In the Matter of the Guardianship of A.K. and J.K.

• Court: Court of Appeals of Iowa
• Decided: January 24, 2024
• Docket: 23-1102
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1102 Filed January 24, 2024

IN THE MATTER OF THE GUARDIANSHIP OF A.K. and J.K.,

B.M. and J.M., Appellants. ________________________________________________________________

Appeal from the Iowa District Court for Benton County, Cynthia Finley,

District Associate Judge.

Guardians appeal the termination of voluntary guardianships after the

withdrawal of parental consent. AFFIRMED.

Alexander S. Momany of Howes Law Firm, P.C., Cedar Rapids, for

appellants.

Robert W. Davison, Cedar Rapids, for appellee.

Robin O’Brien Licht, Cedar Rapids, attorney for minor children.

Considered by Bower, C.J., and Buller and Langholz, JJ. 2

LANGHOLZ, Judge.

An aunt and uncle were appointed guardians for their two nieces with the

consent of girls’ parents in July 2020. The girls’ mother later withdrew her consent

and asked to terminate the guardianships after making many changes to her life,

including successfully caring for a new child. In July 2023, the district court agreed

with the mother and terminated the guardianships. The court reasoned that the

guardians had failed to meet their burden to prove that terminating the

guardianships would cause rigorous harm to the girls.

The guardians now appeal, mainly arguing that the district court applied the

wrong legal standard. According to them, the court should have first conducted a

factual inquiry whether the mother had shown a lack of parental participation, and

if so, put the burden on the mother to show termination of the guardianships was

in the girls’ best interests. They also argue that termination would not be in the

girls’ best interests and that, even under the rigorous-harm standard applied by the

court, the evidence showed that termination would cause rigorous harm to the girls.

The guardians provided excellent care for, and established a healthy bond

with, the girls during the guardianships. But the district court applied the correct

legal standard under the statute and precedent governing termination of voluntary

guardianships. And on our de novo review, giving the court’s thoughtful factual

findings the weight they deserve, we agree that the guardians have not shown by

clear and convincing evidence that terminating the guardianships would cause the

girls physical harm or significant, long-term emotional harm sufficient to carry their

burden under the rigorous-harm standard. We thus affirm. 3

I.

In May 2020, an aunt and uncle petitioned to establish minor guardianships

for their two nieces.1 The girls were then two and five. And they began residing

with their aunt and uncle around the same time, after being in the care of their

maternal grandmother for at least one year or so before. The girls’ father—who is

the step-brother of the uncle—and their mother both consented to the

guardianships. And in July 2020, the juvenile court established the guardianships

under Iowa Code section 232D.203—which requires parental consent—and

appointed the aunt and uncle as guardians. See Iowa Code § 232D.203(1)(a).

From the start, the mother began raising concerns that the guardians were

preventing her from contact with her children. The guardians’ initial proposed care

plan provided no proposals for the children to interact with their parents, raising

concerns about COVID-19, the parents’ homelessness, and their erratic behaviors.

In September 2020, the mother sent a letter to the children’s guardian ad litem—

which was also filed with the court—asking why she had not been given any time

to interact with her children and emphasizing:

Bottom line is I WANT TO SEE AND VISIT [the girls] . . . what can I do to accomplish this? You are their attorney please help me. NOT GIVING UP MY PARENTAL RIGHTS!!!!

The court then rejected the care plan because it denied all visitation,

communication, and interaction with the parents, and the guardians had not shown

that contact with the parents had resulted or would likely result in significant

1 We avoid using the parties’ names to respect their privacy because this opinion—

unlike the juvenile court’s order—is public. Compare Iowa Code § 232.147 (2020), with id. §§ 602.4301(2), 602.5110. 4

physical or emotional harm. See Iowa Code § 232D.401(5). The parties

eventually reached a temporary agreement on some limited video calls with the

children in December 2020.

In February 2021, the mother gave birth to another daughter, who had the

same father as the two older girls. By this time the mother had worked to change

her previous lifestyle, aptly described by the juvenile court as “tainted with drug

usage and domestic violence.” She separated from their father, moved into a

residential women’s services center, participated in counseling and substance-

abuse treatment, and obtained full-time employment. Indeed, she had been sober

since September 2020. Immediately after the birth, the Department of Human

Services conducted a child-abuse assessment and concluded that there were no

concerns suggesting that the newborn was a child in need of assistance.

