In re A.K.

1

IN THE MATTER OF THE GUARDIANSHIP OF A.K. and J.K., B.M. and J.M., Appellants.

No. 23-1102

Court of Appeals of Iowa

January 24, 2024

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.

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.

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.

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 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 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 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 incamera 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. 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 ...