IN THE INTEREST OF T.W., Minor Child, J.S. and C.S., Intervenors, Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 8-962 / 08-1598
Filed December 31, 2008
IN THE INTEREST OF T.W.,
Minor Child,
J.S. and C.S., Intervenors,
Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Monroe County, William S. Owens,
Associate Juvenile Judge.
Foster parents appeal from an order, which was entered without notice to
them, placing guardianship and legal custody of the child with maternal greatgrandparents. REVERSED AND REMANDED.
Amanda Demichelis of Demichelis Law Firm, Chariton, for appellants
foster parents/intervenors.
James Underwood, Centerville, for mother.
Jonathan Willier, Centerville, for father.
Ryan
Mitchell,
Ottumwa,
for
appellees
grandparents/intervenors.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, and Steve Goodlow, County Attorney, for State.
Kevin Maughan, Albia, for minor child.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
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MAHAN, J.
The foster parents appeal from a September 22, 2008 order, which was
entered without notice to them, terminating the Iowa Department of Human
Services as T.W.’s guardian and placing guardianship and legal custody of T.W.
with the maternal great-grandparents. The great-grandparents have moved to
dismiss the appeal, contending the foster parents, having never petitioned to
become parties to the proceedings, have no legal right to appeal. The motion to
dismiss was ordered deemed submitted with the appeal. We overrule the motion
to dismiss and reverse and remand for further proceedings.
I. Background Facts and Proceedings.
The appellants are the foster parents of T.W., who was placed in their
care in November 2006. T.W.’s parents’ rights were terminated on March 31,
2008. In the order terminating parental rights, legal custody and guardianship of
T.W. was placed with the Iowa Department of Human Services (Department). At
the time of termination, the court noted that both the foster parents and the
maternal great-grandparents had expressed interest in adopting T.W.:
Whether . . . permanency is eventually with the foster parents, a
relative, or some other suitable party, it is a safe, permanent home
that will be most important for [T.W.] Given the record before the
Court at this time, the department is best equipped to make the
decision of who would be appropriate to adopt [T.W.].
The court ordered the Department to submit a case permanency plan to the court
and to ―make every effort to establish a stable placement for the child in interest
by adoption or other permanent placement.‖
An August 1, 2008 report was prepared by the Department for the
permanency review hearing, which was to be held August 11, 2008, ―and to
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update the plan for transfer to the adoption unit.‖ In that report caseworker Joey
Popson writes:
[T.W.] has a strong bond with his current foster parents.
[T.W.] sees [C.S.] and [J.S.] as his mother and father as these are
the only parents that he has known since three months of age.
[C.S.] and [J.S.] are excellent care takers of [T.W.] and are very
attentive to his needs.
[T.W.] has visits with his former great-grand parents . . . who
intervened in court proceedings. They have had visits with [T.W.]
since October 2007. These visits began as supervised by Vikki
Brunk the FSRP provider and are currently 2 hours, 2 nights a
week and 6 hours 2 Sundays a month. Vikki reported that at the
visits the interaction with [T.W.] was appropriate and that [T.W.]
was affectionate with [them]. The visits were not stopped after the
termination occurred and continue at this time. The Guardian Ad
Litem reported that he wanted visits to continue since they were a
possible adoptive party.
....
At the Foster Care Review Board that was held on May 6,
2008, the Board related that they support the placement of T.W.
with [the foster] family.
Under ―Concurrent Goals‖ is written: ―The child is currently placed in foster care,
a preadoptive home, and the foster parents are willing to adopt. . . . Greatgrandparents have intervened to attempt to adopt T.W.‖ The report was filed
September 11, 2008.
The August 11, 2008 permanency review hearing was reset on the State’s
motion. No notice was sent to the foster parents.
We are unable to determine if notice was sent to the foster parents with
regard to the great-grandparents’ motion to remove the Department as guardian
and their request to be appointed the child’s guardians.
On September 22, 2008, a hearing was held on the great-grandparents’
motion to remove the Department as guardian and request to be appointed the
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child’s guardians.
The foster parents were not present.
The Department
appeared and took no position. The guardian ad litem reported:
Your honor, I have observed this child in the [greatgrandparents’] home and I have observed the child in foster care.
And it’s taken some time here since termination for the case to get
transferred to an adoption worker, and I think that permanency
needs to be established for this child.
And I think really what turns my opinion here is the long-term
best interests of this child. Again, I believe he’s received good care
in the foster home and that he would continue to receive good care
in the foster home.
However, I believe that in order – the advantages of having
him placed with the [great-grandparents] would be that he would be
able to continue with the family identity and in a family relationship,
as well as I believe the [great-grandparents] have the financial
means to provide well for this child and the physical means to
provide well for this child.
