                     IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0630
                           Filed December 24, 2014


BECKY A. CLAUSEN,
    Plaintiff-Appellant,

vs.

JILL M. CLAUSEN,
      Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Mary Jane

Sokolovske, Judge.



      A grandmother appeals the district court’s denial of her petition for

grandparent visitation. AFFIRMED.




      Alice S. Horneber of Horneber Law Firm, P.C., Sioux City, for appellant.

      Elizabeth A. Row of Elizabeth A. Row, P.C., Sioux City, for appellee.




      Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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DANILSON, C.J.

       The paternal grandmother, Becky Clausen, appeals from the district

court’s denial of her petition for grandparent visitation.      Becky contends the

mother, Jill Clausen, is unfit to make decisions regarding visitation. She also

contends it is in the best interests of the children to grant the grandparent

visitation. The mother requests we affirm the district court’s denial of the petition

and seeks an award of appellate attorney fees.             Because Becky has not

overcome the presumption Jill is fit to make decisions regarding visitation, we

affirm the district court’s denial of the petition. We deny Jill’s request for attorney

fees, as no statute or agreement exists to support such an award.

I. Background Facts and Proceedings.

       The facts are largely undisputed, and we adopt the district court’s

recitation of facts as our own:

               Dustin and Jill were husband and wife. Their relationship
       began in September 2001 when they began dating and eventually
       they moved in together. Three years into their relationship Jill
       became pregnant with the oldest child C.D.C. who was born in
       2004. Dustin and Jill were married and remained living together as
       husband and wife until Dustin’s tragic and untimely demise on
       August 10, 2013. Dustin passed away suddenly at the age of thirty-
       five.
               During their marriage, Dustin and Jill had two more children,
       T.M.C. born in 2010 and M.L.C. born in 2011.
               After the birth of their first child C.D.C., Dustin and Jill had
       Pat Wolf provide day care for C.D.C. while both parents worked.
       Pat Wolf provided this day care until C.D.C. entered school. Upon
       the birth of their second child T.M.C., Jill worked at home and took
       care of C.D.C. and T.M.C. There was a period of time when Becky
       provided day care for C.D.C. while his parents worked.
               The mother went to work at Pech Optical and Becky
       provided day care for C.D.C. and T.M.C. After the birth of M.L.C.
       Becky provided day care for all three children while Jill and Dustin
       worked. Dustin did pay Becky $100.00 a week for her services in
       caring for the children.
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        As a result of the ongoing contact between Becky and her
grandchildren, Becky developed a strong bond with the children.
She would assist in picking up the oldest from school and would
take the children to doctor appointments. Becky testified that it is
her belief that she has equal rights to the children as much as
Dustin and Jill had as parents. In defendant’s exhibit 103, Becky
testified to the following in a deposition, “I don’t know the law, but
those babies were just as much my babies as they were her and
Dustin’s. And my son told me that. And those kids have been with
me since they were born.”
        Jill testified that Dustin was a good father and the two had a
good relationship. She stated that she and Dustin would have
disagreements often about his mother’s involvement in their family
life. Jill was not happy when Dustin took his mother’s side over
hers. There was a several month time frame wherein Dustin, Jill,
and C.D.C. resided in Becky’s home. A disagreement arose
between Becky and Jill and name calling ensued. Becky told Jill to
leave her home.
        Jill stated that Becky was a controlling person. Becky’s own
sister testified that Becky at family gatherings was taking care of
children or directing people and in control of the situation. Becky
believes Jill lies to her and cited instances regarding Jill’s “job loss”
and a “tattoo” for examples of those lies. Becky stated that Jill told
her falsehoods about these two issues. . . .
        Becky felt it was her place to secure counseling for her
grandchildren after Dustin’s death. Without consulting Jill she
spoke with the children’s doctor about setting up counseling for the
children. Jill had already addressed the counseling issue with
C.D.C.’s school and was directed to Siouxland Mental Health which
was followed through with. Becky testified that she believes that all
three of the children and Jill need counseling to deal with Dustin’s
death.
        . . . Becky testified that Jill is selfish and she loves the
children only to the extent she is able. Becky further testified that
she is the proxy for her deceased son and that it is in the best
interest of the children for her to have continued care of the
children. Becky testified that she would keep Dustin alive for the
children and the children would help her in the loss of Dustin.
Becky admitted calling her deceased son’s phone and leaving a
voicemail to him. The voicemail was critical of Jill and called her
unreasonable and he needed to wake her (Jill) up.
        Jill was unaware of the depth of this criticism until this case
was brought. Dustin passed away on August 10, 2013. Jill
continued to allow Becky unfettered access to the children. Becky
continued to provide day care while Jill worked.
        Shortly after the funeral, Becky expressed to Jill that Jill’s
actions made her feel that Jill didn’t love Dustin. She accused Jill
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       of having an affair with Jesse Smith after the death of her son.
       Becky testified that she learned of this from her grandson . . . .
                Approximately one month after Dustin’s passing, Becky went
       to her attorney about the children. She testified that she was
       concerned that Jill suffered from asthma and Bells Palsy and that
       these health concerns were sufficient enough that provision should
       be made to assure the children would be placed in Becky’s care. A
       Petition for Appointment of Guardian (Standby) was prepared. In
       the petition at paragraph 4 it states, “I have health concerns which
       may make it impossible for me to provide for the care of the
       proposed wards.” The petition named Becky Clausen as the
       proposed guardian of the children.
                Becky took the petition to Jill and urged her to sign the
       same. Becky further told Jill that if she didn’t understand the
       petition that her attorney would be willing to review the petition with
       her. Jill testified that neither medical condition would render her
       unable to care for her children. Jill declined to sign the petition. Jill
       testified that Becky became angry that Jill did not sign the
       guardianship petition. Jill however, continued to allow the children
       and Becky to have contact even though Becky presented the
       guardianship petition to her.
                On October 8, 2013, Becky filed her petition seeking
       grandparent visitation.       The petition was served on Jill on
       October 9, 2013.        Shortly after the petition was served, Jill
       reconsidered allowing Becky unfettered contact with the children.
       Jill did not send the children to Becky for child care on October 10
       and 11, 2013.         Becky called Jill on October 12, 2013 at
       approximately 8:30 a.m. Jill didn’t answer the phone calls.
       Approximately thirty minutes later, Becky called the police to go to
       Jill’s residence and check on the children. The police did go to Jill’s
       residence and found nothing wrong.
                Jill has made a police report regarding the conduct of
       Samantha Clausen. Samantha resides with Becky and is the
       paternal aunt of the children. Samantha came to Jill’s employment
       on October 10, 2013. Samantha testified that she was curious if Jill
       was at work. Samantha also went to C.D.C.’s school and waited
       until Jill picked up C.D.C. She proceeded to follow Jill in an effort to
       see if Jill was taking the children to Jill’s house or to Jesse Smith.

