In re Guardianship of Hackert

• Court: Court of Appeals of Iowa
• Decided: April 9, 2025
• Docket: 24-0633
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0633 Filed April 9, 2025

IN THE MATTER OF THE GUARDIANSHIP OF ACEA JAMISON HACKERT

CYNTHIA MICHELE HACKERT, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Jasper County, Stacy Ritchie, Judge.

A mother appeals the district court’s order removing her as co-guardian for

her adult son with disabilities. AFFIRMED.

Eugene L. Nassif of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

Lucas W. Otto, Otto Law Office, PLLC, Newton, for appellee.

Considered without oral argument by Schumacher, P.J., and Badding and

Chicchelly, JJ. 2

BADDING, Judge.

Cynthia and Jamie Hackert were successful caregivers for their son with

disabilities, Acea, throughout his childhood. When he turned eighteen, they sought

appointment as his guardians—a role they intended to share even after they

dissolved their marriage. But in the wake of the divorce, Cynthia’s anger towards

Jamie interfered with her ability to collaborate in Acea’s care and act in his best

interests. The district court removed Cynthia from her role as co-guardian, finding

her inconsistent performance and hostility to other caregivers amounted to a failure

of duty. Finding no abuse of discretion, we affirm.

I. Background Facts and Proceedings

Acea Hackert is the adult son of Jamie and Cynthia Hackert. He lives with

significant cognitive and physical impairments that limit his ability to walk,

communicate, and eat. Acea depends on others to meet his basic needs and

requires around-the-clock care. Jamie and Cynthia shared those responsibilities

when Acea was a child. On the day Acea turned eighteen, his parents asked to

be named his permanent legal guardians. The district court granted their request

and appointed them as co-guardians in December 2021.

When they were appointed, Jamie and Cynthia were in the process of

dissolving their marriage. In a stipulated decree filed in February 2022, both

parties agreed to care for Acea “approximately one-half of the time.” Jamie and

Acea would continue living in the marital home—which had been custom-built for

Acea’s needs—and Cynthia could visit Acea there provided she gave Jamie

advance notice. The co-guardians also planned to enlist the help of respite 3

workers they had used during the marriage to fill the gaps in Acea’s supervision

schedule.

Things did not go as the parties had hoped. In May, Cynthia went to Jamie’s

house unannounced. Jamie asked her to leave, and she punched him in the face.

Although an officer observed swelling around Jamie’s eye, Cynthia denied any

assault. Her text messages to Jamie around this time were persistently instigating

and insulting.1 Cynthia also butted heads with Acea’s service providers. Although

Jamie coordinated all of Acea’s respite care, Cynthia distrusted the workers he

chose. She canceled some caregivers’ shifts and unilaterally attempted to fire

others, with no backup plan. One respite worker blocked Cynthia’s number after

Cynthia berated her for turning off Acea’s camera and failing to answer phone

calls.2 Similar hostility caused Acea’s case manager—who had worked with him

for sixteen years—to seek reassignment. The case manager who took over said

this was one of the most problematic guardianships she had seen in her career.

At school, confrontations between Cynthia and teachers led to intervention by

administrators. Acea’s principal banned Cynthia from entering the school building

without pre-approval and an escort. When Cynthia refused to follow that policy,

teachers raised safety concerns.

Cooperation did not improve with time. Although Acea began to travel to

Cynthia’s house for visits, scheduling continued to be a problem. Cynthia often

1 As just one example among many, Cynthia texted Jamie at the beginning of May

that if his new girlfriend “comes near Acea again[,] I’ll rip her face off.” Jamie simply responded, “I get it.” There are many more, and worse, messages from Cynthia that we do not find it necessary to repeat. 2 That respite worker was at an out-of-state conference at the time, and a different

caregiver was with Acea. 4

changed the times and days of the visits or canceled them altogether, which made

scheduling and retaining respite workers hard. It also put Acea in danger of having

no one there to care for him while Jamie was working. Text exchanges in late

2022 and early 2023 describe ongoing disputes over Acea’s transportation and

supervision. Cynthia’s communication with Jamie about Acea’s care remained

stubborn, biting, and almost always interlaced with personal grievances. For

instance, in late October 2022, Cynthia texted Jamie, “Who the hell is taking care

of my child. It better not be hag,” which is how she referred to Jamie’s new wife.

Jamie responded with the name of the caregiver and told Cynthia, “Knock it off and

grow up.”

