In the Matter of the Guardianship of S.K.M., Jared McTaggart, Interested Party-Father of Minor child/appellant, Eric J. Metz and Christina M. Metz, Guardians of Minor child/appellees. ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1537
Filed November 8, 2017
IN THE MATTER OF THE GUARDIANSHIP OF S.K.M.,
JARED MCTAGGART,
Interested Party-Father of Minor Child/Appellant,
ERIC J. METZ and CHRISTINA M. METZ,
Guardians of Minor Child/Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica L.
Ackley, Judge.
A father appeals from a decision denying his petition to terminate a
guardianship over his daughter. REVERSED AND REMANDED.
McKenzie R. Hill of O’Connor & Thomas, P.C., Dubuque, for appellant.
Jamie A. Splinter of Splinter Law Office, Dubuque, for appellees.
Heard by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.
A father, Jared, appeals from an adverse decision on his petition to
terminate the guardianship of his minor child, S.K.M.
I.
Stephanie and Jared are the parents of S.K.M. (born 2007). The parents
separated a few months after the child was born. After the parties separated,
Stephanie and S.K.M. lived with relatives in Cedar Rapids and Grinnell. Jared
went to college in Dubuque and began working part-time for FedEx, an
international package delivery company.
In early 2009, Stephanie informed Jared she was unable to care for
S.K.M., and she asked Jared if he would take physical care of S.K.M. At the
time, Jared was still in college and living with roommates. Jared asked for time
to get his own apartment. Without waiting, Stephanie gave physical care of
S.K.M. to her father, Eric Metz, and his then-girlfriend, now-wife, Christie, in
Grinnell. Stephanie informed Jared she was going to file a petition to appoint
Eric and Christie S.K.M.’s temporary guardians. Jared was served notice of the
guardianship proceeding and had actual knowledge of the guardianship
proceeding, but he chose not to participate in the proceeding. The juvenile court
established a guardianship for S.K.M. and appointed Eric and Christie S.K.M.’s
guardians. After the guardianship was established, Stephanie moved to
Colorado. Although she has returned to Iowa, she has had little contact with the
child.
In the summer of 2009, Jared left college and sought full-time
employment. He was offered a full-time position with FedEx in Chicago, which
3
he accepted. He moved to Chicago in January 2010. During this time, Jared’s
mother Brenda exercised visitation with S.K.M. and A.L.M., Jared’s other child by
another mother, every other weekend. Jared would occasionally make the trip
from Chicago to Cedar Rapids to stay with his mother and visit his children.
Brenda brought the children to Chicago to see Jared on a few occasions as well.
Jared had approximately thirteen or fourteen in-person visits with the children
during his time living in Chicago. He had frequent, perhaps even daily, phone
contact with S.K.M.
In early 2012, the Metzes moved to Dubuque. In June 2012, Jared
accepted a lateral position with FedEx in Madison, Wisconsin. Jared exercised
visitation with S.K.M. more frequently after moving to Madison, which is closer to
Dubuque. There was evidence he exercised visits more than every other
weekend during the summer of 2012, including some extended visits.
In August 2013, Jared accepted a promotion with FedEx in Neenah,
Wisconsin. Shortly thereafter, the Metzes filed a petition to terminate the
parental rights (TPR) of both biological parents. The juvenile court denied the
TPR petition. The Metzes appealed, and this court affirmed the juvenile court’s
decision. See In re S.M., No. 14-0287, 2015 WL 4644820, at *6 (Iowa Ct. App.
Aug. 5, 2015). We noted:
It is also in the best interests of S.M. that the father’s rights
not be terminated. The record established S.M. and the father
shared a bond. While he has clearly relinquished the day-to-day
care of S.M. to the guardians, and been satisfied with her
placement, he has not removed himself from S.M.’s life so as to
break that bond.
