Opinion
No. 2-950 / 01-1565
Filed January 29, 2003
Appeal from the Iowa District Court for Linn County, Thomas M. Horan, Judge.
The guardians appeal from the parental visitation provisions of a guardianship order. The ward's mother cross-appeals the trial court's denial of a request to terminate the guardianship and its refusal to appoint a new guardian. AFFIRMED AND REMANDED.
Frank Nidey of Nidey Peterson, P.L.C., Cedar Rapids, for appellant.
Linda Robbins of Robbins Pence, L.L.P., Cedar Rapids, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
The ward, Zachary Blair, was born November 21, 1993. His parents are Amy Grizzell and Nathan Blair. William and Joyce Blair (Blairs) are Zachary's paternal grandparents.
On January 19, 1999, the Blairs were appointed as Zachary's temporary guardians following contested proceedings on the merits of their guardianship petition. The resulting order includes the following conclusions:
The Court commends Amy's current efforts to improve her parent skills by attending parenting classes and seeking help from her family. For five years, however, Bill and Joyce have manifested unwavering love and exercised sound judgment for Zachary. They have recognized and responded to his physical, emotional and psychological needs. They have undergone significant expense and inconvenience to help Amy care for Zachary and ensure that his relationship with Amy was as full and positive as possible. By all accounts, Zachary has been safe, secure and has flourished under the care of Bill and Joyce. They have been responsible for his health and development. Zachary has developed a close and important bond with Bill and Joyce as his primary caretakers. It was against Zachary's best interest for Amy to attempt to unilaterally terminate that relationship, and this Court cannot condone her decision. [Citation omitted.]
In this temporary ruling, the Court does not pass on the extent and relevancy of any learning disability of Amy or her ability to care for Zachary in the past and in the future.
The Court concludes that it is in Zachary's best interest to restore the status quo and place Zachary in the primary care of Bill and Joyce pending final adjudication of this case.
The court stressed that its orders were intended to be temporary and should not control the final resolution of the Blair's appointment as Zachary's permanent guardians.
Prior to Amy's August 25, 2000, application to terminate the guardianship, there were no further proceedings concerning either the Blairs' appointment or Zachary's custody. On February 21, 1999, Amy petitioned for a writ of habeas corpus challenging the legality of Zachary's placement on constitutional grounds. She also filed a motion to dismiss the Blairs' guardianship raising the same constitutional issues. Both the motion to dismiss and petition for writ of habeas corpus were denied. The relevant ruling provides:
[T]he Motion to Dismiss in the present case in effect seeks dismissal of a properly entered Order of a Court with jurisdiction to enter the Order. The Court also notes the Order was not challenged by 179(b) motion or appellate review. The motions to dismiss and for writ of habeas corpus should both be overruled.
As a result, Amy amended her application to terminate Zachary's guardianship to include the following:
The Application for Guardianship in this matter is unconstitutional because the guardianship statute violates Amy Grizzell's fundamental right to make decisions concerning the care, custody, and control of her son, Zachary Blair, pursuant to the United States Supreme Court ruling in Troxel v. Granville, 120 S.Ct. 2054 (June 2000). The Guardianship Petition and Iowa Code § 633.552 are unconstitutional as applied to this case, under the 14th Amendment of the Constitution of the United States, and Article I, Sections 1 and 9 of the Iowa Constitution.
The trial court, while noting Amy's fundamental liberty interest in parenting Zachary, determined that the challenged guardianship statute did not suffer from the same constitutional infirmity as the grandparent visitation statute at issue in Troxel. The trial court ultimately concluded that Iowa Code section 633.552, when read together with other guardianship provisions, withstood the strict scrutiny test implicated by the fundamental constitutional rights at issue and it therefore did not violate either of the constitutional provisions cited in Amy's amended application.
The trial court also resolved the merits of the parties' conflicting custodial claims against Amy. The resulting ruling filed August 29, 2001, includes these findings of fact:
Other discrepancies and contradiction in the record are abundant. The Court is satisfied that, if Amy enjoyed a presumption that she acts in Zachary's best interest and therefore is preferred as a guardian, the presumption has again been rebutted by the evidence presently before the Court the following findings regarding "neglect" only reinforce the court's decision.
. . . .
Even if a showing of some level of neglect was required in this case, the instances in which Amy had exclusive care of Zachary show that Amy did indeed neglect Zachary. For example, Dr. Sevening shared Dr. Marsailles' concerns about neglect because of Zachary's conduct in 1998. Zachary suffered sexual contact by his cousin. He continues to suffer frequent bruises on his face, rashes and urinary difficulties from stress.
