McMain v. Iowa District Court for Polk County

LARSON, Justice.

Kala McMain is a nine-year-old child whose life has been so traumatized by psychological problems and dysfunctional care givers that the probate court perceived a need for, and ordered, an extraordinary measure: visitation with her paternal grandparents despite the fact that the court had denied the grandparents’ petition for their own appointment as guardians and despite the primary-care parent’s objection to grandparent visitation. While we agree that Kala has special needs, grandparent visitation under the facts of this case lacks statutory or common-law support, and we therefore sustain the father’s writ of certiorari.

I. The Facts.

Kala’s parents, Kurt and Sara McMain, were divorced in 1992. The parents were granted joint custody, and Kala’s primary care was granted to Kurt. Kurt and Kala lived in the home of Kurt’s parents, Randy and Sue McMain, for over two years, but eventually moved into their own home with Kurt’s new wife, Sheila. At that time, the relationship between Kurt and his parents deteriorated.

Kala was a serious disciplinary problem in day-care centers, in school, and at home. She had been ejected from one day-care center and faced possible ejection from another. Kala’s family sought help for her. In 1993 Kala began to see various professionals, including an art therapist, a clinical child psychologist, and a physician. Kala was exhibiting sexualized behavior, apparently stemming from sexual abuse inflicted by her natural mother’s boyfriend, extreme anxiety, hyperactivity, and a general failure to thrive. Kala’s condition was diagnosed by her psychologist and confirmed at the University of Iowa Hospitals as attention deficit hyperactivity disorder, oppositional defiant disorder, and a reactive attachment disorder.

Kala was described as demanding, destructive, argumentative, excitable, impulsive, easily distracted, and exhibiting frequent temper tantrums. One expert testified about the future problems for such a child:

Q. Would you predict that a child with that would grow up to be asocial or narcissistic? A. Very frequently social and often aggressively asocial such that they don’t follow the usual moral expectations of the environment. It’s get what they want and get out, essentially.

Q. Do those individuals end up with criminal records? A. They often can. They certainly can, unless something’s happened to begin modifying allowing them to attach to someone.

Dr. Barbara Cavallin, a clinical child psychologist, testified concerning Kala’s future needs:

Q. What’s going to have to happen in order for her to achieve her full potential? A. She’s going to have to be in a stable environment for a long period of time. She’s going to need a high level of structure to show cause and effect and help her get control of her behavior. She’s going to need to be able to feel safe at all times and feel as though she knows who’s going to be with her and who’s going to take care of her. She’s going to need a lot of tender loving care, essentially.

Q. In your opinion, Dr. Cavallin, based again on your educational background and specific knowledge and experience with this case and working with Kurt and Sheila, I guess, what atmosphere would most likely provide that in your opinion? A. Well, an atmosphere where the parent could be structured, could be available emotionally for the child, could follow through on a regular basis. I feel that Kurt and Sheila are providing that kind of environment.

The psychologist also stated:

She’s bonding very well, surprisingly well with Sheila. As a matter of fact, now she’s willing to eat full meals for Sheila, and she’s been giving Sheila hugs and she misses her and she wants to check on her in the waiting room, so she’s beginning to bond with Sheila quite nicely.

Ann Wellander, Kala’s therapist, concurred regarding Sheila’s performance as a care giver and regarding the need for strict discipline to alter Kala’s behavior pattern. Both the psychologist and the therapist testified that the fact that Kurt was then residing in the Fort Des Moines OWI facility did not change their opinions that Kala was receiving good home care. (Kurt was due to be released from the OWTl facility in October 1995.)

Prior to the initial hearing, Kala’s behavior improved substantially, due in large part to the structured environment provided by Sheila in cooperation with the therapist and psychologist. Ritalin and Mellaril were effectively treating her hyperactivity and inability to sleep. Kala was bonding with Sheila and was beginning to thrive. However, the probate court noted in its final decision that Kala had regressed slightly during the pen-dency of the guardianship hearings (which were held in installments over approximately three months). A more structured environment in an inpatient treatment center appeared to be advisable as soon as an opening was available. Nevertheless, the prognosis for improvement in Kala’s overall behavior seemed to be good.

Against this backdrop, these grandparents, Randy and Sue McMain, sought to have themselves appointed as guardians in the place of Kala’s father and Sheila. While these grandparents obviously love Kala and have the best of intentions, they refuse to recognize the extent of Kala’s psychological problems. They question whether she needs the medication that has been prescribed for her. Even in the face of the recommendations of the treating professionals that strong discipline is necessary, these grandparents favor a passive approach to disciplining her.