We do note that the [guardian ad litem (GAL)’s] observation
the father did not do nearly as much as he could to meaningfully
parent S.M. has merit. A great deal of the father’s visitation was
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taken up with the father’s mother caring for S.M. It is also apparent
from the record the father visited S.M. when it was convenient for
him and his employment, irrespective of S.M.’s need to have her
father present. Additionally, the father—given his increased income
over the years—could have contributed more to S.M.’s physical
care and maintenance.[1] According to the guardian-grandfather,
instead of voluntarily contributing to S.M.’s support, the father
asked whether the guardians were “going to turn him into child
support because he’s making more money.”
However, these shortcomings do not satisfy the
requirements of abandonment within the meaning of Iowa Code
section 600A.8(3)(b). As noted above, the record establishes the
father satisfied his child support obligation and has maintained
contact with S.M. Consequently, we agree with the juvenile court’s
conclusion the guardians failed to prove by clear and convincing
evidence the father’s parental rights to S.M. be terminated pursuant
to Iowa Code section 600A.8(3)(b).
Id.
In April 2014, Jared filed a petition to terminate the guardianship. Jared
testified he had not sought to terminate the guardianship earlier because he
wanted to wait until such time as he believed he had achieved sufficient financial
stability to be able to provide for all the needs of S.K.M. In November 2014,
Jared moved to Crystal Lake, Illinois, after accepting a lateral position with
FedEx. Jared continued to visit his daughters. During this time, he often stayed
with a friend, Brandon Moorman, in Cedar Rapids. Jared rented rooms in
Brandon’s house to allow his daughters a place to stay when Jared was in town
for visits. The evidence regarding the frequency of Jared’s visits with his
daughters after he moved to Crystal Lake was in some dispute. He testified he
had visitation every other weekend, but the Metzes testified it was a year before
1
At the time of the TPR trial, the father’s child support obligation for S.K.M. was $60 per
week. See S.M., 2015 WL 4644820, at *5. During the TPR proceedings, the Metzes
and A.L.M.’s biological mother separately filed to increase his obligations. Jared now
pays $635 per month in support for S.K.M. and $560 per month in support for A.L.M.
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he exercised visitation rather than allowing his mother to exercise the visits for
him. The Metzes did agree his visits had been “pretty consistent” in 2016. There
was also some evidence the Metzes prohibited visits for a period of time
beginning in October 2015 because they alleged Jared was harassing them.
This prohibition seems to have lasted for “the fall” and no more.
Trial on Jared’s petition to terminate the guardianship took place over
three days in June 2016 and a fourth day in July 2016. Between the June and
July dates, Jared was offered a promotion with FedEx in a position in Mount
Pleasant, Iowa. His girlfriend, Carrie, was also optimistic she would be getting a
job offer for a lateral move with FedEx, where she also worked, near Mount
Pleasant. They had put an offer on a house by the time of the July hearing date.
In Mount Pleasant, Jared would be approximately an hour from his mother in
Cedar Rapids and two hours from S.K.M. in Dubuque.
The district court denied Jared’s petition to terminate the guardianship.
The district court noted the statutory presumption in favor of placing children with
their biological parents, but found the parental preference was “lessened”
because Jared “ignored the summons to appear at court [at the time of the
guardianship petition] and allowed the matter to proceed by default.” The court
found the Metzes met their burden to overcome the lessened parental preference
or, alternatively, Jared had not shown a substantial change in circumstances to
warrant a custody modification. Jared now appeals.
II.
The case law regarding the applicable standard of review in guardianship
proceedings is somewhat muddy. We agree with the conclusion of In re
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Guardianship and Conservatorship of D.D.H., 538 N.W.2d 881, 882–83 (Iowa Ct.
App. 1995), that the appropriate standard of review for cases involving the
establishment of a guardianship is for errors at law, not de novo. The Iowa Code
clearly states that actions for the involuntary appointment of guardians and
conservators shall be triable in probate as law actions. See Iowa Code
§§ 633.33, .555 (2013). Our review of actions tried at law is for the correction of
errors at law. See Iowa R. App. P. 6.907.
