                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1178
                              Filed June 7, 2017


IN RE THE MATTER OF THE GUARDIANSHIP OF M.E.,

CAMILLE PERSON f/k/a CAMILLE KOEHN,
     Petitioner-Appellant,

vs.

MARIE ELG and STEVEN ELG,
     Respondents-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Richard B. Clogg,

Judge.



      A mother appeals the denial of her motion to terminate a guardianship.

REVERSED AND REMANDED WITH INSTRUCTIONS.




      Maureen C. Cosgrove and Kimberley K. Baer of Baer Law Office, Des

Moines, for appellant.

      Earl B. Kavanaugh of Harrison & Dietz-Kilen, P.L.C., Des Moines, for

appellees.



      Heard by Danilson, C.J., and Potterfield and Bower, JJ.
                                          2


DANILSON, Chief Judge.

       Camille Person, formerly known as Camille Koehn, is the mother of a

child, M., born in 2008. Camille’s parents, Marie and Steven Elg, have been the

guardians for M. since Camille stipulated to a consent order placing the child in

Marie’s custody in 2008.         Camille filed an application to terminate the

guardianship in 2015, which the court denied. Camille now appeals, asserting

Iowa law governs the termination of the guardianship. She argues the court

erred in finding the guardians had overcome the parental preference, in giving

weight to the counselor’s and guardian ad litem’s (GAL’s) opinions that

termination of the guardianship would pose a disruptive effect on the child, and in

failing to adequately focus on the child’s best interests.

       Because the Elgs have not overcome the parental preference by clear and

convincing evidence, we reverse and remand with instructions that the court

determine and implement a transitional plan to return the child to Camille’s

custody.

I. Background Facts & Proceedings.

       On March 25, 2008, a court in Tennessee filed a consent order,1 signed

by Marie Elg and Camille Koehn (now Camille Person), which provided:

              1. That [Marie and Camille] have been fully advised that to
       modify this final custody decision would require a material change
       in circumstances which makes a change in custody in the child’s
       best interest even if they are the legal parent of the child(ren),


1
 At a later date, Steven Elg was added as a legal custodian of the child.
        Camille understood the consent order was an alternative to the Tennessee
children’s services taking custody of the child and placing M. in foster care. Camille
stated she believed the consent order was temporary “until I work on my mental health
and alcohol and drug issues.”
                                          3


               2. That it is in the best interest of the minor child that the
       petition be sustained and that custody be divested from [Camille]
       and that care, custody, and control of minor child be awarded to
       [Marie] and that a hearing before the court is hereby expressly
       waived.
               3. That they are aware that on [sic] this agreement is based
       the Order of this Court, and that failure to comply herewith, without
       just cause, places them in contempt of court and subjects them to
       such action as the Court deems proper within its jurisdiction.

Marie was granted the “authority to consent to any education, medical, surgical

or hospital care necessary in the best interest of the child.”

       Camille sought visitation or a return of custody of M. in June 2009.     After

a hearing, the Tennessee juvenile court referee (now magistrate) found:

               The mother testified that the grandparents are moving to
       [Iowa] and want[] her to move there with them. She also stated that
       their visitation is unreasonable and too restricted. The mother also
       testified that she is currently residing in Red Bank in an apartment
       which she shared for two (2) weeks with an exchange student. She
       worked for Panera Bread part-time at first, but now she is full-time.
       She has attended some AA meetings, completed a domestic
       violence program, and her Probation Officer indicates in a letter that
       she does not need treatment. She is currently on probation until
       2010, for violation of probation. There is a contempt of Court
       charge, relating to domestic violence, against her husband with a
       pending Court date. She further stated that she has changed since
       2008, and feels she is ready to take full responsibility of her child.
       She admits that she has a chemical imbalance, and some
       unresolved emotional issues from her childhood.
               During cross-examination of the mother it was brought out
       that the mother is presently under the care of a psychiatrist. She
       has been diagnosed with suffering from bipolar disorder and she
       was prescribed 400mg lithium to be taken twice daily, and
       medication to help with sleep, which she has not been taking.
       Since the consent Order which she signed in March of 2008, the
       mother has lived in four (4) different locations. She had been living
       with a married man for a period of time last year. She admits that
       her husband, Michael Koehn is a drug addict, and was with her on
       the night in March 2008, when she overdosed on a combination of
       Zanax, cocaine and alcohol. He also has a criminal record and is
       currently incarcerated. She admits to being afraid of him, and she
       also admits to having an addictive personality having used drugs
       since the age of fourteen (14). She admits that she has not filed for
                                        4


      divorce from her abusive husband as she told the Court she was
      going to do.
              The maternal grandmother testified that the mother and the
      married man who she is currently living with came to the mother’s
      place of employment and got into a fight with her over a gun which
      he accused her of taking. He then pointed the gun at himself and
      threatened to kill himself, and this was very concerning to her as to
      the safety of her granddaughter in the mother’s custody. She feels
      the mother is a good person and will not deliberately harm her
      daughter but she is concerned about the mother’s judgment and
      the people she chooses to be around.
              Based upon proof and testimony presented, and the entire
      record, the Court found there has been no material change in the
      child’s current circumstances to warrant a custody change and it
      would not be in the best interests of the child to change custody at
      this time.

