IN THE MATTER OF THE GUARDIANSHIP OF MELISSA MARIE SELLS TROY LEE SEEMANN and AMY ANN SELLS, Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 6-458 / 05-1640
Filed November 16, 2006
IN THE MATTER OF THE GUARDIANSHIP
OF MELISSA MARIE SELLS
TROY LEE SEEMANN and AMY ANN SELLS,
Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, K.D. Briner,
Judge.
Troy Seeman and Amy Sells appeal from the district court order denying
their application for visitation with their daughter, who is in the guardianship of
the appellees. AFFIRMED.
Robert L. Rausch of Rausch Law Firm, Waterloo, for appellants.
Karla J. Shea of Yagla, McCoy & Riley, P.L.C., Waterloo, for appellee.
Heard by Miller, P.J., and Eisenhauer, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
2
EISENHAUER, J.
Troy Seeman and Amy Sells appeal from the district court order denying
their application for visitation with their daughter, Melissa Sells, who is in the
guardianship of Nancy and Eddie Slutter.
They contend the court erred in
refusing to grant visitation with Melissa. The Slutters request an award of their
appellate attorney fees. We affirm.
I. Background Facts and Proceedings. Troy Seeman and Amy Sells
have four children: Melissa, age fourteen; Brittany, age eleven; Mercedes, age
seven; and Holly, age six. Troy and Amy lived with Troy’s father for the first six
months of Melissa’s life. They then moved in with Troy’s mother and stepfather,
Nancy and Eddie Slutter. Troy and Amy moved out of the home approximately
one year later, but Melissa remained with the Slutters. 1
On August 8, 1998, Nancy petitioned the court for the involuntary
appointment of a guardian for Melissa, requesting she and Eddie be named coguardians.
On August 20, 1998, Troy and Amy waived all formal service
requirements and signed a stipulation stating that it would be in Melissa’s best
interest that the Slutters be appointed her guardians.
The stipulation further
stated:
The purpose of this guardianship is to allow ward to legally reside
with Nancy Jane Slutter and Eddie Joe Sluuter, be claimed on their
health insurance and allow them to make decisions regarding
schooling and health care issues and to obtain health care as
needed for the minor ward.
A decree naming the Slutters as Melissa’s guardians was entered on August 25,
1998.
1
Troy claims that Melissa left the home when they did, but the district court found the
record contradicts Troy’s claim.
3
Troy and Amy have a very unstable employment record.
Since the
guardianship was entered, Troy and Amy have not provided support for Melissa,
with the exception of $300 paid to her orthodontist in February 2000. Troy was
incarcerated several times between 1998 and 2003 and there is evidence of
domestic abuse and infidelity problems between Amy and Troy. Troy and Amy
had little visitation with Melissa and made little attempt to stay in contact with her.
On March 17, 2003, Troy and Amy filed an application to terminate the
guardianship, alleging they were in a position to care for Melissa and that it was
in Melissa’s best interest to be in their custody. Trial was held in September
2003. On September 18, 2003, the district court entered an order denying the
application. The court concluded:
The evidence here discloses that the parents are not
properly taking care of the three children presently in their home,
that their home is not fit for Melissa to return to, that the effect of
such a return would be devastating on Melissa and not in her best
interest. An additional factor is the fact that the three children
residing with the parents now spend the greater part of their time
with Troy’s father and not in the parents’ home.
The court further entered the following caveat to the order:
The Court has a genuine concern about the three daughters
presently residing with these parents and whether or not they are
being abused with the treatment that they are receiving. This is
particularly true when there is a handicapped child in the house.
The Court does not feel it would be proper for it to file charges with
the Department of Human Services. However, the Court hopes
that if the family feels that this abuse is continuing that they would
contact the Department of Human Services for an investigation.
They could refer this Court Order to the Department, if such action
were taken.
