IN THE COURT OF APPEALS OF IOWA

No. 20-0580

Filed October 7, 2020

IN THE INTEREST OF Z.D.,

Minor Child,

J.M. and J.M., Intervenors,

Appellants,

STATE OF IOWA,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, 

District Associate Judge.

The State and intervenors appeal the juvenile court order removing the Iowa 

Department of Human Services as the guardian of a minor child. REVERSED 

AND REMANDED.

T.J. Hier of Hier Law Office, P.C., Baxter, for appellant intervenors

(relatives).

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

Attorney General, for appellant State.

Victoria D. Noel of The Noel Law Firm, P.C., Clinton, for appellee 

intervenors (foster parents).

Marsha Arnold, Davenport, attorney and guardian ad litem for minor child.
2

Considered by Mullins, P.J., Schumacher, J., and Blane, S.J.* Tabor, J., 

takes no part.

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

(2020).
3

SCHUMACHER, Judge.

The State and intervenors appeal the juvenile court order removing the Iowa 

Department of Human Services (DHS) as the guardian of a minor child. We find 

the intervenors did not preserve error on their due process claims. We also find 

the foster parents did not show DHS acted unreasonably or irresponsibly, or that 

removing DHS as the guardian was in the child’s best interests. As such, we

reverse the decision of the juvenile court and remand for further proceedings.

I. Background Facts & Proceedings

Z.D. was born in 2019. The mother indicated she was unable to care for 

the child and wanted to have the child placed for adoption.1 On March 27, 2019, 

the child was adjudicated to be in need of assistance (CINA).2 The child was 

placed in the temporary custody of DHS for placement in foster care. DHS placed 

the child with E.D. and L.D. (foster parents).

The child’s great-uncle, J.M., and his wife, J.M., (together referred to as the 

great-uncle) received notice of the CINA proceedings on April 1. The great-uncle 

approached DHS on April 4 or 5 and requested Z.D. be placed with him. The 

great-uncle previously adopted Z.D.’s half-sibling, M.M., and stated he wanted the 

two siblings to be raised together. Additionally, the great-uncle’s sister adopted 

another of Z.D.’s siblings, D.J., and the families had frequent contact.

 

1 The mother tested positive for amphetamines at the time of the child’s birth, and 

the child tested positive for methamphetamine and amphetamines. A report filed 

in the termination suggests that the mother intended to place the baby for adoption 

under the Safe Haven law; however, a misunderstanding at the hospital may have 

prevented such from occurring. 

2 Separate adjudication and dispositional orders were filed for the father, as his 

whereabouts were unknown. He was served by publication.
4

On July 30, the great-uncle filed a motion to intervene. A home study 

showed the great-uncle was an appropriate placement option for the child. The 

great-uncle asked to have Z.D. placed in his care and stated he was interested in 

adopting the child. The great-uncle had some visits with the child and asked for 

increased, consistent visitation.

The court granted the motion to intervene on August 8. The court noted 

DHS had known since shortly after the child was born that there was a relative with 

a sibling of the child, and there should have been consideration of the great-uncle 

as a potential placement for the child. The court found, “It is clear that [DHS] has 

not made reasonable efforts in this case and that the placement of this child needs 

to be addressed as soon as possible for the best interest of the child.” Thereafter, 

the foster parents were permitted to intervene in the case.

On September 3, the State filed a petition for termination of parental rights

(TPR). On the same day, the State filed a motion for a continuance on the issue 

of permanency. The great-uncle resisted the motion to continue and sought to 

modify the placement of the child. He asserted that it would be in the child’s best 

interests to be placed with a sibling. DHS requested separate representation by 

the attorney general, and an assistant attorney general thereafter represented 

DHS.

3

 The foster parents joined in the motion to continue. On September 18, the 

juvenile court determined it was in the child’s best interests for the hearing to be 

continued and for the child to remain with the foster parents.

 

3 The county attorney and DHS had divergent interests. The county attorney filed 

a brief asking for the removal of DHS as the child’s guardian.
5

On September 23, the great-uncle filed a new motion requesting the child 

be placed in his care prior to the TPR hearing. He also asked for a continuance of 

the TPR hearing until the issue of permanency for the child had been established. 