      Camille requested a rehearing before a district court judge. At the close of

Camille’s presentation of her testimony, the court granted the Elgs’ motion for

directed verdict. The court stated on the record:

              And to be frank about it, I don’t blame your parents at all for
      asking questions.       You made poor choices.         By your own
      admission, you made poor choices about a man in your life, a man
      from whom you’re still not divorced. You did not feel that that was a
      priority yet, to get that cleaned up, get a fresh start. But instead
      you’re continuing, there’s a continuum here of your lifestyle with a
      man that has had a relationship with you.
              And what bothers me and bothers your parents is that this
      man is also one that you’ve had to take out an order of protection
      on. It’s a cycle that’s still present in your life. He may be a good
      person, but he has flaws as well if what you told me about him is
      true.
              Do you think this man loves you if he’s circulating these
      pictures of you out here? Do you think he's prioritized your well-
      being? No. If it’s a matter of the two of you not getting along well
      enough that you got to move out, that he has to be charged with
      something, he’s not—he’s in that same pattern as the other man.
      And you know from what you went through with him that’s not good
      for you. And it’s certainly not good for your child.
              Now, what you do on your own is up to you. What you do
      when you’re asking me to consider placing a child back with you
      takes on something else. You have to be scrutinized very
      differently about this because your child’s well-being and safety
      come first. I want you to take care of yourself for yourself. I would
                                           5


        like for you to take care of yourself for your child, but as long as you
        are continuing in this same lifestyle—even though you’ve made
        some positive changes, you haven’t taken it to the point that you’re
        trustworthy in making good judgments yet about your child.

        Because the Elgs had moved to Iowa, the court ordered that they pay for

transportation and ensure visits occurred between Camille and M. at least every

other month. The court prohibited the child from being in the home Camille

shared with her current paramour.

               So this will be for time you spend with your child. And then
        at such point in time and if you make these changes in your life and
        a year or so from now and you can show you’ve got your own
        residence down here, you're not dependent on this man, you’re not
        continuing in these same circumstances that brought you to the
        shape you’re in right now, then those are the things that you can
        always come back and look at.

        In 2010, several months after the Elgs moved to Iowa with M., Camille

moved to Iowa as well. Camille participated in M.’s life—first sporadically and

then by 2013—on a consistent basis.

        Since 2008, Camille has obtained her GED, a cosmetology license, and a

certified nursing assistance certificate. She has held full-time jobs. Camille had

a set back in 2012, when she used an illegal substance, was hospitalized for

evaluation, and entered into outpatient treatment.         In 2013, Camille married

Travis. They reside in a small town about two hours away from where Travis

found full-time employment as a police officer. Camille and Travis had a child in

2015.

        In January 2015, Camille registered the Tennessee consent order in the

Iowa district court and filed an application to terminate the guardianship and have
                                             6


custody of M. returned to her. The Elgs resisted the application.2 A temporary

visitation order was entered in March 2015, which provided Camille set visitation,

including overnight visits every other weekend. That court-ordered visitation has

continued.

       A hearing was held in October 2015. At the time of the hearing, Camille

was doing well in an accelerated nursing program working toward becoming a

registered nurse. Camille reported she is managing her anxiety and depression

with proper medications and regularly meets with her psychiatrist and doctor. All

parties agree Camille has shown increased maturity and stability, particularly

since 2013.

       The child’s GAL, Kara McClure, testified it was not in the child’s best

interest to be reunited because it would be psychologically harmful, noting the

child is “already going through anxiety.” She explained:

       The past couple of months, as [M.] has become more aware of
       conflict and that there’s a possibility of her life may be undergoing
       change, I think that’s played out. I think she’s had a lot of problems
       with that. That has affected her at school. It’s affected her at
       home, and it’s deeply affecting her. It’s affecting her in therapy
       sessions with [Susan Gauger].
               ....
               . . . She is already—I think it will be disruptive and damaging
       to her, and so I didn’t approach this as to whether Camille can be a
       suitable parent to [M.] I approached it as what’s best for [M.], and
       because I find there is risk of harm to [M.] psychologically to be
       removed, I focused more on that.



2
   The Elgs filed a motion to dismiss asserting the court did not have jurisdiction. The
Iowa court denied the motion to dismiss, finding “the Tennessee guardianship that was
filed in this Court is a guardianship akin to a probate guardianship under Iowa law and
that the district court sitting in probate has jurisdiction to determine if the guardianship
should continue.”
                                          7


       Susan Gauger, a licensed clinic social worker and the child’s therapist,

testified3 the child was “probably one of the most delightful children I’ve had the

opportunity to meet.” She described M. as “a bright, inquisitive child who is

always very much concerned about doing what’s right.” Gauger also described

M. as “highly sensitive” and one who “can read other people’s behavior and

feelings and concerns very readily.” Gauger stated the Elgs’ bond with M. was

“parental.” With respect to M.’s bond with Camille, Gauger testified:

               Well, I think that [M.] also has a bond with her mother. Her
       mother has been part of her life all along, and I think that she
       knows her mom is her mom. And I think that [M.] is kind of at that
       age right now where she wants to maybe experience more of her
       mom’s time, and she also has a little brother now, and so that’s
       been kind of a curiosity, another way for kind of bond her to her
       mother as well.
               I think that when she goes and stays with Mom I think she
       trusts that Mom will take care of her and do the things that need to
       happen. As far as if she has a need or if she has things that are
       bothering her, I think she feels she can go to Mom and talk to Mom
       about those.

