IN THE SUPREME COURT OF IOWA

No. 21–1472 

Submitted April 20, 2022—Filed June 3, 2022 

IN THE INTEREST OF K.D. and K.D., Minor Children. 

PAUL L. WHITE, Guardian Ad Litem, and C.H., Intervenor, 

Appellants. 

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Polk County, Lynn Poschner, 

District Associate Judge. 

A guardian ad litem and intervenor seek further review of a court of 

appeals decision that affirmed the juvenile court’s order maintaining the Iowa 

Department of Human Services as the children’s guardian. DECISION OF 

COURT OF APPEALS VACATED; JUVENILE COURT JUDGMENT REVERSED 

AND REMANDED.

Christensen, C.J., delivered the opinion of the court, in which Appel, 

Waterman, and Oxley, JJ., joined. Mansfield, J., filed a dissenting opinion, in 

which McDonald and McDermott, JJ., joined. McDonald, J., filed a dissenting 

opinion, in which Mansfield and McDermott, JJ, joined. 
2 

Paul L. White of Des Moines Juvenile Public Defender, Des Moines, 

attorney and appellant guardian ad litem for the minor children. 

Andrea M. Flanagan of Flanagan Law Group, PLLC, Des Moines, for 

appellant intervenor. 

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena and 

Natalie A. Deerr (until withdrawal), Assistant Attorneys General, for appellee 

State. 
3 

CHRISTENSEN, Chief Justice. 

Just as we authorize the removal of children from their parents’ care when 

the parents fail to ensure their children’s welfare, we must also remove the 

children’s guardian when the guardian irresponsibly discharges its duties and 

acts contrary to the children’s best interests. That is what occurred here when 

the Iowa Department of Human Services (DHS), acting as the children’s 

guardian, entered the children’s home of approximately eighteen months in the 

care of their stepgrandmother on the pretext of a visit and abruptly removed 

them from her care to place them in foster care with strangers. One of the 

children became so distraught that she vomited, and the other child started 

shaking. 

DHS took these actions knowing the children’s guardian ad litem (GAL) 

and attorney1 had filed a notice seeking a hearing to address “unanswered 

questions and concerns” he had about DHS possibly moving the children despite 

warning from one of the children’s therapists strongly discouraging additional 

placements and trauma. After the stepgrandmother informed the GAL of the 

children’s removal the day after it occurred, the GAL filed motions for the 

immediate return of the children to their stepgrandmother, for a hearing on 

modification of placement, and to remove DHS as guardian. The juvenile court 

also allowed the stepgrandmother to intervene. 

 

1In this case, the children’s GAL and attorney are the same person. For brevity, we refer 

to him throughout this opinion as the GAL. 
4 

Following a hearing, the juvenile court concluded DHS acted unreasonably 

in failing to provide written notice to the children’s relatives as required under 

Iowa Code section 232.84 (2021) but not in moving the children to foster care. 

Thus, it declined to remove DHS as the children’s guardian. The GAL and 

stepgrandmother appealed, challenging the juvenile court’s decision not to 

remove DHS as guardian. A divided court of appeals agreed DHS acted 

unreasonably in failing to provide written notice to the children’s relatives and 

in removing the children from their stepgrandmother in the manner that it did, 

but a majority reasoned DHS was looking out for the children’s best interests 

and declined to remove DHS as the children’s guardian. We granted the GAL and 

stepgrandmother’s applications for further review. 

On further review, we conclude DHS acted unreasonably in (1) failing to 

send relative notices and (2) in failing to serve the children’s best interests by 

taking such drastic measures to remove the children from their 

stepgrandmother’s care without warning only to place them in a foster home with 

no assurance of permanency in that home. Although DHS raised some concerns 

regarding the stepgrandmother’s care, DHS did little to address these concerns 

and failed to “make every effort to establish a stable placement for the child[ren].” 

Iowa Code § 232.117(6). Therefore, we vacate the decision of the court of appeals, 

reverse the juvenile court’s order, and remand to the juvenile court with 

directions to remove DHS as the children’s guardian and determine an 

appropriate guardian. 
5 

I. Background Facts and Proceedings. 

The children in this case, K.T.D. and K.J.D., have been involved with DHS 

for much of their young lives, beginning with the removal from their parents at 

ages two and three years old in March of 2018. A juvenile court subsequently 

adjudicated the children as children in need of assistance (CINA) due to their 

parents’ substance abuse and failure to provide adequate supervision. During 

this CINA period, the children were initially placed with their paternal 

grandmother but had to move to foster care after roughly one month with the 

paternal grandmother because she was dishonest with DHS about who was 

living in her home. That CINA case closed through a bridge order giving Dad 

custody in late 2019, but this closure was short-lived because of the parents’ 

domestic violence and continued substance abuse. 

On January 23, 2020, the children went to live with their paternal 

stepgrandmother,2 and the juvenile court officially authorized their removal from 

their parents on February 6. The children remained in the stepgrandmother’s 

care for approximately eighteen months, as they lived with her throughout this 

second CINA case and after the juvenile court terminated the parents’ rights on 

April 14, 2021. DHS’s termination of parental rights (TPR) report notes DHS did 

not send relative notices or have anyone fill out relative worksheets in the case 

after the children were removed from their parents’ custody because “[t]he 

 

2The paternal stepgrandmother was the partner of the children’s paternal grandfather for 

around twenty years until he passed away shortly before the children were placed in her care. 

The stepgrandmother was not a placement option during the first CINA case because her partner, 

the children’s grandfather, was battling cancer and admittedly used marijuana to build his 

appetite during that time. 
6 

relative worksheets are filled out only when children are sent to foster care. In 

this situation they were placed with a relative/suitable other which did not 

require notices to be sent out.” That placement was the stepgrandmother. 

In the juvenile court’s termination order, it concluded, “DHS is in the best 

position to act as guardian and to consider and select the children’s adoptive 

home” and transferred guardianship and custody of the children to DHS. After 

the juvenile court terminated the parents’ rights, and with DHS’s knowledge and 

consent, the stepgrandmother started adoption classes through Four Oaks with 

the belief that she was a candidate to adopt the children. The children’s attorney 

and GAL, Paul White, has been their attorney and GAL for both the 2018 CINA 

case and throughout these proceedings and was under the same impression 

regarding the stepgrandmother’s adoption of the children. 

Due to their history, K.T.D. and K.J.D. both struggle with mental health 

issues. K.T.D.’s therapist reported K.T.D. “continues to meet criteria for 

Unspecified Trauma and Stressor Related Disorder due to the trauma that she 

has experienced and symptoms including avoidance, hypervigilance, 

nightmares, and intrusion.” Similarly, K.J.D.’s therapist reported K.J.D. 

“continues to meet criteria for Unspecified Trauma and Stressor Related Disorder 

related to experiencing significant trauma and symptoms including avoidance, 

nightmares, hypervigilance, problems with concentration, and re-enactment of 

experienced trauma.” K.T.D. demonstrated an Adverse Childhood Experience 

Score (ACES) of 6 out of 10, and K.J.D. demonstrated an ACES of 9 out of 10. 

As one of the children’s therapists noted, “Adverse childhood experiences impact 
7 

the development of a child and can increase the likelihood of lifelong mental or 

physical health problems.” Because of the children’s history, their therapists 

“strongly discouraged” additional placements and transitions and stressed the 

importance of consistency in their lives. 

On June 9, the GAL filed a notice to the juvenile court regarding the 

possible modification of the children’s placement because he received an email 

indicating DHS “intended to move these Children from the current relative 

placement to foster care.” White explained that he had 

unanswered questions and concerns about the need to modify the 

placement of these Children. The DHS has not stated an imminent 

risk of harm or safety to these Children. Further, the undersigned 

seeks current input from the Children’s therapist regarding 

modification. The modification of placement from a relative to a 

foster care placement is a more restrictive placement. Because 

relative placement is mandated over foster care placement, the 

undersigned requests that prior to any modification, this matter be 

scheduled for hearing before this Court. 

