IN THE COURT OF APPEALS OF IOWA
No. 3-1254 / 13-0945 Filed February 19, 2014
IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF J.M.M. AND A.D.M.,
Joseph and Shirley Cox, Temporary Guardians and Conservators, Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Timothy
O’Grady, Judge.
Paternal grandparents appeal an order denying their application for
appointment of a guardianship and conservatorship over two grandchildren.
AFFIRMED.
Suellen Overton of Overton Law Office, Council Bluffs, for appellants.
Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ. 2
VAITHESWARAN, J.
Joseph and Shirley Cox, paternal grandparents of two children, appeal an
order denying their application for appointment of a guardianship and
conservatorship over the children.
I. Background Facts and Proceedings
Wayne and Bonnie had two children, born in 2000 and 2002. The couple
divorced in 2003, and Wayne was granted physical care of the children. Wayne
raised the children for the ensuing nine years. Bonnie visited them on occasion
but maintained that Wayne thwarted regular contact.
Wayne died in 2012, and shortly thereafter, his parents applied to serve as
the children’s guardians and conservators. Bonnie resisted the application and
sought custody of the children. Following an evidentiary hearing, the district
court appointed the Coxes temporary guardians and conservators and scheduled
an evidentiary review hearing to determine whether the guardianship “should
terminate and the children be placed in Bonnie’s care, or . . . become
permanent.”
After the second hearing, the court denied the Coxes’ application,
terminated the “temporary guardianship and temporary conservatorship . . . at
the end of the present school term,” and ordered “full legal custody and physical
care” of the children transferred to Bonnie. The Coxes appealed.
II. Analysis
The Coxes contend “Bonnie’s unilateral decision to jump back into these
children’s lives after ten years is not a basis to remove these children from the
loving grandparents that helped raise them.” Our review is for errors of law. See 3
Iowa Code § 633.33 (2011); In re Guardianship of M.D., 797 N.W.2d 121, 126-27
(Iowa Ct. App. 2011) (noting conflicting case law and opting for statutory
directive). “We will affirm if there is substantial evidence in the record
demonstrating that the best interests of the children favors dismissing the
petitions for guardianship.” In re Guardianship of G.G., 799 N.W.2d 549, 551
(Iowa Ct. App. 2011).
As a preliminary matter, we must address the Coxes’ assertion that the
district court incorrectly assigned the burden of proof. The legislature has stated
that “the parents of a minor, or either of them, if qualified and suitable, shall be
preferred over all others for appointment as guardian.” Iowa Code § 633.559.
The non-parent bears the burden to overcome the parental preference with clear
and convincing evidence that the natural parent is not a qualified or suitable
caregiver. M.D., 797 N.W.2d at 127.
The Coxes maintain they rebutted the presumption at the temporary
hearing and the district court improperly required them to do so again at the
permanent hearing. They cite In re Guardianship of Roach, 778 N.W.2d 212,
215 (Iowa Ct. App. 2009), for the proposition that “once a finding has been made
in a previously litigated action, rebutting the presumption in favor of the natural
parent, the burden of proof changes such that the natural parent must prove a
substantial change of circumstances, warranting a change of custody.” In their
view, the district court should have shifted the burden of proof to Bonnie at the
permanent hearing.
Roach states that the burden shifts to the parent only after a finding of
parental unsuitability is made “in a previously litigated action” where “the relative 4
custodial rights of the proposed guardian and the parent were put in issue and
tried in the guardianship proceeding.” Id. That is not what happened here. The
district court held a temporary hearing after which the court “temporarily
appointed the Coxes guardians and conservators” to “allow time for bonds to
develop between Bonnie and the children.”
We recognize that the temporary order contained a finding that the Coxes
“rebutted the parental preference of section 633.559,” a finding that was made
following an evidentiary hearing at which Bonnie’s suitability as a parent was put
in issue. The fact remained, however, that the order was not permanent. See In
re Guardianship of Stewart, 369 N.W.2d 820, 823-24 (Iowa 1985) (declining to
shift burden where “[t]he evidence here clearly established that the guardianship
was intended to be a temporary and not a permanent custodial arrangement” and
“[s]uch an order is superseded by the more permanent dissolution decree itself”).
Because the order was temporary, the burden did not shift to Bonnie.