The disciplining philosophy of the grandparents is illustrated by an incident that occurred while Kala and Kurt were living in the grandparents’ home. Kala had been warned that if she misbehaved she could not go to the circus. She misbehaved, and Kurt attempted to follow through on his discipline. Kala’s grandfather interceded and said Kala should be allowed to go to the circus. Further, if Kurt did not allow her to go, Kurt and Kala could just move out of the house. Kala went to the circus, and she misbehaved the whole time, according to her father.

We believe that the facts set out above demonstrate that forced visitation is not necessarily in Kala’s best interest, especially in view of the need for .consistent and heavily structured treatment for her. More significant, however, is the fact that our law does not permit grandparent visitation in this case.

II. The Law in General.

The mere fact that grandparents seek to force visitation through court action can be counterproductive in stabilizing a child’s life. As the New York Court of Appeals has observed:

It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement.

Lo Presti v. Lo Presti, 40 N.Y.2d 522, 387 N.Y.S.2d 412, 355 N.E.2d 372, 374 (1976).

Our own court has recognized the adverse effect of litigation to enforce visitation:

Courts that give a custodial parent veto power over grandparent visitation do so on the basis that judicial enforcement of visitation would divide and thereby hamper proper parental authority, force the child into the midst of a conflict of authority and ill feelings between parent and grandparent, and coerce what should remain a moral rather than legal obligation.

Olds v. Olds, 356 N.W.2d 571, 573 (Iowa 1984). At common law, grandparents did not have the legal right of visitation over the objection of parents. Id. at 572; Annotation, Grandparents’ Visitation Rights, 90 AL.R.3d 222, 225 (1979).

We have, however, recognized the authority of a court to order grandparent visitation in certain closely circumscribed eases: (1) when it is authorized by statute, Iowa Code § 598.35 (1993); e.g., see Olds, 356 N.W.2d at 573; (2) when it is ordered in a guardianship in the best interests of the child, In re Guardianship of Nemer, 419 N.W.2d 582, 586 (Iowa 1988); In re Guardianship of Ankeney, 360 N.W.2d 733, 737 (Iowa 1985); and (3) when it is ordered by a juvenile court as a part of its dispositional or permanency hearing, In re K.R., 537 N.W.2d 774, 777 (Iowa 1995).

III. The Law as Applied in This Case.

As previously noted, the probate court refused these grandparents’ petition to establish a guardianship and to appoint them as guardians. The court considered the relative strengths and weaknesses of the grandparents as compared to those of Kurt and Sheila and concluded that the grandparents had failed to overcome the presumption in favor of natural parents as guardians. The court’s refusal to establish a guardianship is not an issue in this certiorari action. The issue is simply whether, on any of the three bases set out above, these grandparents are entitled to forced visitation.

First, this is not a juvenile ease, so the authority of a juvenile court recognized in In re KR., 537 N.W.2d at 777, to order grandparent visitation is not applicable. And, as the probate court acknowledged, these grandparents do not qualify for visitation rights under our grandparent visitation statute, Iowa Code § 598.35, because they do not meet any of the grounds set out in the statute.¹

The court granted visitation to the grandparents solely on the ground that a court in a guardianship proceeding has such authority, citing Ankeney and In re Guardianship of Stewart, 369 N.W.2d 820 (Iowa 1985). Ankeney, however, made it clear that its holding was limited to guardianship proceedings in which the custodial parent, as guardian, was subject to the power of the guardianship court to enter orders in the best interests of the child, including an order for grandparent visitation. Ankeney, 360 N.W.2d at 737. As Ankeney stated, the ruling applied only to “the limited facts of this case.” Id. at 735. The present case does not present such facts. The primary-care parent was not under the control of the guardianship court, and in fact the establishment of a guardianship had been denied.

The court also relied on Stewart, a case in which grandparent visitation was ordered by the probate court as a part of an order terminating the guardianship. Stewart, however, is not dispositive; grandparent visitation was not raised as an issue on that appeal.

Because the order lacked support under our eases or the grandparent visitation statute, Iowa Code § 598.35, we conclude that the court lacked authority to enter an order for visitation. Accordingly, we sustain the writ of certiorari.

WRIT SUSTAINED.

All Justices concur except SNELL and ANDREASEN, JJ., who dissent.

1 . Section 598.35 was amended in 1996 to allow an additional basis for grandparent visitation. However, this amendment was not effective as of the time of this hearing. In any event, even an expanded statutory ground for visitation would not be effective to grant visitation rights to grandparents who, as in this case, are the parents of the primary-care parent. See Olds, 356 N.W.2d at 574.