IN THE COURT OF APPEALS OF IOWA
No. 17-1559 Filed September 12, 2018
IN THE MATTER OF THE GUARDIANSHIP OF D.B., L.B., and A.B.,
JAMES A. KERNES and CHERYL ANN KIRK, Petitioners-Appellees,
vs.
EDWARD PAUL BUNCH, JR., Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn,
Judge.
A father appeals the establishment of a guardianship for three of his
children. AFFIRMED.
Karen A. Taylor of Taylor Law Offices, PC, Des Moines, for appellant.
Robyn C. Huss of Huss Law Office, PLC, Ames, for appellees.
Considered by Potterfield, P.J., and Bower and McDonald, JJ. 2
BOWER, Judge.
A father, Edward Bunch, appeals the district court’s appointment of
guardians for three of his children following the death of the custodial mother.
Because we find substantial evidence in the record supports the district court’s
determination that a guardianship is warranted and the appointment of guardians,
we affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Edward and Kimberly Bunch1 were married from 2003 to 2012. Edward and
Kimberly had four children together, born between 2001 and 2010—B.B., D.B.,
L.B., and A.B.2 In 2004, Edward pled guilty to a domestic abuse assault against
Kimberly. In 2012, Edward and Kimberly divorced, with the court granting Kimberly
sole custody of the children. The court issued a temporary protective order for
Kimberly against Edward in 2011, which became permanent once the divorce was
finalized.
In 2013, Kimberly and the children began living with James Kernes
(Kernes), whom Kimberly later married. Kimberly, Kernes, and the children soon
moved to Jewell, where her parents lived. In 2014, Kimberly and Kernes had a
child. The children have attended schools in Jewell for a number of years. B.B.,
Kimberly and Edward’s oldest child, currently lives with Kimberly’s mother, Cheryl
1 Kimberly used the last name Bunch during her marriage to Edward. Following the dissolution of their marriage, she was Kimberly Edwards until her marriage to James Kernes, when she became Kimberly Kernes. 2 Edward has nine other children. Five are adults, three are minor children (whose ages fall between B.B. and D.B.) who live in another state, and the youngest, born in 2015, lives with Edward and his fiancé. Kimberly has one other child born in 2014. 3
Kirk (Kirk). B.B.’s guardianship and custody is not at issue here. Kimberly was a
stay-at-home mother. Kernes works full time in Des Moines.
In 2013, Edward was convicted and imprisoned for a felony drug offense.3
In 2014, shortly after he began work release, he began dating Melissa. Edward
works full time in Garner. Edward and Melissa are engaged and live with Melissa’s
son and their daughter in Forest City. Edward has progressed from supervised
visitations after the divorce to unsupervised overnight visitation with the children.
In 2016, the Iowa Department of Human Services (DHS) monitored the
Kernes family due to unconfirmed allegations of Kimberly and Kernes using
controlled substances while caring for the children. DHS investigated, including
talking with all four children, and found no evidence to support the allegations,.
DHS suspected the complaint was custody based. During the investigation, a child
told the DHS worker that Edward used controlled substances and abused the
children. The children all stated they felt safe in the Kernes home.4 After the
investigation concluded, Kimberly continued working with Child Protective
Services and Family Safety, Risk, and Permanency Services for assistance with
behavioral and mental health issues of one child, who is receiving intensive
treatment. One of the other children also requires special attention due to autism.
On March 24, 2017, Kimberly died. Edward attempted to assume custody
of the three children living with Kernes (D.B., L.B., and A.B), including filing a
petition to modify custody. On April 6, Kirk and Kernes—Kimberly’s mother and
3 Edward was still on parole for this offense at the time of trial. 4 One child made allegations of abuse against both Edward and Kernes in the past. Upon investigation, the child told DHS the allegations against Kernes were a lie. DHS issued a notice of founded child abuse report relating to the incident with Edward. 4
husband—filed applications for emergency appointment of temporary
guardianship and custody of the four children, as well as petitions for permanent
appointment as guardians. Edward contested the appointments as to the three
younger children. On April 7, the court appointed Kernes temporary guardian of
D.B., L.B., and A.B. Kirk became a stay-at-home caretaker.
