IN THE MATTER OF THE GUARDIANSHIP OF CRAIG NICHOLAS BRIGGS, Ward, NICHOLAS A. BRIGGS, Appellant, --------------------------------------------- ------------- Upon the Petition of SAMANTHA HAMRICK, Petitioner-Appellee, And Concerning NICHOLAS A. BRIGGS, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-378 / 06-2083
Filed June 27, 2007
IN THE MATTER OF THE GUARDIANSHIP
OF CRAIG NICHOLAS BRIGGS, Ward,
NICHOLAS A. BRIGGS,
Appellant,
---------------------------------------------------------Upon the Petition of
SAMANTHA HAMRICK,
Petitioner-Appellee,
And Concerning
NICHOLAS A. BRIGGS,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Sac County, Joel E. Swanson,
Judge.
A father appeals the district court’s denial of his petition to terminate a
guardianship. REVERSED AND REMANDED.
Phil Redenbaugh, Storm Lake, for appellant.
Dave Jennett and Daniel Connell of Daniel Connell, P.C., Storm Lake, for
appellee.
Heard by Mahan, P.J., and Eisenhauer and Baker, JJ.
2
BAKER, J.
Nicholas Briggs appeals the denial of his petition to terminate the maternal
grandmother, Eve Wren’s, guardianship of his son. We reverse and remand.
I.Background and Facts
Samantha is the mother and Nicholas is the father of C.B., who was born
in April 2002. Although they lived together with C.B. for approximately three
months after he was born, C.B.’s parents have never been married. In July
2002, C.B.’s maternal grandmother, Eve, accepted custody of C.B. because his
parents were arrested on drug charges. C.B. has resided with Eve and her
husband Scott since that time.
In March 2003, an uncontested permanency
hearing was held in juvenile court. All parties voluntarily agreed that C.B.’s best
interests required continued placement with Eve.
In August 2003, Eve was
appointed C.B.’s guardian by the district court.
Nicholas has been employed with Tyson Foods since April 2003.
He
currently earns $16.30 per hour and provides health insurance for his family,
including C.B. In July 2003, Nicholas started drug and alcohol rehabilitation. He
no longer uses drugs and very rarely uses alcohol. Nicholas is currently married
to Tara. They have one child, born in August 2004. Tara stays home to care for
their son and, if Nicholas had physical care of C.B., would care for C.B. while
Nicholas is at work. Nicholas and Tara own their home. They have extended
family living in close proximity to their home. Except for a three-month period
between December 2002 and March 2003, Nicholas has had regular visitation
with C.B. He has seen him for birthdays and holidays. The record indicates
Nicholas has continually been interested in C.B.’s welfare and has made
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considerable efforts to see him. For the most part, Eve has allowed Nicholas
visitation as requested.
Samantha currently lives with Eve. She has another child, a daughter
born in October 2003, who also lives with Eve. Samantha testified that, if the
court were to grant her physical care of C.B., she would “hand guardianship over”
to Eve. Samantha agrees that she would not be an appropriate caretaker at this
time.
In March 2006, Nicholas filed a petition to terminate guardianship. In June
2006, Samantha filed a petition to intervene, requesting that Eve’s guardianship
of C.B. continue. Samantha also sought to establish custody, physical care, child
support, and medical insurance. The parents agree they should be granted joint
legal custody but disagree as to C.B.’s physical care.
In October 2006, Sandra Pelzer, a licensed independent social worker,
was hired by Eve to conduct a “parental investigation.”
She twice spent
approximately two hours in Eve’s home assessing the environment and C.B.’s
behavior in the presence of Samantha, Eve, Scott, Samantha’s daughter, and
Samantha’s sister.
Nicholas was discussed during the assessment. Pelzer reported that C.B.
“appeared anxious and irritable when discussing his father and stepmother, and
resisted those activities . . . and refused to participate in activities when ‘daddy’
was mentioned.” She concluded that C.B. “demonstrated a strong negative
emotional reaction to his father, and a resistance to visit him.” Pelzer, however,
never spoke with or interviewed Nicholas or Tara, visited their home, or observed
C.B.’s behavior in their presence. She testified that, because Nicholas was a
4
“peripheral figure” in C.B.’s life, she did not think it was important to see Nicholas
and C.B. interact with each other. 1
Based on these two visits, Pelzer
recommended Eve be awarded custody and further determined that “termination
of both parents’ rights be pursued.” She reported that removal from Eve’s care
would be “clearly detrimental” to C.B. because he “demonstrated emotional
reactivity and anxious tendencies, and these predispositions make him much
more likely to develop a mental illness with a major life change and loss of a
primary caregiver and younger sister.”
She testified that the period for
attachment, i.e. bonding, for children is birth to thirty-six months, and for C.B. the
“permanent attachment, that can’t be undone” occurred with Eve. Pelzer further
testified,
Likewise, an attachment of parental attachment can’t happen after
age thirty-six months, so you can’t have a child be separated from
their parents the first thirty-six months of the life and then have the
parent come in at forty-six months of life and think they’re going to
have a typical attachment to that child, it will not happen . . . .
