IN THE COURT OF APPEALS OF IOWA
No. 20-0345
Filed December 16, 2020
IN THE MATTER OF THE GUARDIANSHIP OF S.P.-G.,
B.G., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Benton County, Cynthia S. Finley,
District Associate Judge.
A father appeals the juvenile court’s denial of his motion to terminate a
guardianship to his child. AFFIRMED.
James Affeldt and Daniel Gough (until withdrawal) of Elderkin & Pirnie, PLC,
Cedar Rapids, for appellant father.
Ray Lough, Vinton, guardian ad litem for minor child.
Jennifer L. Zahradnik, Belle Plaine, for appellee guardian.
Considered by Bower, C.J., and May and Ahlers, JJ.
2
MAY, Judge.
A father appeals the juvenile court’s denial of his motion to terminate a
guardianship to his child, S.P.-G. We affirm.
I. Facts and Prior Proceedings
The father and mother divorced in 2011, when S.P.-G. was two years old.
The district court granted the mother physical care of their children, S.P.-G. and
G.P.G.1 The children remained in contact with the father through visitations lasting
a few hours on weekends. But the children never stayed overnight with him after
the parents divorced. And their mother was always present.
In March 2018, the mother was diagnosed with cancer. In May, she notified
the father of her terminal prognosis. As the mother’s health deteriorated, S.P.-G.’s
best friend’s mother, M.M., stepped in to help care for S.P.-G. Then S.P.-G.’s
mother passed away in October.
After the mother’s passing, S.P.-G. moved in with M.M. And M.M.
approached the father about establishing a guardianship. The father consented to
a guardianship with M.M. serving as S.P.-G.’s guardian. He continued to visit with
S.P.-G. as he had done when the mother was alive.
Then, in August 2019, the father moved to terminate the guardianship. The
matter came before the juvenile court in February 2020. Following the hearing,
the court denied the father’s motion to terminate the guardianship. He appeals.
1 G.P.G. has since reached the age of majority.
3
II. Standard of Review
Actions to terminate guardianships are equitable in nature. In re
Guardianship of B.J.P., 613 N.W.2d 670, 672 (Iowa 2000). And we review
equitable actions de novo. Iowa R. App. P. 6.907. We give weight to the factual
findings of the district court, but we are not bound by them. In re Guardianship of
Stewart, 369 N.W.2d 820, 822 (Iowa 1985).
III. Discussion
On appeal, the father challenges the juvenile court’s determination that the
guardianship should not be terminated.
We first note recent changes to our guardianship statutes. The Iowa Minor
Guardianship Proceedings Act created “[c]hapter 232D and transferred jurisdiction
of guardianships for minors to the [j]uvenile [c]ourt.” 2 Marlin M. Volz, Jr., Iowa
Practice Series: Methods of Practice § 28:1 (Aug. 2020 update). The Act went into
effect on January 1, 2020, and applies retroactively. Id. So, like the juvenile court,
we apply chapter 232D (2020). We find its meaning in its words. See Fishel v.
Redenbaugh, 939 N.W.2d 660, 663 (Iowa Ct. App. 2019).
Iowa Code section 232D.503 governs the termination of guardianships.2
Subsection 232D.503(2) provides that, when a guardianship is established with
parental consent, it shall be terminated
if the court finds that the basis for the guardianship set forth in section
232D.203[3] is not currently satisfied unless the court finds that the
termination of the guardianship would be harmful to the minor and
the minor’s interest in continuation of the guardianship outweighs the
2Section 232D.503 also governs modification of guardianships.
3Section 232D.203 details the requirements for a guardianship established with
parental consent.
4
interest of a parent of the minor in the termination of the
guardianship.
(Emphasis added.)4
Section 232D.203 requires the parent’s consent to create a guardianship.
See Iowa Code § 232D.203(1)(a). So, when the parent revokes their consent, “the
basis for the guardianship set forth in section 232D.203 is [no longer] satisfied.”
See id. § 232D.503(2). When that occurs, subsection 232D.503(2) requires
termination of the guardianship unless (1) termination would be harmful to the child
and (2) the child’s “interest in continuation of the guardianship outweighs the
interest of a parent.” Id.
