                     IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1631
                               Filed June 3, 2020


IN THE MATTER OF THE GUARDIANSHIP OF L.G.,

ROBIN ULMER a/k/a ROBIN REISZ,
Guardian-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Harrison County, Greg W.

Steensland, Judge.



      A child’s guardian appeals a district court order terminating the

guardianship. AFFIRMED.




      Whitney A. Estwick of Estwick Law, LLC, Sidney, for appellant.

      David A. Poore, Council Bluffs, for appellees.




      Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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VAITHESWARAN, Presiding Judge.

       A child’s guardian appeals a district court order terminating the

guardianship.    The guardian contends the child’s parents failed to prove a

substantial change of circumstances warranting termination or that termination

was in the child’s best interests.

I.     Background Facts and Proceedings

       A child, born in 2012, interacted with his putative paternal grandmother,

Robin. In time, Robin took over as the child’s caretaker. Paternity testing later

established that someone other than Robin’s son was the child’s father.

       When the child was three years old, Robin filed a guardianship petition

listing her son as the legal father. She attempted service on the mother at her last

known address. The mother did not file an answer. The district court filed a default

order appointing Robin as guardian.

       In 2017, the child’s mother and biological father filed a petition to terminate

the guardianship. They alleged the guardian was “not related by any means to the

[child]” because, at the time the guardianship “order was final,” the paternity of

Robin’s son had been “disestablished.” They further alleged they were “suitable

and qualified to act as guardians of the child” and the guardianship should “be

terminated.” Robin filed an answer asserting that it was in the child’s best interests

to remain in her care. Following a hearing, the district court determined the

“guardianship was appropriately created” and it would “continue.”          The court

ordered Robin to file annual reports and ordered the clerk to send the reports to

the parents. The court further ruled, “At a hearing on said report and whether the

guardianship shall continue, either biological parent can establish their ability to
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meet the medical and emotional needs of [the child].” Finally, the court established

a visitation schedule for the parents.

       The following year, Robin filed an annual report as directed. She asked to

continue as guardian of the child. The parents filed a resistance to approval of the

report and requested a “hearing on the annual report . . . to determine whether the

guardianship should continue.” The district court scheduled the matter for hearing.

       After the hearing, the district court filed the first of two 2019 orders

concluding it was “time to terminate the guardianship.”       The court ordered a

“transition” period to last through the school year, together with “incremental

visitations” and “continuing counseling” for the child “to help with the adjustment.”

The court also ordered the child to be transferred to his mother at the end of the

2019 school year. The court scheduled a telephone hearing for a date three

months after the transfer, “anticipat[ing] that barring unforeseen circumstances,” it

would enter “a final Order terminating the guardianship at that time.”

       On the date of the scheduled transfer, Robin filed a motion seeking a

modification “to allow [the child] to attend summer school in” his existing school

district and “reside with [her] during that time.” She also asked that the upcoming

hearing be scheduled as an evidentiary hearing. The mother resisted on several

grounds and noted that she took custody of the child that day. The district court

held a non-evidentiary telephone conference as scheduled and, following the

conference, filed a second order discounting the guardian’s concerns and

terminating the guardianship. Robin appealed.
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II.    Termination of Guardianship / Best Interests

       The statutory grounds for termination of a guardianship include a

“determination by the court that the . . . guardianship is no longer necessary.” Iowa

Code § 633.675(1)(d) (2015). The parties disagree on who bore the burden of

proof on this issue. Robin argues the burden rested with the parents to “prove a

substantial change of circumstances, warranting a change of custody.”             The

parents argue they were entitled to a presumption that they were the preferred

caretakers and Robin failed to overcome the presumption.

       At the time of this proceeding, there was indeed a statutory preference in

favor of the parents. Specifically, Iowa Code section 633.559 stated, “the parents

of a minor child, or either of them, if qualified and suitable, shall be preferred over

all others for appointment as guardian.” The provision created “a presumptive

preference of parental custody” that was rebuttable. See In re Guardianship of

Roach, 778 N.W.2d 212, 214 (Iowa Ct. App. 2009).1 Although the provision

applied only to the appointment of a guardian, it was construed as extending to all

phases of a guardianship proceeding, including termination of the guardianship.

See Maruna v. Peters, No. 12-0759, 2013 WL 988716, at *2 (Iowa Ct. App. Mar.

13, 2013) (“Pursuant to section 633.559, [the father] had a presumptive right to

custody of his child and [the guardian] had ‘the burden to overcome the parental

preference and show that the best interest of [the child] required continuation of

the guardianship.’” (citation omitted)); In re Guardianship of Blair, No. 01-1565,

2003 WL 182981, at *5 (Iowa Ct. App. Jan. 29, 2003) (“Because of the fundamental


1Section 633.559 was repealed effective January 1, 2020. See Iowa Acts 2019
ch. 56, § 43, 44.
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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.” (citing In re Guardianship

of Hedin, 528 N.W.2d 567, 581 (Iowa 1993))).

        That said, a parent was not entitled to the statutory preference if there was

a prior custody determination following a full evidentiary hearing and the court

found the preference was overcome. See In re Guardianship of Stewart, 369

N.W.2d 820, 824 (Iowa 1985) (“An involuntary guardianship would eliminate the

parental preference from later consideration . . . if the relative custodial rights of

the proposed guardian and the parent were put in issue and tried in the

guardianship proceeding.”).     The court of appeals articulated the respective

burdens in such a situation as follows: “[O]nce a finding has been made in a

previously litigated action, rebutting the presumption in favor of the natural parent,

the burden of proof changes such that the natural parent must prove a substantial

change of circumstances, warranting a change of custody.” Roach, 778 N.W.2d

at 215. The court underscored the principle that termination of a guardianship

must be in the child’s best interests. See id. at 214; accord Stewart, 369 N.W.2d

at 824 (“[T]he first and governing consideration must be the best interest of the

affected child.”).