4
On October 10, 2003, the Department of Human Services (DHS) received
allegations of denial of critical care involving Amy and Troy. It was alleged the
house was never clean, there were animal feces on the floor, the children
suffered continual head lice, and their clothes were mildewed. The DHS worker
made a visit to Troy and Amy’s home on October 14 and found dog feces on the
basement floor, a soiled kitchen with food scraps under the table, and the
hallway leading to the children’s bedrooms blocked with furniture. On a return
visit on October 16, the problems had been remedied. Amy told the worker that
the children had problems with head lice in the past and that it was a neverending problem, although the girls were currently free of lice. The worker found
the denial of critical care was not confirmed.
On October 8, 2004, Troy and Amy filed an application for visitation,
requesting the court order liberal visitation with Melissa. Trial was held in June
2005. On September 7, 2005, the district court entered its order denying the
application. The court took judicial notice of the fact findings contained in the
September 2003 order and found no evidence presented in the June 2005 trial
persuaded it that “Troy and Amy are much, if any, better suited to exercise
parental influence in Melissa’s life now than they were in 2003.”
II. Scope and Standard of Review. Our review is de novo. 2
In re
Guardianship of Ankeney, 360 N.W.2d 733, 738 (Iowa 1985). We give weight to
2
Although our supreme court in In re Guardianship of Ankeney, 360 N.W.2d 733, 738
(Iowa 1985), states the scope of review in these cases is de novo, our court, in a later
published opinion, stated the scope of review is for corrections of errors at law. In re
Guardianship of Wemark, 525 N.W.2d 7, 9 (Iowa Ct. App. 1994). For the purpose of our
analysis, we will defer to the higher court and apply the stricter de novo review.
However, our result would be the same if we were to review for corrections of errors at
law.
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the fact-findings of the district court, although we are not bound by them. Iowa R.
App. P. 6.14(6)(g).
III. Visitation. Guardians are responsible for the day-to-day decisions
made for the child’s welfare. Ankeney, 360 N.W.2d at 737. The courts normally
will not interfere with the guardians’ decisions except when the evidence clearly
shows the best interests of the children dictate such interference. Id. While, the
guardians’ right of custody and control of a child extend to refusing to permit
other persons to have access to the child, this power is also subject to the control
of the court. Id. The court may require the guardians to permit persons to have
access to the children if the best interests of the children dictate there should be
visitation with another. Id.
We conclude it is not in Melissa’s best interest to have visitation with Troy
and Amy. Melissa has lived with the Slutters her entire life. She has done well
under their care. Throughout her life, Melissa has only had sporadic contact with
Troy, Amy, and her sisters. By Melissa’s own account, she does not have a
relationship with them. In order to nurture a relationship between Melissa and
her parents, weekly visitations were set up in the Slutters’ home following the
denial of the application to revoke the guardianship. The Slutters terminated
these visits after a couple of months at the recommendation of Melissa’s
counselor.
The prospect of having contact with her parents affects Melissa
negatively.
When Troy and Amy filed the application to terminate the
guardianship, Melissa became very upset, her grades dropped, and her behavior
worsened.
Melissa testified she does not want to have visitations with her
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parents or sisters because she finds the visitations upsetting. Melissa testified
Troy and Amy are not respectful to her and are physically abusive to one another
in front of their children. She also felt threatened by Troy at the visitations.
Troy and Amy’s testimony refutes the claims of Nancy, Eddie, and
Melissa.
However, the district court found the latter’s testimony to be more
credible. Specifically, with respect to Troy and his father, Neal, the district court
stated:
Troy continued to claim a history of parental involvement
which the court finds no more persuasive than Judge Keefe did in
denying the application to terminate the guardianship. When
confronted with information adverse to him, Troy frequently claims
not to remember. Thus, during the trial, he claimed not to
remember what happened during an argument with Melissa shortly
after visitation resumed in 2003; he claimed not to remember if
Nancy objected to his criticizing family members to Melissa; and he
claimed not to remember whether he received a letter complaining
that he was sarcastic and belittling to Melissa. The court did not
find persuasive his denial of having told Melissa that the dispute
was going to cost Nancy a whole lot of money. The court also did
not find credible Neal’s denials that he had ever intimidated
Melissa, especially in light of his grudging admission that on
occasion he punished Melissa’s sisters by hitting them with a belt.