4 The district court and the parties also refer to subsection 232D.503(3). It
provides:
The court shall terminate a guardianship established pursuant to
section 232D.204 if the court finds that the basis for the guardianship
set forth in section 232D.204 is not currently satisfied. A person
seeking termination of guardianship established pursuant to section
232D.204 has the burden of making a prima facie showing that the
guardianship should be terminated. If such a showing is made, the
guardian has the burden of going forward to prove by clear and
convincing evidence that the guardianship should not be terminated.
Iowa Code § 232D.503(3).
By its terms, subsection 232D.503(3) applies only to “a guardianship
established pursuant to section 232D.204.” And section 232D.204 only deals with
guardianships established “without the consent of the parent.” (Emphasis added.)
But this case deals with a guardianship established with the parent’s consent. So
subsection 232D.503(3) does not govern. We do not apply its burden of proof or
its burden shifting scheme. Instead, we focus wholly on subsection 232D.503(2).
The father suggests that confusion over the proper standard justifies
remand to the district court. We disagree. Because our review is de novo, we do
not need to remand unless our record is not sufficiently developed to apply the
proper standard. See In re A.J.M., 847 N.W.2d 601, 608 (Iowa 2014) (Zager, J.,
dissenting) (“[W]hen vested with de novo review authority and confronted with a
complete record, we have resolved the issue before us without remanding, even
when the case required us to consider a district court’s interpretation of a statute.”).
No party suggests the record is incomplete. So we apply the correct standard to
the present record. Cf. id.
5
Here, the father revoked his consent to the guardianship. So we must ask
(1) whether termination of the guardianship would be harmful to S.P.-G. and
(2) whether S.P.-G.’s interest in continuing the guardianship outweighs the father’s
interest in terminating. See id. For purposes of analysis, we break these issues
down further into four inquiries: (1) Would termination be harmful to S.P.-G.?5
(2) What is the father’s interest in terminating the guardianship? (3) What is S.P.-
G.’s interest in continuing the guardianship? (4) Does S.P.-G.’s interest in
continuing the guardianship “outweigh” the father’s interest in terminating the
guardianship?
A. Harm to S.P.-G.
We begin by asking whether “the termination of the guardianship would be
harmful to the minor.” Id. Upon consideration of the record evidence, we agree
with the juvenile court that termination of the guardianship would be harmful to
S.P.-G.
S.P.-G. has developed a strong bond to M.M. and refers to her as “mom.”
G.P.G. testified that terminating the guardianship would be tantamount to S.P.-G.
losing her mother a second time. And S.P.-G. understandably had difficulty
opening up to others following her mother’s death. But, as G.P.G. testified,
5 By way of conscious repetition, though, where (as here) a guardianship was
established by parental consent but the parent later withdraws consent,
subsection 232D.503(2) requires termination of the guardianship unless it “would
be harmful to the minor and the minor’s interest in continuation” outweighs the
parent’s interest in termination. (Emphasis added.) So, if we do not find
termination “would be harmful to the minor,” our analysis is complete, and we must
require termination. Conversely, if we find termination “would be harmful,” we then
proceed to the other areas of inquiry (i.e., the relative interests of the child and
parent) before determining whether termination is required.
6
“[d]uring her time with [M.M.’s family], . . . she has blossomed.” We attribute this
in part to S.P.-G.’s ability to trust M.M. as well as M.M.’s efforts to attend to S.P.-
G.’s emotional needs. M.M. recognized S.P.-G.’s need to talk with a counselor
and found one for S.P.-G.
Conversely, the father questions whether S.P.-G. really needs to see a
counselor—although he never contacted the provider to investigate the need.
Moreover, the father historically has done little to support S.P.-G. during
emotionally fraught times. As the mother’s health declined, he did not make
himself more available to S.P.-G. as her needs increased. And he did not provide
her with emotional support when the mother passed away. Instead, he relied on
M.M. to meet S.P.-G.’s needs. And moving forward, it is of particular concern that
the father questions whether S.P.-G.’s relationship with her mother was particularly
close. We question whether he appreciates the loss S.P.-G. will continue to
experience, and the corresponding emotional support she will require, as she
reaches life’s milestones without her mother.
In short, when we compare the father’s minimal insight into S.P.-G.’s
emotional health and needs with M.M.’s history of understanding and meeting
S.P.-G.’s needs, we conclude termination of the guardianship with M.M. “would be
harmful.” Id.
Before moving on, though, we address the father’s concerns about the
statutory phrase “would be harmful.” Id. The father suggests we should interpret
this phrase to require harm that is both “imminent” and “intolerable.” We disagree.
