                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1899
                            Filed October 12, 2016


CORY JOSEPH MARUNA,
    Plaintiff-Appellee,

vs.

KIMBERLY R. HARPER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clayton County, Joel A. Dalrymple,

Judge.



      A grandmother with guardianship over her grandchild appeals the district

court’s ruling denying her motion for summary judgment and compelling

production of the child’s health records. AFFIRMED.




      Webb L. Wassmer of Wassmer Law Office, P.L.C., Marion, for appellant.

      Jeffrey E. Clements, West Union, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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VAITHESWARAN, Judge.

       A grandmother with guardianship over her grandchild was granted

interlocutory review of district court rulings (1) denying her motion for summary

judgment on the father’s custody petition and (2) compelling the production of the

child’s health records to the father.

I.     Background Facts and Proceedings

       Parents Cory Maruna and Samantha Peters consented to the appointment

of Peters’ mother, Kimberly Harper, as guardian of their child. In time, Maruna

petitioned for custody. The district court granted the petition and terminated the

guardianship. This court reversed. See Maruna v. Peters, No. 12-0759, 2013

WL 988716, at *4 (Iowa Ct. App. Mar. 13, 2013). We concluded it was in the

child’s best interests to keep the guardianship in place because “a change of

custody would disrupt the physical and mental health of this fragile child.” Id.

       Nineteen months after the filing of our opinion, Maruna again petitioned for

custody and sought termination of the guardianship. Harper moved for summary

judgment, alleging “Maruna lacks standing to seek termination of the

[g]uardianship,” the “[c]ourt lacks jurisdiction to terminate the [g]uardianship,” and

“[n]o substantial change of circumstances sufficient to alter the [prior] orders . . .

is alleged or exists.” Maruna resisted the motion on the ground there was a

substantial change of circumstances. He also filed a motion to compel discovery

of the child’s health records.

       The district court denied Harper’s motion for summary judgment and

granted Maruna’s motion to compel production of the child’s medical records.
                                          3


Harper sought and obtained permission to file an interlocutory appeal. The case

was transferred to this court for disposition.

II.    Analysis

       A.     Summary Judgment Ruling

       Summary judgment is appropriate when there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law.

Iowa R. Civ. P. 1.981(3).

       i.     Standing – Iowa Code section 633.679

       Harper preliminarily contends “Maruna lacks standing to seek termination

of the guardianship.”     We question whether we need to address this issue

because Maruna’s resistance asserted he was “not, at this time, seeking

termination of the guardianship.”      Despite this concession, we will address

Harper’s argument, which is premised on Iowa Code section 633.679 (2015).

This provision confers authority to terminate a guardianship on “the person under

guardianship,” and because Maruna is the parent of the “person under

guardianship,” Harper claims he lacks standing. Iowa Code § 633.679(1).

       The Iowa Supreme Court has stated the quoted language of section

633.679 means what it says. See In re Guardianship and Conservatorship of

Schmidt, 401 N.W.2d 37, 38 (Iowa 1987). In Schmidt, an adult woman petitioned

for appointment of a guardian and conservator, naming the person she hoped to

serve in those capacities. See id. The district court granted the petition. See id.

Several months later, the woman’s stepson sought to substitute himself as

guardian and conservator and to have the guardianship proceeding vacated.

See id. The district court dismissed the stepson’s application. See id. The Iowa
                                         4

Supreme Court affirmed the decision.         See id. at 39.   The court reasoned,

“Authority to petition for termination is limited to the ward.” Id. at 38. The court

continued,

       Present section 633.679 has been a part of our Code since 1897.
       Under it we have never recognized a termination proceeding
       instituted by anyone other than the ward. Rather, we have said the
       section “provided the only method by which guardianships created
       under [the statute] could be judicially terminated.” The legislature
       apparently thought that any ward who needed someone else to file
       for termination was a likely candidate to remain under a
       guardianship or conservatorship.

Id. (citation omitted).