At trial to establish the guardianship on June 27, the court heard testimony
from one of the children, Kirk, Kernes, one of Edward’s adult children, Edward’s
neighbors, Melissa, and Edward. In its ruling on July 17, the court granted
guardianship and custody of the three children to Kirk and Kernes. Following a
motion by Edward, the court enlarged and amended the ruling without altering the
guardianship. Edward appeals.
II. STANDARD OF REVIEW
The parties state this case was tried in equity by the district court, and both
parties propose de novo review for the court to consider the best interests of the
children. See Iowa R. App. P. 6.907. However, it is the termination of a
guardianship, not the opening of one, which is reviewed de novo. See In re
Guardianship of M.D., 797 N.W.2d 121, 126–27 (Iowa Ct. App. 2011).
The appropriate standard of review for cases involving the establishment of
a guardianship is for errors at law. Iowa Code §§ 633.33, .555 (2017); M.D., 797
N.W.2d at 126. In a review for correction of errors at law, we do not reweigh the
evidence or the credibility of the witnesses. EnviroGas, LP v. Cedar Rapids/Linn
Cty. Solid Waste Agency, 641 N.W.2d 776, 785–86 (Iowa 2002). The court’s
factual findings are binding on appeal if supported by substantial evidence. Iowa 5
R. App. P. 6.904(3)(a); In re Guardianship of Murphy, 397 N.W.2d 686, 688 (Iowa
1986).
III. MERITS
The court determined the children were in need of a guardianship pursuant
to Iowa Code section 633.551 because their mother, who had sole legal custody
and physical care, had died and their biological father was not suitable to have the
children in his physical care. See In re Guardianship of G.G., 799 N.W.2d 549,
550 (Iowa Ct. App. 2011) (requiring proof of the need for a guardian before
considering who to appoint). The court analyzed the father’s unsuitability as part
of its analysis to determine the appropriate guardians for the children.
In considering guardianship and custody questions, our primary concern is
the best interests of the children. In re Guardianship of Knell, 537 N.W.2d 778,
780–81 (Iowa 1995). We consider both the children’s immediate and long-term
interests. In re Guardianship of Roach, 778 N.W.2d 212, 214 (Iowa Ct. App. 2009).
The legislature has established an order of preference for potential
guardians, with natural parents, “if qualified and suitable,” as the preferred
guardian. Iowa Code § 633.559. That preference is rebuttable, with the other
potential guardian bearing the burden of proving by clear and convincing evidence
the natural parent unsuitable or unqualified. M.D., 797 N.W.2d at 127. Therefore,
our determination of the children’s best interest “must take into account the strong
societal interest in preserving the natural parent–child relationship.” Northland v.
Starr, 581 N.W.2d 210, 212 (Iowa Ct. App. 1998). We may look at a parent’s past
performance as indicative of future care the parent may provide. Id. If return of 6
custody to the natural parent would seriously disrupt and disturb the child’s
development, that fact prevails. Knell, 537 N.W.2d at 782.
Siblings should be kept together wherever possible. In re T.J.O., 527
N.W.2d 417, 420 (Iowa Ct. App. 1994). The children have younger half-siblings
living in both Edward’s and Kernes’s households. B.B, the oldest of the four
children, lives with Kirk near Kernes and is able to interact with the three younger
children daily when they reside with Kernes and Kirk. B.B. does not have a positive
relationship with Edward.
The district court started its analysis with the dissolution decree granting
sole legal custody to Kimberly, with only supervised visitation for Edward. We note
the visitation has slowly transitioned to unsupervised overnights, but Kimberly was
still the sole legal custodian of B.B., D.B., L.B., and A.B. Evidence before the court
included Edward’s recent criminal history and allegations of abuse, including a
founded (though not confirmed) child abuse report relating to one of the children,
hostile text messages, and testimony of abusive behavior toward the children. The
court noted Edward’s prior lack of care for the majority of his thirteen children,
inability or failure to pay child support, and failure to complete court-required
custody programming. Ultimately, the court weighed the best interests of the
children and found Edward “is not a suitable person to have the children in his
physical care.”