“If the legislature intended” subsection 232D.503(2) to require harm that is
“imminent” or “intolerable,” the legislature “could easily have so stated.” See
7
Hansen v. Haugh, 149 N.W.2d 169, 172 (Iowa 1967). It did not. And we are
“constitutionally prohibited” from revising statutes. See id. (noting “[i]t is not the
function of courts to legislate and they are constitutionally prohibited from doing
so” (citing Iowa Const. art. III, § 1)). Rather, following the simple language chosen
by the legislature, we conclude termination “would be harmful” to S.P.-G. because
it would lead to harm.
B. The father’s interest
We next identify the nature of “the interest of a parent of the minor in the
termination of the guardianship.” Iowa Code § 232D.503(2). Here, the father relies
on Iowa’s “long standing public policy that, absent a powerful countervailing
interest, a parent should always have the right to raise his/her child.”6
C. S.P.-G.’s interest
We next identify the nature of S.P.-G.’s interest. The parties appear to
agree that, for purposes of subsection 232D.503(2), “the minor’s interest in
continuation of the guardianship” depends on the degree to which termination of
the guardianship would be contrary to S.P.-G.’s best interest.7
6 In his reply brief, the father mentions a “constitutional basis” as well. “Generally,
we will not consider issues raised for the first time in a reply brief.” Villa Magana
v. State, 908 N.W.2d 255, 260 (Iowa 2018). And the father has identified no
relevant exception. See id. (noting there are exceptions to the general rule). In
any event, the father’s reply brief does not suggest that a constitutional argument
would require a different analysis. So we need not address the issue further.
7 We acknowledge the precise phrase “best interest” does not appear in
subsection 232D.503(2) although it does appear elsewhere in chapter 232D—
even in subsection 232D.503(4). In other circumstances, this could give us pause.
But we can see no practical difference between (1) the measure of a child’s
“interest” in continuing a guardianship and (2) a measure of the extent to which a
guardianship is in the child’s “best interest.” The parties do not suggest otherwise.
8
D. Weighing the interests
Having identified the interests at issue, we now must weigh them against
one another. As subsection 232D.503(2) puts it, we must decide whether “the
minor’s interest in continuation of the guardianship outweighs the interest of a
parent of the minor in the termination of the guardianship.”
We acknowledge that, as a matter of law, a father has a strong interest in
parenting his biological child. For reasons already mentioned, though, we believe
S.P.-G.’s current interest in maintaining the guardianship carries more weight.
We focus on two main considerations. First, while we do not presume to
measure the father’s love for S.P.-G., the father’s objective actions do not
demonstrate a robust parent-child relationship with S.P.-G. Since the parents
divorced in 2011, S.P.-G. has not spent a night in her father’s care.8 Rather,
throughout that nine-year period, the father’s relationship with S.P.-G. has been
largely limited to that of a dinner companion. And when S.P.-G.’s mother died and
she had no other parent to turn to, the father declined to parent her even when
others offered to assist him.
Conversely, S.P.-G.’s relationship with M.M. is very important to S.P.-G.’s
well-being. M.M. has cared for S.P.-G. through the most harrowing period of her
young life. M.M. provides her with a critical sense of security, structure, stability,
and belonging. It is not in S.P.-G.’s best interest to suddenly and permanently
8 G.P.G. testified the father was with her and S.P.-G. when they attended a dance
competition in Wisconsin in 2018. However, the father did not mention this trip
when he testified about whether he cared for the children overnight. So we are left
to wonder if S.P.-G. was functionally in G.P.G.’s care on the Wisconsin trip.
9
sever her relationship with M.M. so that S.P.-G. can go live with a father who has
not even cared for her overnight since 2011, when S.P.-G. was just two years old.
Based on these circumstances, we conclude S.P.-G.’s “interest in
continuation of the guardianship” with M.M. “outweighs the interest of” the father
“in the termination of the guardianship” at this time. See id. Accordingly, we
conclude subsection 232D.503(2) does not require termination of the guardianship
at this time.
We emphasize “at this time.” We are not saying the father could not
eventually offer S.P.-G. the same kind of support she now receives through the
guardianship. He has just not taken the steps to do so yet. We encourage the
father to get to know S.P.-G. better as a parental figure. And we encourage M.M.
to facilitate the father’s efforts.
IV. Conclusion
We agree with the juvenile court that the guardianship should not be
terminated at this time.
AFFIRMED.