He stated DHS had not engaged in reasonable efforts to have the child placed with 

a relative. The mother joined in the motion, stating she wanted the child to be 

placed with the great-uncle. The juvenile court scheduled a permanency hearing 

on October 28, with the TPR hearing set for November 19.

There was a two-hour hearing on permanency on October 28. The 

remainder of the hearing was continued until December 2. In the meantime, a TPR

hearing was held on November 19. The juvenile court terminated the parents’ 

rights and “ORDERED that the child is placed in the custody and guardianship of 

[DHS] for placement in an appropriate pre-adoptive placement.”4

At the continued hearing on December 2, the parties informed the court that 

rather than continue with the permanency hearing, they were going to wait for a 

decision by the adoption selection committee. The attorney for the great-uncle

stated there was discussion about “getting some visitation set up with the [greatuncle] that they can count on,” and “facilitating communication” about the child. 

The attorney for the foster parents agreed, stating:

We are go[ing to] set up a meeting to make sure that there’s 

consistent visitation and that’s being facilitated to ensure that the 

Department is doing reasonable efforts, because obviously that is 

important, and my clients are supportive of that. And then, as [the 

great-uncle’s attorney] said, after the adoption selection staffing

occurs, if either of the parties desires a remedy, we believe that 

would be the appropriate time to do it rather than now.

 

4 Neither parent appealed the termination order. Neither parent is a party to this 

appeal. 
6

The guardian ad litem stated, “I also agree with what has been said.” The court 

entered an order stating the great-uncle’s motion was withdrawn.

On February 27, 2020, the foster parents filed an application to remove DHS 

as the guardian for the child. The foster parents stated DHS was acting 

unreasonably because it was taking too long to reach a decision on adoption. They 

also stated that as there was increased visitation with the great-uncle, the child 

“exhibited signs of separation anxiety and trauma.”5

The application to remove DHS as the guardian was set for a three-hour 

hearing on March 19. The Iowa Supreme Court issued In the Matter of Ongoing 

Provisions For Coronavirus/COVID-19 Impact On Court Services (March 17, 

2020), which stated, “Non-delinquency juvenile matters set to commence before 

May 4 shall be either continued to a date no earlier than May 4 or conducted with 

the parties and/or participants appearing remotely using video or phone 

conferencing, at the discretion of the court.”

On March 18, the court canceled the hearing scheduled for the next day 

and directed the parties to “file written briefs/statements outlining their position in 

this matter” by March 25. The county attorney and the foster parents filed written 

briefs to support removal of DHS as the child’s guardian. The guardian ad litem 

joined in these briefs. DHS and the great-uncle filed written briefs in resistance to 

the motion.

 

5 As discussed below, no evidence was presented on the application to remove 

DHS as the guardian, so the foster parents’ concerns about visitation are not 

supported by testimony or exhibits. The foster parents submitted affidavits to 

support their position, but the juvenile court stated it would not consider them.
7

The juvenile court issued a decision on March 27. The court found “the 

situation with [Z.D.] only knowing the [foster parents] as his family and [DHS] not 

investigating placement with the [great-uncle] was unreasonable conduct by [DHS]

in performing its obligations in this matter and that [DHS’s] conduct caused the 

guardianship issue faced by the Court at this time.” The court stated DHS 

consistently indicated the child would be adopted by the foster parents until after 

the termination, when it began to have the child spend more time with the greatuncle. The court determined, “The actions of [DHS] throughout this case have 

been unreasonable and have not met the responsibilities of [DHS] to [Z.D.], to the 

foster parents, or to the relative placement options.” The court found DHS should 

be removed as the guardian for the child. The court named the foster parents as 

the child’s guardian. DHS and the great-uncle now appeal.

II. Standard of Review

“We review actions seeking to remove DHS as guardian and challenging 

custody placement de novo.” In re D.H., No. 12-1387, 2012 WL 5954633, at *2 

(Iowa Ct. App. Nov. 29, 2012) (citing In re E.G., 738 N.W.2d 653, 654 (Iowa Ct.

App. 2007)). “We review both the facts and the law and adjudicate rights anew.”