III.
Prior to resolving the merits of the appeal, we first address a preliminary
issue. The Metzes contend Jared does not have standing to bring this action
because only the ward may bring an action to terminate the guardianship. See
Iowa Code § 633.679(1) (providing “the person under guardianship or
conservatorship may apply to the court by petition . . . asking that the
guardianship or conservatorship be terminated”); see also In re Guardianship &
Conservatorship of Schmidt, 401 N.W.2d 37, 38 (Iowa 1987) (dismissing an adult
stepson’s petition to terminate a guardianship over his mother).
This court recently rejected the same standing claim. See Maruna v.
Harper, No. 15-1899, 2016 WL 5930881, at *1–3 (Iowa Ct. App. Oct. 12, 2016).
We quote from our prior opinion at length:
[T]he statutory framework does not support such a restrictive
reading of section 633.679. Several provisions within chapter 633
envision the termination of guardianships over minors without a
prior filing of a petition by the minor. For example, section
633.551(2) states that either the ward or the guardian may petition
to terminate the guardianship. See Iowa Code § 633.551(2).
Section 633.551(3) gives the district court, rather than the ward,
authority to determine the scope of the guardianship in deciding
whether a guardianship should be terminated. See id.
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§ 633.551(3). Section 633.675(1)(a) says a guardianship shall
cease “[i]f the ward is a minor, when the ward reaches full age.” Id.
§ 633.675(1)(a). Section 633.675(1)(d) states a guardianship shall
cease “[u]pon determination by the court that the conservatorship
or guardianship is no longer necessary for any other reason.” Id.
§ 633.675(1)(d). Section 633.675(2) states a guardianship created
under the child-in-need-of-assistance statute shall not be
terminated before the child turns eighteen “unless the court finds by
clear and convincing evidence that the best interests of the child
warrant a return of custody to the child’s parent.” Id. § 633.675(2).
Section 633.679(2) omits reference to the ward as filer in
connection with guardianships created under the child-in-need-of-
assistance statute. See id. § 633.679(2). In sum, the statutory
scheme on guardianships over minors contemplates termination of
guardianships at the behest of people other than the ward, by the
district court on its own motion, or automatically when the child
turns eighteen. Accordingly, section 633.679 cannot be read as
precluding parents from filing requests for termination of
guardianships over their minor children.
Case law supports this interpretation. Both before and after
Schmidt, our appellate courts considered petitions to terminate
guardianships filed by parents of minor children. See [Stewart, 369
N.W.2d at 822–23] (considering father’s application to terminate
guardianship with grandparents); Patten v. Patrick, 276 N.W.2d
390, 393 (Iowa 1979) (considering father’s petition to terminate a
guardianship over his child pursuant to section 633.675(1)(d)); In re
Guardianship of Sams, 256 N.W.2d 570, 571 (Iowa 1977)
(considering mother’s application for termination of guardianship);
In re H.M.S., No. 15-0898, 2016 WL 1130963, at *4–5 (Iowa Ct.
App. Mar. 23, 2016) (considering father’s petition to terminate
guardianship with maternal aunt and uncle); Stanley v. Aiken, No.
09-0723, 2010 WL 2602172, at *4–6 (Iowa Ct. App. June 30, 2010)
(considering request by mother to terminate guardianship); In re
Guardianship of Roach, 778 N.W.2d 212, 214–16 (Iowa Ct. App.
2009) (considering mother’s petition to terminate a guardianship of
her child with paternal grandparents); In re Guardianship of Briggs,
No. 06-2083, 2007 WL 1827517, at *3–5 (Iowa Ct. App. June 27,
2007) (considering father’s petition to terminate the maternal
grandmother’s guardianship of his son); In re Guardianship of Hall,
No. 02-0845, 2003 WL 1969282, at *2–5 (Iowa Ct. App. Apr. 30,
2003) (considering petition to terminate guardianship filed by
parents of child).
