In Re the Matter of the Guardianship of A.L.G.B., Minor Child. R.g-b., V.g-b and R.g-b.

IN THE COURT OF APPEALS OF IOWA

No. 16-1937
Filed June 7, 2017

IN RE THE MATTER OF THE GUARDIANSHIP OF A.L.G.B.,
Minor child.

R.G-B.,
Appellant,

V.G-B and R.G-B.,
Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Henry County, Michael J. Schilling,

Judge.

A biological mother appeals the district court’s denial of her motion to

dismiss a previous order establishing a guardianship for the mother’s child.

REVERSED AND REMANDED.

Diana L. Miller and Sarah S. James of Whitfield & Eddy, P.L.C., Des

Moines, for appellant.

Patrick C. Brau of Brau Law Office, Mt.Pleasant, for appellees.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

Raney, the biological mother of A.L.G.B., appeals from the district court’s

denial of her motion to dismiss the guardianship for A.L.G.B. As she did in her

motion, Rainey maintains the district court could only exercise emergency

temporary jurisdiction over child-custody proceedings involving A.L.G.B. at the

time the initial temporary guardianship commenced; because the district court

failed to enter the temporary order in accordance with the statute controlling

temporary emergency jurisdiction, the court did not have jurisdiction to enter the

final order. She asks us to find the guardianship is void.

I. Background Facts and Proceedings.

A.L.G.B. was born in Missouri in June 2014. Within a few days of

A.L.B.G.’s birth, Raney brought her to Iowa, and she remained living in the state

until September. Raney and A.L.B.G. then returned to Missouri, where they

resided until mid-July 2015 when Raney asked the appellees to bring A.L.G.B. to

Iowa to live with them while she sought treatment for her heroin addiction.

Less than one month later, on August 5, the appellees filed a petition

asking the court to appoint them the temporary guardians of A.L.G.B. In their

petition, the appellees alleged, “The proposed ward is a resident of the State of

Iowa.” The petition did not include a jurisdictional affidavit, as required by Iowa

Code section 598B.209 (2015), and it is now undisputed Iowa was not the “home

state” of A.L.G.B., as statutorily defined. See Iowa Code § § 598B.204(1). On

the same day, Raney filed a written consent to the guardianship, and the court

appointed the appellees the temporary guardians of A.L.G.B., finding, “It is

necessary to protect the health and safety of A.L.[G.]B. to appoint the Petitioners,
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proposed guardians, as temporary guardians, until such time as there is a

hearing and judgment on the Petition for Appointment of Guardians

(Involuntary).”

On January 21, 2016, the appellees filed a motion asking the court to “set

a hearing on the Petition for Appointment of Guardians (Involuntary).” The court

set a hearing on “said Petition” for February 29. Raney again filed written

consent, stating she “confirm[ed] that it is in the best interests of A.L.G.[B.] that

the Court grant the guardianship of A.L.G.[B.] and appoint” the appellees the

guardians.

At the February 29 hearing, Raney testified about the possible natural

father of A.L.G.B. Due to the new information, following the hearing, the court

filed a written order requiring that the named man be served. The court did not

otherwise rule on the petition to appoint guardians.

On April 7, the court filed a written ruling. In it, the court noted the

biological father had been served and indicated he had no objection to the

proposed guardianship. The court also noted Raney’s consent to the

guardianship. The court found it was “necessary to appoint guardians for the

protection of the health and safety of A.L.G.B.” and then appointed the appellees

as guardians.

Raney filed a motion to dismiss the guardianship for lack of subject matter

jurisdiction on August 26. In the petition, Raney maintained that Iowa was not

the “home state” of A.L.G.B. at the time the appellees were appointed temporary

guardians, so the court could not have had subject matter jurisdiction. See Iowa

Code § 598.102(7) (“‘Home state’ means the state in which a child lived with a
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parent or a person acting as a parent for at least six consecutive months

immediately before the commencement of a child-custody proceeding.”).

Additionally, she claimed that the court did not have temporary emergency

jurisdiction either because the court failed to make any of the necessary or

factual legal findings to assert that jurisdiction. Alternatively, she maintained that

even if the court had properly exercised temporary emergency jurisdiction to

enter the temporary guardianship, the temporary guardianship could not “ripen”

into a permanent or final determination because the emergency order did not

warn or advise that it may become permanent.

On September 21, a hearing was held on Raney’s motion to dismiss. At

the hearing, Raney appeared to narrow the issues previously raised in her

motion; she conceded the grounds existed for the district court to exercise

temporary emergency jurisdiction, pursuant to Iowa Code section 598B.204,

when it appointed the appellees temporary guardians. Additionally, Raney

conceded “that between the temporary order and final order at least six months

had passed and the child continued to reside in the state of Iowa for the entire

duration between those two orders.” The court then asked Raney the following:

[D]oes your argument about subject matter jurisdiction, then, rise or
fall on your contention that the Court does not—that . . . because
the Court did not specify in the temporary order that it might
become a final child custody determination, that the Court lacked
subject matter jurisdiction to enter the final order?

Raney agreed that it did.

The district court filed a written ruling denying Raney’s motion. The court

relied on the fact that more than six months with A.L.G.B. residing in Iowa had

passed between the filing of the petition for temporary guardianship and the
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court’s final guardianship order. Additionally, the court determined the need for

the “if it so provides” language in Iowa Code section 598B.204—the section

controlling temporary emergency jurisdiction—was “superfluous.”

Raney appeals.

II. Standard of Review.

“We conduct a de novo review of jurisdictional issues raised under the

[Uniform-Child Custody Jurisdiction and Enforcement Act] (UCCJEA).” In re

E.D., 812 N.W.2d 712, 715 (Iowa Ct. App. 2012).