       Gauger stated she began seeing M. weekly in therapy in May 2015. Marie

Elg had brought M. in because of the pending litigation. In early October 2015,

Gauger informed M. there was a discussion between her grandparents and her

mother and stepfather about whether M. would continue to live with the Elgs or

go live with Camille and Travis,4 to which M. responded very anxiously (i.e., she


3
  Due to her involvement in a serious car accident in November, Gauger did not testify
until December 7, 2015.
4
  This is how Gauger described the process:
                 I had [M.] with me, and I also had Marie in with me. And we spent
         a good bit of time talking about how—you know, that she had been going
         and spending time with Mom on the weekends and that—I talked with her
         about the fact that her grandparents and her mom and Travis had been
         talking and wanted to look at making some changes in where she lived
         because her mommy would really like her to come and live with her and
         Travis and that Grandma and Grandpa would really like her to stay with
                                           8


curled up, covered her head with a blanket, and cried). M. asked, “[C]an’t we all

just live together in one big house”? Gauger was surprised by her response

because the child “really did not seem to have a clue” there may be a change

notwithstanding the changes in visitation.

       Gauger and M. continued to address the possibility of moving in additional

sessions:

               Well, I think, you know, certainly right now, as time has
       progressed and we’ve had time to get through it, during the course
       of the hearing I think [M.] was acutely aware that her grandparents
       and her parents were really upset with each other, and I think that
       she was—she was very confused and I think somewhat frightened
       by that because she knew that it was fairly intense. And she also
       talked about one of her uncles being around and being aware that
       her uncle was mad at her grandma and grandpa, and she was kind
       of crying saying I don’t understand why people can’t just love each
       other. And so it—I think that part was very, very tough for her.
               Now I think, as of the last session that I saw her, she was
       kind of trying to think about, okay, well, if I make this change, what
       would life be like if I lived with Mom and Travis and who would be
       there and what would my life be like and if I came to visit Grandma
       and Grandpa, and then what would my life be like if I stayed with
       Grandma and Grandpa and how would I, you know, be able to still
       be a part of Mom’s family in Tipton.
               So I think she’s trying to—she’s trying to think about all the
       possibilities, and she’s trying to figure out, okay, how can—how can
       I be okay with all of this. I think she’s really working hard on that.

       Gauger opined that “children who have been in a guardianship this long, it

is very, very difficult for them to leave that and move into a situation that is totally

new.” Gauger was asked, “[W]hat kind of disruptive effect do you see that . . . a


       them, and that because they couldn’t decide between the four of them,
       what was going to happen and how this was—you know, how this was
       going to play out so to speak, that they were going to have to go [a]
       Judge. And I explained to her what a Judge was and that the Judge
       would need to be helping Grandma and Grandpa and Mom and Travis
       make a decision about what would happen and whether she would be
       continuing to stay with her grandparents or whether she would be moving
       to her mom’s.
                                         9


possible move to her mother’s house if the guardianship is terminated—what

possible disruptive effects do you see for [M.]?” Gauger noted that in addition to

M.’s loss of her primary caregivers with whom she was “very bonded,” the child

would lose her school, which is “huge in her life” and included her close

relationship with her cousins, as well as her friends, dance classes, and social

groups. Gauger opined the losses would be “very difficult” and the change would

be “very traumatic.” Gauger did testify some children successfully transition back

to their parent; those instances involve family and people who are “highly

involved with each other” and who provide a “flowing sense of security.” She

expressed concern for the parties here “[b]ecause, I think, at this point the family

is so fractured.” Gauger testified she agreed with the GAL’s recommendation not

to terminate the guardianship because the child is “very bonded” and “too much

time has passed.”     In addition, she stated, “[U]nder circumstances that are

optimal, kids can make that adjustment.          I’m not sure we have optimal

circumstances in this case.”

      On cross-examination, Gauger testified, “I want to make clear to all parties

involved if this child does not have an ongoing relationship with her grandparents

this is going to be very emotionally damaging to her, and I think that needs to be

the major consideration.”

      Gauger summarized:

      [I]f you’re asking me my professional opinion about what I think is in
      [M.]’s best interests, it’s that she remain under the guardianship of
      Steve and Marie. I think it’s been too long. It’s been eight years.
      It’s been too long. Does Camille need to continue to play a mother
      role? Yes, I think I she absolutely does. Does she need to have
      contact with her child? Yes. Can that be expanded? Yes.
                                         10


               In my role as therapist, professionally I have to be able to
       talk to all sides about all possibilities that can occur in this case.
       One of the possibilities that can occur in this case is that the judge
       can disagree and can say that there’s going to be a transition. I am
       willing to work with this family in any way necessary to make sure
       that they are healthy, and that if a transition needs to be done, I will
       help them with a transition. I may disagree with it, but that’s neither
       here nor there.
               I’m going to do whatever the Court orders as a result of
       hearing the evidence, and I’m going to do my best to make sure
       that there’s the best possib[le] outcome for [M.] no matter who has
       guardianship of her or whether she’s returned to Mom or whatever
       the situation is.

Gauger also explained the importance of the family working together in stating:

               There are some kids who make the transition and are able to
       work together and do what they need to and work together to make
       sure that [the] child has a flowing sense of continuity between
       homes and people are highly involved with each other, and the
       child can be okay. And then there are those kids who kind of get
       lost in the middle.