A June 10 DHS report discussed two possible adoptive placements for the 

children: the stepgrandmother or foster parents who had assisted the family in 

the past and had custody of the children’s older half brother. However, those 

foster parents withdrew their interest in adopting the children for reasons not 

stated in the record sometime shortly after DHS wrote that June report. 

The June report noted a few concerns about the children’s placement with 

the stepgrandmother. The primary concern was the children’s inconsistent 

attendance at therapy, as K.J.D. missed eleven of twenty-four scheduled 

sessions and K.T.D. missed ten of twenty-six scheduled sessions. In January 

2021, K.T.D.’s therapist documented some missed appointments, though she 
8 

wrote, “The missed appointments have often been due to other scheduling needs 

for [K.J.D.], her sibling, or for [the stepgrandmother.]” The stepgrandmother had 

a total ankle replacement around late December 2020 or early January 2021 

that became infected and affected her mobility, though she has since 

participated in therapy to rehabilitate the ankle. 

Another concern that DHS had in its June 2021 report included the 

stepgrandmother’s possible coaching of the children to tell their therapists that 

they did not like the foster parents, who at the time were considered another 

adoptive placement for the children, and the stepgrandmother’s disparaging of 

those foster parents. Further, DHS expressed concern that the stepgrandmother 

was allowing the children to spend time around her daughter-in-law, who had 

pending child endangerment and drug charges and a no-contact order with her 

own children. 

A concern that DHS listed in the March TPR report was that K.J.D. was 

not enrolled in school despite being kindergarten-aged and K.T.D. was not in 

daycare. The report notes the stepgrandmother did not feel comfortable sending 

them due to COVID-19 concerns and she also wanted to give K.J.D. a chance to 

establish stability and catch up academically with help from the 

stepgrandmother before enrolling her. Although the kindergarten-daycare issue 

was listed as a concern by DHS in the March TPR report, and cited by the juvenile 

court in its order, it was not included as a concern by DHS in its next report filed 

in June. The June report also observed that the children would likely get to see 

their father and extended paternal relatives if they remained with their 
9 

stepgrandmother, but they likely would not have contact with their mother or 

half-siblings. Nevertheless, the DHS report noted K.T.D’s therapist’s belief that 

“the current long-term plan [with the stepgrandmother] is not in the children’s 

best interest and would result in them being placed in a home where they have 

less of a chance of having any relationship with their parents/extended family.”3 

The juvenile court never scheduled a hearing in response to the GAL’s 

June 9 notice requesting a hearing prior to placement modification based on his 

concerns that DHS might try to move the children to foster care. Instead, it 

conducted a “permanency review by paper filing only,” which simply noted the 

GAL’s concern in a review order filed on June 11. In that order, the juvenile court 

found, “The children’s needs are being met. They are currently residing with 

[their stepgrandmother], suitable other placement.” 

The only concern from DHS that the juvenile court noted in this order was 

the concern from the children’s therapist discussed in the June 10 DHS report 

about the stepgrandmother’s possible coaching of the children about what to say 

in therapy. The order noted DHS “also considers an alternate placement for the 

children,” but it did not include any details that would lead the GAL or 

stepgrandmother to believe DHS would soon orchestrate a surprise removal of 

the children from the stepgrandmother’s care. This is especially so considering 

 

3It is unclear what information the therapist had about the children’s ability to interact 

with their parents and extended family when she made this statement because the record shows 

the children had a significant amount of interaction with their paternal relatives in the 

stepgrandmother’s care. 
10 

that other foster placement DHS was considering at the time fell through shortly 

after this hearing. 

On July 26, Riley Hackman, the DHS social work case manager for the 

children’s case, texted the stepgrandmother to inform her that she would be 

visiting the stepgrandmother’s home with Amra Viso, a DHS adoption worker 

who had never met the stepgrandmother. Nobody from DHS contacted the GAL 

about the visit, and the stepgrandmother believed they were visiting to discuss 

her adoption of the children. Instead, Hackman and Viso arrived at the 

stepgrandmother’s home for the meeting with the purpose of removing the 

children from the home and taking them to a foster home of strangers to the 

children without warning the stepgrandmother, the children, or the GAL. 

Hackman later explained that the DHS staff involved did not tell the 

stepgrandmother about the removal in advance because they were concerned 

“that [she] might make comments to the -- to the girls that would make this 

process a little bit more difficult.” At the time of removal, the children had been 

in the stepgrandmother’s care for just over eighteen months. 

This surprise removal proved “extremely traumatic” for the children, as 

Viso acknowledged. Viso admitted that “[i]t was emotionally difficult for the 

children to separate from their grandma” and they “were very upset.” K.J.D. 

vomited and K.T.D. was shaking. They both did not want to leave the 

stepgrandmother, but Viso explained the stepgrandmother handled the situation 

well by “prioritiz[ing] the children[‘s] well-being at that moment, and she was able 

to control her own feelings and escorted them out of the building, providing 
11 

positive [re]inforcement during that process.” The GAL found out about the 

removal from the stepgrandmother after the removal had occurred. 

The next day, the GAL contacted Hackman to inquire about the situation. 

Hackman informed Viso, and Viso emailed the GAL to indicate this removal was 

planned and DHS purposely did not tell the stepgrandmother that they were 

going to remove the children when they arranged the meeting with her. On 

July 29, the GAL filed a motion for the immediate return of the children to their 

stepgrandmother, for a hearing on modification of placement, and to remove DHS 

as guardian. The stepgrandmother also filed a motion to intervene, which the 

juvenile court granted. 

The juvenile court conducted a hearing on the motions on September 1 

and 9. Many of the children’s relatives attended. Hackman, Viso, and the 

stepgrandmother all testified but the children’s therapists did not. The only input 

from the therapists came in the form of letters documenting that the children 

were doing well in foster care about one month after they were removed from the 

stepgrandmother’s home. 

At the hearing, Hackman described various concerns that DHS had about 

the stepgrandmother’s care for the children. These included concerns about the 

children’s inconsistent therapy participation, the stepgrandmother’s possible 

coaching of the children on what to say about their past foster parents, concerns 

about the stepgrandmother’s “health interfering with some things[,] 

[t]ransportation[,] . . . [a]nd concerns regarding [the stepgrandmother] being 

dishonest about a no-contact order that was in place in December” between her 
12 

daughter-in-law and the daughter-in-law’s children. Hackman stated that the 

daughter-in-law’s children were with the stepgrandmother at some point in 

December and the stepgrandmother did not disclose them to Hackman. It is 

unclear from the testimony whether Hackman meant the daughter-in-law’s 

children were staying in the stepgrandmother’s home or the stepgrandmother 

was simply watching the children in a babysitting capacity. Nevertheless, when 

questioned about what evidence DHS had that the stepgrandmother was 

allowing “inappropriate people” around the children, Hackman conceded, “We 

have suspicions but no evidence.” 

When the GAL asked Hackman whether the children’s therapists were 

informed of DHS’s intent to remove the children prior to the July 26 removal, 

Hackman said they were informed. Upon further questioning from the GAL, 

Hackman backtracked this statement in the following exchange: 

[GAL:] Okay. So would it surprise you to know that I -- I’ve spoken 

with [K.J.D.’s] therapist, and she told me that they were not 

informed prior to July 26th? 

[Hackman:] That would surprise me, yes. 

[GAL:] Okay. So -- so if [K.J.D.’s] therapist, Erin, informed me 

that -- that they were not informed of the Department’s action on 

July 26th, that would surprise you? 

[Hackman:] It’s possible there was a misunderstanding, but I recall 

them being aware that this was something we were going to do. 

[GAL:] So the therapists, then, were informed that the Department 

was gonna take action -- that’s your testimony, the Department was 

gonna take action on this July 26th meeting; is that your testimony? 

[Hackman:] Let me clarify, if I may. 

[GAL:] Certainly. 
13 

[Hackman:] My testimony is not that they knew, this day, this time 

this is what we were going to do. They knew we were considering 

placing them in the former foster home with the [past foster parents] 

and then elsewhere after the [past foster parents] were out of -- were 

withdrawing their interest, for lack of a better word. 