Turning to the merits, there is much to commend the Coxes as permanent
guardians and conservators, including Wayne’s testamentary preference to have
them serve as permanent caretakers, the mother’s near absence from the
children’s lives for close to a decade, and the Coxes’ consistent and active
involvement in the children’s lives. But “[r]ecognition that the non-parental party
is an excellent parent to the child will rarely be strong enough to interfere with the
natural rights of the parent.” Northland v. Starr, 581 N.W.2d 210, 213 (Iowa Ct.
App. 1998).
The district court determined that Bonnie was “qualified and suitable to be
a parent and guardian” of the children. The court pointed to the fact that she had 5
abandoned certain “chaotic life choices” of the past, was “financially stable,”
“sober,” involved in a long-term relationship, and had successfully parented an
older child through his graduation from high school. The court noted that, after
the temporary guardianship order was filed, Bonnie improved her bond with the
children and “actively cared for the children’s needs during her weekend visits.”
The court gave little weight to counselors’ assertions that the children did not
wish to move, reasoning that the Coxes were “the sole sources of information
regarding the children and their history.”
The district court’s findings are supported by substantial evidence. The
grandparents did not dispute that Bonnie had moved beyond the years of
“chaotic life choices.” While Shirley Cox expressed skepticism about Bonnie’s
weekend care of the children, Bonnie testified that those visits went well. It was
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IN THE COURT OF APPEALS OF IOWA
No. 3-1254 / 13-0945 Filed February 19, 2014
IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF J.M.M. AND A.D.M.,
Joseph and Shirley Cox, Temporary Guardians and Conservators, Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Timothy
O’Grady, Judge.
Paternal grandparents appeal an order denying their application for
appointment of a guardianship and conservatorship over two grandchildren.
AFFIRMED.
Suellen Overton of Overton Law Office, Council Bluffs, for appellants.
Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ. 2
VAITHESWARAN, J.
Joseph and Shirley Cox, paternal grandparents of two children, appeal an
order denying their application for appointment of a guardianship and
conservatorship over the children.
I. Background Facts and Proceedings
Wayne and Bonnie had two children, born in 2000 and 2002. The couple
divorced in 2003, and Wayne was granted physical care of the children. Wayne
raised the children for the ensuing nine years. Bonnie visited them on occasion
but maintained that Wayne thwarted regular contact.
Wayne died in 2012, and shortly thereafter, his parents applied to serve as
the children’s guardians and conservators. Bonnie resisted the application and
sought custody of the children. Following an evidentiary hearing, the district
court appointed the Coxes temporary guardians and conservators and scheduled
an evidentiary review hearing to determine whether the guardianship “should
terminate and the children be placed in Bonnie’s care, or . . . become
permanent.”
After the second hearing, the court denied the Coxes’ application,
terminated the “temporary guardianship and temporary conservatorship . . . at
the end of the present school term,” and ordered “full legal custody and physical
care” of the children transferred to Bonnie. The Coxes appealed.
II. Analysis
The Coxes contend “Bonnie’s unilateral decision to jump back into these
children’s lives after ten years is not a basis to remove these children from the
loving grandparents that helped raise them.” Our review is for errors of law. See 3
Iowa Code § 633.33 (2011); In re Guardianship of M.D., 797 N.W.2d 121, 126-27
(Iowa Ct. App. 2011) (noting conflicting case law and opting for statutory
directive). “We will affirm if there is substantial evidence in the record
demonstrating that the best interests of the children favors dismissing the
petitions for guardianship.” In re Guardianship of G.G., 799 N.W.2d 549, 551
(Iowa Ct. App. 2011).
As a preliminary matter, we must address the Coxes’ assertion that the
district court incorrectly assigned the burden of proof. The legislature has stated
that “the parents of a minor, or either of them, if qualified and suitable, shall be
preferred over all others for appointment as guardian.” Iowa Code § 633.559.
The non-parent bears the burden to overcome the parental preference with clear
and convincing evidence that the natural parent is not a qualified or suitable
caregiver. M.D., 797 N.W.2d at 127.
The Coxes maintain they rebutted the presumption at the temporary
hearing and the district court improperly required them to do so again at the
permanent hearing. They cite In re Guardianship of Roach, 778 N.W.2d 212,
215 (Iowa Ct. App. 2009), for the proposition that “once a finding has been made
in a previously litigated action, rebutting the presumption in favor of the natural
parent, the burden of proof changes such that the natural parent must prove a
substantial change of circumstances, warranting a change of custody.” In their
view, the district court should have shifted the burden of proof to Bonnie at the
permanent hearing.