       On April 30, 2016, the district court rejected Camille’s request that the

guardianship be terminated, concluding the Elgs had overcome the parental

preference and a change of custody was not in the child’s best interests. Camille

appeals.

II. Scope and Standard of Review.

       Actions for the termination of a guardianship are equitable proceedings,

which we review de novo. Iowa Code § 633.33 (2015); In re Guardianship of

B.J.P., 613 N.W.2d 670, 672 (Iowa 2000). We give weight to the trial court’s

factual findings, especially on matters of witness credibility, but we are not bound

by them. In re Guardianship of Stewart, 369 N.W.2d 820, 822 (Iowa 1985).

       The determination of whether a guardianship should be terminated must

“be supported by clear and convincing evidence.” Iowa Code § 633.551(1). “In
                                         11


determining whether a guardianship . . . is to be established, modified, or

terminated, the district court shall consider if a limited guardianship . . . pursuant

to section 633.635 . . . is appropriate.” Id. § 633.551(3).

III. Analysis.

       Both parties understand that a natural parent who “if qualified and

suitable, shall be preferred over all others for appointment as guardian.” Iowa

Code § 633.559. “Because of the fundamental constitutional rights implicated, a

nonparent bears the burden of persuasion throughout guardianship proceedings,

including initial appointment, modification, or termination to rebut the presumption

favoring parental custody by providing clear and convincing evidence of parental

unsuitability.” In re Guardianship of Blair, No. 01-1565, 2003 WL 182981, at *5

(Iowa Ct. App. Jan. 29, 2003) (citing In re Guardianship of Hedin, 528 N.W.2d

567, 581 (Iowa 1995)).

       A parent is not entitled to the presumption if there was a prior custody

determination involving a full evidentiary hearing and the presumption was

overcome. See Stewart, 369 N.W.2d at 823-24. The Elgs acknowledge in their

brief that although Camille sought to terminate the guardianship in prior

Tennessee proceedings she was not entitled to a parental presumption under

Tennessee law because the presumption does not apply if the parent consented

to the initial transfer of custody. Therefore, Camille is entitled to the parental

preference in these proceedings. Notwithstanding, the presumption is rebuttable.

In re Guardianship of Knell, 537 N.W.2d 778, 781 (Iowa 1995).

       A guardianship may be terminated when there is no longer a need for the

guardianship. Iowa Code § 633.675(1)(d). Once a prima facie showing is made
                                         12


that the parent is suitable and there is no need for the guardianship, the

nonparent has the burden to overcome the parental preference and establish that

the child’s best interests require the continuation of the guardianship. Stewart,

369 N.W.2d at 824; Hedin, 528 N.W.2d at 581; see also Blair, 2003 WL 182981,

at *4. The first and governing concern in deciding if a guardianship should be

terminated is always the best interests of the child. Stewart, 369 N.W.2d at 824;

see also Zvorak v. Beireis, 519 N.W.2d 87, 89 (Iowa 1994).

       Our supreme court has recognized two theories upon which a nonparent

may successfully meet their burden and defend an action by a parent seeking to

terminate a voluntary guardianship of a child. One method is to establish that the

parent is not “qualified and suitable,” as provided in Iowa Code section 633.559.5

       The second basis upon which our supreme court has denied the

termination of a guardianship of a minor child exists where the evidence reflects

that, notwithstanding the parent being qualified and suitable, the nonparent has


5
 Our court in Blair, 2003 WL 182981, at *4, has previously examined decisions to give
meaning to the terms “qualified and suitable,” and concluded,
      Prior Iowa cases considering these concepts have generally viewed them
      in terms of the harmful or detrimental effect of parental custody rather
      than comparative judgments about the parties involved. See, e.g.,
      Zvorak, 519 N.W.2d at 88-89; In re Guardianship of Sams, 256 N.W.2d
      570 (Iowa 1977); Anh v. Nelson, 245 N.W.2d 511 (Iowa 1976); Hulbert v.
      Hines, 178 N.W.2d 354 (Iowa 1970); Garvin v. Garvin, 152 N.W.2d 206
      (Iowa 1967); Halstead v. Halstead, 144 N.W.2d 861 (Iowa 1966); Alingh
      v. Alingh, 144 N.W.2d 134 (Iowa 1966); Painter v. Bannister, 140 N.W.2d
      152 (Iowa 1966), cert. denied, 385 U.S. 949 (1966); Vanden Heuvel v.
      Vanden Heuvel, 121 N.W.2d 216 (Iowa 1963); McKay v. McKay, 115
      N.W.2d 151 (Iowa 1962); McKay v. Ruffcorn, 73 N.W.2d 78 (Iowa 1955);
      In re Plucar, 72 N.W.2d 455 (Iowa 1955); Risting v. Sparboe, 162 N.W.
      592 (Iowa 1917). The gist of these cases is that considerations of
      parental autonomy and child welfare are not mutually exclusive. When
      viewed in this light, the best interest of the child is given the intended
      priority. See, e.g., Knell, [537 N.W.2d at 782] (presumptive right of
      parental custody relinquished where welfare and best interest of child
      require nonparent custody) (citations omitted).
                                        13


rebutted the parental preference and the welfare and best interest of the child

requires custody to remain in the nonparent.         Knell, 537 N.W.2d at 781

(observing, “[d]espite the recognition of the parental preference, in some cases

we have refused to return custody” of the child). The Elgs rely on the latter

theory in their efforts to resist termination and prove by clear and convincing

evidence the guardianship should continue. More specifically, the Elgs rely upon

the decision in Painter, 140 N.W.2d at 156, wherein the court stated, “However,

as always, the primary consideration is the best interest of the child and if the

return of custody to the [parent] is likely to have a seriously disrupting and

disturbing effect upon the child's development, this fact must prevail.” See also

In re Guardianship of Briggs, No. 06-2083, 2007 WL 1827517, at *3 (Iowa Ct.