In Viso’s testimony, she claimed she worked with one of the children’s 

therapists on the best way to remove the children and had documentation of her 

emails with the therapist. We found no such documentation of this 

communication in the record before us on appeal. Upon further questioning from 

the GAL, Viso conceded that she could not remember if she informed the 

children’s therapists of the planned removal date in advance but someone from 

DHS did inform the therapists after the removal had occurred. 

Viso explained her understanding of the situation was that DHS asked 

Four Oaks to discontinue adoption classes and the home study for the 

stepgrandmother. Viso was not sure anyone conveyed this to the 

stepgrandmother. When asked why the stepgrandmother was not the preferred 

choice to adopt the children, Viso discussed her belief that the stepgrandmother 

was sabotaging the plan for the children to go to the foster parents where their 

half brother was placed. Viso did not go into specifics and acknowledged she did 

not have any firsthand knowledge of this alleged sabotaging behavior. These 

foster parents were no longer a placement option for reasons not listed in the 

record by the time the children were removed from the stepgrandmother. 

Viso indicated the health concern DHS had with the stepgrandmother 

included how the stepgrandmother’s foot infection had affected her mobility, 

though the stepgrandmother is now back to being mobile. Despite concerns 
14 

about the stepgrandmother’s ability to meet the children’s mental health needs, 

Viso admitted upon questioning that she did not ask the children’s current foster 

parents directly how familiar they were with the children’s diagnoses and what 

kind of therapy the children would require before placing the children in their 

care. In the two months between the children’s removal and the hearing, DHS 

had only facilitated a total of three sessions with one of the children’s therapists 

despite expecting the stepgrandmother to assist with weekly sessions for the 

children. 

Moreover, Viso testified that the children continue to have visits and a 

relationship with the stepgrandmother. Viso remarked, 

T[he children] are always sad to leave Grandmother after the visit, 

they would like to spend more time with Grandma, but it was very 

difficult first few visits, first two visits. They were crying a lot when 

Grandma was leaving, and then the last two visits, they are still sad, 

but you can see that they are focusing --they love Grandma, but 

they are focusing as well on what is going to happen at home when 

they come back. 

She stated, “That grandma-grandchild relationship . . . that will be 

something I will always, as long as she follows the children’s therapists’ 

recommendations, I will always -- I will always say it’s good for those children. 

But -- and will be beneficial for them.” Nevertheless, Viso proclaimed, “The thing 

with adoption is once the children are adopted, I don’t guarantee that these 

relationships will continue.” 

Viso testified: 

[The children] are thriving in that foster home, that they are building 

this trusting relationship with foster parents. I know that their 

family loves them, but it’s the best interest of the children . . . to 

have that parent that’s there for them 24/7. That they’ll be 
15 

responsible, that they’ll take care of their needs, that they’ll put 

some boundaries as a parent when needed. I think they are in [a] 

good place. 

With that said, DHS had never placed any children with the foster parents before 

and had not discussed with the foster parents whether they are an adoptive 

home for the children at the time of the hearing. 

The stepgrandmother admitted during her testimony that she sometimes 

fell short in making sure the children participated in therapy and did not always 

agree with the children’s therapist. Regarding the concerns about her health, 

she explained she is mobile again and continues to participate in physical 

therapy. The stepgrandmother noted she received a lot of assistance from the 

children’s paternal side of the family in caring for the children, so the children 

were frequently around their paternal grandmother and cousins. 

The juvenile court issued its ruling denying the motions on September 29. 

It concluded that “DHS acted irresponsibly when it did not send statutorily 

required notices to relatives” and ordered DHS to do so, but it decided DHS “did 

not act irresponsibly or unreasonably as guardian in the ultimate decision that 

the children should not live with [the stepgrandmother.]” The juvenile court also 

determined it was not in the children’s best interests to place them in the 

guardianship and custody of the stepgrandmother because she “has not shown 

that she is in the best position to act as the children’s decision-maker or person 
16 

vested with meeting their permanency needs.” Both the GAL and 

stepgrandmother appealed this order.4

In a split decision, the court of appeals concluded DHS acted unreasonably 

when it failed to send the statutorily required relative notices under section 

232.84, but the juvenile court’s order for DHS to make those notifications “was 

an appropriate remedy.” It also determined DHS acted unreasonably in removing 

the children from the stepgrandmother’s care, especially without warning or 

communicating its concerns in advance. Nevertheless, the court of appeals 

affirmed the juvenile court’s ruling allowing DHS to remain as the children’s 

guardian and custodian, proclaiming, “[T]he DHS was acting in the children’s 

best interests by placing priority on the children’s mental health and educational 

needs when searching for a permanent placement.” A dissenting judge argued 

removal of DHS as guardian was in the children’s best interests because DHS 

caused “profound” trauma when it “acted egregiously in entering the 

grandmother’s home on the pretext of a visit and in snatching the children from 

the home.” 

The GAL and intervening stepgrandmother both filed applications for 

further review, which we granted. In granting further review, we also directed the 

parties to file supplemental briefs “on the issues raised on appeal and in the 

applications for further review.” 

 

4The GAL’s petition on appeal and the stepgrandmother’s supplemental brief include 

information outside of the record about actions that have occurred since the juvenile court’s 

ruling, which the State maintains we cannot consider in reaching our decision. We agree with 

the State and do not consider that information on appeal. 
17 

II. Standard of Review. 

Section 232.118 gives the juvenile court discretion in determining whether 

to remove a guardian. Iowa Code § 232.118(1) (“[T]he court having jurisdiction 

of the child may, after notice to the parties and a hearing, remove a courtappointed guardian and appoint a guardian in accordance with the provisions of 

section 232.117, subsection 3.”). “[W]here the legislature has clearly vested the 

juvenile court with discretion in a specific area, we review the court’s decision 

on that matter for an abuse of discretion.” State v. Tesch, 704 N.W.2d 440, 447 

(Iowa 2005). With that said, we continue to review the evidence de novo to 

determine whether the juvenile court abused that discretion. Id. An abuse of 

discretion occurs when the juvenile court “bases its decisions on grounds or 

reasons clearly untenable or to an extent that is clearly unreasonable . . . [or] if 

it bases its conclusions on an erroneous application of the law.” State v. Thoren, 

970 N.W.2d 611, 620 (Iowa 2022) (omission and alteration in original) (quoting 

Stender v. Blessum, 897 N.W.2d 491, 501 (Iowa 2017)).5

 

5This is different from the abuse of discretion cited in Justice McDonald’s dissent, which 

ostensibly heightens the bar required to meet the abuse of discretion standard by claiming an 

abuse of discretion occurs when a decision is “so flawed and prejudicial to the administration of 

justice that this court must provide relief.” (quoting In re 2018 Grand Jury of Dallas Cnty., 939 

N.W.2d 50, 66–67 (Iowa 2020) (McDonald, J., concurring in part and dissenting in part)). Under 

that standard, it is unclear if a juvenile court’s decision based on an erroneous application of the 

law constitutes an abuse of discretion if that erroneous application is not so egregious that it is 

“prejudicial to the administration of justice.” 

Our court has never applied this standard. In fact, the only time this standard has ever 

been so much as described by anyone on our court was in a stand-alone opinion concurring in 

part and dissenting in part from Justice McDonald in 2020. See In re 2018 Grand Jury of Dallas 

Cnty., 939 N.W.2d at 66–67. “Ultimately, there is a difference between reasoned deference to the 

opinions of professionals involved in the case and blind acceptance on substantive matters.” In 

re D.D., 955 N.W.2d 186, 197 (Iowa 2021) (Christensen, C.J., concurring specially). The juvenile 

court’s conclusion in this case—and the dissents’ approval of it—is more blind acceptance than 
18 

III. Analysis. 

The GAL and intervening stepgrandmother argue the juvenile court should 

have removed DHS as the children’s legal guardian and returned the children to 

their stepgrandmother’s care. In terminating the parents’ rights to the children, 

the juvenile court ordered the children to remain in the guardianship and 

custody of DHS under Iowa Code section 232.117(3)(a). Nevertheless, the 

juvenile court has the authority to remove an appointed guardian “[u]pon 

application of an interested party or upon the court’s own motion” and appoint 

a new “guardian in accordance with the provisions of section 232.117, 

subsection 3.” Id. § 232.118(1). 