Past behaviors do not overcome the presumption in favor of a parent if they
do not pose present risks. See, e.g., M.D., 797 N.W.2d at 128 (considering
substance abuse, mental health, and instability); Northland, 581 N.W.2d at 213
(considering immaturity and lack of financial responsibility). However, the 7
evidence tends to show Edward’s problem behaviors pose present risks. In
particular, recurring criminal behavior, allegations of abuse, failure to take
responsibility for his actions, and an inability or unwillingness to recognize the
children’s special needs and the appropriate care for the children’s mental and
emotional development and health, all of which were evidenced in the record,
support the district court’s determination that Edward is not currently a suitable
guardian. We find substantial evidence in the record supports the district court’s
finding Kirk and Kernes should be named guardians at this time.
As the district court noted, this is not a termination proceeding. While
Edward cannot change his past, he can take steps to show his past behaviors no
longer pose risks to the children.5 He can work with DHS, Kirk, Kernes, and the
children’s schools to understand and implement the care and supervision the
children need. When he is more qualified to meet the continuing needs of the
children, he may petition for custody and to terminate the guardianship. See In re
Guardianship of Stewart, 369 N.W.2d 820, 822 (Iowa 1985) (considering father’s
application to terminate guardianship); Maruna v. Harper, No. 15-1899, 2016 WL
5930881, at *2–3 (Iowa Ct. App. Oct. 12, 2016) (“The preference [for qualified and
suitable parents] would be meaningless if it did not come with the ability to seek
termination of an existing guardianship.”). We affirm the district court.
AFFIRMED.
Potterfield, P.J., concurs; McDonald, J., dissents.
5 Evidence was presented showing Edward has sent hostile text messages to the children. He has injured at least one child from what was described as “rough housing.” Edward has failed to provide support for the children and failed to acknowledge that one of the children is autistic. 8
McDONALD, Judge (dissenting).
“Guardianship proceedings concerning conflicting custodial claims of
parents and nonparents implicate a parent’s fundamental liberty interest in parental
autonomy.” In re Guardianship of Blair, No. 01-1565, 2003 WL 182981, at *3 (Iowa
Ct. App. Jan. 29, 2003) (citing Reno v. Flores, 507 U.S. 292, 301–02 (1993)).
Iowa’s guardianship statute and caselaw recognize and protect a parent’s
fundamental interest in the care and custody of his children. Iowa Code section
633.559 provides that a natural parent, “if qualified and suitable, shall be preferred
over all others for appointment as guardian.” Use of the term “shall” creates a
mandatory duty. See State v. Klawonn, 609 N.W.2d 515, 522 (Iowa 2000). The
district court thus does not have the statutory authority to appoint nonparents as
guardians of children over a parent’s objection without evidence the parent is not
“qualified and suitable” to serve as guardian.
To prove a parent is not qualified and suitable, the nonparents must prove
the parent is “unfit.” In re Guardianship of S.K.M., No. 16-1537, 2017 WL 5185427,
at *6 (Iowa Ct. App. Nov. 8, 2017); see In re Guardianship of C.R., No. 14-1039,
2015 WL 576385, at *5 (Iowa Ct. App. Feb. 11, 2015) (McDonald, J., concurring in
part and dissenting in part) (concluding the nonparents must prove the parent is
unfit). “[T]his requires evidence the parent cannot provide the child with
reasonable parental care, meaning nurturing and protection adequate to meet the
child’s physical, emotional, and mental health needs and that the parent’s inability
to provide reasonable parental care poses a substantial and material risk of harm
to the child.” S.K.M., 2017 WL 5185427, at *6. 9
Because of the fundamental rights implicated in a guardianship proceeding,
“nonparent[s] bear[ ] the burden of persuasion throughout guardianship
proceedings, including initial appointment, modification, or termination to rebut the
presumption favoring parental custody by providing clear and convincing evidence
of parental unsuitability.” Id. at *5 (quoting Blair, 2003 WL 182981, at *5). “Clear
and convincing evidence is more than a preponderance of the evidence and less
than evidence beyond a reasonable doubt.” In re M.S., 889 N.W.2d 675, 679 (Iowa
Ct. App. 2016) (en banc). “It is the highest evidentiary burden in civil cases. It
means there must be no serious or substantial doubt about the correctness of a
particular conclusion drawn from the evidence.” Id. We impose this significant
burden on the nonparent guardians to minimize the risk of erroneous interference
in the parent-children relationship. See id.
