                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1537
                            Filed November 8, 2017


IN THE MATTER OF THE GUARDIANSHIP OF S.K.M.,

JARED MCTAGGART,
    Interested Party-Father of Minor Child/Appellant,

ERIC J. METZ and CHRISTINA M. METZ,
      Guardians of Minor Child/Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.



      A father appeals from a decision denying his petition to terminate a

guardianship over his daughter. REVERSED AND REMANDED.



      McKenzie R. Hill of O’Connor & Thomas, P.C., Dubuque, for appellant.

      Jamie A. Splinter of Splinter Law Office, Dubuque, for appellees.



      Heard by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
                                        2


MCDONALD, Judge.

         A father, Jared, appeals from an adverse decision on his petition to

terminate the guardianship of his minor child, S.K.M.

                                        I.

         Stephanie and Jared are the parents of S.K.M. (born 2007). The parents

separated a few months after the child was born. After the parties separated,

Stephanie and S.K.M. lived with relatives in Cedar Rapids and Grinnell. Jared

went to college in Dubuque and began working part-time for FedEx, an

international package delivery company.

         In early 2009, Stephanie informed Jared she was unable to care for

S.K.M., and she asked Jared if he would take physical care of S.K.M. At the

time, Jared was still in college and living with roommates. Jared asked for time

to get his own apartment. Without waiting, Stephanie gave physical care of

S.K.M. to her father, Eric Metz, and his then-girlfriend, now-wife, Christie, in

Grinnell. Stephanie informed Jared she was going to file a petition to appoint

Eric and Christie S.K.M.’s temporary guardians. Jared was served notice of the

guardianship proceeding and had actual knowledge of the guardianship

proceeding, but he chose not to participate in the proceeding. The juvenile court

established a guardianship for S.K.M. and appointed Eric and Christie S.K.M.’s

guardians.     After the guardianship was established, Stephanie moved to

Colorado. Although she has returned to Iowa, she has had little contact with the

child.

         In the summer of 2009, Jared left college and sought full-time

employment. He was offered a full-time position with FedEx in Chicago, which
                                         3


he accepted. He moved to Chicago in January 2010. During this time, Jared’s

mother Brenda exercised visitation with S.K.M. and A.L.M., Jared’s other child by

another mother, every other weekend. Jared would occasionally make the trip

from Chicago to Cedar Rapids to stay with his mother and visit his children.

Brenda brought the children to Chicago to see Jared on a few occasions as well.

Jared had approximately thirteen or fourteen in-person visits with the children

during his time living in Chicago. He had frequent, perhaps even daily, phone

contact with S.K.M.

      In early 2012, the Metzes moved to Dubuque.            In June 2012, Jared

accepted a lateral position with FedEx in Madison, Wisconsin. Jared exercised

visitation with S.K.M. more frequently after moving to Madison, which is closer to

Dubuque.     There was evidence he exercised visits more than every other

weekend during the summer of 2012, including some extended visits.

      In August 2013, Jared accepted a promotion with FedEx in Neenah,

Wisconsin.    Shortly thereafter, the Metzes filed a petition to terminate the

parental rights (TPR) of both biological parents. The juvenile court denied the

TPR petition. The Metzes appealed, and this court affirmed the juvenile court’s

decision. See In re S.M., No. 14-0287, 2015 WL 4644820, at *6 (Iowa Ct. App.

Aug. 5, 2015). We noted:

             It is also in the best interests of S.M. that the father’s rights
      not be terminated. The record established S.M. and the father
      shared a bond. While he has clearly relinquished the day-to-day
      care of S.M. to the guardians, and been satisfied with her
      placement, he has not removed himself from S.M.’s life so as to
      break that bond.
             We do note that the [guardian ad litem (GAL)’s] observation
      the father did not do nearly as much as he could to meaningfully
      parent S.M. has merit. A great deal of the father’s visitation was
                                            4


       taken up with the father’s mother caring for S.M. It is also apparent
       from the record the father visited S.M. when it was convenient for
       him and his employment, irrespective of S.M.’s need to have her
       father present. Additionally, the father—given his increased income
       over the years—could have contributed more to S.M.’s physical
       care and maintenance.[1] According to the guardian-grandfather,
       instead of voluntarily contributing to S.M.’s support, the father
       asked whether the guardians were “going to turn him into child
       support because he’s making more money.”
              However, these shortcomings do not satisfy the
       requirements of abandonment within the meaning of Iowa Code
       section 600A.8(3)(b). As noted above, the record establishes the
       father satisfied his child support obligation and has maintained
       contact with S.M. Consequently, we agree with the juvenile court’s
       conclusion the guardians failed to prove by clear and convincing
       evidence the father’s parental rights to S.M. be terminated pursuant
       to Iowa Code section 600A.8(3)(b).

Id.

       In April 2014, Jared filed a petition to terminate the guardianship. Jared

testified he had not sought to terminate the guardianship earlier because he

wanted to wait until such time as he believed he had achieved sufficient financial

stability to be able to provide for all the needs of S.K.M. In November 2014,

Jared moved to Crystal Lake, Illinois, after accepting a lateral position with

FedEx. Jared continued to visit his daughters. During this time, he often stayed

with a friend, Brandon Moorman, in Cedar Rapids.                Jared rented rooms in

Brandon’s house to allow his daughters a place to stay when Jared was in town

for visits.   The evidence regarding the frequency of Jared’s visits with his

daughters after he moved to Crystal Lake was in some dispute. He testified he

had visitation every other weekend, but the Metzes testified it was a year before


1
 At the time of the TPR trial, the father’s child support obligation for S.K.M. was $60 per
week. See S.M., 2015 WL 4644820, at *5. During the TPR proceedings, the Metzes
and A.L.M.’s biological mother separately filed to increase his obligations. Jared now
pays $635 per month in support for S.K.M. and $560 per month in support for A.L.M.
                                         5


he exercised visitation rather than allowing his mother to exercise the visits for

him. The Metzes did agree his visits had been “pretty consistent” in 2016. There

was also some evidence the Metzes prohibited visits for a period of time

beginning in October 2015 because they alleged Jared was harassing them.

This prohibition seems to have lasted for “the fall” and no more.

       Trial on Jared’s petition to terminate the guardianship took place over

three days in June 2016 and a fourth day in July 2016. Between the June and

July dates, Jared was offered a promotion with FedEx in a position in Mount

Pleasant, Iowa. His girlfriend, Carrie, was also optimistic she would be getting a

job offer for a lateral move with FedEx, where she also worked, near Mount

Pleasant. They had put an offer on a house by the time of the July hearing date.

In Mount Pleasant, Jared would be approximately an hour from his mother in

Cedar Rapids and two hours from S.K.M. in Dubuque.

       The district court denied Jared’s petition to terminate the guardianship.

The district court noted the statutory presumption in favor of placing children with

their biological parents, but found the parental preference was “lessened”

because Jared “ignored the summons to appear at court [at the time of the

guardianship petition] and allowed the matter to proceed by default.” The court

found the Metzes met their burden to overcome the lessened parental preference

or, alternatively, Jared had not shown a substantial change in circumstances to

warrant a custody modification. Jared now appeals.

                                         II.

       The case law regarding the applicable standard of review in guardianship

proceedings is somewhat muddy.         We agree with the conclusion of In re
                                         6

Guardianship and Conservatorship of D.D.H., 538 N.W.2d 881, 882–83 (Iowa Ct.

App. 1995), that the appropriate standard of review for cases involving the

establishment of a guardianship is for errors at law, not de novo. The Iowa Code

clearly states that actions for the involuntary appointment of guardians and

conservators shall be triable in probate as law actions.           See Iowa Code

§§ 633.33, .555 (2013). Our review of actions tried at law is for the correction of

errors at law. See Iowa R. App. P. 6.907.

                                        III.