Id. “Although we give weight to the juvenile court’s findings of fact, we are not 

bound by them.” Id.

III. Due Process

The great-uncle contends he was denied due process because the juvenile 

court ruled the parties could not present testimony or submit exhibits at a hearing 

on the motion to remove DHS as the child’s guardian.
8

Prior to the hearing scheduled for March 19, 2020, the great-uncle filed a 

motion requesting a continuance or for the hearing to be held by video or 

telephone, in accordance with the supreme court’s order filed on March 17. The 

foster parents resisted the motion, stating time was of the essence, and the court 

could “determine which, if any parties, may participate via videoconference or 

telephone.” The great-uncle responded by again pointing out the supreme court’s 

guidelines. However, the court determined the issue would be decided based only 

on the previous record in the case and the parties’ briefs.

The great-uncle filed a motion to reconsider the court’s ruling, but it referred 

solely to the court’s decision to require the child, who was on an extended visit with 

the great-uncle, to be immediately returned to the foster parents. The motion to 

reconsider did not refer to the court’s decision to exclude testimony and new 

exhibits. Also, the issue was not raised in the great-uncle’s brief. The great-uncle 

did not file any motions after the court’s ruling but filed a notice of appeal.

“[T]he general rule that appellate arguments must first be raised in the trial 

court applies to CINA and [TPR] cases.” In re A.B., 815 N.W.2d 764, 773 (Iowa 

2012). This rule applies even to “issues implicating constitutional rights,” such as 

due process. In re K.C., 660 N.W.2d 29, 38 (Iowa 2003). The issue concerning 

due process was not raised before the juvenile court and was not ruled on by the 

court. We conclude this issue has not been preserved for our review. See In re 

Z.P., ___ N.W.2d ___, ___, 2020 WL 5268435, at *3 (Iowa 2020) (noting an issue 

that “was not disputed below” “is therefore not preserved for appeal”).
9

IV. Removal of Guardian

DHS and the great-uncle claim the juvenile court improperly removed DHS 

as the child’s guardian. We first note that on December 2, 2019, the foster parents 

stated that if either of the parties wanted to challenge the adoption selection 

committee’s decision, that would take place “after the adoption selection staffing 

occurs.” The guardian ad litem agreed as well. The great-uncle’s attorney also 

stated the case “needs to get in front of the adoption selection committee so this 

child can move forward with adoption. Whether it ends up being the [foster 

parents] or whether it ends up being the [great-uncle], they can go through that

process.” The attorney stated any challenges would be made after the adoption 

selection committee’s decision.

Although the foster parents agreed on the record to let the adoption 

selection process play out, less than three months later, on February 27, 2020, 

they filed an application to remove DHS as the guardian for the child. The foster 

parents stated DHS was acting unreasonably because it was taking too long to 

reach a decision on adoption. The foster parents sought to bypass the DHS 

adoption selection committee by having DHS removed as the child’s guardian 

before the committee met and made a decision.6

“When DHS is a child’s guardian, it determines the specific adoptive home 

for the child.” In re J.H., No. 20-0081, 2020 WL 2988758, at *3 (Iowa Ct. App. 

June 3, 2020) (quoting In re T.J.M., No. 18-1390, 2018 WL 5840806, at *3 (Iowa 

 

6 The adoption selection committee met on March 16, 2020. According to the 

great-uncle’s brief, he was informed by DHS that he had been chosen by the 

committee to adopt the child.
10

Ct. App. Nov. 7, 2018)); see also In re S.O., No. 13-0740, 2013 WL 3458216, at 

*2 (Iowa Ct. App. July 10, 2013) (“It is DHS’s duty and right, however, to choose 

the placement for these children.”). DHS follows a selection process and criteria 

set out in the Iowa Administrative Code. J.H., 2020 WL 2988758, at *3 (citing Iowa 

Admin. Code r. 441-200.4(3)). We find it is not unreasonable or irresponsible for 

DHS to be following this process. Although the foster parents and the juvenile 

court may have wished the process could be accomplished more expeditiously, 

we do not find the process was taking an undue amount of time.7

Iowa Code section 232.118(1) (2020) provides for the removal of a guardian

in juvenile court proceedings. We have stated:

In considering whether DHS should be removed as the guardian of 

a child, we have looked at whether it has engaged in “unreasonable 

actions.” [In re E.G., 745 N.W.2d 742, 744 (Iowa Ct. App. 2007)]. 