This case law makes sense. Qualified and suitable parents
are afforded a statutory preference for appointment as guardian.
See Iowa Code § 633.559. The preference would be meaningless
if it did not come with the ability to seek termination of an existing
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guardianship. We conclude Maruna, as the father of the minor
ward, had standing to seek termination of the guardianship.
Id. at *2–3. We see no reason to deviate from our prior opinion. Jared has
standing to seek the termination of the guardianship of his biological daughter.
IV.
This case involves the termination of an existing non-parental
guardianship. The inquiry is highly fact-intensive. There are numerous cases
continuing a non-parental guardianship at the behest of a guardian against the
wishes of a parent, and there are numerous cases terminating a non-parental
guardianship at the behest of a parent and against the wishes of a guardian. The
parties have cited these authorities in their respective briefs and discussed, at
length and with great skill, their application to the case at hand. However, each
case, viewed in isolation, is merely a pointillist dab on a large canvas. To draw
meaning, we must retreat a distance and focus not on the dabs but instead on
the emergent image. We retreat to first principles.
The interest of parents in the care, custody, and control of
their children is a fundamental liberty interest with which the State
cannot interfere without establishing a compelling governmental
interest for doing so. The right was initially recognized in the
seminal case of Meyer v. Nebraska, 262 U.S. 390, 399 (1923), in
which the Court upheld the right of parents to “establish a home
and bring up children.” The right repeatedly has been reaffirmed by
the Supreme Court. In Prince v. Massachusetts, 321 U.S. 158, 166
(1944), the Court concluded that “custody, care, and nurture of the
child reside first in the parents.” In Wisconsin v. Yoder, 406 U.S.
205, 232 (1972), the court reiterated the primacy of parental rights,
stating the “primary role of the parents in the upbringing of their
children is now established beyond debate as an enduring
American tradition.” The issue was again revisited in Troxel v.
Granville, 530 U.S. 57 (2000), where the court addressed the
constitutionality of Washington’s grandparent visitation statute. The
Court discussed the long history of cases protecting parents’ rights,
concluding “it cannot now be doubted that the Due Process Clause
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of the Fourteenth Amendment protects the fundamental right of
parents to make decisions concerning the care, custody, and
control of their children.” Troxel, 530 U.S. at 66. The Troxel Court
held Washington’s statute was overbroad because it allowed
grandparents to visit a child over parental objection without any
showing the parent was unfit. See id. at 68–69 (stating so long as
a parent is “fit,” there will normally be no reason for state
interference).
After Troxel, the Iowa Supreme Court addressed the issue of
grandparent visitation rights. In Santi v. Santi, 633 N.W.2d 312,
321 (Iowa 2001), the court held part of Iowa’s grandparent visitation
statute facially unconstitutional under article I, sections 8 and 9 of
the Iowa Constitution. The court reasoned that parents’ rights to
the care, custody, and control of their children is a fundamental
interest subject to interference only for a compelling interest. Santi,
633 N.W.2d at 318. The court explained the grandparent visitation
statute was fundamentally flawed “because it does not require a
threshold finding of parental unfitness before proceeding to the best
interest analysis.” Id. at 321. The court revisited a different
provision of the law in In re Marriage of Howard, 661 N.W.2d 183
(Iowa 2003). There, the court affirmed its conclusion that
interference with the fundamental right of parents to the care,
custody, and control of their children requires the State to
establishing a compelling interest. Howard, 661 N.W.2d at 188. It
noted the “essential presumption of fitness accorded a parent.” Id.
at 190. In holding the law unconstitutional, the court explained “the
best interests of a child requirement . . . is insufficient” to establish
a compelling state interest. Id. at 191. The court concluded the
statute was unconstitutional on its face because it “not only fails to
recognize the degree of harm or potential harm to the child needed
to support state intervention, but it ‘fails to require a threshold
finding of parental unfitness.’” Id. at 192 (quoting Santi, 633
N.W.2d at 321).