      Prior to resolving the merits of the appeal, we first address a preliminary

issue. The Metzes contend Jared does not have standing to bring this action

because only the ward may bring an action to terminate the guardianship. See

Iowa Code § 633.679(1) (providing “the person under guardianship or

conservatorship may apply to the court by petition . . . asking that the

guardianship or conservatorship be terminated”); see also In re Guardianship &

Conservatorship of Schmidt, 401 N.W.2d 37, 38 (Iowa 1987) (dismissing an adult

stepson’s petition to terminate a guardianship over his mother).

      This court recently rejected the same standing claim.         See Maruna v.

Harper, No. 15-1899, 2016 WL 5930881, at *1–3 (Iowa Ct. App. Oct. 12, 2016).

We quote from our prior opinion at length:

      [T]he 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.
                                  7


§ 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
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 [Stewart, 369
N.W.2d at 822–23] (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)); 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 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
                                         8


      guardianship. We conclude Maruna, as the father of the minor
      ward, had standing to seek termination of the guardianship.

Id. at *2–3. We see no reason to deviate from our prior opinion. Jared has

standing to seek the termination of the guardianship of his biological daughter.

                                        IV.

      This   case   involves   the   termination   of   an   existing   non-parental

guardianship. The inquiry is highly fact-intensive. There are numerous cases

continuing a non-parental guardianship at the behest of a guardian against the

wishes of a parent, and there are numerous cases terminating a non-parental

guardianship at the behest of a parent and against the wishes of a guardian. The

parties have cited these authorities in their respective briefs and discussed, at

length and with great skill, their application to the case at hand. However, each

case, viewed in isolation, is merely a pointillist dab on a large canvas. To draw

meaning, we must retreat a distance and focus not on the dabs but instead on

the emergent image. We retreat to first principles.

             The interest of parents in the care, custody, and control of
      their children is a fundamental liberty interest with which the State
      cannot interfere without establishing a compelling governmental
      interest for doing so. The right was initially recognized in the
      seminal case of Meyer v. Nebraska, 262 U.S. 390, 399 (1923), in
      which the Court upheld the right of parents to “establish a home
      and bring up children.” The right repeatedly has been reaffirmed by
      the Supreme Court. In Prince v. Massachusetts, 321 U.S. 158, 166
      (1944), the Court concluded that “custody, care, and nurture of the
      child reside first in the parents.” In Wisconsin v. Yoder, 406 U.S.
      205, 232 (1972), the court reiterated the primacy of parental rights,
      stating the “primary role of the parents in the upbringing of their
      children is now established beyond debate as an enduring
      American tradition.” The issue was again revisited in Troxel v.
      Granville, 530 U.S. 57 (2000), where the court addressed the
      constitutionality of Washington’s grandparent visitation statute. The
      Court discussed the long history of cases protecting parents’ rights,
      concluding “it cannot now be doubted that the Due Process Clause
                                         9


      of the Fourteenth Amendment protects the fundamental right of
      parents to make decisions concerning the care, custody, and
      control of their children.” Troxel, 530 U.S. at 66. The Troxel Court
      held Washington’s statute was overbroad because it allowed
      grandparents to visit a child over parental objection without any
      showing the parent was unfit. See id. at 68–69 (stating so long as
      a parent is “fit,” there will normally be no reason for state
      interference).
              After Troxel, the Iowa Supreme Court addressed the issue of
      grandparent visitation rights. In Santi v. Santi, 633 N.W.2d 312,
      321 (Iowa 2001), the court held part of Iowa’s grandparent visitation
      statute facially unconstitutional under article I, sections 8 and 9 of
      the Iowa Constitution. The court reasoned that parents’ rights to
      the care, custody, and control of their children is a fundamental
      interest subject to interference only for a compelling interest. Santi,
      633 N.W.2d at 318. The court explained the grandparent visitation
      statute was fundamentally flawed “because it does not require a
      threshold finding of parental unfitness before proceeding to the best
      interest analysis.” Id. at 321. The court revisited a different
      provision of the law in In re Marriage of Howard, 661 N.W.2d 183
      (Iowa 2003).       There, the court affirmed its conclusion that
      interference with the fundamental right of parents to the care,
      custody, and control of their children requires the State to
      establishing a compelling interest. Howard, 661 N.W.2d at 188. It
      noted the “essential presumption of fitness accorded a parent.” Id.
      at 190. In holding the law unconstitutional, the court explained “the
      best interests of a child requirement . . . is insufficient” to establish
      a compelling state interest. Id. at 191. The court concluded the
      statute was unconstitutional on its face because it “not only fails to
      recognize the degree of harm or potential harm to the child needed
      to support state intervention, but it ‘fails to require a threshold
      finding of parental unfitness.’” Id. at 192 (quoting Santi, 633
      N.W.2d at 321).

