IN THE COURT OF APPEALS OF IOWA
No. 23-1102
Filed January 24, 2024
IN THE MATTER OF THE GUARDIANSHIP OF A.K. and J.K.,
B.M. and J.M.,
Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Benton County, Cynthia Finley,
District Associate Judge.
Guardians appeal the termination of voluntary guardianships after the
withdrawal of parental consent. AFFIRMED.
Alexander S. Momany of Howes Law Firm, P.C., Cedar Rapids, for
appellants.
Robert W. Davison, Cedar Rapids, for appellee.
Robin O’Brien Licht, Cedar Rapids, attorney for minor children.
Considered by Bower, C.J., and Buller and Langholz, JJ.
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LANGHOLZ, Judge.
An aunt and uncle were appointed guardians for their two nieces with the
consent of girls’ parents in July 2020. The girls’ mother later withdrew her consent
and asked to terminate the guardianships after making many changes to her life,
including successfully caring for a new child. In July 2023, the district court agreed
with the mother and terminated the guardianships. The court reasoned that the
guardians had failed to meet their burden to prove that terminating the
guardianships would cause rigorous harm to the girls.
The guardians now appeal, mainly arguing that the district court applied the
wrong legal standard. According to them, the court should have first conducted a
factual inquiry whether the mother had shown a lack of parental participation, and
if so, put the burden on the mother to show termination of the guardianships was
in the girls’ best interests. They also argue that termination would not be in the
girls’ best interests and that, even under the rigorous-harm standard applied by the
court, the evidence showed that termination would cause rigorous harm to the girls.
The guardians provided excellent care for, and established a healthy bond
with, the girls during the guardianships. But the district court applied the correct
legal standard under the statute and precedent governing termination of voluntary
guardianships. And on our de novo review, giving the court’s thoughtful factual
findings the weight they deserve, we agree that the guardians have not shown by
clear and convincing evidence that terminating the guardianships would cause the
girls physical harm or significant, long-term emotional harm sufficient to carry their
burden under the rigorous-harm standard. We thus affirm.
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I.
In May 2020, an aunt and uncle petitioned to establish minor guardianships
for their two nieces.1 The girls were then two and five. And they began residing
with their aunt and uncle around the same time, after being in the care of their
maternal grandmother for at least one year or so before. The girls’ father—who is
the step-brother of the uncle—and their mother both consented to the
guardianships. And in July 2020, the juvenile court established the guardianships
under Iowa Code section 232D.203—which requires parental consent—and
appointed the aunt and uncle as guardians. See Iowa Code § 232D.203(1)(a).
From the start, the mother began raising concerns that the guardians were
preventing her from contact with her children. The guardians’ initial proposed care
plan provided no proposals for the children to interact with their parents, raising
concerns about COVID-19, the parents’ homelessness, and their erratic behaviors.
In September 2020, the mother sent a letter to the children’s guardian ad litem—
which was also filed with the court—asking why she had not been given any time
to interact with her children and emphasizing:
Bottom line is I WANT TO SEE AND VISIT [the girls] . . . what can I
do to accomplish this? You are their attorney please help me. NOT
GIVING UP MY PARENTAL RIGHTS!!!!
The court then rejected the care plan because it denied all visitation,
communication, and interaction with the parents, and the guardians had not shown
that contact with the parents had resulted or would likely result in significant
1 We avoid using the parties’ names to respect their privacy because this opinion—
unlike the juvenile court’s order—is public. Compare Iowa Code § 232.147 (2020),
with id. §§ 602.4301(2), 602.5110.
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physical or emotional harm. See Iowa Code § 232D.401(5). The parties
eventually reached a temporary agreement on some limited video calls with the
children in December 2020.
In February 2021, the mother gave birth to another daughter, who had the
same father as the two older girls. By this time the mother had worked to change
her previous lifestyle, aptly described by the juvenile court as “tainted with drug
usage and domestic violence.” She separated from their father, moved into a
residential women’s services center, participated in counseling and substance-
abuse treatment, and obtained full-time employment. Indeed, she had been sober
since September 2020. Immediately after the birth, the Department of Human
Services conducted a child-abuse assessment and concluded that there were no
concerns suggesting that the newborn was a child in need of assistance.