Section 232.118 offers “no preference to any person or entity.” In re N.V., 

877 N.W.2d 146, 150 (Iowa Ct. App. 2016) (quoting In re D.H., No. 10–1313, 2010 

WL 4484849, at *4 (Iowa Ct. App. Nov. 10, 2010)). Nor does it provide any 

statutory criteria for courts to consider in deciding whether to remove a 

guardian. Although this is our first opportunity to examine an application to 

remove a court-appointed guardian under section 232.118, the court of appeals 

has dealt with this issue on various occasions and established the criteria we 

now adopt in analyzing the applicants’ request to remove DHS as the children’s 

guardian. See, e.g., id. at 150. 

Specifically, two elements must exist to warrant removal: (1) the current 

guardian’s actions were unreasonable or irresponsible; and (2) the current 

 

reasoned deference in choosing to overlook DHS’s multiple violations of internal procedures and 

statutory obligations as the children’s guardian.
19 

guardian’s actions did not serve the children’s best interests. See, e.g., id.; In re 

E.G., 745 N.W.2d 741, 744 (Iowa Ct. App. 2007). Even when a guardian’s actions 

are unreasonable, we will not remove the guardian unless doing so is in the 

children’s best interests. In re N.V., 877 N.W.2d at 150. We do not treat this 

request for the removal of DHS as guardian as a custody battle between DHS 

and the stepgrandmother. “Rather, in the context of this case, [we] must focus 

on the process DHS used and the actions it took in reaching the placement 

decision and then determine whether those were unreasonable (or irresponsibly 

undertaken)—all with the best interests of the child in mind.” In re J.L., 21–0968, 

2022 WL 246170, at *9 (Iowa Ct. App. Jan. 27, 2022). The GAL and 

stepgrandmother, as the ones who moved for the removal of DHS as guardian, 

have the burden to prove DHS acted unreasonably by a preponderance of the 

evidence. Id.; see also Iowa R. App. P. 6.904(3)(e)–(f). “A preponderance of the 

evidence is the evidence ‘that is more convincing than opposing evidence’ or 

‘more likely true than not true.’ ” Martinek v. Belmond–Klemme Cmty. Sch. Dist., 

772 N.W.2d 758, 761 (Iowa 2009) (quoting Holliday v. Rain & Hail L.L.C., 690 

N.W.2d 59, 63–64 (Iowa 2004)). 

There are two separate DHS actions at issue here in considering whether 

to remove DHS as the children’s guardian. First, we must address the failure of 

DHS to send relative notices. Second, we must review DHS’s actions in abruptly 

removing the children from the stepgrandmother’s home to place them in a foster 

home with strangers without an adequate permanency plan in place to establish 

a stable placement for the children. To the extent the parties also argue the 
20 

juvenile court did not identify a substantial change in circumstances after the 

termination order to justify removing the children from the stepgrandmother’s 

care, we need not address this issue because we are reversing the juvenile court’s 

ruling on other grounds. 

A. Failure to Send Relative Notices. The GAL and stepgrandmother 

contend DHS acted unreasonably by failing to send relative notices as required 

under Iowa Code section 232.84(2). This section provides,

Within thirty days after the entry of an order under this chapter 

transferring custody of a child to an agency for placement, the 

agency shall exercise due diligence in identifying and providing 

notice to the child’s grandparents, aunts, uncles, adult siblings, 

parents of the child’s siblings, and adult relatives suggested by the 

child’s parents, subject to exceptions due to the presence of family 

or domestic violence. 

Id. The DHS worker in this case testified that she never sent relative notices 

because she only fills out relative worksheets when the children are sent to foster 

care in lieu of relative or suitable other placement. However, there is no statutory 

exception to the relative notice requirement. “[E]ven if the relatives were 

informally aware of the child[ren]’s transfer to foster care, the burden remained 

with the department to formally notify them of the transfer. The contents of the 

notice are statutorily prescribed and are specific and detailed.” In re N.V., 877 

N.W.2d at 151. 

On appeal, the State “does not dispute that [DHS] acted unreasonably 

when it failed to send relative notices,” but it maintains that “removal of DHS as 

the guardian is not the appropriate remedy.” We agree that this failure to send 

relative notices alone does not warrant the removal of DHS as the children’s 
21 

guardian. See, e.g., In re I.P., 19–0715, 2019 WL 3317922, at *3 (Iowa Ct. App. 

July 24, 2019) (“[A] case worker’s failure to provide timely statutory notice to 

relatives is not a basis to remove the DHS as guardian.”). The juvenile court’s 

order for DHS to send belated relative notifications is an appropriate remedy for 

this statutory violation. 

B. Removal of the Children from Their Stepgrandmother’s Home. The 

GAL and stepgrandmother assert DHS acted unreasonably, and thus should be 

removed as the children’s guardian, because it removed the children from the 

stepgrandmother without adequate transition planning. The stepgrandmother 

stresses DHS’s failure to fulfill its “responsibilities flowing from Iowa Code 

§ 232.117(6)–(9), which provide for ongoing post-termination court supervision,” 

claiming DHS disregarded its duty “to diligently pursue and place children in 

their permanent home.” The State maintains DHS acted reasonably in removing 

the children from the stepgrandmother’s home based on its concerns about the 

stepgrandmother’s ability to care for the children. Alternatively, even if we 

conclude DHS acted unreasonably, the State contends it is not in the children’s 

best interests to remove DHS as the children’s guardian. 

Before we begin our analysis, we stress that our focus is on more than the 

act of DHS’s removal of the children from their stepgrandmother. The removal 

itself is just one piece of the puzzle. Instead, we are examining the puzzle as a 

whole, also reviewing DHS’s actions in reaching its removal decision and the 

steps DHS took to transition the children and establish a stable placement for 

them. 
22 

DHS’s procedures and Iowa Code section 232.117(6) are especially 

relevant in determining whether DHS acted unreasonably in this case. DHS’s 

own transition planning procedures provides, “The period for transferring a 

child’s case responsibility from a [social work case manager] to an adoption 

worker is 45 days from electronic filing of the order for termination of parental 

rights.” Iowa Dep’t of Hum. Servs., Employees’ Manual: Adoption Permanent 

Placement Procedures 10 (2022). The procedures also establish the joint 

responsibility of the social work case manager and adoption worker to 

“[c]omplete a joint visit with the child and child’s placement provider within 45 

days of termination of parental rights.” Id. at 13. Yet, DHS did not transfer the 

case to the adoption worker, Viso, until the first or second week of July—well 

past forty-five days after the juvenile court filed the April 14, 2021 TPR order—

and Viso testified that she had never met the stepgrandmother before she arrived 

to remove the children from her care. Further, the social work case manager 

incorrectly informed Viso that there were no other relatives available for 

placement when this assertion was unsupported because the case manager 

failed to send the statutorily-required relative notices that would have clarified 

DHS’s placement options for the children. See Iowa Code § 232.84. 

More importantly, DHS failed to meet its obligations under section 

232.117(6). This section states, “[T]he guardian shall submit a case permanency 

plan to the court and shall make every effort to establish a stable placement for 

the child by adoption or other permanent placement.” Id. § 232.117(6). There are 
23 

no exceptions to these statutory requirements that DHS failed to meet here 

through its poorly planned transition process. 

DHS adoption worker Viso testified that she had no conversation with the 

receiving foster parents as to whether they wished to become the children’s 

adoptive parents and DHS had never placed any child with these foster parents 

before. Further, despite DHS’s concerns about the stepgrandmother’s ability to 

consistently meet the children’s mental health needs, Viso admitted in her 

testimony that she did not ask the new foster parents how familiar they were 

with the children’s mental health diagnoses or the mental health therapy that 

the children required. DHS made these decisions without consulting the 

children’s GAL, who had been involved with this family longer than the DHS 

social work case manager and adoption worker. 