The district court filed a ruling on April 4, 2014. In it, the court found that Becky

had “established a substantial relationship with the child[ren] prior to the filing of

the petition.”   Iowa Code § 600C.1(3)(b) (2013), see also § 600C.1(5)(c)

(“[S]ubstantial relationship includes but is not limited to any of the following: [t]he
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grandparent . . . has had frequent visitation including occasional overnight

visitation with the child[ren] for a period of not less than one year.”). However,

the district court denied Becky’s petition, finding she had not established by clear

and convincing evidence that it was in the best interest of the children to grant

the visitation nor that Jill was unfit to the make the decision regarding visitation.

See § 600C.1(3)(a), (c).

       Becky appeals.

II. Standard of Review.

       We review the district court’s denial of grandparent visitation de novo.

Graves v. Eckman, 550 N.W.2d 470, 471 (Iowa Ct. App. 1996). “We give weight

to the fact findings of the juvenile court, especially regarding the credibility of

witnesses, but we are not bound by them.” In re of K.R., 537 N.W.2d 774, 776

(Iowa 1995).

III. Discussion.

       A. Petition for Visitation.

       Pursuant to Iowa Code chapter 600C, grandparent visitation, the court

may grant visitation to a petitioning grandparent if it finds, by clear and

convincing evidence: (1) it is in the best interests of the children to grant such

visitation; (2) the grandparent has established a substantial relationship with the

children prior to the filing of the petition; and (3) the grandparent has overcome

the presumption that the parent who is being asked to temporarily relinquish

care, custody, and control of the child to provide visitation is fit to the make the

decision regarding visitation. Iowa Code § 600C.1(3)(a)–(c).
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       A grandparent does not have an equal claim to children to that of a parent

and is not entitled to subsume the role of the grandparent’s deceased child. As

reflected in the statute, in order to be awarded visitation, the petitioning

grandparent must overcome the presumption that the parent denying visitation is

fit to make the decision. Iowa Code § 600C.1(3)(c). The grandparent can do so

by establishing by clear and convincing evidence the parent is unfit to make such

decisions or the parent’s judgment has been impaired.                         Iowa Code

§ 600C.1(3)(c)(1), (2).     Impaired judgment of a parent may be evidenced by

neglect of the children, abuse of the children, violence toward the children,

indifference   of   absence    of   feeling       toward   the   children,   demonstrated

unwillingness and inability to promote the emotional and physical well-being of

the children, drug abuse, and/or a diagnosis of mental illness.                Iowa Code

§ 600C.1(3)(c)(2)(a)–(g).

       Upon our de novo review of the record, we agree with the district court

that Becky failed to overcome the presumption that Jill is fit to make decisions

regarding visitation. As noted by the district court, “There was no evidence of

neglect, abuse, violence, indifference, absence of feeling or a demonstrated

unwillingness and inability to promote the emotional and physical well being of

the children. [The mother] does not abuse drugs or have a diagnosis of a mental

illness.” Although the mother may not be the best housekeeper and may be

involved in a new relationship, the grandmother’s criticisms of the mother do not

rise to the level of being unfit. Because the resolution of this issue is dispositive,

we do not need to consider whether a substantial relationship between Becky
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and the grandchildren exists nor whether it is in the best interests of the children

to award Becky visitation.

       B. Attorney Fees.

       Because Iowa Code chapter 600C does not provide for an award of

attorney fees, we deny the mother’s request for an award of appellate attorney

fees.1 See Van Sloun v. Agans Bros., Inc., 778 N.W.2d 174, 182 (Iowa 2010)

(“In order for fees to be taxed the case must come clearly within the terms of the

statute or agreement.”).

IV. Conclusion.

       Because Becky has not overcome the presumption Jill is fit to make

decisions regarding visitation, we affirm the district court’s denial of the petition.

We decline to award appellate attorney fees.

       AFFIRMED.




1
  An award of attorney fees was previously available pursuant to Iowa Code section
600C.1(9) (2009). However, the statute has since been amended and no longer
provides for such an award. See Iowa Code § 600C.1 (2013).
