Matter of Guardianship of Nemer

419 N.W.2d 582, 1988 Iowa Sup. LEXIS 36, 1988 WL 11201
CourtSupreme Court of Iowa
DecidedFebruary 17, 1988
Docket86-1134
StatusPublished
Cited by11 cases

This text of 419 N.W.2d 582 (Matter of Guardianship of Nemer) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Guardianship of Nemer, 419 N.W.2d 582, 1988 Iowa Sup. LEXIS 36, 1988 WL 11201 (iowa 1988).

Opinions

NEUMAN, Justice.

This is an appeal from the district court’s dismissal of an action brought to enforce grandparent visitation rights in a guardianship proceeding. Two narrow questions must be answered: First, are grandparent visitation rights awarded by a district court exercising its probate jurisdiction in a guardianship proceeding automatically terminated by a subsequent intrafamily adoption? Second, does the required visitation continue to be in the grandchild’s best interest? Because the first question has previously been answered by this court in In re Guardianship and Conservatorship of Ankeney, 360 N.W.2d 733 (Iowa 1985) and Patterson v. Keleher, 365 N.W.2d 22 (Iowa 1985), and because our de novo review of the record discloses no circumstances which would detract from the district court's earlier finding that grandparent visitation is in the best interest of the minor child, we reverse the judgment of the district court.

Appellants Boulos and Mountaha Nemer are the paternal grandparents of Nathan Sweeney, whose parents tragically died in a murder-suicide in April 1982. Nathan was then two years old. His maternal aunt, appellee Becky Sweeney, was appointed temporary guardian and conservator. The appointment was contested by the Nemers who sought Nathan’s custody. The district court, after considering evidence from family members and child development specialists, determined that the Sweeney home presented a loving, stable environment for Nathan’s upbringing. The court also found, however, that Nathan had spent considerable time in the home of Boulos and Mountaha Nemer prior to his parents’ death and had “developed bonds of affection to all members of the paternal family.” The court therefore concluded that Nathan’s best interest would be served by continuing his custody with Becky Sweeney and allowing the Nemers visitation rights of one Saturday each month in the first year, and more frequently thereafter.

This visitation proceeded as contemplated for only a short time. In November 1982, Becky Sweeney and her husband Brad adopted Nathan. The adoption decree made no provision for the paternal grandparents’ visitation. Thereafter the Swee-neys resisted all efforts by the Nemers to contact or communicate with Nathan. Attorneys for both the Sweeneys and the Nemers advised their clients that the adoption terminated any legal rights Boulos or Mountaha Nemer once had to a continuing relationship with their grandson. See Iowa Code § 600.13(4) (1985) (“A final adoption decree terminates any parental rights ... existing at the time of its issuance and establishes the parent-child relationship between the adoption petitioner and the person petitioned to be adopted.”); In re Adoption of Gardiner, 287 N.W.2d 555, 558 (Iowa 1980) (“The grandparents’ status as grandparents, and hence their right to visitation under § 598.35, arises by virtue of the child’s relationship to the natural [584]*584parents. When adoption terminates the natural parents’ rights in the child and thereby removes the basis for the grandparents’ rights, the grandparents’ rights also end.”)

In 1985, the Nemers learned of two decisions announced by this court which signaled a departure from the strict “derivative rights” analysis exemplified by Gard-iner. In re Guardianship and Conservatorship of Ankeney, 360 N.W.2d 733, 734 (Iowa 1985), and Patterson v. Keleher, 365 N.W.2d 22, 23-24 (Iowa 1985), both raised the issue whether a grandparent’s court-decreed right to visit a grandchild survives that child’s adoption by a stepparent. In each case we held that a decree of adoption does not automatically nullify or invalidate the jurisdiction of a probate or other court sitting in equity whose authority is dictated by the best interests of the ward. Anke-ney, 360 N.W.2d at 737; Patterson, 365 N.W.2d at 25.

With this precedent before them, the Nemers filed an application with the district court to cite Becky Sweeney for contempt for her failure to allow the ordered visitation or, in the alternative, to enforce the visitation rights which were previously found to be in Nathan’s best interest. After hearing, the district court dismissed the contempt action, a decision not challenged on this appeal. The court did, however, decline to enforce the Nemers’ visitation rights, concluding that “an intrafamily adoption, which gives the minor child two new, though previously related parents, ... terminates a prior guardianship order authorizing visitation for the grandparents and other relatives.” The court also concluded that “mandated visitation with the Nemers, after a lapse of three years, would unduly interfere and disrupt the relationship between Nathan and his adoptive parents.” It is from these rulings that appellants appeal.

I. The district court’s conclusion that the 1982 visitation order was invalid and unenforceable contradicts the law as interpreted by this court in both Ankeney, 360 N.W.2d at 737, and Patterson, 365 N.W.2d at 25. In the case before us, neither the probate proceedings nor the responsibility of the guardian have been terminated in accordance with Iowa Code section 633.675. Given this procedural posture, an intervening, valid decree of adoption does not automatically terminate the guardianship or the authority of the probate court to ensure that the child’s best interests are served. Ankeney, 360 N.W.2d at 737-38. The district court’s ruling to the contrary was in error.

II. Despite its conclusion that the prior visitation order was unenforceable, the district court nevertheless proceeded to consider whether Nathan’s best interest would be served by a resumption of contact with his paternal grandparents. Because of the equitable nature of such an inquiry, we review de novo the evidence presented on the question. Ankeney, 360 N.W.2d at 738. As in all cases involving the welfare of children, we are guided by the rule that our first and governing consideration must be the best interest of the child affected by our decision. Iowa R.App.P. 14(f)(15).

We note at the outset that this further inquiry by the court was apparently prompted by legislation enacted after the Nemers filed their petition, but prior to the hearing. The legislation amended the termination of parental rights statute, § 600A.10, by affording grandparents a right of visitation independent of their child’s parental rights upon a showing that such visitation was in the child’s best interest and would not “unduly disrupt the child’s relationship with the person who has custody, including an adoptive parent." 1986 Iowa Acts ch. 1123, § 1 (emphasis added). Reference to the statute explains the court’s expressed concern that resumption of visitation would “unduly interfere and disrupt the relationship between Nathan and his adoptive parents.” This legislation from which the court drew its “undue disruption” standard was repealed shortly thereafter and in its place the legislature expanded Iowa Code section 598.35, specifically authorizing the award of grandparent visitation rights in the event of stepparent adoption without

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Matter of Guardianship of Nemer
419 N.W.2d 582 (Supreme Court of Iowa, 1988)

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Bluebook (online)
419 N.W.2d 582, 1988 Iowa Sup. LEXIS 36, 1988 WL 11201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-guardianship-of-nemer-iowa-1988.