The district court committed legal error in granting Kernes and Kirk’s petition
to establish a guardianship over Edward’s objection. First, the district court treated
this case as if it were an initial custody determination between parents with equal
rights to the children. The district court granted the petition because:
He [Kernes] has demonstrated a love and commitment to the welfare of all the children. The children all love him and their grandmother. . . . James A. Kernes has demonstrated a commitment to the law and is doing a good job of raising the children in a stable and loving environment. Likewise, the maternal grandmother Cheryl Ann Kirk has demonstrated a loving commitment to the grandchildren of her deceased daughter.
While these findings may be correct, they are also immaterial. The initial question
presented is not whether the petitioners have provided loving care for the children.
See Northland v. Starr, 581 N.W.2d 210, 212 (Iowa Ct. App. 1998) (“Recognition
that the non-parental party is an excellent parent to the child will rarely be strong 10
enough to interfere with the natural rights of the parent.”); id. at 213 (“[W]e have
acted in some cases to remove children from conscientious, well-intentioned
custodians with a history of providing good care to the children and placed them
with a natural parent.”). The initial question presented is whether the petitioners
proved by clear and convincing evidence Edward is unfit. The district court erred
in granting the guardianship over Edward’s objection merely because the
petitioners have provided care for the children in the past.
Second, the petitioners did not meet their burden of coming forth with
evidence, let alone clear and convincing evidence, demonstrating Edward’s care
of the children poses a substantial and material risk of harm to the children. See
S.K.M., 2017 WL 5185427, at *5–6 (setting forth relevant standard). To the
contrary, the evidence shows Edward is qualified and suitable to serve as his
children’s guardian. For the last several years, Edward has resided with his
fiancée, her seven-year-old child from a prior relationship, and their two-year-old
child. Prior to Kimberly’s death, Edward exercised unsupervised visitation with
D.B., L.B., and A.B. every other weekend and extended visitation in the summer.
He continued to exercise the same visitation schedule following Kimberly’s death.
Edward’s neighbor testified at trial. She testified she sees Edward with the children
on the weekends. She testified he interacts well with them and sees them doing
activities. She testified the children are happy. Edward’s future mother-in-law
testified at trial. She testified Edward loves the children and treats them
appropriately and with respect. Edward’s fiancée, Melissa, also testified at trial.
She testified Edward is great with the children. She testified they do numerous 11
activities together. Her testimony was corroborated by numerous family pictures.
She concluded:
Q. Do you believe that Ed is a suitable parent for your children? A. Yes, I do. If I didn’t, he wouldn’t be around my children. I’m very protective but he’s given me no reason to think that he would ever harm my kids or any kids. I mean, he’s great with kids, the neighbor kids down the street. I mean, he’s a good man. He’s a good man. He’s done a lot to change himself and that deserves recognition because he’s tried hard and he’s done it.
Edward’s pastor noted Edward has been a positive influence on his children,
stating “Ed shows love and support for his children and family and finds it important
that they attend church together as a family.”
The district court relied on Edward’s criminal history in support of the
conclusion Edward should not serve as the guardian for the children. Edward’s
status as a prior offender is merely a classification of limited relevance here. See
In re J.S., No. 13-1606, 2013 WL 6700304, at *3 (Iowa Ct. App. Dec. 18, 2013)
(“The argument erroneously focuses solely on the classification of the parent(s)
and not at all on the specific facts related to the mother and children in this case.
Such a classification argument is better left to legislative action. The court's role is
to decide based on the evidence presented in this case, not on the basis of
classification.”). The classification has limited relevance because there is no
evidence Edward’s past criminal conduct poses a current, substantial, and material
risk of harm to the children. See In re Guardianship of M.D., 797 N.W.2d 121, 128
(Iowa Ct. App. 2011) (explaining the evidence must show “clear examples” of how
the parent’s history “is currently manifesting itself as a danger” to the children).
