IN THE COURT OF APPEALS OF IOWA

No. 17-0406

Filed May 17, 2017

IN THE INTEREST OF L.K.,

Minor Child,

S.S., Mother,

Appellant,

K.K., Father,

Appellant.

________________________________________________________________

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

District Associate Judge.

A mother and father appeal orders transferring their child from relatives to 

non-relative foster care. The mother also appeals the court’s denial of a motion 

to intervene filed by the relatives. REVERSED AND REMANDED ON BOTH 

APPEALS.

Seth J. Harrington of Harrington Law L.C., Clive, for appellant mother.

Nicholas J. Einwalter, Des Moines, for appellant father.

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

General, for appellee State.

Kimberly S. Ayotte of Youth Law Center, Des Moines, guardian ad litem 

for minor child.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2

VAITHESWARAN, Presiding Judge.

A mother and father appeal juvenile court orders transferring their child 

from relatives to non-relative foster care. The mother also appeals the court’s 

denial of the relatives’ motion to intervene in the child-in-need-of-assistance 

proceedings.

I. Background Facts and Proceedings

A child, born in November 2016, tested positive for methamphetamine and 

morphine. The child’s mother admitted to using both drugs during her 

pregnancy. The father, who was on probation for a drug crime, tested positive 

for methamphetamine. 

The parents signed a safety plan proffered by the department of human 

services (DHS). They agreed the child would be discharged to her paternal aunt 

and uncle. They further agreed their contact with the child would be “supervised 

by [the relatives] or another approved family member.” Under the heading, “How 

plan is monitored,” the document stated the relatives would “communicate with 

DHS about cooperation with safety plan and any concerns.” The parents 

consented to—and the juvenile court ordered—the temporary removal of the

child from their custody.

An adjudication hearing scheduled for a Wednesday was postponed for 

six days. The postponement order stated, “Before the next hearing the following 

shall be completed: . . . Current custodians and adults residing in the home shall 

provide a drug screen today.” The order was not served on the current 

custodians and relatives in the home. 
3

At the rescheduled adjudication hearing, the State requested “placement 

continue provided that a clean drug screen is provided.” The State informed the 

court that the relatives underwent urine tests the night before but the results were 

not back. Without holding an evidentiary hearing, the juvenile court deemed the 

relatives’ failure to obtain drug screens the previous Wednesday to be “missed 

drug screens” and, therefore, “positive drug screens.” Based on this premise, the 

court stated, “[W]e need to figure out a different placement.” The court 

questioned the attorneys about the extent of visitation that had occurred between 

the parents and child and, in light of discrepancies in their statements, found the 

relatives had been “dishonest with the department of human services regarding 

the parents’ contact with this child.” The court ordered the child transferred from 

the relatives to non-relative foster care. At this point, the child had been with her 

aunt and uncle for sixty-five days.

The relatives moved to intervene and to modify the placement. The 

juvenile court denied the intervention motion on the ground that “the intervenors’ 

rights [were] being adequately represented” and it was “not in the child’s best 

interest because these custodians have demonstrated an unwilling[ness] or 

inability to abide by the Court’s directives and have not been forthcoming 

regarding the contact with the parents as reported by the parents.” With respect 

to the modification motion, the court held an evidentiary hearing, at which the 

aunt and department social worker testified. The court concluded it was “not in 

the child’s best interest to be placed in [the relatives’] custody any longer” 

because they lacked “capacity to protect this child from the parents’ ongoing 

substance abuse issues.”
4

As noted, both parents appealed. We find it unnecessary to address the 

mother’s challenge to the intervention ruling because our resolution of the 

parents’ challenge to the court’s transfer decision is dispositive. 

II. Child Placement

“When the dispositional hearing is concluded the court shall make the 

least restrictive disposition appropriate considering all the circumstances of the 

case.” Iowa Code § 232.99(4) (2016). “The home of a relative is considered less 

restrictive than placement in a private agency, facility or institution or placement 

with the department of human services.” In re N.M., 528 N.W.2d 94, 97 (Iowa 

1995) (citing Iowa Code §§ 232.99(3), .102(1)). “Thus, chapter 232 favors 

relative placements over nonrelative placements.” Id.

The juvenile court did not honor this preference in favor of relatives. On 

our de novo review, we disagree with the transfer decision.

