                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1598
                              Filed March 22, 2017


IN RE THE MATTER OF THE
GUARDIANSHIP OF L.O. and D.O.

HEIDI LYNN ORTMANN,
      Petitioner-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Plymouth County, Duane E.

Hoffmeyer, Judge.



      A mother appeals the probate court’s decision denying her request to

terminate a guardianship of her minor children. AFFIRMED.




      Tara S. Vonnahme of Vonnahme Law, P.C., Sioux City, for appellant.

      Kelsey Bauerly Langel of Trotzig & Bauerly, P.L.C., LeMars, and Jenny L.

Winterfeld of Winterfeld Law, P.L.C., Sioux Center, for appellees.

      Joseph W. Kertels, Sioux City, guardian ad litem.




      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

      A mother appeals the district court’s decision denying her request to

terminate the guardianship of her minor children. The mother claims the district

court improperly refused to apply the parental preference, violated her

fundamental right to parent, and applied the incorrect burden of proof. We find

the district court properly found the parental preference had been weakened or

eliminated, did not violate the fundamental right to parent, and determined the

correct burden of proof. Therefore, we affirm.

   I. Background Facts and Proceedings

      The mother placed L.O. and D.O. in a guardianship with their paternal

aunt in 2014.    The guardianship was established at the suggestion of the

mother’s attorney as, according to the mother, “she was told she could opt to

voluntarily place the children into a guardianship . . . allowing her to get her

children back if she turned her life around, or face potential termination

proceedings.” The guardianship was not opposed by any party, and the juvenile

court case was closed. The guardianship case was opened in the district court.

      Since the establishment of the guardianship, the mother has made

progress.   The district court found she has been “clean and sober and

employed.” She also has stable housing and a valid driver’s license. The mother

has paid child support throughout the guardianship. However, at times during

the guardianship, the mother continued to have significant issues.     She was

convicted of operating while intoxicated, and driving while her license was

suspended, had her parole and work release revoked, and admitted to continued

use of marijuana for several months after the guardianship was established.
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       The guardians have limited, and at times prohibited, contact between the

mother and her children. The mother’s family is allowed contact, but any contact

between the mother and the children has been closely scrutinized by the

guardians.

       The mother petitioned for termination of the guardianship and parenting

time in February 2016. After trial, the district court denied the termination of the

guardianship but granted limited visitation once a month.          The mother now

appeals.

   II. Standard of Review

       Actions to terminate guardianships are equitable in nature.            In re

Guardianship of B.J.P., 613 N.W.2d 670, 672 (Iowa 2000). Equitable actions are

reviewed de novo. Iowa R. App. P. 6.907. We give weight to the factual findings

of the district court but we are not bound by them. In re Guardianship of Stewart,

369 N.W.2d 820, 822 (Iowa 1985).

   III. Error Preservation

       The mother failed to state in her brief how error was preserved on all

issues. We determine, however, each issue raised has been preserved for our

review. The order the mother appeals contained rulings on all three issues and

those issues were raised before the district court. See Bank of Am., N.A. v.

Schulte, 843 N.W.2d 876, 883 (Iowa 2014) (“It is a fundamental doctrine of

appellate review that issues must ordinarily be both raised and decided by the

district court before we will decide them on appeal.”) (citation omitted).
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   IV. Parental Preference

          a. Application to Guardianships Originating in Juvenile Court

      The mother claims the juvenile court erred by failing to apply a statutory

preference to make a suitable parent the guardian.        The mother admits the

preference is rebuttable.   See Hulbert v. Hines, 178 N.W.2d 354, 361 (Iowa

1970). Our supreme court has held parents “should be encouraged to look for

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

the custody of the children permanently.” Painter v. Bannister, 140 N.W.2d 152,

156 (Iowa 1966). This is certainly correct. Parents should be encouraged and

empowered to take steps to protect their children and improve themselves and

their ability to parent when they recognize an inability to protect or provide for

their children. “Additionally we note the law is well established that surrender of

the custody by [a child’s] parents is presumed temporary unless the contrary is

made to appear by proof, clear, definite and certain.” Doan Thi Hoang Anh v.

Nelson, 245 N.W.2d 511, 516 (Iowa 1976). The record clearly indicates the

surrender here was understood to be temporary. In determining where to place

the child “the court must consider the long-range interest as well as the

immediate interest of the child.” In re Guardianship of Knell, 537 N.W.2d 778,

781 (Iowa 1995).

      However, in this case, the “court’s jurisdiction over the child’s guardianship

was established . . . in accordance with [a permanency order].” Iowa Code

§633.559 (2015). Section 633.559 applies the natural parent preference only if

the court’s jurisdiction is not established by a transfer from juvenile court. The
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parental preference can also be eliminated or weakened if the transfer of custody

is not taken “in a time of need.” Knell, 537 N.W.2d at 782 (Iowa 1995).

       We agree with the district court finding there is no parental preference in

this case. The district court found the mother “did not agree to this guardianship

voluntarily ‘in a time of need.’” Rather, the guardianship was only established

“when she was faced with time limitations that required action by the court that

included the possibility/probability her parental rights may be terminated.” A last

ditch effort to avoid the possibility of termination is not “taken in a time of need”

as contemplated by our case law. The guardianship was simply an attempt to

delay or avoid an adverse outcome. While we applaud the mother’s progress,

we cannot afford her the advantages of the parental preference.

          b. Fundamental Right to Parent

       The mother next claims any weakening or elimination of the parental

preference violates her fundamental right to parent her children. She points to

various issues, including lack of access to medical and educational records,

limited visitation, and no parenting time. The Supreme Court has held a parent

may not be denied custody without a judicial finding the parent is unfit. Stanley v.

Illinois, 405 U.S. 645 (1972). The mother claims she was never found unfit by

any trier of fact, her rights have not been terminated, and she is current on her

child support obligations.

       We find the mother has been found to be unfit. The juvenile case ended

in a permanency hearing finding the children could not be returned to her care

and confirming the guardianship.       The district court noted this permanency

hearing in its decision to continue the guardianship. Additionally, the mother has
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not provided any case law supporting her claim. While she has cited cases

establishing the right to parent, there are no cases suggesting the parental

preference cannot or should not be weakened or eliminated.

   V. Burden of Proof

       Finally, the mother claims the district court applied an improper standard

of review. She claims the standard of review to terminate guardianships when

termination has not been previously litigated is that the parent requesting

termination must make a prima facie showing of suitability as a parent and then

the guardian must prove the parent is unsuitable to avoid termination of the

guardianship. See Iowa Code § 633.675(1)(c); see also In re Guardianship of

Roach, 478 N.W.2d 212, 213-14 (Iowa Ct. App. 2009.) While it is a correct

statement of law, the facts of this case require a different burden of proof.

       If a guardian was appointed due to the transfer of the case pursuant to

Iowa Code section 232.101A, as this case was, “the court shall not enter an

order terminating the guardianship before the child becomes age eighteen unless

the court finds by clear and convincing evidence that the best interests of the

child warrant a return of custody to the child's parent.” Iowa Code § 633.675(2).

While the mother may have established a prima facie case, we find she did not

present “clear and convincing evidence” warranting termination of the

guardianship.   We find the district court applied the proper burden of proof.

Accordingly, we affirm.

       AFFIRMED.
