Opinion
No. 2-473 / 01-2072
Filed September 11, 2002
Appeal from the Iowa District Court for Pottawattamie County, J.C. Irvin, Judge.
A father appeals from the district court order dismissing his petition to terminate guardianship. REVERSED AND REMANDED.
Matthew Woods of Peters Law Firm, P.C., Glenwood, for appellant.
G. Elizabeth Otte, Council Bluffs, for appellee.
Considered by Sackett, C.J., and Huitink and Hecht, JJ.
The father of an eleven-year-old girl petitioned to terminate a guardianship and transfer custody of minor child from the grandmother to himself. The district court dismissed his petition. Because we find the presumption favoring parental custody has not been overcome, we reverse the district court and award custody to the father.
I. Factual Background and Proceedings.
Randy Brown is the biological father of Jessica, born September 20, 1991. At the time of Jessica's birth, Randy was married to Jessica's biological mother, Michelle. Because Randy and Michelle were extremely young, nineteen and sixteen-years-old respectively, Randy's mother and stepfather, Sherry and Ronald Dalton, assumed primary responsibility for Jessica's care from the time she left the hospital.
In response to a petition filed by Randy and Michelle, Sherry was appointed guardian of Jessica on July 27, 1992. Randy and Michelle subsequently were divorced on December 24, 1994. Both prior to and after the divorce, Randy visited Jessica on a frequent basis. Michelle is remarried and in the military and has maintained limited contact with Jessica.
In May 1999, Randy moved to Blair, Nebraska and commenced overnight visitation with Jessica on alternating weekends. On July 27, 2000, Randy filed a petition to terminate guardianship and requested permanent custody of Jessica. Prior to trial, the parties reached an agreement permitting Jessica to begin residing with Randy in June 2001 while Sherry's guardianship remained intact.
On August 20, 2001, the court held an evidentiary hearing to determine the placement of Jessica until trial. The court ordered Jessica should continue residing with her father until trial and attend school in Omaha, Nebraska. Jessica started the fifth grade at Gethsemane Lutheran School at the commencement of the fall term.
Trial was held on November 2, 2001. The district court dismissed the petition for termination of guardianship, subject to reasonable rights of visitation by Randy. In its order, the district court noted Randy was a suitable parent, but concluded Jessica's best interests "demand that she be returned to the home of her grandparents." On appeal, Randy contends the district court erred in finding Sherry had successfully rebutted the presumption of parental preference.
II. Scope and Standard of Review.
A petition to terminate a guardianship is triable as a proceeding in equity. In re Guardianship of Hedin, 528 N.W.2d 567, 581 (Iowa 1995). Our review therefore is de novo. Iowa R. App. P. 6.4. We give weight to the findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g). As in all custody cases, the primary consideration is the best interest of the child. Iowa R. App. P. 6.14(6)( o).
III. Rebuttable Presumption of Parental Preference.
Iowa Code section 633.559 (1999) establishes a presumption of parental preference "over all others for appointment as guardian." Iowa Code § 633.559. "This presumption is essential to the maintenance of society, for without it, man would be denaturalized, the ties of humanity stifled, and one of the strongest incentives of the propagation and continuance of the human race destroyed." Zvorak v. Beireis, 519 N.W.2d 87, 89 (Iowa 1994) (citations omitted). "Recognition that the non-parental party is an excellent parent to the child will rarely be strong enough to interfere with the natural rights of the parent." Northland v. Starr, 581 N.W.2d 210, 212 (Iowa Ct.App. 1998). Accordingly, "we have acted in some cases to remove children from conscientious, well-intentioned custodians with a history of providing good care to the children and placed them with a natural parent." Zvorak, 519 N.W.2d at 89.
"The presumption of preference in favor of a natural parent, however, is rebuttable." In re Guardianship of Stodden, 569 N.W.2d 621, 623 (Iowa Ct. App. 1997). "The burden of proof rests with the non-parent to rebut the presumption favoring the parent by establishing the parent is not a suitable parent and the child's best interests require that he remain in the non-parent's care." Northland, 581 N.W.2d at 213. "In determining the child's best interests, we must take into account the strong societal interests in preserving the natural parent-child relationship." In re Guardianship of Knell, 537 N.W.2d 778, 781 (Iowa 1995). The court must also consider the long-range and immediate interests of the child. Id.