In the past, the court of appeals has approvingly cited DHS testimony 

explaining there is “research that shows children can be successfully transferred 

. . . and still show few or no long-term effects when it’s done properly, slowly, 

and with the support of all of the adults in the child’s life.” In re I.P., 2019 WL 

3317922, at *3. That sort of transfer clearly did not happen here when DHS 

workers arrived at the stepgrandmother’s home on the pretext of a seemingly 

routine visit only to surprise the stepgrandmother and children by removing the 

children from their home. This problematic approach is only compounded by the 

children’s mental health issues that have led their therapists to caution against 

“[a]dditional placements and transitions . . . to prevent further trauma.” 
24 

For example, in a report filed the month before termination, K.T.D.’s 

therapist wrote, 

Given [K.T.D.]’s trauma history, developmental stage, and her 

attachment needs[,] it is imperative that a plan be developed to 

provide [K.T.D.] with a long-term option for a safe and nurturing 

home. It will be important that this plan include a caregiver who 

understands [K.T.D.]’s physical, emotional, and developmental 

needs and can consistently provide for these needs. It is important 

that this caregiver be open to a therapeutic parenting approach and 

be open to working closely with this therapist regarding the impact 

of developmental trauma on [K.T.D.] in order to establish and 

maintain parenting approaches that will be trauma informed and 

meet her developmental needs. 

Given the therapists’ recommendations, we struggle to see how it was in 

the children’s best interests to abruptly remove the children from their long-term 

home only to place them in a home with strangers who DHS had not so much as 

asked about their familiarity with the children’s mental health diagnoses or 

therapy requirements. The evidence is conflicting about the extent to which DHS 

even communicated with the children’s therapists about the removal plan before 

abruptly removing the children, as Hackman testified that the therapists were 

aware that DHS was considering moving the children to another placement while 

Viso claimed she worked with one of the children’s therapists on the removal 

plan. The record does not support Viso’s claim and falls short of demonstrating 

an adequate transition plan. 

While there were some concerns about the stepgrandmother’s ability to 

permanently care for the children, DHS never effectively communicated these 

concerns to the stepgrandmother in an attempt to maintain the children in a 

stable relative placement. Moreover, there is no evidence to support some of the 
25 

concerns that DHS claims—and the dissents now repeat—warranted the 

surprise removal of the children from their stepgrandmother. For example, 

Hackman testified about their concerns that the stepgrandmother was allowing 

the children to be around or cared for by “inappropriate people,” specifically 

discussing a daughter-in-law who had pending criminal charges and a nocontact order with her own children. 

Likewise, the dissents rely on the juvenile court’s observation that the 

stepgrandmother allowed the children to spend time, including overnight visits, 

at their paternal grandmother’s home despite concerns about the children’s 

father living there. But nothing indicates DHS ever discussed this concern with 

the stepgrandmother, and Hackman conceded at the hearing that DHS had only 

“suspicions but no evidence” that the stepgrandmother was actually allowing 

inappropriate people around the children. See In re X.O., 16–0313, 2016 WL 

2743445, at *5 (Iowa Ct. App. May 11, 2016) (concluding the foster care social 

worker acted unreasonably in the posttermination phase of the proceedings by 

making unsupported representations to the adoption team). In fact, Hackman 

testified that she did not even know these overnight visits were occurring until 

the time of the hearing. 

After the juvenile court entered the TPR order and just a few months before 

the removal at issue, the juvenile court—based in part on DHS reports—declared 

in terminating the parents’ rights that “[the children] have had consistency in 

their relationship with [the stepgrandmother.] [The stepgrandmother] continues 

to provide for the children’s needs. The children are safe with [the 
26 

stepgrandmother].” While the TPR order noted K.J.D. “has not been attending 

therapy consistently, which needs to be corrected,” there was no mention of any 

attendance issues for K.T.D. in attending therapy. On the contrary, the TPR order 

reported K.T.D. was “making progress in therapy.” 

DHS’s TPR report noted DHS had approved the stepgrandmother for 

adoptive placement. It is troubling that most of the concerns DHS now cites in 

defending its removal of the children from the stepgrandmother existed when it 

wrote its TPR report and the juvenile court issued its TPR order. In spite of these 

apparent concerns, DHS continued to approve the stepgrandmother for 

placement at that point. 

DHS also contributed to some of its stated concerns through its own failure 

to effectively communicate to the stepgrandmother, like the issue of the 

stepgrandmother not placing the children in school or daycare. In fact, it is unfair 

to heap all of the blame on the stepgrandmother for declining to place the 

children in school or daycare. The parents’ rights were not terminated until April 

2021, approximately three months before the removal of the children from the 

stepgrandmother. As the juvenile court explained, “All of the responsibility for 

the children’s education during the open CINA did not rest on [the 

stepgrandmother]. The children’s guardians were still their parents, and DHS 

was to oversee the children’s wellbeing.” 

Iowa Code section 232.2(21)(b)(6) provides that “the rights and duties of a 

guardian with respect to a child” include the duty “[t]o make other decisions 

involving protection, education, and care and control of the child.” (Emphasis 
27 

added.) Thus, K.J.D.’s parents and later DHS as her court-appointed guardian 

bore the legal responsibility for K.J.D.’s lack of school enrollment, not the 

stepgrandmother. In any event, DHS removed the children from the 

stepgrandmother’s care in July—a time period when the children presumably 

would not have been in school due to summer break. Moreover, we fail to see an 

issue with the stepgrandmother’s decision not to send K.T.D. to daycare. We 

should not fault any caregiver who chooses and is able to stay home with a child 

instead of sending the child to daycare. 

The dissents’ emphasis on the stepgrandmother’s lack of credibility is 

misplaced because she was not the one acting as the children’s legal guardian. 

DHS—not the stepgrandmother—is the party with credibility on the line. The 

reasons the stepgrandmother offered at the hearing to explain why K.J.D. was 

not enrolled in school may be helpful in determining custody, but this appeal is 

focused on the role of guardian. At the time of removal from her care, the 

stepgrandmother was not the legal guardian with the rights or duties to make 

educational decisions for the children. See Iowa Code § 232.2(21)(b)(6). Those 

rights and duties fell to DHS as the legal guardian once the juvenile court 

terminated the parents’ rights and any failure in fulfilling those rights and duties 

accordingly rests with DHS. 

The fact of the matter is that DHS had oversight of the children’s wellbeing 

from the time they were removed from their parents by court order in February 

2020 and through the termination of the parents’ rights in April 2021 and the 

September hearing in this case. Despite expecting the stepgrandmother to assist 
28 

the children with weekly therapy appointments, DHS had only facilitated a total 

of three sessions with one of the children’s therapists in the two months following 

the children’s removal from the stepgrandmother. If the stepgrandmother failed 

to meet the children’s needs because she did not assist them with weekly 

sessions then the same is true for DHS when it failed to meet at least one of the 

children’s therapy needs. 

Instead of attempting to address its concerns with the stepgrandmother in 

a way that perhaps could have preserved the children’s relative placement, DHS 

largely ignored them until a foster home became available that could take the 

children at least temporarily. The children had been in the stepgrandmother’s 

care since January 23, 2020, and the juvenile court recognized this placement 

when it officially authorized the children’s removal from their parents a few 

weeks later on February 6. In the almost eighteen months that the children were 

in their stepgrandmother’s care before DHS removed them, the juvenile court 

conducted at least six hearings concerning the children where only minor issues, 

if any, were raised about the stepgrandmother’s caretaking abilities. 