App. June 27, 2007).

      What is evident is that these types of custody cases are highly dependent

on the individual circumstances presented.      In Briggs, we referenced cases

involving the second theory and cases akin to Painter in stating,

      In recent years, the Painter standard has been difficult to meet, and
      the presumption favoring the natural parent has prevailed. See,
      e.g., Northland[ v. Starr, 581 N.W.2d 210, 213 (Iowa 1998)]
      (requiring four-year-old boy who had lost his mother be “separated
      from the man he has thought of as his father since infancy” and
      returned to natural father); Stewart, 369 N.W.2d at 825 (requiring
      return of child to natural father where father had kept in close
      contact, provided regular financial support, and frequently visited
      during the eight years child had lived with guardians); In re Burney,
      259 N.W.2d 322, 324 (Iowa 1977) (holding that, although placed
      with guardians when he was four days old, two-year-old child
      whose mother had visited child once or twice a month, had not
      been in the guardian's custody “so long that an extraordinary threat
      to his well-being is posed by the prospective transfer”); Sams, 256
      N.W.2d at 573.

2007 WL 1827517, at *3.
                                         14


      Here, the trial court specifically found:

             Camille has made significant progress in her life. She has
      made exemplary positive changes in her life. She is now married
      and owns a home in Tipton, Iowa. [She] and her husband, Travis,
      have a one-year-old son, . . . that [M.] has developed a close
      relationship with . . . . [M.] knows and recognizes Camille as her
      mother and Camille and [M.] have a close mother-daughter bond.
      Camille is a capable and suitable parent to her son and is capable
      of providing the same for [M.]

      However, the court went on to conclude the “parental presumption has

been overcome, and it is in [M.’s] best interests that the guardianship continue

and she remain in the care and custody of Steven and Marie.” The court relied

upon the “very strong bond” M. had with her grandparents, with whom she had

lived “since she was an infant,” and the child’s therapist’s opinion that to remove

the child from her current home “would be harmful to her.” The court further

concluded that “continued parental contact with Camille” was in the child’s best

interests. We disagree with the district court that the Elgs have met their burden

to overcome the parental preference here.

      In Painter, a father had sought help caring for his child from the maternal

grandparents when his wife died. 140 N.W.2d at 153. Three years later, the

father sought the court’s assistance in having the grandparents return his then-

seven-year-old child to him. Id. The supreme court acknowledged the statutory

parental preference. Id. at 156. But the court concluded the preference had

been overcome and the child’s best interests required the child remain with the

maternal grandparents. Id. The court noted the child “was not well[-]adjusted”

when the child came to the grandparents’ care but was now “well disciplined,
                                         15


happy, relatively secure and popular with his classmates, although still subject to

more than normal anxiety.” Id.

       The court placed “a great deal of reliance” on the testimony of a child

psychologist who had interviewed the child and the grandparents. Id. The court

noted particularly:

              Dr. Hawks stated: “I am appalled at the tremendous task Mr.
       Painter [the father] would have if [the child] were to return to him
       because he has got to build the relationship from scratch. There is
       essentially nothing on which to build at the present time. [The child]
       is aware Mr. Painter is his father, but he is not very clear about
       what this means. In his own mind the father figure is [the
       grandfather]. I think it would take a very strong person with
       everything in his favor in order to build a relationship as Mr. Painter
       would have to build at this point with [the child].”

Id. at 157. The court also referenced the psychologist’s opinion “the chances are

very high [the child] will go wrong if he is returned to his father.”      Id.   The

psychologist noted the high risk to a child “who had a history of instability” and

“would be removed from the only home in which he has a clearly established

‘father figure’ and placed with his natural father about whom his feelings are

unclear.” Id. at 158.

       The supreme court in Painter concluded the child’s best interests were

served by the grandparents maintaining custody:

              [The child] has established a father-son relationship with [the
       grandfather], which he apparently had never had with his natural
       father. He is happy, well[-]adjusted and progressing nicely in his
       development. We do not believe it is for [the child’s] best interest to
       take him out of this stable atmosphere in the face of warnings of
       dire consequences from an eminent child psychologist and send
       him to an uncertain future in his father’s home. Regardless of our
       appreciation of the father’s love for his child and his desire to have
       him with him, we do not believe we have the moral right to gamble
       with this child’s future. He should be encouraged in every way
                                            16


       possible to know his father. We are sure there are many ways in
       which [the father] can enrich [the child’s] life.

Id.

       In Hines, a child’s parents sought to regain the custody of their three-year-

old daughter, who had lived with the child’s aunt and uncle since birth due to the

mother’s intermittent physical and mental-health issues. 178 N.W.2d at 356. At

the trial on the parents’ habeas corpus petition, the evidence showed the

mother’s mental and physical health had stabilized, the parents were caring

capably for the child’s twin siblings, and the parents had maintained contact with

the child.    Id.   The aunt and uncle called their family doctor, who testified

changing the child’s surroundings would “upset” the child.6 Id. at 361.