We give weight to these findings. Iowa R. App. P. 6.14(6)(g). While denial of
any visitation to parents is certainly unusual, under the unique circumstances of
this case we agree it is appropriate.
We affirm the district court order denying the application for visitation. The
Slutters request an award of their appellate attorney fees. The general rule,
subject to an exception for circumstances in which a losing party has acted in
bad faith, vexatiously, wantonly, or for oppressive reasons, is that a party has no
claim for attorney fees in the absence of a statute or contract allowing such an
award. D.M.H. by Hefel v. Thompson, 577 N.W.2d 643, 648 (Iowa 1998). The
7
Slutters have made no claim or showing that the exception to the general rule
applies, or that a contractual provision allows an award of attorney fees under the
circumstances presented in this case.
They have not cited and we find no
statute allowing such an award. 3
AFFIRMED.
Miller, J., concurs specially; Robinson, S.J., dissents.
3
In fact, fees of the attorney for the guardian are ordinarily to be paid by the ward’s
estate, see Iowa Code § 633.673, after being allowed and fixed by the probate court.
See Iowa Code § 633.200. We assume, without so deciding, that when a ward’s estate
is unable to pay the guardian’s attorney’s fees such fees would be a matter of contract
between the party contracting for the legal services and the attorney providing the
services.
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MILLER, J. (concurs specially)
I concur in the result and write separately only to comment on one matter.
Footnote two of the majority opinion appears to suggest there may be a
conflict between In re Guardianship Ankeney, 360 N.W.2d 733, 738 (Iowa 1985)
and In re Guardianship of Wemark, 525 N.W.2d 7, 9 (Iowa Ct. App. 1994)
concerning the appropriate scope of review in cases such as the one presently
before us. I do not believe there is necessarily a conflict. Ankeney, as this case,
dealt solely with an issue of visitation after a guardianship had earlier been
established. Our scope of review is therefore, as stated in Ankeney, de novo.
Although the primary issue on appeal in Wemark dealt with visitation, it was not
the sole issue.
The appeal was from an order providing for the involuntary
appointment of guardians. The underlying action was therefore triable as a law
action, see Iowa Code § 633.33, which may explain the court’s holding that the
scope of review was for errors at law.
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ROBINSON, S.J. (dissenting)
I dissent.
By denying visitation between parents and child, the relationship between
Troy Seeman and Amy Sells and their teenage daughter, Melissa, is seriously
jeopardized. Likewise, Melissa’s relationship with her three younger siblings is
put at risk.
Troy and Amy’s parenting abilities, or lack thereof, have been fully
recognized. Nonetheless, it is difficult to imagine a dissolution of marriage case
where these parental deficiencies could or would result in the complete denial of
visitation. It is ultimately the court, not the guardians, that must decide whether
visitation is appropriate and in the child’s best interest. In re Guardianship of
Wemark, 525 N.W.2d 7, 9 (Iowa Ct. App. 1994). Only under dire circumstances
should a child have no contact with her parents and siblings. The facts in this
case do not warrant such a result.
Given Melissa’s age, the lack of recent contact with her parents and
siblings, the acrimonious relationship between guardians and parents, and the
need to reestablish and rebuild a daughter-parent relationship, an order allowing
visitation at least one evening for two to three hours every week or two would be
reasonable. This would allow, at a minimum, an opportunity for the family to be
together for dinner and have a chance to reconnect.
guardians
or
anyone
else
would
be
unnecessarily
Supervision by the
constraining
and
counterproductive.
Professional counseling would likely help all concerned in this case. What
with Troy and Amy’s obvious financial constraints, however, counseling should
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not be a condition to a minimal visitation order. See In re Marriage of Russell,
479 N.W.2d 592, 596 (Iowa Ct. App. 1991).
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