Even in the juvenile court’s “permanency review by paper filing only” in 

the month before the removal at issue, the juvenile court found, “The children’s 

needs are being met. They are currently residing with [their stepgrandmother], 

suitable other placement.” It is telling that DHS did not cite any apparent new 

concerns that arose within the next month that would warrant the immediate 

removal of the children from their stepgrandmother’s home. 
29 

As the GAL aptly maintains, “DHS’s erroneous action is even more 

egregious when viewed under the lens of the changing juvenile landscape with 

the onset of the Family First Prevention Services Act [FFPSA],” which created 

opportunities for states to receive federal funding for services that support and 

preserve family connections. Bipartisan Budget Act of 2018, Pub. L. No. 115–

123, §§ 50701–50782, 132 Stat. 64, 232–268; see also Iowa Dep’t of Hum. Servs., 

Family First: Overview (2022) https://dhs.iowa.gov/Child-Welfare/FamilyFirst 

[https://perma.cc/5T5F-VXTM] (explaining that FFPSA prioritizes the 

placement of children removed from their parents in this order: relative or fictive 

kin, licensed foster family, congregate care). We recognize that our current 

statute does not mandate a preference for relative placement after the 

termination of parental rights. See In re N.V., 877 N.W.2d at 150. But it is 

troubling that DHS took virtually no effort to maintain the children’s relative 

placement or attempt to determine another relative placement given FFPSA’s 

emphasis on improving outcomes for children removed from their home by 

prioritizing relative or fictive kin placements. 

All things considered, the process DHS used and the actions it took in 

reaching its decision to remove the children from their stepgrandmother by 

surprise and place them with strangers in foster care was unreasonable and 

irresponsibly undertaken. Nevertheless, we still must consider whether those 

actions served the children’s best interests. See id. In analyzing the children’s 

best interests, we “give primary consideration to the child’s safety, to the best 

placement for furthering the long-term nurturing and growth of the child, and to 
30 

the physical, mental, and emotional condition and needs of the child.” Iowa Code 

§ 232.116(2). 

The State largely relies on events that occurred after the children were 

moved to foster care by discussing the progress the children have made in school 

and therapy. By all means, the juvenile court was free to consider the events that 

transpired after DHS removed the children from the stepgrandmother in deciding 

whether to remove DHS as the children’s guardian. We simply do not believe 

these postremoval events carry much weight in this case because there was still 

no sense of permanency in the children’s new placement. 

In other appellate cases reviewing an action to remove DHS as guardian, 

the events that transpired after a party files a motion to remove DHS as guardian 

may be more relevant. For example, in In re I.P., DHS removed the child from 

unrelated foster parents so that the child could be adopted by the same parents 

who adopted the child’s half sister. 2019 WL 3317922, at *3–4. While the foster 

parents’ motion to intervene and to remove DHS was still pending, DHS 

completed a home study for the half sister’s adoptive parents and the study 

recommended transitioning the child into their home as a preadoptive 

placement. Id. at *2. The foster parents filed their motion to intervene in August 

2018, but the juvenile court’s hearing did not conclude until January 2019. Id.

In that situation, around five months had passed between the motions and the 

hearing on them and there were no doubts that—if the juvenile court maintained 

DHS as guardian—the child would be placed in an adoptive home with his half 
31 

sister. Id. Those are definitely facts to consider in determining whether DHS 

acted reasonably and in the child’s best interests. 

In contrast, this case involves a hearing that occurred less than two 

months after the children were removed from their stepgrandmother and placed 

in a foster home with no real permanency plan in place. DHS had never placed 

children in the care of the foster parents whom it entrusted the girls to, and DHS 

adoption worker Viso testified that she had not asked the children’s foster 

parents about the possibility of adopting the children before removing them from 

the stepgrandmother’s home. Nor did DHS ask the foster parents how familiar 

they were with the children’s mental health diagnoses or the therapy the children 

required. 

This approach directly contradicts the children’s best interests because it 

ignores the advice of the children’s therapists despite DHS’s contention that a 

primary reason for removing the children from their stepgrandmother was due 

to the stepgrandmother’s failure to meet the children’s therapeutic needs. 

K.T.D.’s therapist in particular stressed in reports that she needs a parent who 

understands her mental health needs and is “open to a therapeutic parenting 

approach” and “working closely with [the] therapist regarding the impact of 

[K.T.D.’s] developmental trauma.” There is no evidence that DHS honored or even 

considered these recommendations. Any stability the children might have felt or 

progress they might have made in their foster home upon removal from the 

stepgrandmother may be little more than a brief honeymoon period because they 

remain susceptible to being moved again to yet another placement. 
32 

Children seeking adoptive homes face an increased risk of disruption, 

which occurs “after the child is placed in an adoptive home and before the 

adoption is legally finalized, resulting in the child’s return to (or entry into) foster 

care or placement with new adoptive parents.” Krysten E. Beech, The Perfect 

Storm: When Failing Adoptions Collide with an Ineffective Legal System, ReHoming Emerges as a Viable Option for Adoptive Parents—Suggestions for Fixing 

a Broken System, 46 U. Tol. L. Rev. 449, 451 (2015) (quoting Child Welfare Info. 

Gateway, Adoption Disruption and Dissolution 1 (2012)). This risk increases 

“when [the] children . . . have emotional and/or behavioral issues” and “when 

agencies provide inadequate information regarding the child or the child’s 

history” or “inadequate preparation, training, and support for [potential] adoptive 

parents.” Id. Here, DHS moved children with mental health concerns from their 

home of eighteen months where they were surrounded by family only to place 

them in the home of strangers who had not been asked about their familiarity 

with the children’s mental health diagnoses and no assurance that the foster 

home would become the children’s permanent home. This created yet another 

possibility of disruption in the children’s already unstable lives. Altogether, DHS 

failed to serve the children’s best interests in acting as their guardian. 

“As tempting as it is to resolve this highly emotional issue with one’s heart, 

we do not have the unbridled discretion of a Solomon. Ours is a system of law 

. . . .” In re B.G.C., 496 N.W.2d 239, 241 (Iowa 1992) (en banc). In this case, DHS 

did not meet its legal obligations as the children’s guardian to “make every effort 

to establish a stable placement for the child[ren] by adoption or other permanent 
33 

placement.” Iowa Code § 232.117(6). It also disregarded its own transition 

planning procedures. In summary, DHS violated two statutory obligations—the 

obligation to send relative notices and the obligation to “make every effort to 

establish a stable placement for the child[ren]”—and at least two of its own 

transition planning procedures. Id. §§ 232.84, 117(6). Accordingly, we hold the 

juvenile court abused its discretion when it declined to remove DHS as the 

children’s guardian based on an erroneous application of the law. 

DHS failed to act in the children’s best interests because it directly harmed 

the children and only added to their trauma when it uprooted them from their 

stepgrandmother’s home by surprise and placed them with foster parents who 

were seemingly unaware of the children’s mental health issues or therapeutic 

needs. It also disregarded the advice from the children’s therapists about their 

mental health needs through its actions in this case. Even Justice Mansfield’s 

dissent acknowledges that “DHS behaved badly and probably deserves to lose 

its status as guardian.” If an agency’s failure to abide by the law and its own 

procedures is not enough to warrant its removal as the children’s guardian, then 

it is difficult to imagine what meets the dissents’ high burden for removal. 

Ironically, one of DHS’s primary reasons for removing the children from 

their stepgrandmother was DHS’s belief that the stepgrandmother was not 

providing for the children’s mental health needs. Despite the therapists’ 

warnings against additional placements and assertions about the children’s need 

for stability, DHS did not so much as discuss the possibility of the receiving 

foster parents’ interest in adopting the children before making the sudden 
34 

change to the children’s placement. The need for a permanent home is one of 

“the defining elements in a child’s best interests,” and DHS failed to act 

accordingly in this case. In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., 

concurring specially). Essentially, when it comes to the needs of the children, 

DHS took the “do as we say, not as we do” approach. It is unfortunate that the 

dissents do not hold DHS to the same standard that it expected the 

stepgrandmother to meet. 

With that said, we do not treat this removal as a custody battle between 

DHS and the stepgrandmother as competing possible guardians. The children 

have been out of their stepgrandmother’s care for almost a year, and the 

appellate record does not indicate whether their current foster home is willing to 

adopt the children or inform us of what has transpired since DHS presumably 

sent relative notices. It would certainly not be in the children’s best interests for 

us to simply order that the juvenile court appoint the stepgrandmother as 

guardian when we have no information about what has transpired in the past 

year since this appeal commenced. Such an important decision demands a 

thorough consideration of the situation as it exists today, not as it existed when 

this appeal started. 