We have also looked at whether “the Department in any way failed 

in its guardianship duties or in looking out for [the child’s] best 

interests.” Id.; accord [S.O., 2013 WL 3458216, at *2] (“The juvenile 

court retains the authority to remove DHS as guardian if the 

department acts unreasonably or irresponsibly in discharging its 

duties.”). The actions of DHS “must serve the best interests of the 

child.” In re N.V., 877 N.W.2d 146, 153 (Iowa Ct. App. 2016); accord

In re C.L.C., 479 N.W.2d 340, 345 (Iowa Ct. App. 1991) (noting “the 

overall principle of chapter 232 [is] to seek the best interests of the 

child”).

T.J.M., 2018 WL 5840806, at *3. Thus, we consider whether (1) “DHS acted 

unreasonably or irresponsibly in discharging its duties” and (2) removal of DHS as 

the guardian is in the child’s best interests. J.H., 2020 WL 2988758, at *3.

Factually, this case is very similar to I.P., where foster parents filed a motion 

to remove DHS as the guardian of a child after DHS decided to transition the child 

 

7 Some of the delay in this case was caused by the motions for continuance that 

were filed throughout the case and granted by the court.
11

to a family who had adopted the child’s half-sibling.8 2019 WL 3317922, at *2. 

“[T]he [juvenile] court found DHS acted unreasonably in failing to timely contact 

[the child’s] relatives.” Id. Despite this, the court concluded removing DHS as the 

guardian was not the appropriate remedy. Id. On appeal, we stated, “[P]roviding 

a good foster home does not create a legal ground to remove the DHS as guardian 

after termination. We concluded DHS acted in the child’s best interests by placing 

the child with a half-sibling. Id.

Also, in T.J.M., a great-uncle sought to remove DHS as the guardian when 

DHS chose to place a child with a maternal aunt who had adopted the child’s halfsibling. 2018 WL 5840806, at *2. The juvenile court determined DHS should be 

removed as the child’s guardian because the great-uncle had been led to believe 

the child would be placed in his care. Id. The court found DHS failed to have 

continuity in decision-making. Id. We reversed the juvenile court’s decision, 

finding DHS was required “to make a reasonable effort to place the child and 

siblings together in the same placement.” Id. at *4 (quoting Iowa Code 

§ 232.108(1)). Additionally, DHS had a lengthy statement giving its reasons for 

placing the child with the maternal aunt, where the child’s half-sibling was living. 

 

8

 There are several cases where a party asked to have DHS removed as the 

guardian of a child, the juvenile court denied the request on the ground DHS had 

not acted unreasonably or failed to act in the child’s best interests, and the issue 

was affirmed on appeal. See In re I.P., No. 19-0715, 2019 WL 3317922, at *5 

(Iowa Ct. App. July 24, 2019); In re W.L., No. 19-0424, 2019 WL 2375248, at *4 

(Iowa Ct. App. June 5, 2019); In re X.O., No. 16-0313, 2016 WL 2743445, at *5 

(Iowa Ct. App. May 11, 2016); In re R.S., No. 15-1244, 2015 WL 5578273, at *3 

(Iowa Ct. App. Sept. 23, 2015); S.O., 2013 WL 3458216, at *2; D.H., 2012 WL 

5954633, at *4; In re K.M.H., No. 12-1300, 2012 WL 5562784, at *3 (Iowa Ct. App. 

Nov. 15, 2012); In re D.H., No. 10-1313, 2010 WL 4484849, at *7 (Iowa Ct. App. 

Nov. 10, 2010).
12

Id. at *5. We concluded, “In our de novo review of the facts and the law, we 

conclude DHS did not act unreasonably, irresponsibly, or contrary to the best 

interests of [the child] when it determined the child should be permanently placed 

in the home of the maternal aunt.” Id.