Roach states that the burden shifts to the parent only after a finding of
parental unsuitability is made “in a previously litigated action” where “the relative 4
custodial rights of the proposed guardian and the parent were put in issue and
tried in the guardianship proceeding.” Id. That is not what happened here. The
district court held a temporary hearing after which the court “temporarily
appointed the Coxes guardians and conservators” to “allow time for bonds to
develop between Bonnie and the children.”
We recognize that the temporary order contained a finding that the Coxes
“rebutted the parental preference of section 633.559,” a finding that was made
following an evidentiary hearing at which Bonnie’s suitability as a parent was put
in issue. The fact remained, however, that the order was not permanent. See In
re Guardianship of Stewart, 369 N.W.2d 820, 823-24 (Iowa 1985) (declining to
shift burden where “[t]he evidence here clearly established that the guardianship
was intended to be a temporary and not a permanent custodial arrangement” and
“[s]uch an order is superseded by the more permanent dissolution decree itself”).
Because the order was temporary, the burden did not shift to Bonnie.
Turning to the merits, there is much to commend the Coxes as permanent
guardians and conservators, including Wayne’s testamentary preference to have
them serve as permanent caretakers, the mother’s near absence from the
children’s lives for close to a decade, and the Coxes’ consistent and active
involvement in the children’s lives. But “[r]ecognition that the non-parental party
is an excellent parent to the child will rarely be strong enough to interfere with the
natural rights of the parent.” Northland v. Starr, 581 N.W.2d 210, 213 (Iowa Ct.
App. 1998).
The district court determined that Bonnie was “qualified and suitable to be
a parent and guardian” of the children. The court pointed to the fact that she had 5
abandoned certain “chaotic life choices” of the past, was “financially stable,”
“sober,” involved in a long-term relationship, and had successfully parented an
older child through his graduation from high school. The court noted that, after
the temporary guardianship order was filed, Bonnie improved her bond with the
children and “actively cared for the children’s needs during her weekend visits.”
The court gave little weight to counselors’ assertions that the children did not
wish to move, reasoning that the Coxes were “the sole sources of information
regarding the children and their history.”
The district court’s findings are supported by substantial evidence. The
grandparents did not dispute that Bonnie had moved beyond the years of
“chaotic life choices.” While Shirley Cox expressed skepticism about Bonnie’s
weekend care of the children, Bonnie testified that those visits went well. It was
the district court’s prerogative to credit her testimony over Ms. Cox’s version of
events. In re Conservatorship of Deremiah, 477 N.W.2d 691, 693 (Iowa Ct. App.
1991). For the same reason, the court’s dismissal of the counselors’
recommendations was well within its purview. Significantly, Bonnie did not blame
the Coxes or the counselors for excluding her from the counseling sessions and
expressed an intent to continue those sessions for “[h]owever long [the
counselors] felt was necessary.” She also stated she would meet the children’s
future emotional needs through any transition periods “[b]y being there for them.”
In short, she acted in the children’s best interests.
We conclude the Coxes failed to rebut the presumption in favor of the
natural parent. Because substantial evidence supports the district court’s
determination that Bonnie was “qualified and suitable to parent her children,” as 6
well as the supporting findings of fact, we affirm the district court’s denial of the
Coxes’ application for appointment of permanent guardians and conservators
and the termination of the temporary guardianship and conservatorship.
Potterfield, J., concurs; Danilson, C.J., concurs specially. 7
DANILSON, C.J. (concurring specially)
I concur specially to commend the grandparents and acknowledge how
fortunate the children are to have grandparents who are willing to provide their
care, and to acknowledge the difficulty in reaching the decision in this appeal.
Our supreme court has long held in cases involving grandparents and a
natural parent, “as always, the primary consideration is the best interest of the
child and if the return of custody to the [parent] is likely to have a seriously
disrupting and disturbing effect upon the child’s development, this fact must
prevail.” Painter v. Bannister, 140 N.W.2d 152, 156 (Iowa 1966). Here, the
mother essentially abandoned the children but has now made significant life
changes and has stepped forward to assume parental responsibilities. She
seeks a second chance and appears capable of the responsibilities. During the
temporary proceedings in this action, the mother made efforts to re-unite with the
children. The children have suffered from the loss of their father and will be
required to face adjustment no matter the outcome of this proceeding. There is a
mutual bond between the grandparents and the children that appears to be a
positive force in the children’s lives. Efforts to foster the relationship with the
grandparents are in the children’s best interests. I concur only because of the
parental preference prescribed by our law.