In re Guardianship of C.R., No. 14-1039, 2015 WL 576385, at *4–5 (Iowa Ct.
App. Feb. 11, 2015) (McDonald, J., concurring in part and dissenting in part).
Iowa’s guardianship statute and caselaw recognize and protect a parent’s
fundamental interest in the care and custody of a child. Iowa Code section
633.559 creates a parental preference with respect to the appointment of a
guardian, providing that a natural parent, “if qualified and suitable, shall be
preferred over all others for appointment as guardian.” Iowa Code § 633.559
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(emphasis added). And “[b]ecause of the fundamental constitutional rights
implicated, a nonparent bears 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.” In re Guardianship of Blair, No. 01-1565,
2003 WL 182981, at *5 (Iowa Ct. App. Jan. 29, 2003) (citing In re Guardianship
of Hedin, 528 N.W.2d 567, 581 (Iowa 1995)).
When viewed from the distance of first principles, our cases demonstrate
there are several ways in which a nonparent-guardian can overcome the parental
preference in resisting the termination of a guardianship. First, a parent is not
entitled to the presumption if there was a prior custody determination involving a
full evidentiary hearing and the presumption was overcome. See Stewart, 369
N.W.2d at 824 (stating if “the relative custodial rights of the proposed guardian
and the parent were put in issue and tried in [a] guardianship proceeding” then
there is no longer a parental preference). This is merely judicial recognition that
the constitutionally-mandated preference of parent custody has already been
overcome in a prior proceeding and need not be proved again. Once the
preference is eliminated, the burden of proof shifts to the natural parent to prove
a substantial change in circumstances warranting a change in custody. See
Roach, 778 N.W.2d at 215. In addition, the parent must establish a change in
custody is in the best interest of the child. See id. (explaining the purpose of the
guardianship proceeding is to provide for the best interest of the child). A
guardianship by consent or default, as was the case here, does not qualify as
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prior custodial determination following a full evidentiary hearing. See H.M.S.,
2016 WL 1130963, at *4; Stanley, 2010 WL 2602172, at *4 n.2.
Second, we have held “a parent who has taken an extended holiday from
the responsibilities of parenthood’ may not take advantage of the parental
preference for custody.” Roach, 778 N.W.2d at 215 (citation omitted). Our cases
have not clearly delineated what constitutes an extended holiday. When viewed
from sufficient distance, the contour becomes more clear. Although not
articulated as such, this line of cases merely recognizes a parent may expressly
or impliedly waive the parental preference by waiving the underlying
constitutional right to the care, custody, and control of a child. See, e.g.,
Callender v. Skiles, 591 N.W.2d 182, 192 (Iowa 1999) (“Despite the presence of
an existing family, the rights of a putative father cannot be denied without an
opportunity for a hearing. That right, however, like other constitutional rights, can
be waived.”). At minimum, as with the waiver of any constitutional right, the
resisting party must show “an intentional relinquishment or abandonment of a
known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). For
example, a nonparent could show the parent has explicitly renounced parental
responsibility. By way of another example, a nonparent could show the parent
has abandoned the child for a sufficiently long period of time to establish an
abandonment of the right to care and custody of the child.
Jared has not expressly or impliedly waived his constitutional or statutory
right to the care, custody, and control of his child. Jared has paid support for the
child during the entirety of the child’s life. He has exercised continuous and
regular visitation with the child in-person or telephonically since the time of the
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child’s birth. The evidence introduced at trial showed Jared and the child have a
bond. We also note that while the child has been in the custody of Eric and
Christie for a lengthy period of time, the parties have been litigating the custody
question since the spring of 2013. We cannot hold against Jared this extended
passage of time due to litigation delay. Finally, our court has already affirmed a
prior decision denying the grandparents’ petition to terminate Jared’s parental
rights on the ground he abandoned the child. S.M., 2015 WL 4644820, at *6.