Dr. Sevening testified that the facts showed that Amy was not attending to all of Zachary's needs and cast doubt on Amy's parental fitness. According to Dr. Sevening, Amy's neglect of Zachary is manifested by her:
• pattern of missing medical appointments;
• exposing Zachary to second hand smoke after Dr. Hodge explained the consequences;
• allowing Zachary to get burned on a stove when he was only 11 months old;
• failing to understand basic information about Zachary only hours after having them explained to her; and
• allowing Zachary to observe Glenn's [Amy's husband] alcohol consumption and intoxicated behavior.
. . . .
There is an abundance of evidence on which the Court finds that Zachary was neglected while in the past as well as the contemporary care given and not given by Amy.
The Blairs' appointment as Zachary's guardians was affirmed, and Zachary was placed in their physical care. Amy was granted the right to visit Zachary every weekend and six weeks during the summer.
As noted earlier, the Blairs appeal from the visitation provisions of the foreoing ruling. In her cross-appeal, Amy renews her constitutional challenges to Iowa Code section 633.552 (2001). Amy also argues the Blairs did not prove by clear and convincing evidence that she is presently an unfit mother and that the guardianship must be terminated. In the alternative, Amy argues the terms of the guardianship are too restrictive and another guardian should be appointed to replace the Blairs. In the absence of relief on cross-appeal, Amy requests the court affirm the trial judge's visitation order and grant additional specified holiday visitation.
Constitutional Issues.
As noted earlier, Amy contends that Iowa Code section 633.552 is "unconstitutional on its face." Section 633.552 provides in relevant part:
Any person may file with the clerk a verified petition for the appointment of a guardian. The petition shall state the following information so far as known to the petitioner.
1. The name, age and post office address of the proposed ward.
2. That the proposed ward is in either of the following categories:
. . . .
b. Is a minor.
We review constitutional issues de novo. Stanley v. Fitzgerald, 580 N.W.2d 742, 744 (Iowa 1998). We consider the challenged statute in its entirety and in pari materia with other pertinent statutes. State v. Hawk, 616 N.W.2d 527, 529 (Iowa 2000).
Statutes are presumed constitutional, imposing on the challenger the heavy burden of rebutting that presumption. [ Stanley v. Fitzgerald, 580 N.W.2d 742, 744 (Iowa 1998).] Moreover, if a statute is susceptible to more than one construction, one of which is constitutional and the other not, we are obliged to adopt the construction which will uphold it. Iowa City v. Nolan, 239 N.W.2d 102, 103 (Iowa 1976). A facial attack on a statute, however, implies that it is "totally invalid and therefore, `incapable of any valid application.'" State v. Brumage, 435 N.W.2d 337, 342 (Iowa 1989) (quoting State v. Duncan, 414 N.W.2d 91, 96 (Iowa 1987)).
Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001).
Guardianship proceedings concerning conflicting custodial claims of parents and nonparents implicate a parent's fundamental liberty interest in parental autonomy. Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1, 16 (1993). The controlling statutory provision must therefore be narrowly tailored to serve a compelling state interest. Id.; cf. In re Guardianship of Hedin, 528 N.W.2d 567, 576 (Iowa 1993). In Hedin, the court acknowledged that the "legal and philosophical basis for such proceedings is the doctrine of parens patriae." Hedin, 528 N.W.2d at 571. The doctrine of parens patriae "obligates the state to care for the vulnerable and less fortunate." Id. (citations omitted.) In Troxel, the court recognized a state's compelling interest under this doctrine to protect children from physical harm and ensure their general well-being. Troxel v. Granville, 530 U.S. 57, 68, 120 S.Ct. 2054, 2061 147 L.Ed. 49, 58 (2000).
Amy, citing Troxel and Santi, argues section 633.552 is unconstitutional because "it is not narrowly tailored and does not even define what compelling state interest is served." We disagree.
In Troxel, the court found Washington's grandparent visitation statute was unconstitutional because it failed to accord any preference to the historical presumption that fit parents act in the best interest of their children. Troxel, 530 U.S. at 68-69, 120 S.Ct. at 2061-62, 147 L.Ed.2d at 58-59; Santi, 633 N.W.2d at 319. In Santi, the court struck down a similar grandparent statute because it failed to afford fit parents the presumption deemed so fundamental in Troxel. Santi, 633 N.W.2d at 320.
Amy's constitutional challenge to section 633.552 is fatally flawed because it fails to consider section 633.552 in pari materia with other relevant guardianship provisions which cure the infirmities dictating the outcomes in Troxel and Santi. Iowa Code sections 633.551 and 633.556(1) require proof of necessity by clear and convincing evidence before a guardianship is established. Additionally, Iowa Code section 633.559 recognizes the presumption that fit parents act in the best interest of their children by requiring appointment of parents as guardians if they are qualified and suitable. We, like the trial court, find the challenged guardianship provisions are "narrowly tailored to address the compelling state interest in Zachary's well being and presumptively favor the natural parent." We affirm on this issue.