The mother first sought to end the guardianships in March 2021. But the
next month the parties reached an agreement that was memorialized in a court
order dismissing her request and ordering visitation, including in-person
supervised visitation for four hours every two weeks in her home and family
therapy on the alternating weeks.
In October 2021, the mother again asked to terminate the guardianships.
Litigation continued in the juvenile court over the next twenty-one months. We
need not dwell on all its twists and turns and stalls—multiple hearings,
postponements, occasional agreements, and changes in various players, including
the judge because of recusal. Suffice it to say that the twenty-one-month delay is
not fairly attributable to the mother or a sign that she yielded to the continued
guardianship. And throughout this time, she was severely limited in her contact
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with the two girls by the guardians, often not even able to have the visitation to
which she was entitled under the April 2021 order.
At one point, the proceeding was apparently paused to give the Benton
County Attorney time to assess whether a child-in-need-of-assistance case was
appropriate for any of the mother’s daughters—the youngest one in her care or the
two under the guardianships. The county attorney declined to bring any case,
reporting to the court that there were “no safety concerns” for the youngest
daughter in her custody and no legal grounds to start proceedings for any of the
children.
The mother finally got a ruling on her request to terminate the guardianships
in July 2023. In a thoughtful seventeen-page ruling, the juvenile court considered
the well-developed evidentiary record. Backed up by solid reasoning, the court
expressly found the mother “credible and not self-serving,” and gave “less
credibility” to the guardians. And it applied the standard for terminating a voluntary
guardianship set forth in Iowa Code section 232D.503(2)—as interpreted just a few
months before by our supreme court in In re Guardianship of L.Y., 968 N.W.2d 882
(Iowa 2022)—to the court’s detailed factual findings.
The juvenile court reasoned that because the mother had withdrawn her
consent to the guardianship, it must be terminated unless the guardians prove that
terminating it would result in rigorous harm. The court found that the mother could
care for her children—crediting her original decisions to have their grandmother
care for them and to consent to the guardianship, her efforts at self-improvement,
and her care for her youngest daughter who is not under a guardianship or other
supervision. The court expressed some concern about the criminal record of a
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new boyfriend with whom the mother was now living. But because she had been
doing so safely for more than a year without harming her youngest daughter and
he still had custody of his other children, the court found that this also was not clear
and convincing evidence of threatened harm. And the court discounted the in-
camera testimony of the eight-year-old daughter that she did not feel safe with her
mother and did not want her guardianship terminated after finding her “own words
show that much of her opinions must have been highly influenced by the
guardians—whether this influence was intentional or not.”
So the juvenile court found the guardians had not met their burden under
section 232D.503(2). The court summarized its core reasoning:
[T]here is likely trauma in either option—returning the children to [the
mother’s] care, or remaining in the guardianship. Unfortunately, this
trauma will likely be greater now, in 2023, than it would have been in
2021, when [the mother] initially filed to have the guardianship
terminated. The Court finds that this trauma, and the interest in the
children avoiding this trauma, does not rise to the level of “rigorous
harm” sufficiently to overcome [the mother’s] fundamental liberty
interest in the care, custody, and control of her daughters. She has
maintained as much contact with the children as she was allowed in
the past three years. She has addressed the issues in her life which
[were] the basis for the guardianship being initiated. She has
successfully and safely parented [her new daughter] while this
process was ongoing. The guardians have not met their burden to
rebut the parental preference.
The juvenile court thus terminated the guardianships. The guardians now appeal.
II.
We review a juvenile court’s decision whether to terminate a guardianship
de novo. L.Y., 968 N.W.2d at 892. While we are not bound by the court’s factual
findings, we give them weight. Id. Giving deference is especially appropriate when
the finding is based on a determination of witness credibility. See Iowa R. App.
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6.904(3)(g). We do so because unlike the juvenile court, “appellate courts must
rely on the printed record in evaluating the evidence” and “are denied the
impression created by the demeanor of each and every witness.” In re Marriage
of Vrban, 359 N.W.2d 420, 423 (Iowa 1984).
The court “shall terminate a guardianship established” with parental
consent:
if the court finds that the basis for the guardianship set forth in section
232D.203 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
interest of a parent of the minor in the termination of the
guardianship.
