“In a proceeding to establish paternity in law or 

in equity the court may on its own motion, and upon request of a party shall, 

require the child, mother, and alleged father to submit to blood or genetic test.”

(Emphasis added.)). This statute does not specifically authorize the mother to 

challenge paternity in the juvenile court, but, as we noted before, the juvenile 

court has retained jurisdiction over R.C. 

We understand the juvenile court’s concern regarding whether parental 

upheaval is in the best interests of R.C., as the father continues to be an active 

part of R.C.’s life and seems to want to maintain his role as R.C.’s father. Even 

assuming the genetic testing establishes that the father is not biologically related 

to R.C., the court may ultimately dismiss the action to overcome paternity and 

maintain the father’s rights after further proceedings. See id. § 600B.41A(6)(a) 

(allowing the court to preserve the paternity of the established father when the 

established father requests that the parent-child relationship continue and the 

court finds it is in the child’s best interest to do so). 

This case does not involve termination of parental rights since 

permanency has been established pursuant to Iowa Code section 

232.104(2)(d)(2) However, we note that Iowa Code section 232.111(4)(b)(1) 

requires a petition for termination parental rights to include “[t]he names, 

residences, and domicile, of any...[l]iving parents of the child.” Section 232.112 

states those individuals 
7

shall be necessary parties to a termination of parent-child 

relationship proceeding and are entitled to receive notice and an 

opportunity to be heard, except that notice be dispensed with in the 

case of any such person whose name or whereabouts the court 

determines is unknown and cannot be ascertained by reasonably 

diligent search. 

In addition,

A diligent search is measured not by the quantity of the search but 

the quality of the search. In determining whether a search is 

diligent, we look at the attempts made to locate the missing person 

or entity to see if attempts are made through channels expected to 

render the missing identity. 

In re S.P., 672 N.W.2d 842, 846 (Iowa 2003) (quoting Qualley v. State Fed. Sav.

& Loan, 487 N.W.2d 353, 355 (Iowa Ct. App. 1992)). “Any hearings or

proceedings . . . subsequent to the filing of a [CINA] petition shall not take place 

without the presence of the child’s parent . . . .” Iowa Code § 232.91(1).

The State concedes it knew the legal father of the child is not his biological 

father. Indeed, days after the State filed its CINA petition in late 2015, a report 

stated as much. Similar statements appeared in 2016 and 2017 reports. The

mother testified DHS was “aware that [the legal father] was not [the child’s] 

biological father from day one.” 

Despite this knowledge, DHS took no action to ascertain the name, 

residences, or domicile of the biological father. Notably, the putative biological 

father filed an affidavit in connection with the mother’s motion for paternity testing 

attesting he might be the biological father and stating he “went to the Juvenile 

Offices in Sioux City, Iowa” more than eighteen months earlier to inquire “about a 

paternity test” but was told he “wasn’t listed on the birth certificate” and he would 

need to get the legal father’s permission for testing. The putative biological 
8

father stated, “I knew he would never give me permission, so I didn’t ask.” 

Assuming DHS lacked the ability to glean the biological father’s identity from 

other sources such as the legal father and biological mother, the affidavit 

afforded the agency actual notice of the putative father’s identity. When the 

affidavit was filed, the biological father was not just a living parent whose identity 

should have been reasonably ascertained, but a “known” parent who was entitled 

to “[n]otice of the pendency of the case.” Id. § 232.37(1).3

The affidavit of the purported biological father was not filed until 2019. But 

the onus was not on the putative father to make his whereabouts known so that 

he could participate in the proceedings but on the State to notify him of the 

proceedings. Of course, the putative father’s claim that he was the father would 

have to be established. See id. § 232.2(39) (“‘Parent’ means a biological or 

adoptive mother or father of a child; or a father whose paternity has been 

established . . . by order of a court of competent jurisdiction, or by administrative 

order when authorized by state law.”); In re J.C., 857 N.W.2d 495, 501–02 (Iowa 

2014). 

We recognize the mother may have raised the paternity issue out of 

animus toward the legal father. But her motives did not obviate the State’s 

obligation to establish the biological parents of children in need of assistance and 

to provide them with notice and an opportunity to be heard. See S.P., 672 

N.W.2d at 845 (“Notice of the hearing and an opportunity to be heard appropriate 

to the nature of the case is the most rudimentary demand of due process of law 

 

3 We recognize this statute is part of the division on juvenile delinquency 

proceedings.
9

in proceedings affecting parental rights to children.” (quoting Stubbs v. 

Hammond, 135 N.W.2d 540, 543 (1965))). 

We agree with the juvenile court that the mother failed to meet her burden 

to prove that expanding her visitation time with R.C. is in R.C.’s best interests. 

See In re D.S., 563 N.W.2d 12, 15 (Iowa Ct. App. 1997) (considering whether the 

parent met their burden to modify the permanency order). R.C.’s therapist was 

unable to determine whether R.C.’s negative behaviors were directly or indirectly 

related to the time he sees the mother. But the mother has not taken advantage 

of all of the visits she is currently scheduled with R.C.; she admitted she missed 

her October visit with him, and she did not attend his annual review, which took 

place in September. The mother loves R.C., but it is not clear that additional time 

with the mother is good for him. 

The juvenile court should have ordered paternity testing, so we reverse 

and remand on this issue. We otherwise affirm the juvenile court order on 

permanency review, including the denial of the mother’s request for expanded 

visitation. R.C. remains in the custody of the father.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Vaitheswaran, P.J., concurs; May, J., partially dissents.
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MAY, Judge (concurring in part and dissenting in part). 

The mother gave the juvenile court no reason to believe that any statute 

required court-ordered paternity testing. She cited no statute in her motion or at 

the hearing. So I would not reverse on statutory4 grounds, none of which were 

presented to the juvenile court. See State v. Thompson, 836 N.W.2d 470, 491 

(Iowa 2013) (“On appeal, Thompson relies on Iowa Rule of Criminal Procedure 

2.24(2)(b)(6) and State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). However, 

Thompson’s counsel never cited that rule or Ellis in his posttrial motion or during 

the hearing on that motion in district court. . . . We agree with the State that 

Thompson failed to preserve error on his claim the district court applied the 

wrong standard under rule 2.24(2)(b)(6).”); State v. Hernandez-Lopez, 639 

N.W.2d 226, 234 (Iowa 2002) (concluding an alleged violation of statutory rights 

was not preserved where it was raised for the first time on appeal); see also Top 

of Iowa Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (“In view 

of the range of interests protected by our error preservation rules, this court will 

consider on appeal whether error was preserved despite the opposing party’s 

omission in not raising this issue at trial or on appeal.”).

As to this issue, I respectfully dissent. Otherwise, I concur with the 

majority opinion.

 

4 My colleagues point to certain provisions within Iowa Code chapters 232 and 

600B (2015). Even if those provisions had been raised below, it is not clear to 

me that they would have required the juvenile court to order paternity testing in 

this child-in-need-of-assistance case. Sections 232.111(4)(b)(1) and 232.112 

relate to termination of parental rights proceedings. Section 232.37 relates to 

juvenile delinquency proceedings. Chapter 600B actions are “ordinary 

proceedings” that “shall be brought in the district court.” Iowa Code § 600B.10.