While proof of waiver of a parent’s rights, within this context, would not
necessarily be jot-for-jot with the proof necessary to terminate a parent’s rights
pursuant to statute, the inquiries are similar. In short, Jared has not expressly or
impliedly waived his right to the parental preference.
Our cases also present a third image. A nonparent-guardian can establish
a parent is not “qualified and suitable” within the meaning of the statute. Under
this line of cases, Eric and Christie were required to prove by clear and
convincing evidence that Jared is not “qualified and suitable” to serve as the
guardian of S.K.M. and that continuation of the nonparent-guardianship is in the
best interest of S.K.M. See Santi, 633 N.W.2d at 321; see also Iowa Code
§ 633.559.
The code does not define “qualified and suitable.” Our cases have
not clearly defined “qualified and suitable.” In light of Troxel, Santi,
and Howard, in a guardianship proceeding involving nonparents
seeking to [continue] care, custody, and control over a child
contrary to the legal parent or parents’ wishes, “qualified and
suitable” should be interpreted to require proof the parent(s) is
“unfit.” At minimum, this 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
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reasonable parental care poses a substantial and material risk of
harm to the child.
C.R., 2015 WL 576385, at *5. Proof of unfitness is constitutionally necessary to
justify continued interference in the relationship between a natural parent and his
child. See Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (stating it would violate
due process to interfere with the natural family unit without some showing of
unfitness and for the sole reason that to do so was thought to be in the children’s
best interest); Howard, 661 N.W.2d at 188. But see In re Guardianship of M.E.,
No. 16-1178, 2017 WL 2465791, at *7 (Iowa Ct. App. June 7, 2017) (recognizing
“second basis” for termination of guardianship when, “notwithstanding the parent
being qualified and suitable, the nonparent has rebutted the parental preference
and the welfare and best interest of the child requires custody to remain in the
nonparent”).
When we apply the relevant legal standard to the facts of this case, the
grandparents have not established by clear and convincing evidence that Jared
is not qualified and suitable. Indeed, the evidence is to the contrary. Jared has
been continuously employed with the same employer since the child’s birth and
has been promoted to increasing levels of responsibility within the employer-
organization. He now has the financial means to provide for the physical needs
of the child. Over the course of time, he has demonstrated the ability to meet the
social and emotional needs of the child. He has had regular and continuous in-
person and telephonic contact with S.K.M. since her birth and has a bond with
the child. He has relocated to a community closer to where S.K.M. resides to
14
allow her to maintain continued relationships with her extended family, including
Eric and Christie.
Lacking from this record is any fact that would give pause to Jared
exercising care and custody over the child. There is no indication he suffers from
mental illness. Cf. Hall, 2003 WL 1969282, at *5 (restoring care to biological
parent who dealt with mental illness). He has never struggled with substance
abuse. Cf. In re Guardianship of Padgett, No. 09-1672, 2010 WL 3894452, at
*1–3 (Iowa Ct. App. Oct. 6, 2010) (restoring care to biological parent who
overcame substance-abuse issues); Briggs, 2007 WL 1827517, at *5 (same).
Domestic violence has not been an issue in his home. Cf. Stanley, 2010 WL
2602172, at *5 (restoring care to biological parent who addressed domestic
violence in home). He does not have a serious criminal history. Cf. Patten, 276
N.W.2d at 398 (affirming denial of father’s petition to terminate guardianship
where father testified “he would not commit another felony unless ‘it was
something really big.’”). There has never been any concern of child abuse or
neglect. Cf. Blair, 2003 WL 182981, at *5 (affirming denial of parent’s petition to
terminate guardianship where parent had repeatedly neglected child and no
evidence of improvement existed). In short, none of the typical factors in
establishing parental unfitness are present in this case.