After more than a year of conflict, Jamie filed a motion to remove Cynthia

as Acea’s co-guardian. He pointed to her inconsistent visitation, interference with

Acea’s daily care, and “spite stemming from the parties’ divorce.” Cynthia resisted,

arguing Jamie had overstepped his authority by making decisions without her input

and by restricting her from seeing Acea. The district court appointed a court visitor

to investigate the parties’ allegations. See Iowa Code § 633.562 (2023). Following

interviews with Jamie, Cynthia, and seventeen other witnesses, the court visitor

reported that the co-guardian framework was no longer in Acea’s best interests

and recommended that Jamie be appointed as sole guardian. The court visitor

noted that while neither party was entirely without fault, Cynthia was “unequivocally

the instigator of unnecessary conflict” with Jamie and Acea’s caregivers, making it

“nearly impossible to get a decision made.”

At an evidentiary hearing in March 2024, Jamie testified that Cynthia had

made no progress in her communication, cooperation, or adherence to schedules, 5

even though they had attempted to resolve their dispute with a detailed co-

guardian agreement. He testified that arranging respite care had only become

more difficult, as clashes with Cynthia caused several providers to resign. Jamie

also noted that, until one week before the hearing, Cynthia had neither scheduled

nor attended any of Acea’s appointments. He acknowledged, however, that he

sometimes declined to tell Cynthia about them because he “did not want to be

confronted in a parking lot.”

Cynthia denied acting against Acea’s best interests, emphasizing her

contributions to his education and a recent effort to arrange his physical therapy.

She testified that she had tried to participate in other areas of Acea’s life, but that

“most of the time [she] never knew about what was going on” because she was

not invited to appointments and meetings. Cynthia conceded her availability was

sometimes unpredictable and that her relationships with Acea’s respite care

providers had deteriorated after the divorce. She denied being hard to work with,

although the court visitor’s report noted, “Most neutral individuals I interviewed

stated . . . that [Cynthia] is incredibly difficult to get along with, has poor

communication skills, is a contrarian, and has an aggressive demeanor.” Cynthia

acknowledged her communication was “not the best,” but she maintained that her

relationship with Jamie was “still evolving and the communication [was] changing.”

Ruling from the bench, the district court found that Cynthia had failed her

duty as co-guardian “to make decisions regarding Acea’s care, maintenance,

health, education, welfare, and safety that are in his best interest.” Among other

conduct, the court cited Cynthia’s hostile communication habits, lack of a

consistent visitation schedule, and failure to “engage in a meaningful conversation” 6

with Jamie about her concerns with Acea’s caregivers. The court also found

Cynthia had failed to show “sound judgment with regard to professional services.”

The court discredited Cynthia’s denials of fault and assurances of cooperation,

finding her testimony generally not credible. While the court did not doubt

Cynthia’s love for Acea, the court found that she could not continue as his co-

guardian. Following the hearing, the court entered an order removing Cynthia as

co-guardian and naming Jamie as Acea’s sole guardian.

Cynthia appeals. She argues the district court gave improper weight to the

parties’ disagreements and that it “failed to consider the numerous instances

where Jamie had prevented [her] from exercising her rights as Co-Guardian.” She

also argues that removal was premature because “Jamie did not follow the dispute

resolution process pursuant to Iowa Code section 633.76.”

II. Standard of Review

A petition to remove a guardian is triable in equity, and so the scope of our

review is de novo. See Iowa Code § 633.33; In re Guardianship of Hedin, 528

N.W.2d 567, 581 (Iowa 1995). The district court’s factual findings are entitled to

weight—especially when they concern the credibility of witnesses—but they are

not binding on appeal. In re Guardianship of Johnson, No. 22-0562, 2023

WL 2396534, at *3 (Iowa Ct. App. Mar. 8, 2023).

Although we review the facts anew, we give deference to the district court’s

ruling. See In re Cannon’s Guardianship, 1 N.W.2d 217, 220 (Iowa 1941) (“[T]he

removal of [a] guardian[] rests in the sound discretion of the court and we will not

interfere, where there is some basis for the order.”). Our task is to “examine the 7

record de novo to determine whether there was an abuse of discretion.”

Schildberg v. Schildberg, 461 N.W.2d 186, 190 (Iowa 1990).

III. Removal of Co-Guardian

“While the district court has great discretion in the removal of guardians,

there must be some cause for removal.” In re Guardianship of Nobiling,

No. 14-1847, 2016 WL 757410, at *3 (Iowa Ct. App. Feb. 24, 2016) (citing In re

Husmann’s Guardianship, 64 N.W.2d 252, 260 (Iowa 1954)). Among other

circumstances defined by statute, cause for removal exists when a guardian has

“failed to perform any duty imposed by law.” Iowa Code § 633.65. Removal is

also appropriate where a guardian is “unsuitable,” id. § 633.63(1)(b), including

where the court has reasonable doubt about the guardian’s ability to “act

honorably, intelligently, efficiently, promptly, fairly and dispassionately,” Johnson,

2023 WL 2396534, at *4 (quoting In re Est. of Ragan, 541 N.W.2d 859, 861

(Iowa 1995)).