       The supreme court emphasized there is a “presumption of parental

preference” and that parents are to be “encouraged to look for help with the

children, from those who love them without risk of thereby losing the custody of

the children permanently.” Id. The Hulbert court wrote:

              The question of whether moving the child from the home of
       defendants to that of plaintiffs would be so disturbing and disrupting
       as to require a finding her best interest would not be thereby served
       has been given our serious consideration. . . . No doubt she will
       experience some upset by being returned to her parents but we
       conclude her best interest now and in the future will be served
       thereby.

Id. at 362.

6
 The supreme court noted the following testimony by the doctor,
               Q. Now you have observed this youngster and you have observed
       and are acquainted with the Hines people during your practice here in
       Clarion. What is your judgment as to the advisability of taking this child
       out of the Hines home? A. Well, I would say that the home that she is
       now in is a good home. I think that the child is happy, from what I have
       seen of her. I think that if she was taken into strange surroundings, I think
       that at her age this would upset her.
Hines, 178 N.W.2d at 361.
                                        17

       In Sams, a mother sought the return of her two children from the children’s

grandfather, who had been appointed their temporary guardian in 1974 following

the mother’s separation from her husband and hospitalization for surgery. 256

N.W.2d at 571. After surgery, the mother had left the children with her father for

some time. Id. In 1975, the mother filed a petition to terminate the guardianship,

which was not heard until 1976, and after a hearing the district court denied the

mother’s petition “at this time.” Id.

       On appeal, our supreme court noted the burden was on the grandparent

to show “the best interests of the children required his appointment as guardian.”

Id. at 572. The court noted:

               Our cases have emphasized that parents should be
       encouraged in time of need to look for help in caring for their
       children without risking loss of custody. The presumption preferring
       parental custody is not overcome by a mere showing that such
       assistance was obtained. Nor is it overcome by showing that those
       who provided the assistance love the children and would provide
       them with a good home. These circumstances are not alone
       sufficient to overcome the preference for parental custody.

Id. at 573. The supreme court concluded “[n]o greater showing was made here,”

and ordered the guardianship terminated. Id.

       In Zvorak, a grandmother had cared for her granddaughter from

December 1987, when the child was ten months old, until the fall of 1992, when

the child was six years old.       519 N.W.2d at 87.    The mother “maintained

intermittent contact with her daughter and ha[d] provided almost no financial

contribution toward her support.” Id. Upon learning the mother intended to take

the child from the grandmother, the grandmother sought and obtained legal

guardianship. Id. The mother then filed a petition to have the guardianship
                                         18

terminated. Id. at 88. After a hearing, the district court declined to terminate the

guardianship but placed the child with the mother on a six-month trial basis. Id.

The grandmother appealed.

       The supreme court reiterated, “The determination of a child’s best

interests . . . must take into account the strong societal interest in preserving the

natural parent-child relationship. The parents of minor children if qualified and

suitable are preferred over all others for appointment as their guardians.” Id. at

89. The court noted a home study of the mother had been completed, and the

investigator, though raising concerns, “found ‘nothing that would indicate that [the

mother] could not provide [the child] with a safe and stable environment.’” Id. at

88. The supreme court upheld the district court’s trial-basis return of the child to

the mother, stating:

              Our previous cases in this area have, for the most part,
       produced final determinations of the custody disputes at issue.
       Whether initiated via a habeas corpus petition or some other
       procedural device, the result has been a trial in equity resulting in a
       final adjudication of permanent custody. The somewhat tentative
       disposition that the district court made in the present case differs
       noticeably from that approach. It more nearly resembles the type of
       order invoked in juvenile court proceedings when a child removed
       from the custody of an unstable parent pursuant to CINA
       adjudication is later returned to that parent under a supervised
       placement. Although this type of disposition is not the norm, there
       is reason to approve it in the present case.
              It is significant, we believe, that the child’s grandmother,
       Isabel, does not oppose, and indeed supports, the goal of [the
       mother] to take responsibility for her daughter’s care. The dispute
       concerns whether [the mother] presently possesses the necessary
       commitment to serve the total parenting role for [the child]. Without
       a doubt, [the mother’s] parenting ability is still open to question. On
       the other hand, the extent of that ability may not be accurately
       established unless she is permitted to demonstrate it in actual
       practice. The district court sought to resolve this dilemma by
       establishing a six-month trial period during which [the mother’s]
       parenting commitment may be tested. We find that this was a
                                          19


       reasonable solution that protects the interests of both [the mother]
       and [the child].

Id. at 89.7

       In Knell, the supreme court again examined what evidence would

overcome the parental preference.         537 N.W.2d at 781.         The court “must

consider the long-range interest as well as the immediate interest of the child.”