Iowa Code § 232D.503(2). Once a parent revokes her consent, the statutory basis
for the guardianship no longer exists. See L.Y., 968 N.W.2d at 894; see also Iowa
Code § 232D.203(1) (requiring, among other things, any parent with legal custody
to “knowingly and voluntarily consent to the guardianship”).
So after such a revocation of consent, the court must terminate the
guardianship unless it finds that doing so “would be harmful to the minor and the
minor’s interest in continuation of the guardianship outweighs” the parent’s interest
in termination. Iowa Code § 232D.503(2). In considering this second step of the
analysis, “the juvenile court must start with the rebuttable presumption that the
child’s best interests are served by reuniting the minor child with their parent.” L.Y.,
968 N.W.2d at 899–900. And a guardian seeking to continue the guardianship
then “bears the burden of rebutting this presumption by clear and convincing
evidence that” termination would result in “a real threat” of “either physical harm or
significant, long-term emotional harm.” L.Y., 968 N.W.2d at 900.
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The juvenile court applied this rigorous-harm standard here. But the
guardians argue that it skipped a preliminary step: deciding whether the mother
had shown a lack of parental participation that made the rebuttable presumption
inapplicable. If so, they argue, then the mother retained a burden to prove
termination is in the children’s best interests.
The guardians’ argument fails, however, because it runs smack into the text
of the statute and our supreme court’s interpretation of it. The statute sets up the
burden-shifting. See L.Y., 968 N.W.2d at 894. For a voluntary guardianship, once
parental consent is revoked, it must be terminated “unless the court finds” the
rigorous harm standard satisfied. Iowa Code § 232D.503(2). And the supreme
court already decided that this—along with the underlying “constitutional
protections afforded parents in the care, custody, and control of their children”—
means the burden is on the party seeking to continue the guardianship. L.Y., 968
N.W.2d at 894.
So too did the supreme court already decide that applying the rebuttable
presumption and rigorous-harm standard is the correct way to weigh the interests
as required by the statute. See id. at 898–901. True, the court arrived at this
interpretation of the statute mindful of the fundamental constitutional “right of
parents to make childrearing decisions,” which cannot be infringed by the State
“simply because a state judge believes a better decision could be made.” Id. at
901 (cleaned up). But that does not mean we need to conduct a separate
constitutional analysis to decide whether we should start with the rebuttable
presumption in every case under this statute. The court in L.Y. was ultimately
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interpreting a statute. See id. at 898–901. It settled the framework required under
the statute. And the court’s guidance is binding on us and the juvenile court.
The unpublished cases cited by the guardians in support of their theory are
not to the contrary. Neither In re Guardianship of B.B., No. 21-0992, 2022 WL
523325 (Iowa Ct. App. Feb. 22, 2022), nor In re P.S., No. 22-0077, 2022 WL
1234120 (Iowa Ct. App. Apr. 27, 2022), involved the termination of a voluntary
guardianship under Iowa Code section 232D.503(2). One affirmed establishment
of a guardianship without consent where one of the required statutory grounds was
“a demonstrated lack of consistent parental participation.” B.B., 2022 WL 523325,
at *3 (citing Iowa Code § 232D.204(1)). The other affirmed a contested
permanency order establishing a guardianship in a child-in-need-of-assistance
proceeding under chapter 232, after the child had been removed and adjudicated
in need of assistance. See P.S., 2022 WL 1234120, at *1–2. So they do not
support adding a new analytical step into a different statute with a different
standard. Nor could an opinion of our court trump the supreme court’s
interpretation of the statute here. See State v. Beck, 854 N.W.2d 56 (Iowa Ct. App.
2014) (“We are not at liberty to overrule controlling supreme court precedent.”).
The juvenile court applied the correct legal standard to evaluate the
mother’s request to terminate the voluntary guardianships under section
232D.503(2). After finding that she revoked her consent, it started with the
rebuttable presumption that the children’s best interests are served by reunification
with their mother. See L.Y., 968 N.W.2d at 899–900. And then it moved on to
consider whether the guardians had proved by clear and convincing evidence that
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termination would result in “a real threat” of “physical harm or significant, long-term
emotional harm.” Id. at 900. This was not error.