Based upon our de novo review of the record, we find Sherry has not sufficiently rebutted the presumption that it is in Jessica's best interests to award custody to Randy. Sherry argues Randy has not been sufficiently involved in Jessica's life for the past ten years and has essentially "taken a vacation" from parenting. Although we agree that Randy relied on his mother and stepfather to provide virtually all of Jessica's care and support prior to the commencement of this action, "[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." In re Guardianship of Sams, 256 N.W.2d 570, 573 (Iowa 1977). "The presumption preferring parental custody is not overcome by a mere showing that such assistance was obtained." Id.
Furthermore, we disagree with Sherry's assertion that Randy abandoned his daughter. While Jessica was in Sherry's care, Randy consistently exercised visitation and maintained frequent contact with her. See In re Guardianship of Stewart, 369 N.W.2d 820, 823-24 (Iowa 1985) (affirming district court's award of custody to minor child's father, who had been in the air force and exercising regular visitation). Cf. Knell, 537 N.W.2d at 783 (awarding custody of child to non-parent after natural parent visited child only three or four times in six years); Stodden, 569 N.W.2d at 624-25 (awarding custody to non-parent when parent visited child only once every two to three months and was hospitalized for psychiatric reasons). Moreover, while Jessica has been in Randy's care, during the pendency of this case, Randy has involved her in church activities and encouraged her participation in extra curricular activities such as soccer.
Sherry further argues Randy failed to provide financial support for Jessica while she was in her care. While Sherry is correct, we do not find this argument dispositive. "The presumption favoring parental custody is not overcome by evidence of a parent's past immaturity and lack of financial responsibility when these indiscretions are not present risks." Northland, 581 N.W.2d at 213 (awarding custody to natural parent despite father's delinquency in child support payments and medical insurance). Randy has been employed as a mechanic for the past five years earning sixteen dollars an hour. He lives in a two bedroom modular home and has demonstrated he can provide Jessica with a stable life.
The remaining focus of Sherry's argument is based on the testimony of therapists and teachers indicating Jessica manifested symptoms of depression after learning that she might be living with Randy. Sherry concedes Randy can provide for Jessica's physical and monetary needs, but contends he cannot provide her with the appropriate emotional support. While we acknowledge change and uncertainty are usually stressful for a child, we cannot ignore the policy of our law which supports the presumption that the best interests of children are served when placed with their natural parents. See Northland, 581 N.W.2d at 213.
We recognize the love and support Sherry and her husband have provided for Jessica throughout her lifetime and commend them for their devotion; however, the presumption preferring parental custody is not "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 encourage both Randy and Sherry, for Jessica's sake, to maintain a constructive relationship. Furthermore, given the strong emotional bond between Jessica and her grandparents, Jessica's transition and adjustment to her new custodial circumstances with Randy will be eased if the adults put her interests and happiness before their own. It is clear under the circumstances that Jessica's best interest will be advanced if she has liberal visitation with Sherry.
We conclude the presumption favoring parental custody has not been overcome on this record. Accordingly, Randy is awarded custody of Jessica. We remand to the district court for a determination of visitation based upon the present circumstances of the interested parties.
REVERSED AND REMANDED.
Huitink, J., concurs; Sackett, C.J., dissents.
I dissent. I would affirm the district court. After a certain number of formative years of a child's life spent in the care of a non-parent, the presumption favoring custody by a parent should be rebuttable by the simple fact that it is not in the child's best interest to leave a familiar environment where she has thrived since birth. In this case, Jessica has been in the care of her grandmother, Sherry, for ten years. She has been healthy and happy and has become an active and outgoing young lady. She has expressed her wishes to remain in that environment and has demonstrated significant unhappiness at the prospect of its changing. I do not understand why we would now disrupt her life in favor of a parent who has waited ten years to assume responsibility for his daughter, regardless of his newfound intentions and current qualifications to provide for her.