Id. There, the trial court characterized the father’s actions this way: “[Russell]

has not been a part of [the child’s] life for six years; his interest has at best been

passive and at worst, a physical and emotional abandonment.” Id. The father

had “never sought judicial action to enforce his visitation or parental rights,” and

was a “stranger” to his now six-year-old child. Id. The court in Knell explained

why custody should remain with the guardian:

              We have held that if return of custody to the child’s natural
       parent “is likely to have a seriously disrupting and disturbing effect
       upon the child’s development, this fact must prevail.” Painter, [140
       N.W.2d at 156]. Additionally, it is appropriate for the court to rely
       on Dr. Hayes’ testimony about the possible psychological effects of
       separating Heather [the child] from the only family she has ever
       known.[8] See id. at 156. Our decision that [the child’s] custody
       should not be changed is also supported by the principle that


7
  See also Stewart, 369 N.W.2d at 824, where the court stated:
       The agreed order appointing the Shepards as guardians was not the
       equivalent of a final dissolution or other decree looking to the long-term
       best interest of the child. The order was more akin to an agreed order for
       temporary custody entered during the pendency of dissolution
       proceedings. Such an order is superseded by the more permanent
       dissolution decree itself. Similarly, persons who procure and accept an
       appointment as guardian of a minor child are subject to the control and
       supervision of the court as the superior guardian. In re Guardianship of
       Ankeney, 360 N.W.2d 733, 736 (Iowa 1985). An involuntary guardianship
       would eliminate the parental preference from later consideration only if
       the relative custodial rights of the proposed guardian and the parent were
       put in issue and tried in the guardianship proceeding. See 39 Am.Jur.2d
       Guardian and Ward § 66 (1968).
8
  The court described Dr. Hayes’ testimony:
                                           20


              if a person having lawful care of a child has properly
              provided for a child’s social, moral and educational
              needs for a substantial period of time and the child
              has become attached to that environment and those
              responsible for his [or her] welfare and happiness, a
              court is not justified in transferring that custody to
              another except for the most cogent reasons.
       Anh, [245 N.W.2d at 517-18] (citations omitted). Our concern that
       separating [the child] from Monica [another child in the household]
       would be emotionally traumatic for her is supported by the principle
       against separating siblings. See id.; Sams, 256 N.W.2d at 573.
       Russell argues that Heather also now has a sibling in Arizona.
       Heather has never met that sister.
              We have held that “a parent who has taken ‘an extended
       holiday from the responsibilities of parenthood’ may not take
       advantage of the parental preference for custody.” Stewart, 369
       N.W.2d at 823 (citations omitted). This case is unlike other cases
       where we have held a parent does not lose the preference by
       seeking help in caring for the children in a time of need. See, e.g.,
       id.; Burney, [259 N.W.2d at 324]; Sams, 256 N.W.2d at 573. In
       those cases the parents sought help with their children by
       temporarily placing them in others’ homes, but maintained contact
       with the children while providing whatever support they could. . . .
              This case is also different than [In re Marriage of] Halvorsen
       where we stated: “A court may only grant a nonparent custody of a
       child over a parent when the nonparent proves that the parent
       seeking custody is not suitable to have custody.” 521 N.W.2d [725,
       729 (Iowa 1994)]. In Halvorsen a stepfather was seeking custody
       of the child in a divorce action against the child’s natural mother.
       The mother was a fit and proper custodian for the child. Also, the
       child had always lived with the mother, so the mother was not a
       stranger to the child. As a result, the stepfather did not rebut the
       parental presumption. Halvorsen did not involve removing a six-
       year-old child from the only home she had ever known and placing
       her in the home of a virtual stranger at a time when such an act
       would be extremely traumatic for her.


                The primary purpose of the counseling [with Charles S. Hayes,
        Ph.D.] was to assist the children in coping with the loss of their mother.
        Dr. Hayes testified he had seen Heather nine times. He diagnosed her
        with an adjustment disorder as a result of losing her mother. He testified
        it would be very traumatic to separate Heather from either Monica or
        Marvin, especially so soon after her mother's death. Such a separation
        would likely only worsen the present psychological problems she exhibits.
Knell, 537 N.W.2d at 781–82.
                                          21


               The passage of time, under the circumstances of this case,
       carries considerable weight in our determination. A parent who
       fails to develop a relationship with his or her child while that child is
       establishing a family relationship with a stepparent must recognize
       the child thereby puts down roots that are of critical importance.
       Courts must carefully deal with those roots in determining the
       child’s best interest. Although Russell has the ability to provide a
       good home for [the child], we conclude he would not be suitable to
       have custody of her at this time.

Id. at 782-83.

       In contrast to the severe emotional trauma of placing a child with a

“stranger,” in Burney, 259 N.W.2d at 324, the court found that the psychological

trauma of the transfer of custody was not sufficient. The court observed, “[S]o far

as the record discloses, [the child] is emotionally healthy, knows [the mother] and

[her husband] well, and has not been in the [guardians’] custody so long [three

years] that an extraordinary threat to his well-being is posed by the prospective

transfer.” Id.

       Camille asserts the trial court gave too much weight to the opinions of the

GAL and the counselor. “We give opinion testimony the weight we consider it

deserves after considering, among other things, the expert’s education,

experience, familiarity with the case, reasons given for the opinion, and interest,

if any, in the case.” In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct.