The mother first sought to end the guardianships in March 2021. But the

next month the parties reached an agreement that was memorialized in a court

order dismissing her request and ordering visitation, including in-person

supervised visitation for four hours every two weeks in her home and family

therapy on the alternating weeks.

In October 2021, the mother again asked to terminate the guardianships.

Litigation continued in the juvenile court over the next twenty-one months. We

need not dwell on all its twists and turns and stalls—multiple hearings,

postponements, occasional agreements, and changes in various players, including

the judge because of recusal. Suffice it to say that the twenty-one-month delay is

not fairly attributable to the mother or a sign that she yielded to the continued

guardianship. And throughout this time, she was severely limited in her contact 5

with the two girls by the guardians, often not even able to have the visitation to

which she was entitled under the April 2021 order.

At one point, the proceeding was apparently paused to give the Benton

County Attorney time to assess whether a child-in-need-of-assistance case was

appropriate for any of the mother’s daughters—the youngest one in her care or the

two under the guardianships. The county attorney declined to bring any case,

reporting to the court that there were “no safety concerns” for the youngest

daughter in her custody and no legal grounds to start proceedings for any of the

children.

The mother finally got a ruling on her request to terminate the guardianships

in July 2023. In a thoughtful seventeen-page ruling, the juvenile court considered

the well-developed evidentiary record. Backed up by solid reasoning, the court

expressly found the mother “credible and not self-serving,” and gave “less

credibility” to the guardians. And it applied the standard for terminating a voluntary

guardianship set forth in Iowa Code section 232D.503(2)—as interpreted just a few

months before by our supreme court in In re Guardianship of L.Y., 968 N.W.2d 882

(Iowa 2022)—to the court’s detailed factual findings.

The juvenile court reasoned that because the mother had withdrawn her

consent to the guardianship, it must be terminated unless the guardians prove that

terminating it would result in rigorous harm. The court found that the mother could

care for her children—crediting her original decisions to have their grandmother

care for them and to consent to the guardianship, her efforts at self-improvement,

and her care for her youngest daughter who is not under a guardianship or other

supervision. The court expressed some concern about the criminal record of a 6

new boyfriend with whom the mother was now living. But because she had been

doing so safely for more than a year without harming her youngest daughter and

he still had custody of his other children, the court found that this also was not clear

and convincing evidence of threatened harm. And the court discounted the in-

camera testimony of the eight-year-old daughter that she did not feel safe with her

mother and did not want her guardianship terminated after finding her “own words

show that much of her opinions must have been highly influenced by the

guardians—whether this influence was intentional or not.”

So the juvenile court found the guardians had not met their burden under

section 232D.503(2). The court summarized its core reasoning:

[T]here is likely trauma in either option—returning the children to [the mother’s] care, or remaining in the guardianship. Unfortunately, this trauma will likely be greater now, in 2023, than it would have been in 2021, when [the mother] initially filed to have the guardianship terminated. The Court finds that this trauma, and the interest in the children avoiding this trauma, does not rise to the level of “rigorous harm” sufficiently to overcome [the mother’s] fundamental liberty interest in the care, custody, and control of her daughters. She has maintained as much contact with the children as she was allowed in the past three years. She has addressed the issues in her life which [were] the basis for the guardianship being initiated. She has successfully and safely parented [her new daughter] while this process was ongoing. The guardians have not met their burden to rebut the parental preference.

The juvenile court thus terminated the guardianships. The guardians now appeal.

II.

We review a juvenile court’s decision whether to terminate a guardianship

de novo. L.Y., 968 N.W.2d at 892. While we are not bound by the court’s factual

findings, we give them weight. Id. Giving deference is especially appropriate when

the finding is based on a determination of witness credibility. See Iowa R. App. 7

6.904(3)(g). We do so because unlike the juvenile court, “appellate courts must

rely on the printed record in evaluating the evidence” and “are denied the

impression created by the demeanor of each and every witness.” In re Marriage

of Vrban, 359 N.W.2d 420, 423 (Iowa 1984).