       Although Schmidt appears to support Harper’s contention that Maruna

lacked standing to seek termination of the guardianship, the opinion is

distinguishable. Schmidt was an adult who had the capacity to file a voluntary

guardianship petition. Harper’s grandchild was a pre-teen who was in no position

to petition for termination of the guardianship with her grandmother.

       Beyond this factual difference, the statutory framework does not support

such a restrictive reading of section 633.679. Several provisions within chapter

633 envision the termination of guardianships over minors without a prior filing of

a petition by the minor. For example, section 633.551(2) states that either the

ward or the guardian may petition to terminate the guardianship. See Iowa Code

§ 633.551(2). Section 633.551(3) gives the district court, rather than the ward,

authority to determine the scope of the guardianship in deciding whether a

guardianship should be terminated. See id. § 633.551(3). Section 633.675(1)(a)

says a guardianship shall cease “[i]f the ward is a minor, when the ward reaches

full age.” Id. § 633.675(1)(a). Section 633.675(1)(d) states a guardianship shall
                                            5


cease “[u]pon determination by the court that the conservatorship or

guardianship is no longer necessary for any other reason.” Id. § 633.675(1)(d).

Section 633.675(2) states a guardianship created under the child-in-need-of-

assistance statute shall not be terminated before the child turns 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.” Id. § 633.675(2). Section

633.679(2) omits reference to the ward as filer in connection with guardianships

created under the child-in-need-of-assistance statute. See id. § 633.679(2). In

sum, the statutory scheme on guardianships over minors contemplates

termination of guardianships at the behest of people other than the ward, by the

district court on its own motion, or automatically when the child turns eighteen.

Accordingly, section 633.679 cannot be read as precluding parents from filing

requests for termination of guardianships over their minor children.

         Case law supports this interpretation. Both before and after Schmidt, our

appellate courts considered petitions to terminate guardianships filed by parents

of minor children. See In re Guardianship of Stewart, 369 N.W.2d 820, 822-23

(Iowa 1985) (considering father’s application to terminate guardianship with

grandparents); Patten v. Patrick, 276 N.W.2d 390, 393 (Iowa 1979) (considering

father’s petition to terminate a guardianship over his child pursuant to section

633.675(1)(d))1; In re Guardianship of Sams, 256 N.W.2d 570, 571 (Iowa 1977)

(considering mother’s application for termination of guardianship); In re H.M.S.,

No. 15-0898, 2016 WL 1130963, at *4-5 (Iowa Ct. App. Mar. 23, 2016)

(considering father’s petition to terminate guardianship with maternal aunt and

1
    This provision was then numbered section 633.675(4).
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uncle); Stanley v. Aiken, No. 09-0723, 2010 WL 2602172, at *4-6 (Iowa Ct. App.

June 30, 2010) (considering request by mother to terminate guardianship); In re

Guardianship of Roach, 778 N.W.2d 212, 214-16 (Iowa Ct. App. 2009)

(considering mother’s petition to terminate a guardianship of her child with

paternal grandparents); In re Guardianship of Briggs, No. 06-2083, 2007 WL

1827517, at *3-5 (Iowa Ct. App. June 27, 2007) (considering father’s petition to

terminate the maternal grandmother’s guardianship of his son); In re

Guardianship of Hall, No. 02-0845, 2003 WL 1969282, at *2-5 (Iowa Ct. App.

Apr. 30, 2003) (considering petition to terminate guardianship filed by parents of

child).

          This case law makes sense. Qualified and suitable parents are afforded a

statutory preference for appointment as guardian. See Iowa Code § 633.559.