The district court found clear and convincing evidence that Cynthia should

be removed for her failure to perform certain duties required of her as Acea’s

guardian, including “[m]aking decisions regarding [his] care, maintenance, health,

education, welfare, and safety” and “[c]onsenting to and arranging for [his] needed

professional services.” Iowa Code § 633.635(2)(a), (f). Cynthia contends she

fulfilled these roles. She points to her success securing Acea additional time in

school by appealing an IEP decision that would have required him to graduate.

Cynthia also cites her efforts to obtain leg braces and physical therapy for Acea.

Nobody disputes that Cynthia is a loving mother. But Cynthia must be

evaluated strictly for her performance as a legal guardian. In re Guardianship of 8

M.E.B., No. 06–0583, 2007 WL 1345895, at *5 (Iowa Ct. App. May 9, 2007) (finding

there is no parental preference in the guardianship of an adult with disabilities). In

that capacity, her contributions to Acea’s wellbeing are overshadowed by her

inconsistency and hostility. Cynthia was unreliable when it came to visitation,

causing disruptions in Acea’s schedule. She failed to coordinate backup care,

even when unavailable for her own shifts on short notice to Jamie. Cynthia

distrusted Jamie’s choice of respite providers—including those who had cared for

Acea during the marriage—and attempted to fire them without forethought. She

declined to attend some of Acea’s appointments and had to ask Jamie for the name

of Acea’s doctor for the past four years. As the court visitor concluded, the

evidence showed that Cynthia “took a back seat” in Acea’s care, “and when she

decided to be involved, she caused a major amount of disharmony.”

Cynthia is correct that mere disagreement between co-guardians is typically

not a cause for removal. See Nobiling, 2016 WL 757410, at *3 & n.1; see also

Schildberg, 461 N.W.2d at 193 (explaining “mere friction” is not enough to justify

removal of a fiduciary). But Cynthia’s conduct went beyond disagreement. She

overwhelmed channels of communication with personal grievance. And she

alienated Acea’s educators and care providers through her confrontational

attitude. Nearly all the witnesses the court visitor interviewed described Cynthia’s

hostility as an obstruction to Acea’s care. Even if this behavior were not an outright

abdication of duty, it certainly “creates reasonable doubt” as to Cynthia’s ability to

serve as an efficient, fair, and dispassionate fiduciary. Johnson, 2023

WL 2396534, at *4 (finding a guardian unsuitable where, during a period of mental 9

health crisis, her unpredictable behavior caused disruption for the protected person

and led to multiple police interventions).

Cynthia argues that Jamie could have asked the district court to moderate

their conflict before seeking removal. See Iowa Code § 633.76 (providing that

co-guardians who “cannot concur upon the exercise of any power . . . may apply

to the court for directions”). But again, this was not a case of mere gridlock.

Cynthia’s resentment towards Jamie and her abrasive treatment of other

caregivers actively interfered with Acea’s best interests. In any event, she offers

no authority to suggest a co-guardian must exhaust remedies under

section 633.76 before seeking removal. We find no such prerequisite in the text

of the removal statute. See Iowa Code § 633.65 (“When any fiduciary is, or

becomes, disqualified under sections 633.63 and 633.64, [or] . . . fail[s] to perform

any duty imposed by law . . . then the court may remove the fiduciary.”).

Addressing Cynthia at the removal hearing, the district court summarized

its findings as follows:

[D]ivorces can be nasty. They can be ugly. Things are said. We have feelings that are not necessarily compatible with respect, dignity, adequate communications—but you let that overtake your main priority which was caring for Acea. You have to find it yourself, ma’am, to love Acea more . . . than you hate Mr. Hackert or his new wife. The evidence does not show that.

Upon our de novo review, we agree and find that the court did not abuse its

discretion by removing Cynthia as co-guardian. See Iowa Code §§ 633.63, .65.

IV. Appellate Attorney Fees

Jamie requests an award of $5000 in appellate attorney fees from Cynthia,

but he does not identify any statutory authority for such an award. See Iowa 10

Individual Health Benefit Reins. Ass’n v. State Univ. of Iowa, 999 N.W.2d 656, 668

(Iowa 2023) (“Generally, attorney fees and costs ‘are recoverable only by statute

or under a contract.’” (citation omitted)). Assuming without deciding that we have

authority to order Cynthia to pay Jamie’s appellate attorney fees, we deny his

request.

V. Conclusion

For the reasons discussed above, we affirm the district court’s order

removing Cynthia Hackert as co-guardian of Acea Hackert.

AFFIRMED.