App. 1994); Painter, 140 N.W.2d at 156-57 (considerable weight given to expert

who spent twenty-five hours interviewing child); In re Marriage of Pothast, 539

N.W.2d 199, 202 (Iowa Ct. App. 1995) (giving greater weight to evaluations

involving all relevant parties), overruled on other grounds by In re Marriage of

Williams, 595 N.W.2d 126, 130 (Iowa 1999).
                                         22

      In In re Marriage of Kriener, No. 12-1122, 2013 WL 530864, at *4 (Iowa

Ct. App. Feb. 13, 2013), this court addressed the weight to be given a custody

evaluation:

              Rene offers a strong critique of the district court’s reliance on
      the report of the custody evaluator. She contends the report was
      “flawed” and the evaluator developed “a bias in favor of Arnie
      during the evaluation process.” She relies on In re Marriage of
      Rebouche, 587 N.W.2d 795, 801 (Iowa Ct. App. 1998), and
      Pothast, [539 N.W.2d at 202], for the proposition that the evaluation
      should have had little sway over the court’s deliberations.
              Our court has recognized the value of having an
      independent psychologist make a recommendation regarding the
      physical care of the children. In re Marriage of Harris, 499 N.W.2d
      329, 331 (Iowa Ct. App. 1993). While a custody evaluator’s view is
      not controlling, it can be given “considerable weight” when the
      expert has met with both parents and gathered information
      concerning their caretaking abilities. Id. The district court’s
      consideration of Dr. Brown’s evaluation differs from the situation in
      Rebouche and Pothast. The record does not support Rene’s
      assertions that Dr. Brown lacked neutrality in reaching his opinions
      regarding custody. Dr. Brown followed a protocol designed to
      eliminate the threat of bias, including undertaking in-depth
      interviews with both parents, all four daughters, and other
      individuals recommended by the parties’ attorneys. The report was
      thorough and balanced.             Rene’s dissatisfaction with the
      recommendation does not prove the method of evaluation was
      flawed. Moreover, the district court did not cede its decision to the
      evaluator; it considered the report as one factor in its determination
      of physical care.

      M. is fortunate to have her grandparents and her mother and step-father

who are capable of providing her care and who wish to provide her that care.

The central question presented is what is in the child’s best interest. Knell, 537

N.W.2d at 780. (“In resolving a custody dispute, the primary consideration is the

best interest of the child.”). The court was faced with this difficult question and

was provided relevant information from the GAL and the child’s therapist, each of

whom had an understanding of the situation and the parties involved.
                                        23


      Camille asserts several factors weigh toward a finding that the guardians

have not overcome the parental preference, stressing her continued efforts to

regain custody, her present suitability as a parent, her involvement with M., and

the fact that M. is integrated into Camille and Travis’s home. The guardians,

however, place more weight on the passage of time and their close bond to M.

They emphasize the opinions of the GAL and the therapist concerning the

harmful effects that return may have.

      This family dispute and litigation has taken its toll on all family members.

The therapist, Gauger, testified the dispute has become very contentious among

the family members. As we examine her testimony, it is clear her opinion is

based in part upon her concerns about the family coming together to assist the

child if the guardianship was terminated. She also expressed concern about the

child’s anxiety over the family dispute. But no matter how this case is resolved,

we suspect there will be much anxiety and stress by family members, including

perhaps, the child, for a period of time. We have often observed contentious

intra-family custody disputes, but we expect in most instances the emotions will

subside over time. However, at times the confidence the emotions will subside

has not evolved as expected. See In re Marriage of Harris, 877 N.W.2d 434, 441

(Iowa 2016).

      The Elgs have given over nine years of their lives to assure M. has a safe,

healthy, and loving life. It is entirely understood that they have a strong bond to

M. and M. a strong bond to them. The Elgs were there for M. when Camille was

not. Without a doubt, Camille should be eternally grateful to her own parents for

the sacrifices they made. But no matter the strength of the bond between M. and
                                        24


her grandparents, the Elgs’ custody rights were via a guardianship that could be

terminated.

      Here, we have a parent who is “well ahead” and “more stable” than most

people Gauger has evaluated—by her words. Camille is married, her husband is

a law enforcement officer, they have a child together, M. has a bonded

relationship with her sibling, there is a strong mother-daughter bond, and Camille

is a suitable and capable parent. Camille has been active in visitation with the

child for the past few years. Unlike the therapist, we are more confident this

family’s emotions will subside in time and all family members will do everything

they can to act in the child’s best interests. Notwithstanding this litigation, the

Elgs and Camille have been able to work together on visitation and

communication with the therapist.

      We acknowledge Camille has taken an extended time to reach her current

situation. But she is not a “stranger” to M. and we do not find her to be “a parent

who has taken ‘an extended holiday from the responsibilities of parenthood.’”

Stewart, 369 N.W.2d at 823 (quoting Carrere v. Prunty, 133 N.W.2d 692, 696

(Iowa 1965)). Camille has maintained significant contact with M. and is by all

indications now a capable and stable parent. .

      Because Camille is a qualified and suitable parent, and the Elgs have not

presented clear and convincing evidence it would be in the child’s best interests

to remain outside of her mother’s care, we conclude the guardianship should be

terminated.

      We find the supreme court’s conclusion in Hulbert is apt here:
                                        25


             Under the facts here two good homes are available to this
      child. Defendants have rendered outstanding service in her behalf.
      Their love, affection, attachment and their resistance to her leaving
      their home is understandable but in a matter of this kind regardless
      of what the decision is, someone is hurt. We express the hope it is
      not the child and that the parties lay aside any ill feelings which
      may have developed and reestablish a friendly relationship.

178 N.W.2d at 362.

      The parties agree that if the child is to be returned to her mother, a

transitional plan is required. We therefore reverse the district court’s ruling and

remand for the court to consider and implement a transitional plan for returning

M. to her mother’s care and custody. At the conclusion of the transition plan, the

district court shall terminate the guardianship.       We emphasize Gauger’s

cautionary testimony that an ongoing relationship between the child and her

grandparents is very important!

      REVERSED AND REMANDED WITH INSTRUCTIONS.