As discussed, the court order requiring the relatives to undergo the drug 

tests was filed six days before the adjudication hearing and was not served on 

the relatives. Notwithstanding the absence of formal notification, the relatives 

complied with the order on the day before the hearing. The following morning—

just six days after the court entered the order requiring drug testing—the juvenile 

court transferred the child out of the relatives’ care. Later the same day, the 

department received the aunt and uncle’s negative test results for all illegal 

substances. An adult daughter living in the home also tested negative for illegal 

substances.

At the subsequent evidentiary hearing, the department social worker 

assigned to the case testified the department placed the child with her aunt and 
5

uncle “[b]ecause we always try to keep our kids with relatives.” She visited the 

home of these relatives and expressed no concerns. 

With respect to the drug-testing order, the social worker testified to 

advising the parents about the urgency of having the relatives comply “within the 

next 24 hours.” There is no indication she directly informed the relatives of such 

a deadline. A report the social worker authored stated only that she called the 

relatives on the day the order was entered and “left a specific message . . . as to 

directions to do the drug test.” 

The child’s aunt essentially confirmed that this was the sum and 

substance of the telephone message. She testified she was at a doctor’s 

appointment for the child on the day the order was entered and the message she 

received did not contain a deadline for complying. In the aunt’s words, the 

department employee “didn’t give me a date, time frame or [tell me] I have to do . 

. . this before the court date.” The aunt “thought we can go do it any time” and, 

because her family was “clean,” she had no understanding the test result was 

“going to be used for this court . . . .” The aunt contacted the department social 

worker two days after receiving the message to obtain clarification. She was 

unable to reach the social worker and left a message. The worker returned the 

call three days later. The aunt and uncle underwent testing that day. The social 

worker did not dispute that she was unavailable when the relatives called her, 

admitted the aunt and uncle submitted to drug tests on the day before the 

rescheduled adjudication hearing, and admitted the test results were negative for 

any illegal substances. We conclude the relatives’ failure to obtain the drug test 

on the day the court ordered it was not grounds to transfer placement.
6

The juvenile court also relied on the relatives’ “dishonesty” with respect to 

visits. But under the safety plan approved by the department at the time the child 

was placed in their care, the relatives were the individuals designated to 

supervise visits. Later, the aunt was told that if the parents wished to visit the 

child, they needed to contact the service provider assigned to the case. 

According to the aunt, the parents attempted to do so, but the service provider 

never responded. 

Although there was some difference of opinion about who was responsible 

for the lack of communication between the parents and service provider, the 

child’s attorney essentially confirmed that the relatives stood in as supervisors 

simply because no one else stepped forward. At the adjudication hearing, she 

stated “[v]isits have been supervised by the relative placement, but there have 

not been any [service provider]-supervised visits because the [service] provider 

hasn’t been able to get ahold of the parents.” The department social worker 

agreed, stating, “[M]y understanding was that it was approved for [the parents] to 

be coming—going over to the placement and seeing the child there.”

In sum, we discern no dishonesty on the relatives’ part with respect to 

parental visits. At worst, the aunt and uncle received mixed signals as to who 

was to supervise visits and they filled the void by conducting the supervision 

themselves. The department was well aware they were providing supervision 

and, indeed, authorized them to do so at the outset. The record contains no 

evidence that they failed to provide adequate supervision. We conclude the 

manner in which visits were conducted was not a basis for transferring placement 

from the relatives to non-relative foster care.
7

On a related matter, the court found the relatives struggled “to set 

appropriate boundaries.” The issue arose because the relatives went out of their 

way to facilitate visits between the parents and child. We see their actions as a 

positive rather than a negative factor in light of the department’s authorization of 

visits. Again, there is no evidence that the relatives jeopardized the health or 

safety of the child by facilitating visits at the convenience of the parents.

Finally, the court suggested a transfer was appropriate because the 

relatives did not recognize the risk posed by the parents. To the contrary, the 

aunt testified she understood precisely why the child was removed from the 

mother’s care and stated she would be able to recognize if someone was under 

the influence. She expressed a willingness to abide by any restrictions on 

parental contact recommended by the department.

We conclude the child’s paternal aunt and uncle were the least restrictive 

placement. Accordingly, we “reverse and remand so the juvenile court can order 

a custody arrangement in the best interests of the child[] considering [the aunt 

and uncle] as the least restrictive placements.” In re K.P., No. 11-1869, 2012 WL 

2122227, at *9 (Iowa Ct. App. June 13, 2012).

REVERSED AND REMANDED ON BOTH APPEALS.