In re Guardianship of C.R., No. 14-1039, 2015 WL 576385, at *4–5 (Iowa Ct.

App. Feb. 11, 2015) (McDonald, J., concurring in part and dissenting in part).

      Iowa’s guardianship statute and caselaw recognize and protect a parent’s

fundamental interest in the care and custody of a child.         Iowa Code section

633.559 creates a parental preference with respect to the appointment of a

guardian, providing that a natural parent, “if qualified and suitable, shall be

preferred over all others for appointment as guardian.” Iowa Code § 633.559
                                        10


(emphasis added).     And “[b]ecause 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)).

      When viewed from the distance of first principles, our cases demonstrate

there are several ways in which a nonparent-guardian can overcome the parental

preference in resisting the termination of a guardianship. First, 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 824 (stating if “the relative custodial rights of the proposed guardian

and the parent were put in issue and tried in [a] guardianship proceeding” then

there is no longer a parental preference). This is merely judicial recognition that

the constitutionally-mandated preference of parent custody has already been

overcome in a prior proceeding and need not be proved again.             Once the

preference is eliminated, the burden of proof shifts to the natural parent to prove

a substantial change in circumstances warranting a change in custody. See

Roach, 778 N.W.2d at 215. In addition, the parent must establish a change in

custody is in the best interest of the child. See id. (explaining the purpose of the

guardianship proceeding is to provide for the best interest of the child).        A

guardianship by consent or default, as was the case here, does not qualify as
                                         11

prior custodial determination following a full evidentiary hearing. See H.M.S.,

2016 WL 1130963, at *4; Stanley, 2010 WL 2602172, at *4 n.2.

       Second, we have held “a parent who has taken an extended holiday from

the responsibilities of parenthood’ may not take advantage of the parental

preference for custody.” Roach, 778 N.W.2d at 215 (citation omitted). Our cases

have not clearly delineated what constitutes an extended holiday. When viewed

from sufficient distance, the contour becomes more clear.             Although not

articulated as such, this line of cases merely recognizes a parent may expressly

or impliedly waive the parental preference by waiving the underlying

constitutional right to the care, custody, and control of a child.        See, e.g.,

Callender v. Skiles, 591 N.W.2d 182, 192 (Iowa 1999) (“Despite the presence of

an existing family, the rights of a putative father cannot be denied without an

opportunity for a hearing. That right, however, like other constitutional rights, can

be waived.”). At minimum, as with the waiver of any constitutional right, the

resisting party must show “an intentional relinquishment or abandonment of a

known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). For

example, a nonparent could show the parent has explicitly renounced parental

responsibility. By way of another example, a nonparent could show the parent

has abandoned the child for a sufficiently long period of time to establish an

abandonment of the right to care and custody of the child.

       Jared has not expressly or impliedly waived his constitutional or statutory

right to the care, custody, and control of his child. Jared has paid support for the

child during the entirety of the child’s life. He has exercised continuous and

regular visitation with the child in-person or telephonically since the time of the
                                         12


child’s birth. The evidence introduced at trial showed Jared and the child have a

bond. We also note that while the child has been in the custody of Eric and

Christie for a lengthy period of time, the parties have been litigating the custody

question since the spring of 2013. We cannot hold against Jared this extended

passage of time due to litigation delay. Finally, our court has already affirmed a

prior decision denying the grandparents’ petition to terminate Jared’s parental

rights on the ground he abandoned the child. S.M., 2015 WL 4644820, at *6.