In a recent case, J.H., although the adoption selection committee chose 

foster parents who had adopted a child’s half-sibling, a supervisor overruled the 

committee and determined the child should be placed with the child’s grandfather. 

2020 WL 29887758, at *1–2. The foster parents sought to remove DHS as the 

child’s guardian. Id. at *2. We affirmed the juvenile court’s decision removing DHS 

as the child’s guardian, finding DHS acted unreasonably because it did not follow

its own procedures for the permanent placement of children. Id. at *5. We also 

concluded DHS had not acted in the child’s best interests, noting that generally 

DHS has a preference to keep siblings together. Id. at *6.

We acknowledge that separation between a child and foster parents may 

be painful. Z.D.’s foster parents have provided his shelter and care since Z.D. was 

a newborn. He was just over a year old at the time of the hearing held on the 

motion to remove DHS as his guardian. However, our supreme court has 

previously held, “The foster care system is designed to provide temporary, not 

permanent, homes for children.” E.G., 745 N.W.2d at 744. DHS is not required to 

make “reasonable efforts to preserve a pre-adoptive foster care placement.” R.S., 

2015 WL 5578273, at *1. We do not find DHS acted unreasonably or irresponsibly 

by having the child live with foster parents for a period of time but then explore 

other options when considering the best placement for adoption. See I.P., 2019 

WL 3317922, at *5 (“[P]roviding a good foster home does not create a legal ground 
13

to remove the DHS as guardian after termination.”); T.J.M., 2018 WL 5840806, at 

*5 (finding DHS did not act unreasonably by failing to give deference to one relative

because the child previously had been placed in his care). As has been stated 

before: 

In terms of the court’s involvement in ruling on the application to 

remove the DHS, this is not a custody battle between the two 

competing parties. The juvenile court is not permitted to make its 

own independent decision as to which family the child should be 

placed with for adoption. That duty lies with the DHS, as the 

guardian of the child. In E.G. I, we held that “[t]he legislature, while 

giving the juvenile court continuing oversight consistent with the best 

interest of the child, did not give the juvenile court the right to 

establish custody or consent to adoption.” 738 N.W.2d at 657. 

“Rather, these rights were specifically granted to the guardian,” 

which is the DHS in this case. Id. The appointed guardian, not the 

juvenile court, is responsible for making important decisions that 

have a permanent effect on the life and development of the child and 

promoting the general welfare of the child. 

J.H., 2020 WL 2988758, at *9–10 (Ahlers, J., specially concurring).

Even if we were to find DHS acted unreasonably, we do not find DHS failed 

to act in the child’s best interests or that removal of DHS as the child’s guardian 

would be in the child’s best interests. We have stated:

Iowa Code section 232.108(1) “requires the department to ‘make a 

reasonable effort to place the child and siblings together in the same 

placement.’” In re J.B., No. 18-1177, 2018 WL 4362753, at *2 (Iowa 

Ct. App. Sept. 12, 2018) (quoting Iowa Code § 232.108(1)). “[T]he 

importance of sibling relationships has been statutorily recognized in 

section 232.108.” In re M.D., No. 17-1893, 2018 WL 739351, at *2 

(Iowa Ct. App. Feb. 7, 2018). “[T]he overall thrust of section 232.108 

[is] to maintain sibling relationships absent clear and convincing 

evidence it would be detrimental.” In re A.J., No. 13-0216, 2013 WL 

1227360, at *3 (Iowa Ct. App. Mar. 27, 2013).

T.J.M., 2018 WL 5840806, at *4.

Based on the statutory requirements of section 232.108(1), DHS was 

required to “make a reasonable effort” to place the child in a home with a sibling, 
14

which in this case was the home of the great-uncle. The great-uncle had adopted 

Z.D.’s half-sibling, M.M., and had frequent contact with another half-sibling, D.J., 

who had been adopted by the great-uncle’s sister. It was not contrary to Z.D.’s 

best interests for DHS to consider placing the child with the great-uncle or increase 

visitation with the great-uncle so an assessment could be made as to whether his 

home was the best placement for the child.

We reverse the juvenile court’s decision removing DHS as the child’s 

guardian and remand for further proceedings.

REVERSED AND REMANDED.