The court “shall terminate a guardianship established” with parental

consent:

if the court finds that the basis for the guardianship set forth in section 232D.203 is not currently satisfied unless the court finds that the termination of the guardianship would be harmful to the minor and the minor’s interest in continuation of the guardianship outweighs the interest of a parent of the minor in the termination of the guardianship.

Iowa Code § 232D.503(2). Once a parent revokes her consent, the statutory basis

for the guardianship no longer exists. See L.Y., 968 N.W.2d at 894; see also Iowa

Code § 232D.203(1) (requiring, among other things, any parent with legal custody

to “knowingly and voluntarily consent to the guardianship”).

So after such a revocation of consent, the court must terminate the

guardianship unless it finds that doing so “would be harmful to the minor and the

minor’s interest in continuation of the guardianship outweighs” the parent’s interest

in termination. Iowa Code § 232D.503(2). In considering this second step of the

analysis, “the juvenile court must start with the rebuttable presumption that the

child’s best interests are served by reuniting the minor child with their parent.” L.Y.,

968 N.W.2d at 899–900. And a guardian seeking to continue the guardianship

then “bears the burden of rebutting this presumption by clear and convincing

evidence that” termination would result in “a real threat” of “either physical harm or

significant, long-term emotional harm.” L.Y., 968 N.W.2d at 900. 8

The juvenile court applied this rigorous-harm standard here. But the

guardians argue that it skipped a preliminary step: deciding whether the mother

had shown a lack of parental participation that made the rebuttable presumption

inapplicable. If so, they argue, then the mother retained a burden to prove

termination is in the children’s best interests.

The guardians’ argument fails, however, because it runs smack into the text

of the statute and our supreme court’s interpretation of it. The statute sets up the

burden-shifting. See L.Y., 968 N.W.2d at 894. For a voluntary guardianship, once

parental consent is revoked, it must be terminated “unless the court finds” the

rigorous harm standard satisfied. Iowa Code § 232D.503(2). And the supreme

court already decided that this—along with the underlying “constitutional

protections afforded parents in the care, custody, and control of their children”—

means the burden is on the party seeking to continue the guardianship. L.Y., 968

N.W.2d at 894.

So too did the supreme court already decide that applying the rebuttable

presumption and rigorous-harm standard is the correct way to weigh the interests

as required by the statute. See id. at 898–901. True, the court arrived at this

interpretation of the statute mindful of the fundamental constitutional “right of

parents to make childrearing decisions,” which cannot be infringed by the State

“simply because a state judge believes a better decision could be made.” Id. at

901 (cleaned up). But that does not mean we need to conduct a separate

constitutional analysis to decide whether we should start with the rebuttable

presumption in every case under this statute. The court in L.Y. was ultimately 9

interpreting a statute. See id. at 898–901. It settled the framework required under

the statute. And the court’s guidance is binding on us and the juvenile court.

The unpublished cases cited by the guardians in support of their theory are

not to the contrary. Neither In re Guardianship of B.B., No. 21-0992, 2022 WL

523325 (Iowa Ct. App. Feb. 22, 2022), nor In re P.S., No. 22-0077, 2022 WL

1234120 (Iowa Ct. App. Apr. 27, 2022), involved the termination of a voluntary

guardianship under Iowa Code section 232D.503(2). One affirmed establishment

of a guardianship without consent where one of the required statutory grounds was

“a demonstrated lack of consistent parental participation.” B.B., 2022 WL 523325,

at *3 (citing Iowa Code § 232D.204(1)). The other affirmed a contested

permanency order establishing a guardianship in a child-in-need-of-assistance

proceeding under chapter 232, after the child had been removed and adjudicated

in need of assistance. See P.S., 2022 WL 1234120, at *1–2. So they do not

support adding a new analytical step into a different statute with a different

standard. Nor could an opinion of our court trump the supreme court’s

interpretation of the statute here. See State v. Beck, 854 N.W.2d 56 (Iowa Ct. App.

2014) (“We are not at liberty to overrule controlling supreme court precedent.”).

The juvenile court applied the correct legal standard to evaluate the

mother’s request to terminate the voluntary guardianships under section

232D.503(2). After finding that she revoked her consent, it started with the

rebuttable presumption that the children’s best interests are served by reunification

with their mother. See L.Y., 968 N.W.2d at 899–900. And then it moved on to

consider whether the guardians had proved by clear and convincing evidence that 10

termination would result in “a real threat” of “physical harm or significant, long-term

emotional harm.” Id. at 900. This was not error.