Therefore, we reverse and remand for the juvenile court to remove DHS as 

guardian and appoint a suitable new guardian upon assessing the children’s 

best interests. The dissents’ focus on whether there is a suitable candidate for 

guardian other than the stepgrandmother overlooks the existence of at least one 

capable legal guardian for the children in the GAL, who has been involved in 
35 

these children’s lives since their first removal in 2018. See Iowa Code 

§ 232.117(3)(c) (authorizing the juvenile court to transfer guardianship to any 

“other suitable person”). Overall, we trust that the juvenile court will assess the 

available guardians and choose wisely. 

Finally, we close with a reminder to the juvenile court and DHS that DHS 

is still required to “obtain a judicial determination that it has made reasonable 

efforts to finalize the permanency plan that is in effect” “at least once every twelve 

months thereafter while the child[ren] [are] in foster care” to receive federal 

funding for the children. See 45 C.F.R. § 1356.21(b)(2)(i) (2020). Although no 

longer guardian, DHS’s obligations as an agency to these children who have not 

yet achieved permanency remain by statute. 

IV. Conclusion. 

For the foregoing reasons, we vacate the decision of the court of appeals, 

reverse the juvenile court’s order, and remand for further proceedings consistent 

with this opinion.

DECISION OF COURT OF APPEALS VACATED; JUVENILE COURT 

JUDGMENT REVERSED AND REMANDED. 

Appel, Waterman, and Oxley, JJ., join this opinion. Mansfield, J., files a 

dissenting opinion, in which McDonald and McDermott, JJ., join. McDonald, J., 

files a dissenting opinion, in which Mansfield and McDermott, JJ, join. 
36 

#21–1472, In re K.D. 

MANSFIELD, Justice (dissenting).

I respectfully dissent. The majority opinion does a very good job of showing 

that the Department of Human Services (DHS) bungled the July 26, 2021 

removal of K.J.D. and K.T.D. from their stepgrandmother. It does a less good job 

of following the statute, Iowa Code section 232.118(1) (2021). It does an even less 

good job of giving appropriate deference to the fact-findings made by the 

experienced juvenile judge who heard this case. 

Because I agree with the juvenile court and the court of appeals that it was 

not in the best interests of K.J.D. and K.T.D. at the time of the hearing to remove 

DHS as guardian and substitute the stepgrandmother or another relative, I 

would affirm. 

I. The Juvenile Court Properly Made the Best Interests Determination 

as of the Time of the Hearing. 

Iowa Code 232.118(1) provides, 

Upon application of an interested party or upon the court’s own 

motion, the court having jurisdiction of the child may, after notice 

to the parties and a hearing, remove a court-appointed guardian and 

appoint a guardian in accordance with the provisions of section 

232.117, subsection 3. 

This section offers no substantive guidance for the juvenile court, but 

procedurally it clearly contemplates a hearing, after which the juvenile court may 

simultaneously remove the existing guardian and appoint another guardian. 

On the subject of substantive standards, the court of appeals has 

observed, “The statute also does not set forth criteria for removal of a guardian. 

In the absence of statutory criteria, this court has examined the reasonableness 
37 

of the current guardian’s actions and the best interests of the child.” In re N.V., 

877 N.W.2d 146, 150 (Iowa Ct. App. 2016) (citation omitted). This is a logical 

approach, and the majority endorses it on paper but doesn’t follow it in reality. 

Best interests of the child should be decided at the time of the hearing. 

See In re Marriage of Dawkins, 285 N.W.2d 8, 9 (Iowa 1979) (“Some question was 

raised in this case whether the court must confine itself to circumstances 

existing at the time the petition for modification was filed or whether it could 

consider all facts up to the time of hearing. We believe the latter is the correct 

view, and we now adopt it as the rule in such cases.”); In re D.M.J., 780 N.W.2d 

243, 245 (Iowa Ct. App. 2010) (explaining that grounds for termination must 

exist at the time of termination, not when the petition was filed). 

However, the majority focuses not on the children’s best interests at the 

time of the section 232.118 hearing, which is the relevant inquiry, but instead 

on whether the specific act of removal of the children from the stepgrandmother 

served their best interests at that moment. This collapses the two factors—

reasonableness of DHS’s actions and best interests of the children—into one. I 

disagree with what the majority has done. We should be looking at the overall 

best interests of the children as of the guardianship hearing, which is exactly 

what the juvenile court did here. 

The majority’s approach also leads it into a curious remand order. The 

guardian ad litem and the stepgrandmother sought an order removing DHS as 

guardian and making the stepgrandmother guardian. But the majority gives them 

only a half a loaf. It orders DHS removed while not deciding who should replace 
38 

DHS. Instead, it directs the juvenile court, on remand, to appoint anyone but 

DHS. This isn’t contemplated by the statute, which couples removal of an 

existing guardian with appointment of a new one. The two decisions ought to be 

made together. How can you assess the best interests of the children in a 

guardianship situation without knowing who the new guardian might be? 

Instead, my colleagues force the juvenile court to immediately choose a private 

guardian who will have custody and control of the children, regardless of whether 

there exists a suitable candidate to be such a guardian. 

II. The Juvenile Court Made Thorough and Careful Fact-Findings 

Which Should Be Given Deference. 

In concluding that the best interests of the children did not warrant a 

change of guardianship, the juvenile court found that the stepgrandmother’s 

“care was lacking in terms of the children’s mental health care, her judgment in 

setting and maintaining boundaries, and providing for educational and 

developmental services and stability.”6

These findings, to which we owe deference, are supported by the record. 

See In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022) (“We are not bound by the juvenile 

court’s findings of fact, but we do give them weight, especially in assessing the 

credibility of witnesses.” (quoting In re D.W., 791 N.W.2d 703, 706 (Iowa 2010))).7

 

6The juvenile court added that “[i]t is also not in the children’s best interest for the court 

to place the children in the guardianship of an adult relative yet to be identified.” Its order noted 

specific concerns with other adult relatives with whom the children had been spending time. 

7The juvenile court made a specific credibility finding adverse to the stepgrandmother, 

namely, that her “motivation . . . seems to be [to] gain custody of the children regardless of 

whether she must be deceptive to do so.” 
39 

The juvenile court order is impressive in the care and detail with which it was 

written. Let me try to summarize a few points. 

Both children had a large number of missed or canceled therapy 

appointments. This occurred even though the appointments were being held 

virtually; all the stepgrandmother had to do was to log in. The stepgrandmother 

claimed that after she became aware that it was a “problem” for the children to 

miss therapy, the only sessions the children missed were due to “technical 

difficulties with the equipment.” The technical difficulties excuse seems 

implausible given the large number of missed appointments. It also begs the 

question why the stepgrandmother, who had a background as a nurse, would 

have thought it was acceptable for the children to miss so much therapy in the 

first place.8

K.J.D. missed eleven out of twenty-four appointments. The 

stepgrandmother acknowledged she “didn’t see eye to eye sometimes” with 

K.J.D.’s therapist. K.J.D.’s therapist reported that following the removal of K.J.D. 

to a foster family the appointments were able to occur in person. 

K.T.D.’s therapist also reported multiple missed appointments while the 

children were with the stepgrandmother. She noted, 

Since entering foster care [K.T.D.] has been able to attend in 

person therapy. This had not been an option previously due to her 

grandmother’s mobility concerns. [K.T.D.] has done well in person 

and has been more open and engaged in person. A consistent theme 

has emerged in [K.T.D.]’s play as well. [K.T.D.] has created multiple 

narratives where her grandmother is “always in bed” due to her bad 

 

8The stepgrandmother testified she is no longer employed and receives disability 

payments. 
40 

foot. . . . It should be noted that it was the observation of this 

therapist that each time a telehealth session began or ended 

Grandma was in her bed and [K.T.D.] came to her for assistance. 

As for maintaining boundaries, the juvenile court pointed out that the 

stepgrandmother allowed the daughters of her daughter-in-law to stay with her, 

K.J.D., and K.T.D. after the daughter-in-law had been charged with child 

endangerment and drug related charges and a no-contact order had been 

entered. Their stay wasn’t disclosed to DHS, even though the criminal case began 

because the two daughters had been found smoking marijuana. 