To the extent we can draw any guidance from an individual dab, this case
most strongly resembles Stewart. There, the father and the guardians, the
maternal grandparents, established a guardianship while the father progressed in
his career and obtained a level of financial stability to provide for the child. See
Stewart, 369 N.W.2d at 823. Approximately four years after the guardianship
15
was established, during which time the father regularly visited the child, the father
petitioned to terminate the guardianship. Id. at 822. Hearing on the father’s
petition was held more than three years after he filed his petition due to his
service abroad in the air force. See id. The district court afforded the father the
parental presumption and terminated the guardianship. See id. The supreme
court affirmed: “William certainly never abandoned his daughter. He kept in
close touch with the [guardians], provided regular financial support, and
frequently visited [the child]. He requested termination of the guardianship when
he believed he was ready to take care of her just three years after the
guardianship had been set up.” Id. at 823. Here, too, Jared kept in touch with
the guardians, provided regular financial support, and visited the child. He
requested termination of the guardianship once he believed he was financially
able to provide for S.K.M. and had obtained a position in the area where she had
been raised.
This case is also similar to a recent decision of this court. In In re
Guardianship of J.M.M., No. 13-0945, 2014 WL 667669, at *3 (Iowa Ct. App.
Feb. 19, 2014), this court affirmed the termination of a nonparent-guardianship in
favor of the parent. The evidence showed the mother had been absent from the
children’s lives for almost ten years. During that time period, she worked to
overcome her substance-abuse addictions and criminal behavior. She also
worked to obtain financial stability to be able to provide for her children. We
concluded the guardians failed to prove that at the time of trial the mother was
not “qualified and suitable to parent her children.” This case presents a stronger
case in favor of the parent. Here, Jared has provided financial support for the
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child since her birth. He has been active in her life and built a bond with her.
And he sought to terminate the guardianship when the child was much younger.
As in Stewart and J.M.M., the guardians in this case have not established
the guardianship over S.K.M. should continue over Jared’s objection. Jared did
not lose the benefit of the parental presumption because of a prior guardianship
proceeding. See Stewart, 369 N.W.2d at 824; H.M.S., 2016 WL 1130963, at *4;
Stanley, 2010 WL 2602172, at *4 n.2. The grandparents did not establish Jared
expressly or impliedly waived the constitutional right to the care, custody, and
control of S.K.M. or the statutory right to the parental presumption. Finally, the
grandparents failed to prove by clear and convincing evidence that Jared is not
“qualified and suitable” within the meaning of our guardianship statute. There
has thus been no showing sufficient to overcome the parental presumption. In
concluding otherwise, the district court applied the incorrect legal standards and
otherwise erred as a matter of law. We therefore reverse the judgment of the
district court.
We close by noting nothing in this opinion should be interpreted to be a
criticism of Eric and Christie, who have lovingly and admirably served as S.K.M.’s
guardians for these years. Their desire to continue to serve as guardians of
S.K.M. contrary to Jared’s wishes was motivated by their love for their
granddaughter and their good-faith belief it would be in her best interest to
maintain the present arrangement. However, “[o]ur cases have emphasized that
parents should be encouraged in time of need to look for help in caring for their
children without risking loss of custody. The presumption preferring parental
custody is not overcome by a mere showing that such assistance was obtained.
17
Nor is it overcome by showing that those who provided the assistance love the
children and would provide them with a good home.” Sams, 256 N.W.2d at 573.
We are confident Jared recognizes and appreciates the sacrifice Eric and
Christie have made in serving as caretakers for S.K.M.. We are also confident
he recognizes and appreciates that allowing S.K.M. to have continuous and
regular contact with her grandparents is in his best interest and S.K.M.’s best
interest.
V.
For the above reasons, we reverse the judgment of the district court and
remand this matter for the entry of an order terminating the guardianship over
S.K.M.
REVERSED AND REMANDED.