While proof of waiver of a parent’s rights, within this context, would not

necessarily be jot-for-jot with the proof necessary to terminate a parent’s rights

pursuant to statute, the inquiries are similar. In short, Jared has not expressly or

impliedly waived his right to the parental preference.

       Our cases also present a third image. A nonparent-guardian can establish

a parent is not “qualified and suitable” within the meaning of the statute. Under

this line of cases, Eric and Christie were required to prove by clear and

convincing evidence that Jared is not “qualified and suitable” to serve as the

guardian of S.K.M. and that continuation of the nonparent-guardianship is in the

best interest of S.K.M. See Santi, 633 N.W.2d at 321; see also Iowa Code

§ 633.559.

       The code does not define “qualified and suitable.” Our cases have
       not clearly defined “qualified and suitable.” In light of Troxel, Santi,
       and Howard, in a guardianship proceeding involving nonparents
       seeking to [continue] care, custody, and control over a child
       contrary to the legal parent or parents’ wishes, “qualified and
       suitable” should be interpreted to require proof the parent(s) is
       “unfit.” At minimum, this requires evidence the parent cannot
       provide the child with reasonable parental care, meaning nurturing
       and protection adequate to meet the child’s physical, emotional,
       and mental health needs and that the parent’s inability to provide
                                        13


      reasonable parental care poses a substantial and material risk of
      harm to the child.

C.R., 2015 WL 576385, at *5. Proof of unfitness is constitutionally necessary to

justify continued interference in the relationship between a natural parent and his

child. See Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (stating it would violate

due process to interfere with the natural family unit without some showing of

unfitness and for the sole reason that to do so was thought to be in the children’s

best interest); Howard, 661 N.W.2d at 188. But see In re Guardianship of M.E.,

No. 16-1178, 2017 WL 2465791, at *7 (Iowa Ct. App. June 7, 2017) (recognizing

“second basis” for termination of guardianship when, “notwithstanding the parent

being qualified and suitable, the nonparent has rebutted the parental preference

and the welfare and best interest of the child requires custody to remain in the

nonparent”).

      When we apply the relevant legal standard to the facts of this case, the

grandparents have not established by clear and convincing evidence that Jared

is not qualified and suitable. Indeed, the evidence is to the contrary. Jared has

been continuously employed with the same employer since the child’s birth and

has been promoted to increasing levels of responsibility within the employer-

organization. He now has the financial means to provide for the physical needs

of the child. Over the course of time, he has demonstrated the ability to meet the

social and emotional needs of the child. He has had regular and continuous in-

person and telephonic contact with S.K.M. since her birth and has a bond with

the child. He has relocated to a community closer to where S.K.M. resides to
                                        14


allow her to maintain continued relationships with her extended family, including

Eric and Christie.

       Lacking from this record is any fact that would give pause to Jared

exercising care and custody over the child. There is no indication he suffers from

mental illness. Cf. Hall, 2003 WL 1969282, at *5 (restoring care to biological

parent who dealt with mental illness). He has never struggled with substance

abuse. Cf. In re Guardianship of Padgett, No. 09-1672, 2010 WL 3894452, at

*1–3 (Iowa Ct. App. Oct. 6, 2010) (restoring care to biological parent who

overcame substance-abuse issues); Briggs, 2007 WL 1827517, at *5 (same).

Domestic violence has not been an issue in his home. Cf. Stanley, 2010 WL

2602172, at *5 (restoring care to biological parent who addressed domestic

violence in home). He does not have a serious criminal history. Cf. Patten, 276

N.W.2d at 398 (affirming denial of father’s petition to terminate guardianship

where father testified “he would not commit another felony unless ‘it was

something really big.’”). There has never been any concern of child abuse or

neglect. Cf. Blair, 2003 WL 182981, at *5 (affirming denial of parent’s petition to

terminate guardianship where parent had repeatedly neglected child and no

evidence of improvement existed).       In short, none of the typical factors in

establishing parental unfitness are present in this case.