III. Discussion.

A. Subject Matter Jurisdiction.

At the hearing on the motion to dismiss, the parties agreed the court was

entitled to exercise temporary emergency jurisdiction over child-custody

proceedings involving A.L.G.B. at the time it entered the temporary guardianship

order. See Iowa Code § 598B.204(1) (“A court of this state has temporary

emergency jurisdiction if the child is present in this state and . . . it is necessary in

an emergency to protect the child because the child . . . is subjected to or

threatened with mistreatment or abuse.”), see also E.D., 812 N.W.2d at 717

(noting courts have interpreted this jurisdictional ground to include a parent’s

substance abuse problems). The parties also agreed the temporary order did not

contain language that the child-custody determination—appointing appellees as

temporary guardians—would become final. See Iowa Code § 598B.204(2) (“[A]

child-custody determination made under this section becomes a final

determination, if it so provides and this state becomes the home state of the

child.” (emphasis added)).
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The dispute is whether the issue of subject matter jurisdiction could “ripen”

during the pendency of the proceedings when the temporary order did not advise

or warn that the temporary order could become permanent. The appellees did

not file a brief on appeal, see Iowa R. App. P. 6.901(1)(b), but at the hearing,

they maintained any jurisdictional issues involving the temporary order did not

affect the jurisdiction of the court at the time the second order was entered

because Iowa was the “home state” of A.L.G.B. at the time the appellees filed

their motion to have the court set a hearing on the guardianship. See Iowa Code

§ 598B.201(1)(a) (providing “a court of this state has jurisdiction to make an initial

child-custody determination only if . . . [t]his state is the home state of the child on

the date of the commencement of the proceeding”).

We begin our analysis by noting that a party may challenge subject matter

jurisdiction at any time. See E.D., 812 N.W.2d at 715. Additionally, “subject

matter jurisdiction is a statutory matter and cannot be waived by consent, waiver,

or estoppel.” State v. Madicino, 509 N.W.2d 481, 482 (Iowa 1993). “If we

determined subject matter jurisdiction is lacking, the only appropriate disposition

is to dismiss [the guardianship].” E.D., 812 N.W.2d at 715.

Based on the explicit language of section 598B.204(2), “a child-custody

determination made under [the] section becomes a final determination, if it so

provides and this state becomes a home state of the child.” (Emphasis added.)

In its ruling, the district court determined the court had subject matter jurisdiction

to enter the final order because one of the two requirements had occurred—the

state had become the home state of A.L.G.B. In doing so, the court ignored the

statutory requirement that the temporary order provide it could become
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permanent. In fact, in its ruling, the court found the statutory language of “if it so

provides” to be “superfluous.” “Effect must be given, if possible, to every word,

clause and sentence of a statute. It should be construed so that effect is given to

all its provisions and no part will be inoperative or superfluous, void or

insignificant.” Maguire v. Fulton, 179 N.W.2d 508, 510 (Iowa 1970). Moreover,

we have considered this statutory language before and determined “the

temporary order must provide that it becomes a final determination.” E.D., 812

N.W.2d at 721 (emphasis added).

Because the temporary guardianship order did not contain language

advising it could become a final determination, the district court did not have

subject matter jurisdiction to enter the final guardianship order. Thus, we must

reverse the district court’s ruling denying Raney’s motion to dismiss the final

order appointing the appellees guardians of A.L.G.B. and remand for the order to

be dismissed.

In doing so, we are not suggesting that the appellees can never be

appointed the guardians of A.L.G.B. because the initial temporary order failed to

advise that it could become permanent. In fact, we agree with the district court

insofar as it determined that Iowa has now become the home state of A.L.G.B;

she has resided in Iowa with “a person acting as parent for at least six

consecutive months.” Iowa Code § 598.102(7). And we note—as Raney noted

at the hearing on the motion to dismiss—the juvenile court now has subject

matter jurisdiction over child-custody proceedings involving A.L.G.B. pursuant to

section 598B.201(1)(a); thus, the appellees could commence new proceedings to

be appointed the guardians of A.L.G.B. The court simply could not exercise its
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temporary emergency jurisdiction in contravention of the statute prescribing the

requirements for jurisdiction. See E.D., 812 N.W.2d at 721–22 (noting that when

the temporary emergency order entered did not specify that it may become the

final child-custody determination, the juvenile court “was without subject matter

jurisdiction under section 598B.204(2)”).

B. Fees.

Raney maintains she is entitled to attorney fees incurred in connection

with her motion to dismiss, motion to enlarge and amend, and her appeal. She

relies on Iowa Code section 598B.312(1).

We note that the language of section 598B.12 is mandatory, stating:

The court shall award the prevailing party, including a state,
necessary and reasonable expenses incurred by or on behalf of the
party, including costs, communication expenses, attorney fees,
investigative fees, expenses for witnesses, travel expenses, and
child care expenses during the course of the proceedings, unless
the party from whom fees or expenses are sought establishes that
the award would be clearly inappropriate.

(Emphasis added.)

Raney is entitled to reasonable fees. However, she has not submitted a

fee affidavit, and we cannot determine what amount is reasonable. On remand,

the district court is to determine “the necessary and reasonable expenses” Raney

incurred.

IV. Conclusion.

The district court lacked subject matter jurisdiction to enter the final

guardianship order; we reverse the district court’s ruling denying the appellant’s
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motion to dismiss. We remand for dismissal of the final order and for the district

court to award “the necessary and reasonable expenses” Raney incurred.

REVERSED AND REMANDED.