Counsel for the great-grandparents stated agreement with the guardian ad litem.
A one-and-one-half-page report of the great-grandparents’ home prepared by a
foster/adoptive care worker was presented to the court.
The court then ruled from the bench:
Based on the record made today, my review of the case
permanency plan that was filed on August 7th, and in particular the
record that was previously made at the termination of parental
rights hearing . . . and record made today, that the Department
takes no position with respect to the Movants’ request for the
department to be removed as guardian of the child, thereby not
resisting that motion; and the record by the guardian ad litem
supporting the motion by the [great-grandparents], I will enter an
order today that grants the motion for the Department to be
removed as guardian and custodian of the child.
And I will enter an order that places guardianship, custody of
the child with . . . the child’s great grandparents.
I won’t set a further hearing to review this proceeding. There
is already an adoption proceeding that has been commenced by
the [great-grandparents] with respect to this child, and I would just
ask that the [counsel] for the [great-grandparents] prepare and
submit an order to the Court to have the matter reset for hearing so
that that matter can be addressed and the adoption scheduled.
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A written ruling was filed on September 24, 2008. The court writes: ―This
was not a contested proceeding.‖ The court noted that ―as of the date of the
filing of the case plan on September 11, 2008 the case had not yet been
transferred to the adoption worker.‖
A copy of the order terminating the
Department as guardian and placing guardianship and legal custody with the
great-grandparents was sent to the foster parents.
The foster parents filed this appeal.
II. Discussion.
Iowa Code section 232.88 (2007) provides, in part:
After a [child in need of assistance] petition has been filed,
the court shall issue and serve summons, subpoenas, and other
process in the same manner as for adjudicatory hearings . . . as
provided in section 232.37. Reasonable notice shall be provided to
the persons required to be provided notice under section 232.37,
except that notice shall be waived regarding a person who was
notified of the adjudicatory hearing and who failed to appear. In
addition, reasonable notice for any hearing under this division shall
be provided to the agency, facility, institution, or person, including a
foster parent, relative, or other individual providing preadoptive
care, with whom the child has been placed.
(Emphasis added.)
Section 232.88 governs ―judicial proceedings‖ under ―Division III Child in
Need of Assistance Proceedings.‖
The statutory provision is unambiguous:
―reasonable notice for any hearing under this division . . . shall be provided to . . .
a foster parent.‖ Id. The provision does not state that notice need only be given
to foster parents who have become parties.1
1
Although Iowa Code section 232.91(2) permits a foster parent to petition to be made a
party, this does not negate the notice requirement of section 232.88.
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The September 22, 2008 hearing was to be a permanency review
hearing—a matter under Division III.
See Iowa Code § 232.104 (entitled
―permanency hearing‖). It is undisputed that the foster parents, J.S. and C.S.,
were not given notice of that September 22, 2008 hearing.
The result is the same if we consider the matter as being governed by
Division IV, which provides for removal of a guardian (a proceeding governed by
section 232.118). Division IV similarly requires notice to the foster parents.
In addition to the persons who are necessary parties who may be
parties under section 232.111, notice for any hearing under this
division shall be provided to the child’s foster parent, an individual
providing preadoptive care for the child, or a relative providing care
for the child.
Iowa Code § 232.112 (emphasis added).
The September 22 hearing resulted in T.W. being removed from the
preadoptive care and custody of the foster parents without affording them a
chance to be heard. This was contrary to their rights under section 232.91(3):
―Any person who is entitled under section 232.88 to receive notice of a hearing
concerning a child shall be given the opportunity to be heard in any other review
or hearing involving the child.‖
We believe the foster parents fit within those authorized to appeal under
Iowa Code section 232.133, which provides: ―An interested party aggrieved by an
order or decree of the juvenile court may appeal from the court for review of
questions of law or fact.‖ Without the right to appeal, the notice requirements
under section 232.88 and 232.112, and the right to be heard under section
232.91, would be entirely meaningless.
grandparents’ motion to dismiss this appeal.
We therefore deny the great-
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We do not know whether the court would have ruled differently had the
foster parents been given notice and the right to be heard. It was obviously
aware that both the foster parents and the great-grandparents were interested in
adopting T.W. at the time of the termination hearing. It is apparent, however, that
at the time of the September 2008 hearing, the district court believed the matters
before it were ―uncontested.‖
We conclude the district court’s ruling terminating the Department’s
guardianship must be reversed and the matter remanded for further proceedings,
with proper notice given to the foster parents.
REVERSED AND REMANDED.
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