       To the extent we can draw any guidance from an individual dab, this case

most strongly resembles Stewart.       There, the father and the guardians, the

maternal grandparents, established a guardianship while the father progressed in

his career and obtained a level of financial stability to provide for the child. See

Stewart, 369 N.W.2d at 823. Approximately four years after the guardianship
                                         15


was established, during which time the father regularly visited the child, the father

petitioned to terminate the guardianship. Id. at 822. Hearing on the father’s

petition was held more than three years after he filed his petition due to his

service abroad in the air force. See id. The district court afforded the father the

parental presumption and terminated the guardianship. See id. The supreme

court affirmed: “William certainly never abandoned his daughter.         He kept in

close touch with the [guardians], provided regular financial support, and

frequently visited [the child]. He requested termination of the guardianship when

he believed he was ready to take care of her just three years after the

guardianship had been set up.” Id. at 823. Here, too, Jared kept in touch with

the guardians, provided regular financial support, and visited the child.        He

requested termination of the guardianship once he believed he was financially

able to provide for S.K.M. and had obtained a position in the area where she had

been raised.

       This case is also similar to a recent decision of this court.        In In re

Guardianship of J.M.M., No. 13-0945, 2014 WL 667669, at *3 (Iowa Ct. App.

Feb. 19, 2014), this court affirmed the termination of a nonparent-guardianship in

favor of the parent. The evidence showed the mother had been absent from the

children’s lives for almost ten years. During that time period, she worked to

overcome her substance-abuse addictions and criminal behavior.             She also

worked to obtain financial stability to be able to provide for her children. We

concluded the guardians failed to prove that at the time of trial the mother was

not “qualified and suitable to parent her children.” This case presents a stronger

case in favor of the parent. Here, Jared has provided financial support for the
                                       16


child since her birth. He has been active in her life and built a bond with her.

And he sought to terminate the guardianship when the child was much younger.

       As in Stewart and J.M.M., the guardians in this case have not established

the guardianship over S.K.M. should continue over Jared’s objection. Jared did

not lose the benefit of the parental presumption because of a prior guardianship

proceeding. See Stewart, 369 N.W.2d at 824; H.M.S., 2016 WL 1130963, at *4;

Stanley, 2010 WL 2602172, at *4 n.2. The grandparents did not establish Jared

expressly or impliedly waived the constitutional right to the care, custody, and

control of S.K.M. or the statutory right to the parental presumption. Finally, the

grandparents failed to prove by clear and convincing evidence that Jared is not

“qualified and suitable” within the meaning of our guardianship statute. There

has thus been no showing sufficient to overcome the parental presumption. In

concluding otherwise, the district court applied the incorrect legal standards and

otherwise erred as a matter of law. We therefore reverse the judgment of the

district court.

       We close by noting nothing in this opinion should be interpreted to be a

criticism of Eric and Christie, who have lovingly and admirably served as S.K.M.’s

guardians for these years. Their desire to continue to serve as guardians of

S.K.M. contrary to Jared’s wishes was motivated by their love for their

granddaughter and their good-faith belief it would be in her best interest to

maintain the present arrangement. However, “[o]ur 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.
                                      17


Nor is it overcome by showing that those who provided the assistance love the

children and would provide them with a good home.” Sams, 256 N.W.2d at 573.

We are confident Jared recognizes and appreciates the sacrifice Eric and

Christie have made in serving as caretakers for S.K.M.. We are also confident

he recognizes and appreciates that allowing S.K.M. to have continuous and

regular contact with her grandparents is in his best interest and S.K.M.’s best

interest.

                                      V.

       For the above reasons, we reverse the judgment of the district court and

remand this matter for the entry of an order terminating the guardianship over

S.K.M.

       REVERSED AND REMANDED.