Instead, the evidence shows Edward has taken responsibility for his criminal
conduct and has worked to make positive changes in his life: 12
Q. And what did you learn while you were in prison? A. Well, I found God. I found my faith, you know. I’m a strong believer in God. I try to get my children to church on Sunday when possible, you know. I did my treatment and I got my high school GED when I was in prison because I didn’t have it because I was kind of messed up on drugs for at least six years before that, you know. I have been clean for about six years but six years before that I wasn’t a very good person and I admit that. Q. And you take responsibility for it? A. I take responsibility for it. Q. Do you currently use any drugs? A. No. Q. Do you currently drink any alcohol? A. No. Q. Is that a commitment you made to better your life? A. Yes, for me and my kids.
Edward’s parole officer confirmed Edward complied with parole, regularly tested
negative for controlled substances, maintained regular employment, and kept a
stable residence. Edward testified he had successfully discharged his parole by
the time of the guardianship hearing. It is more appropriate to commend Edward
for making long-lasting and positive changes in his life following rehabilitation in
prison rather than continue to condemn him for his past mistakes. See id. at 130
(“Robert’s proof of Melissa’s past indiscretions and bouts with substance abuse,
anxiety, and depression did not overcome the strong presumption for parental
custody. In trying to establish himself as M.D.’s guardian, Robert did not offer clear
and convincing evidence that Melissa’s continued parenting was likely to have a
seriously disrupting and disturbing effect upon M.D.’s development.”).
The district court also noted Edward has not provided financial support for
his children. The record does not support the factual finding. The children resided
with Edward and Kimberly prior to the dissolution of their marriage in 2012, and
Edward provided financial support for the family during the marriage. Edward
testified he purchased items for the children and provided other financial support 13
for the children after the divorce. Edward testified he was paying back child
support prior to the time of Kimberly’s death. The evidence shows Edward built an
addition to his home to make sure he had enough space for the children at issue.
The district court treated this case as if Edward long ago abandoned the children
and was not involved in their lives when the record is actually to the contrary. More
important, these facts are immaterial. The record is not disputed that Edward has
maintained regular employment since his release from prison. His fiancée has
regular employment. They have appropriate and suitable housing. There is no
evidence they would not be able to meet the financial needs of the children. In
short, there is no evidence Edward’s financial situation creates a present risk of
substantial and material harm to the children at issue. See Northland, 581 N.W.2d
at 213 (“The presumption favoring parental custody is not overcome by evidence
of a parent’s past immaturity and lack of financial responsibility when these
indiscretions are not present risks.”); In re Mann, 293 N.W.2d 185, 189–90 (Iowa
1980). As this court explained in a similar case:
Sherry further argues Randy failed to provide financial support for Jessica while she was in her care. While Sherry is correct, we do not find this argument dispositive. The presumption favoring parental custody is not overcome by evidence of a parent’s past immaturity and lack of financial responsibility when these indiscretions are not present risks. Randy has been employed as a mechanic for the past five years earning sixteen dollars an hour. He lives in a two bedroom modular home and has demonstrated he can provide Jessica with a stable life.
In re Guardianship of Brown, No. 01-2072, 2002 WL 31017807, at *2 (Iowa Ct.
App. Sept. 11, 2002). The same reasoning applies in this case.
The lack of any risk of harm to the children was confirmed by one of the
children. The oldest child at issue, D.B. testified at trial. He testified Edward has 14
exercised consistent visitation with the children every other weekend for the last
several years. He testified he likes visiting with his father. He testified his siblings
are close and bonded with their father. He testified he would like to live with
Edward. He had no safety concerns about living with his father.
When reviewing guardianships imposed over a parent’s objection, to avoid
potential constitutional infirmities, we must critically review the evidence to ensure
the statutory grounds authorizing a guardianship have been proved. See Blair,
2003 WL 182981, at *3. While I believe the district court committed legal error in
granting the petition on the evidence presented, nothing in this dissenting opinion
should be read to impugn the motives of Kernes or Kirk in seeking to become the
guardians of the children or their ability to provide care for the children. I am sure
that they are motivated to do what they believe is best for the children and am sure
they could provide good care of the children. However, good intentions and ability
are not enough to wrest guardianship from a parent over the parent’s objections.
I respectfully dissent.