III.
We turn then to consider whether the guardians carried their burden of
rebutting the presumption in favor of reunification by proving with clear and
convincing evidence that termination would result in “a real threat” of “physical
harm or significant, long-term emotional harm.” Id. Unlike a typical child custody
dispute between parents, under this “rigorous harm standard,” it is not enough “for
the guardians to show that they would provide superior care to the child.” Id. Nor
do “economic and cultural advantages in the guardians’ home” or “more
extracurricular activities” or “a better school district” “tip the balance in their favor.”
Id. at 900–01 (cleaned up). And the children’s “anxiety over the transition from
one home to another does not rise to the level of significant emotional harm”
because we recognize that “[n]o matter how cases like this one are resolved, there
will likely be anxiety and stress for the child[ren] for a period of time.” Id. at 901.
But the presumption can be rebutted with evidence of “the parent’s present
unfitness or past abandonment of the child such that the affections of the child and
[guardian] have become so interwoven that to sever them would seriously mar and
endanger the future happiness of the child.” Id. (cleaned up). Still, we must take
care not “to focus solely on a parent’s failure to discharge the duties of parental
care and protection” or to hold the voluntary guardianship against the parent. Id.
at 900 (cleaned up). We want to encourage—not discourage—parents from
seeking to establish a guardianship to obtain temporary relief from “the rigors of
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raising a child” when they are “unable to fully discharge the responsibilities of
parenthood.” Id. (cleaned up).
The guardians have not met their heavy burden here. They point to three
main threats of significant, long-term emotional harm. First, they contend that
placing the children back with their mother will severely disrupt their life and cause
enough trauma to be a significant, long-term emotional harm. They assert that the
mother’s choppy history of caring for and relating with the children will cause
extensive emotional harm that is not in the children’s best interests.
While there may be difficulty in the children’s relocation and adjustment to
life with their biological mother, this transitional anxiety “does not rise to the level
of significant emotional harm.” L.Y., 968 N.W.2d at 901. These concerns come
from the pure nature of a change in environment, not the ability of the mother to
be a parent. The ending of any guardianship and transplanting of a child back to
their parent will generally be difficult and at times tumultuous. But like the district
court, we agree that there would likely be continued trauma if the guardianships
are continued as well. And we cannot say that the added short-term concerns
outweigh the long-term interests in reunification.
The guardians also argue that the mother’s limited contact with the children
rises to abandonment that should change the calculus and make separation from
the guardians a more significant emotional harm. But again, we agree with the
district court that these facts do not show the level of abandonment to rebut the
parental preference. We do not hold the establishment of the guardianships or her
previous reliance on the grandmother for care against the mother. L.Y., 968
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N.W.2d at 900. And it would be especially inappropriate to do so where she has
been seeking to end the guardianships for almost two years.
Finally, though briefly, the guardians also point to the presence of the
mother’s new boyfriend, who has a significant criminal history, in their joint home.
The juvenile court thoughtfully weighed this factor too, correctly recognizing that
this concern is not clear and convincing evidence of any real threat of rigorous
harm when he has been safely living with the mother and her youngest daughter
for over a year and has not lost his parental rights to his biological children.
The bottom line is that these voluntary guardianships should have
terminated once the mother withdrew her consent unless the juvenile court found
clear and convincing evidence of rigorous harm. And the court properly made no
such finding here. What’s more, by the hearing, the mother had been in stable
employment, sober, and successfully caring for her youngest daughter—all for at
least two years. And all three girls were developing close bonds with each other.
Challenges likely lie ahead, as they do for many families. But there is no reason
to conclude on this record that the mother cannot rise to meet them.
To be clear, this is not a contest between the merits of the guardians and
the mother. Indeed, this case reaffirms that “it is not unusual for Iowa’s courts to
remove children from conscientious, well-intentioned custodians with a history of
providing good care to the children and place them with a natural parent.” L.Y.,
968 N.W.2d at 895–96 (cleaned up). Still, on our de novo review, giving the
juvenile court’s factual findings and credibility determinations the weight they
deserve, we agree that the court properly terminated the guardianships.
AFFIRMED.
In the Matter of the Guardianship of A.K. and J.K.
Combined Opinion