Termination of Guardianship.
Actions for the termination of a guardianship are equitable proceedings. In re B.J.P., 613 N.W.2d 670, 672 (Iowa 2000). We review equitable actions de novo. Iowa R.App.P. 6.4. In equity cases, especially on matters of credibility, we give weight to the trial court's findings of fact but are not bound by them. Iowa R.App.P. 6.14(6)( g).
The parents of a minor child, if suitable and qualified, are preferred over all others as the child's guardian and custodian. Iowa Code § 633.559; Zvorak v. Beires, 519 N.W.2d 87, 89 (Iowa 1994). The best interests of a child are presumptively advanced by custodial placement with a parent. Zvorak, 519 N.W.2d at 89 (citations omitted). Any decision to place custody of a child with a nonparent guardian therefore requires the court to make a parental unsuitability determination. Cf. In re Marriage of Halvorsen, 521 N.W.2d 725, 729 (Iowa 1994).
We have not found, nor have the parties cited, any reported decision that purports to define or give meaning to the terms "qualified and suitable." Prior Iowa cases considering these concepts have generally viewed them in terms of the harmful or detrimental effect of parental custody rather than comparative judgments about the parties involved. See e.g., Zvorak, 519 N.W.2d at 88-89; In re Sams, 256 N.W.2d 570 (Iowa 1977); Doan Thi Hoang Anh v. Nelson, 245 N.W.2d 511 (Iowa 1976); Hulbert v. Hines, 178 N.W.2d 354 (Iowa 1970); Garvin v. Garvin, 260 Iowa 1082, 152 N.W.2d 206 (1967); Halstead v. Halstead, 259 Iowa 526, 144 N.W.2d 861 (1966); Alingh v. Alingh, 259 Iowa 219, 144 N.W.2d 134 (1966); Painter v. Bannister, 258 Iowa 1390, 140 N.W.2d 152, cert denied, 385 U.S. 949, 87 S.Ct. 317, 17 L.Ed.2d 227 (1966); Vanden Heuvel v. Vanden Heuvel, 254 Iowa 1391, 121 N.W.2d 216 (1963); McKay v. McKay, 253 Iowa 1047, 115 N.W.2d 151 (1962); McKay v. Ruffcorn, 247 Iowa 195, 73 N.W.2d 78 (1955); In re Plucar, 247 Iowa 394, 72 N.W.2d 455 (1955); Risting v. Sparboe, 179 Iowa 1133, 162 N.W. 592 (1917). The gist of these cases is that considerations of parental autonomy and child welfare are not mutually exclusive. When viewed in this light, the best interest of the child is given the intended priority. See e.g., In re Guardianship of Knell, 537 N.W.2d 777, 782 (Iowa 1995) (presumptive right of parental custody relinquished where welfare and best interest of child require nonparent custody) (citations omitted).
Because 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. Hedin, 528 N.W.2d at 581. If the need for the guardianship and parental unsuitability have already been established in a prior proceeding, the parent is required to make a prima facie showing of suitability. Id. Upon making the requisite prima facie showing, the guardian has the burden to go forward and prove parental unsuitability. Cf. id.; see also In re Guardianship of Stewart, 369 N.W.2d 820, 824 (Iowa 1985) (in the absence of earlier full evidentiary hearing and court determination that parental preference was overcome, burden remains with guardian to overcome parental preference).
At the outset we highlighted the trial court's January 19, 1999, order which expressly declined to make the requisite findings concerning Amy's parental suitability. That order also expressly provided that the resulting placement was intended to be temporary. Under these circumstances Amy continues to enjoy the controlling custodial presumption and the Blairs have the burden to rebut that presumption with clear and convincing evidence that Amy is not a qualified or suitable custodian.
Based on our de novo review of the record we conclude that the Blairs have met their burden. The findings of fact included in the trial court's August 29, 2001, order enjoy abundant evidentiary support, and we adopt them as our own. While the record contains conflicting evidence on the quality of care Amy is capable of providing, the trial court resolved these conflicts against Amy. We defer to the trial court's superior perspective on these issues because of its opportunity to observe and listen to the witnesses at trial. For the same reasons cited by the trial court, we find Zachary's custodial placement with Amy would be detrimental to his welfare. Amy is neither suitable nor fit to currently serve as Zachary's custodian, and we accordingly affirm on this issue.
Lastly, we are unable to reconcile the trial court's expanded visitation order with Amy's history of neglecting Zachary while in her care. The visitation provisions of the decree are therefore vacated. Because of the time elapsed since this court ruled on Amy's termination request, we remand the visitation issue to the district court with instructions to grant Amy more limited and supervised visitation excluding overnight visits.
We have considered all of the parties' remaining arguments and find they have no merit or are resolved by the foregoing. The judgment of the district court is affirmed in its entirety.