The juvenile court also observed that the stepgrandmother allowed K.J.D. 

and K.T.D. to spend considerable time, including overnight visits, at their 

paternal grandmother’s home during the spring and summer of 2021. These 

visits occurred even though the children’s father was living there, had unresolved 

domestic violence and drug issues, and had an outstanding warrant for his 

arrest. The DHS worker testified she didn’t know that these visits were occurring 

until the time of the guardianship hearing. The stepgrandmother testified 

otherwise, but the juvenile court found her testimony not credible. 

Lastly, regarding school, it is undisputed that the stepgrandmother had 

not enrolled K.J.D. in any kind of school for the 2020–2021 school year, even 

virtual school, although she had turned five before the beginning of the year. The 

stepgrandmother testified that K.J.D. “was behind academically, and socially, 

she wasn’t ready for that.” The juvenile court acknowledged that DHS had some 

responsibility for this situation, but it rightly noted that the stepgrandmother’s 

testimony “sheds light on [her] approach to parenting the children.” As the 
41 

juvenile court put it, “[I]f [K.J.D.] seemed academically and socially delayed a 

structured educational setting is what she needed.” 

The juvenile court concluded, 

It is not in the children’s best interest to place them in the 

guardianship and custody of [the stepgrandmother]. [The 

stepgrandmother] has not shown that she is in the best position to 

act as the children’s decisionmaker or person vested with meeting 

their permanency needs. Despite eighteen months of placement with 

[the stepgrandmother] with the supervision and support of DHS, inhome workers, and juvenile court, deficits in [the 

stepgrandmother]’s ability to meet the children’s needs for 

consistency, stability, and mental health care persisted. There were 

shortfalls in her judgment as caregiver. [The stepgrandmother] 

continues to be dependent on other family members to care for the 

children. Every parent or grandparent who cares for children full 

time needs help—often. The problem here is that the people [the 

stepgrandmother] relies upon have their own deficits in safety, 

judgment, and setting boundaries. Further, [the stepgrandmother] 

doesn’t just rely on these individuals, . . . she depends on them. 

DHS behaved badly and probably deserves to lose its status as guardian. 

But “[j]uvenile law is not a fault-based edifice like tort law.” In re A.B., 956 N.W.2d 

162, 169 (Iowa 2021) (quoting In re Z.P., 948 N.W.2d 518, 523 (Iowa 2020)). 

Because we must consider what is best for the children, and afford proper 

deference to the juvenile court that oversaw this case from start to finish, I would 

affirm. 

McDonald and McDermott, JJ., join this dissent. 
42 

#21–1472, In re K.D.

McDONALD, Justice (dissenting). 

Under an abuse of discretion standard, this court must affirm the district 

court’s discretionary ruling absent a firm and definite conviction the ruling is 

“ ‘beyond the pale of reasonable justification under the circumstances’ 

presented—a decision so flawed and prejudicial to the administration of justice 

that this court must provide relief.” See In re 2018 Grand Jury of Dallas Cnty., 

939 N.W.2d 50, 66–67 (Iowa 2020) (McDonald, J., concurring in part and 

dissenting in part) (quoting Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 

2000)). Stated differently, this court must affirm a discretionary ruling unless 

the district court “exercised its discretion on ‘grounds or for reasons clearly 

untenable or to an extent clearly unreasonable.’ ” In re J.A.L., 694 N.W.2d 748, 

751 (Iowa 2005) (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)). The 

appellants have not established the district court’s decision to deny their motion 

to remove the Iowa Department of Human Services (department) as guardian for 

these children was beyond the pale of reasonable justification or for reasons 

clearly untenable. Therefore, I respectfully dissent. 

Because we are an appellate court rather than part of the executive 

branch, it is not our role to dictate how the department should be managed. 

Taking on that role would be both unfair and unjudicial. The department 

frequently is faced with difficult circumstances and frequently is forced to pick 

the least-bad alternative in trying to do what is in the best interest of the children 

under its supervision. It is not the judicial branch’s function to micromanage the 
43 

department’s conduct as guardian in navigating these fraught and difficult 

situations. Courts are not empowered to replace a guardian because of mere 

disagreement with the guardian’s placement decision. See In re J.H., No. 20–

0081, 2020 WL 2988758, at *8 (Iowa Ct. App. June 3, 2020) (Ahlers, J., specially 

concurring); In re T.J.M., No. 18–1390, 2018 WL 5840806, at *5 (Iowa Ct. App. 

Nov. 7, 2018) (stating a court’s mere disagreement with the department’s 

placement decisions is not a basis for removal of the department as guardian). 

Instead, courts should intervene only where the department as guardian has so 

failed in the discharge of its duties that a new guardian must be appointed. See 

In re J.H., 2020 WL 2988758, at *9–11. The proper judicial role in these cases is 

to afford the guardian discretion to act within the wide parameters established 

by law. 

On a fair evaluation of the evidence, the appellants failed to show the 

department acted outside the parameters of its discretion as established by law 

and so failed in the discharge of its duties that a new guardian should have been 

appointed. On the contrary, a fair evaluation of the evidence shows the 

department acted in the best interest of the children in a difficult situation. 

Rather than rehashing all of the evidence here, I simply quote the conclusion 

from the more balanced decision of the court of appeals: 

Still, we reach the same conclusion as the juvenile court—the 

DHS was acting in the children’s best interests by placing priority 

on the children’s mental health and educational needs when 

searching for a permanent placement. The record does not support 

the assertion by White and [C.H.] that by removing the girls from 

their grandmother’s care, the DHS has cut[] off their ties to extended 

family. In fact, [C.H.] has had visitation since their removal. In sum, 

the unreasonable actions by the DHS did not undermine its core 
44 

mission of “looking out for [the children’s] best interests.” See [In re 

E.G., 745 N.W.2d 741, 744 (Iowa Ct. App. 2007)]; see also In re R.S., 

No. 15–1244, 2015 WL 5578273, at *2 (Iowa Ct. App. Sept. 23, 2015) 

(finding DHS action was “reasonable, responsible, and in the child’s 

best interests” despite trauma caused by removal of child from foster 

family, with whom the child had bonded). 

. . . . 

Despite concluding that the DHS acted unreasonably at times, 

we must consider the overall best interests of the children. At the 

time of the hearing, the children had been with the new foster family 

for about a month. The children’s therapists reported their 

consistent attendance and noted that they could hold sessions in 

person, something that was impossible when the children lived with 

[C.H.], who lived farther away and had her own mobility issues. 

Hasley reported [K.T.D.] was happy to be attending daycare, and she 

hoped it would promote more positive social-emotional development. 

Helleso reported [K.J.D.] felt secure and connected to her current 

living arrangement. She was enrolled in kindergarten and enjoying 

it. Viso testified the girls were “thriving.” The record offers no 

information that a different placement would be better for their 

short- or long-term nurturing and growth. It may be true, as White 

and [C.H.] point out, that no other relative placements have been 

identified because the DHS did not send the notices during the CINA 

case. But the existing record shows no other permanent placement 

options. So it is in the girls’ best interests for the DHS to remain as 

guardian and custodian. 

(Fourth alteration in original.) 

In my view, the juvenile court correctly denied the application to remove 

the department as guardian. More important, for the purposes of the actual issue 

presented in this case, I cannot conclude the district court’s decision to deny the 

application to remove the department as guardian constituted an abuse of 

discretion. Eleven judges, including the district court, have looked at the 

application to remove the department as guardian for these children. Six of the 

eleven judges (the district court, two judges on the court of appeals, and the 

three dissenters here) that have looked at the file have concluded the department 
45 

should not be removed as the guardian of these children. I am hard-pressed to 

conclude the district court’s decision to deny the application to remove the 

department as guardian was beyond the pale of reasonable justification or clearly 

untenable when a majority of judges that have looked at the file have concluded 

the department should not have been removed as the guardian for these 

children. I respectfully dissent. 

Mansfield and McDermott, JJ., join this dissent.