The preference would be meaningless if it did not come with the ability to seek

termination of an existing guardianship. We conclude Maruna, as the father of

the minor ward, had standing to seek termination of the guardianship.

          ii.   Jurisdiction Under the Uniform Child Custody Jurisdiction and
                Enforcement Act

          Harper next argues the district court had “no jurisdiction to terminate the

[g]uardianship” under Iowa Code chapter 598B, the Uniform Child Custody

Jurisdiction and Enforcement Act (UCCJEA). In her view, a modification of the

initial determination “must be made in the context of the previously filed

[g]uardianship proceeding as that [g]uardianship fixed the legal relationships of

the parties.” But the first set of custody and guardianship proceedings were

consolidated for disposition, and the district court similarly addressed Maruna’s
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second request for custody and termination of guardianship together.                    We

discern no jurisdictional concerns with the court’s joint treatment of custody and

guardianship matters. See Stewart, 369 N.W.2d at 824 (addressing parent’s

request for termination of guardianship and grandparents’ request for custody).

       Harper also asserts Maruna is a Wisconsin resident and she and her

grandchild are Iowa residents. However, she does not tie this assertion to her

jurisdictional challenge. Discerning no basis under the UCCJEA for Wisconsin to

exercise jurisdiction, we conclude Iowa appropriately exercised jurisdiction.

       iii.    Custody

       A party moving for summary judgment “bears the burden of showing the

nonexistence of an issue of fact.” Walker v. Gribble, 689 N.W.2d 104, 108 (Iowa

2004). “A factual issue is material when ‘the dispute is over facts that might

affect the outcome of the suit, given the applicable law.’” Id. (citation omitted).

       Harper contends Maruna “presented no evidence of any material change

of circumstances . . . sufficient to alter the orders issued in those cases.”2 This

bare assertion was insufficient to carry her burden. In addition, the underlying

custody issue involved a dispute over facts. Summary judgment was not the

appropriate vehicle for resolving the issue. See In re Jensen, 251 N.W.2d 252,

254 (Iowa 1978) (concluding dismissal of alimony claim on pleadings

inappropriate because it “cripple[d] th[e] court’s function to provide de novo

review in an equity proceeding”); In re Marriage of Rykhoek, 525 N.W.2d 1, 5

(Iowa Ct. App. 1994) (concluding summary judgment inappropriate on child

2
  Although Maruna did not file affidavits in resistance to the summary judgment motion,
he did file a verified custody petition, which “is equivalent to an affidavit.” See Chandler
v. Taylor, 12 N.W.2d 590, 595 (Iowa 1944).
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visitation issue). The court had to determine what custodial relationship was in

the child’s best interests.    See Stewart, 369 N.W.2d at 824.        This was a

paradigmatic case for an evidentiary hearing. Accordingly, the district court did

not err in denying Harper’s motion for summary judgment.

       B.     Motion to Compel Production of Health Records

       Maruna filed a motion to compel, seeking “[c]opies of all medical records

for [the child] including . . . mental health, counseling, and therapy records.”

Maruna asserted he was “entitled to the records as the minor child’s father.” The

district court granted the motion.

       On appeal, Harper asserts “J.H.’s medical records are not discoverable.”

She cites Ashenfelter v. Mulligan, 792 N.W.2d 665, 671-72 (Iowa 2010), in which

the court held a parent’s health records were protected by the constitutional right

to privacy and, even if the court were to weigh the parent’s privacy interest

against other public interests, the parent’s records would remain protected from a

request by grandparents seeking visitation.

       Ashenfelter is inapposite. Maruna is a parent who has legal access to

information concerning the child. See Iowa Code § 598.41(e) (“Unless otherwise

ordered by the court in the custody decree, both parents shall have legal access

to information concerning the child, including but not limited to medical,

educational and law enforcement records.”). Harper does not argue release of

the records would contravene the child’s best interests. See Harder v. Anderson,

Arnold, Dickey, Jensen, Gullickson & Sanger, L.L.P., 764 N.W.2d 534, 538 (Iowa

2009) (noting the court was required to decide what was in the child’s best

interests where the parent sought records and the mental health provider claimed
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release of records was not in the child’s best interests). We conclude the district

court appropriately granted Maruna’s motion to compel.

      C.     Attorney Fees

      Harper contends she is entitled to attorney fees if we reverse the district

court’s summary judgment ruling. Because we are affirming the ruling, we find it

unnecessary to address this issue.

      AFFIRMED.