       Robin argues the Roach standard applied. In her view, the 2017 order

“continu[ing]” the guardianship was effectively a denial of the parents’ petition to

terminate the guardianship following a full opportunity to litigate the issue, thereby

shifting the burden of proof to the parents to establish a substantial change of
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circumstances. She contends the parents failed to establish a substantial change

between the 2017 order and the 2019 orders. The parents respond that the burden

never shifted to them because the 2017 order “did not state that the presumption

in favor of [them] had been overcome,” “did not overrule [their] petition” to terminate

the guardianship, “did not dismiss the petition,” and “did not find [them] unqualified

or unsuitable.” See Blair, 2003 WL 182981, at *5 (noting an early order “expressly

declined to make the requisite findings concerning [the parent’s] suitability” and

“also expressly provided that the resulting placement was intended to be

temporary,” allowing the parent “to enjoy the controlling custodial presumption” and

leaving the burden with the guardians to rebut the presumption).

       There is much to commend the parents’ argument to us. The 2017 order

stated the child would not be returned to the parents “at this time” and left the door

open for the parents to object at a later time. See Stewart, 369 N.W.2d at 824

(noting order was “more akin to an agreed order for temporary custody entered

during the pendency of dissolution proceedings,” which would be “superceded by

the more permanent dissolution decree”). Nonetheless, giving Robin the benefit

of the doubt, we assume without deciding that she overcame the presumption of a

parental preference when she litigated the issue in 2017, thereby shifting the

burden to the parents to establish a substantial change of circumstances. See In

re Guardianship of M.D., 797 N.W.2d 121, 127 (Iowa Ct. App. 2011) (noting the

presumption can be overcome by “proof that the natural parent is not a qualified

or suitable caregiver”).
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       The district court essentially determined that the mother, who was the only

parent seeking physical care of the child, established such a change.2 In 2017,

the court found the mother “cannot provide the stable environment required by [the

child].” In 2019, the court found, “The key thing about [the mother] is that she

appears to have matured and grown considerably since [the child] was placed with

[Robin].” As an example, the court cited the mother’s evolving views about Robin.

The court stated her opinions were initially marked by “pettiness,” but she now

recognized that the child “should maintain a relationship with [Robin] throughout

his life.” The record supports the court’s findings.3 In the hearing preceding the

2019 orders, the mother testified the child “love[d]” Robin and they had “a very

close relationship.” She stated, Robin took “good care of” him and the child needed

“to still see her and interact with her.” She insisted she did not “want to rip him

away from her” because “[t]hat wouldn’t be fair to him or in his best interests.”

       The 2017 order also stated the mother’s “constant change in residences

and employment” were “not conducive to [the child’s] emotional needs.” By the

time of the hearing preceding the 2019 orders, the mother testified she lived in the

same house “for two years” and was working regular daytime hours. Again, her

testimony supports the district court’s finding of the mother’s maturity and growth.

       Along the same lines, in 2017, the court noted the mother, father, and others

in the parents’ households were smokers. The court found that the child “was



2 The court stated the child’s father “support[ed] termination of [the] guardianship
and placement of [the child] with his mother.”
3 Our review of this issue is stymied by the absence of a transcript of the 2017

hearing. But because the 2017 order was not appealed and is not subject to
collateral attack, we accept the district court’s findings.
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admitted to the [emergency room] unit of hospitals for respiratory problems” on six

occasions and “[c]ontinued exposure to secondhand smoke” would make the child

“at risk for asthma.” At the hearing preceding the 2019 orders, the mother testified

she “never had [the child] have an episode in [her] care” but she knew “how to

identify” the symptoms if they happened. Although she acknowledged her mother

smoked, she testified she did not smoke in their home. She also pointed out that

she had a regular doctor to whom she could take the child if needed. In short, she

addressed the court’s 2017 concerns about the child’s health, providing further

support for the court’s implicit determination that circumstances had changed.

       In making that determination, the district court also considered the

testimony of the child’s therapist. After finding she was the “one truly disinterested

person,” the court said it “did not sense any problems that [the therapist] thought

[the child] would continue with, if the guardianship was terminated.” On our de

novo review of the therapist’s testimony, we glean some equivocation on her part.

Nonetheless, she agreed the child would not be damaged emotionally if he were

placed in the mother’s care. See Iowa Code § 633.33; Roach, 778 N.W.2d at 213

(setting forth standard of review).

       Finally, we are persuaded that the bond the child shared with his older

brother and with the mother’s newborn child supported termination of the

guardianship. See In re I.S.M., No. 01-0407, 2002 WL 1331878, at *2 (Iowa Ct.

App. June 19, 2002) (citing “the admonition against separating siblings”). The

district court cited the bond in concluding the guardianship should be terminated.

       The district court also determined termination of the guardianship “would be

in [the child’s] best interests.” The court was especially equipped to make the best
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interest determination “because it had the opportunity to observe and listen to the

parties and other witnesses.” Stewart, 369 N.W.2d at 824. We find no reason to

disagree.

       We affirm the termination of the guardianship.

III.   Appellate Attorney Fees

       Both Robin and the parents request appellate attorney fees. They cite no

statutory authority that would allow us to order one party to pay the other’s

appellate attorney fees. See M.D., 797 N.W.2d at 130. Accordingly, we decline

both requests.

       AFFIRMED.