III.

We turn then to consider whether the guardians carried their burden of

rebutting the presumption in favor of reunification by proving with clear and

convincing evidence that termination would result in “a real threat” of “physical

harm or significant, long-term emotional harm.” Id. Unlike a typical child custody

dispute between parents, under this “rigorous harm standard,” it is not enough “for

the guardians to show that they would provide superior care to the child.” Id. Nor

do “economic and cultural advantages in the guardians’ home” or “more

extracurricular activities” or “a better school district” “tip the balance in their favor.”

Id. at 900–01 (cleaned up). And the children’s “anxiety over the transition from

one home to another does not rise to the level of significant emotional harm”

because we recognize that “[n]o matter how cases like this one are resolved, there

will likely be anxiety and stress for the child[ren] for a period of time.” Id. at 901.

But the presumption can be rebutted with evidence of “the parent’s present

unfitness or past abandonment of the child such that the affections of the child and

[guardian] have become so interwoven that to sever them would seriously mar and

endanger the future happiness of the child.” Id. (cleaned up). Still, we must take

care not “to focus solely on a parent’s failure to discharge the duties of parental

care and protection” or to hold the voluntary guardianship against the parent. Id.

at 900 (cleaned up). We want to encourage—not discourage—parents from

seeking to establish a guardianship to obtain temporary relief from “the rigors of 11

raising a child” when they are “unable to fully discharge the responsibilities of

parenthood.” Id. (cleaned up).

The guardians have not met their heavy burden here. They point to three

main threats of significant, long-term emotional harm. First, they contend that

placing the children back with their mother will severely disrupt their life and cause

enough trauma to be a significant, long-term emotional harm. They assert that the

mother’s choppy history of caring for and relating with the children will cause

extensive emotional harm that is not in the children’s best interests.

While there may be difficulty in the children’s relocation and adjustment to

life with their biological mother, this transitional anxiety “does not rise to the level

of significant emotional harm.” L.Y., 968 N.W.2d at 901. These concerns come

from the pure nature of a change in environment, not the ability of the mother to

be a parent. The ending of any guardianship and transplanting of a child back to

their parent will generally be difficult and at times tumultuous. But like the district

court, we agree that there would likely be continued trauma if the guardianships

are continued as well. And we cannot say that the added short-term concerns

outweigh the long-term interests in reunification.

The guardians also argue that the mother’s limited contact with the children

rises to abandonment that should change the calculus and make separation from

the guardians a more significant emotional harm. But again, we agree with the

district court that these facts do not show the level of abandonment to rebut the

parental preference. We do not hold the establishment of the guardianships or her

previous reliance on the grandmother for care against the mother. L.Y., 968 12

N.W.2d at 900. And it would be especially inappropriate to do so where she has

been seeking to end the guardianships for almost two years.

Finally, though briefly, the guardians also point to the presence of the

mother’s new boyfriend, who has a significant criminal history, in their joint home.

The juvenile court thoughtfully weighed this factor too, correctly recognizing that

this concern is not clear and convincing evidence of any real threat of rigorous

harm when he has been safely living with the mother and her youngest daughter

for over a year and has not lost his parental rights to his biological children.

The bottom line is that these voluntary guardianships should have

terminated once the mother withdrew her consent unless the juvenile court found

clear and convincing evidence of rigorous harm. And the court properly made no

such finding here. What’s more, by the hearing, the mother had been in stable

employment, sober, and successfully caring for her youngest daughter—all for at

least two years. And all three girls were developing close bonds with each other.

Challenges likely lie ahead, as they do for many families. But there is no reason

to conclude on this record that the mother cannot rise to meet them.

To be clear, this is not a contest between the merits of the guardians and

the mother. Indeed, this case reaffirms that “it is not unusual for Iowa’s courts to

remove children from conscientious, well-intentioned custodians with a history of

providing good care to the children and place them with a natural parent.” L.Y.,

968 N.W.2d at 895–96 (cleaned up). Still, on our de novo review, giving the

juvenile court’s factual findings and credibility determinations the weight they

deserve, we agree that the court properly terminated the guardianships.

AFFIRMED.