It’s my opinion that Nick cannot establish a parental, a father
figure attachment for [C.B.], because that window of opportunity
closed about thirty-six months.
Therefore, she concluded, even if Nicholas made the necessary changes to care
for C.B., it would be contrary to C.B.’s welfare to be removed from Eve’s care.
Following a November 15, 2006 bench trial, the trial court denied
Nicholas’s petition to terminate the guardianship of C.B. The trial court set child
1
Pelzer also testified that,
“typically it takes me eight hours to make a determination in a case, but in
this case it was so clear-cut that to me it just seemed so straightforward
and so cut-and-dried that I didn’t continue another four hours, because I
felt like I had enough clinical data . . . .”
5
support for Nicholas and Samantha, to be paid to Eve, and a visitation schedule
between C.B. and Nicholas.
II.Merits
A petition to terminate a guardianship is an equitable proceeding. See In
re Guardianship and Conservatorship of Reed, 468 N.W.2d 819, 826 (Iowa 1991)
(when a case turns on the best interests of a child, and may involve overturning
presumptive parental rights, principles of equity must be applied). As such, our
review is de novo. In re Guardianship of Knell, 537 N.W.2d 778, 780 (Iowa
1995). We give weight to the trial court’s findings of fact, especially concerning
the credibility of the witnesses, but are not bound by them. In re Guardianship of
Stewart, 369 N.W.2d 820, 822 (Iowa 1985).
The determining factor is the best interests of the child. Zvorak v. Beireis,
519 N.W.2d 87, 89 (Iowa 1994). The law presumes that those interests will be
best served by placing the child in the care of a qualified and suitable natural
parent. Id.; see also Iowa Code § 633.559 (2005) (“The parents of a minor, or
either of them, if qualified and suitable, shall be preferred over all others for
appointment as guardian.”).
[I]n every case a showing of such relationship, in the absence of
anything more, makes out a prima facie case for parents claiming
the custody of their children. “Indeed,” as said in one case, “this
presumption is essential to the maintenance of society, for without it
man would be denaturalized, the ties of family broken, the instincts
of humanity stifled, and one of the strongest incentives to the
propagation and continuance of the human race destroyed.”
Risting v. Sparboe, 162 N.W. 592, 594 (Iowa 1917).
Recognition that the non-parental party is an excellent caretaker for the
child is rarely strong enough to interfere with the presumption in favor of the
6
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 guardians have the burden to overcome the parental preference and
show that the child’s best interests require a continuation of the guardianship.
Stewart, 369 N.W.2d at 824. Even where a strong argument can be made that it
may be in the child’s best interests to remain with the guardian at the present
time, the decision must be based not only on the child’s current best interests but
also on his best long-range interests. Id. at 823. If returning the child to the
custody of the parent is “likely to have a seriously disrupting and disturbing effect
upon the child’s development, this fact must prevail.” Painter v. Bannister, 258
Iowa 1390, 1396, 140 N.W.2d 152, 156 (1966). Absent concrete evidence of a
disruptive effect on the child, however, the continuity and stability of remaining in
a familiar setting is insufficient to overcome the presumption favoring the parent.
Stewart, 369 N.W.2d at 825.
While Nicholas has experienced problems in the past that would have
precluded him from having custody of C.B., the trial court found, and we agree,
that Nicholas “has made a turn-around in his life,” would provide adequate
shelter and support for C.B., and “is sincere in his efforts to obtain physical care
of his son.” Eve testified that Nicholas loves C.B. and that Nicholas and Tara
could reasonably care for him. While we agree Eve has done a remarkable job
in providing care for C.B., we do not find that she has met her burden to
overcome the parental preference.
7
The trial court’s primary reason for refusing to terminate the guardianship
appears to be C.B.’s bonding with Eve and the potential problems if this bond is
disrupted. The trial court relied heavily on the “valuable testimony” of Pelzer to
determine that C.B. has bonded with Eve and that removing him from her care
would have a “seriously disrupting effect on his development” and would be
detrimental to his best interests. We find Pelzer’s testimony of little or no value in
this decision. 2 She only twice met with C.B. for less than two hours each visit.
Pelzer never met with Nicholas or Tara, nor did she observe C.B.’s interaction
with them. 3 Our court has accorded little weight to this type of testimony. See In
re Marriage of Pothast, 539 N.W.2d 199, 202 (Iowa Ct. App. 1995) (holding a
custody evaluation conducted with only the mother and child “is of little value and
accords little weight”); In re Marriage of Scheffert, 492 N.W.2d 203, 205 (Iowa Ct.
App. 1992) (according little weight to unrebutted opinion of psychologist who met
with some, but not all, material parties); In re Marriage of Grandetti, 342 N.W.2d
876, 879 (Iowa Ct. App. 1983) (finding the trial court correctly dismissed
testimony of expert witness who had met with father and children only once and
never met with mother).
Based upon her brief assessment of C.B.’s environment, Pelzer concluded
not only that Eve should continue to have guardianship, but that termination of
2
The insufficiency of her “investigation” is exemplified by her report that C.B. “had
almost no contact with his father between the time of removal and permanent
guardianship (July 2002 – August 2003).” The record indicates Nicholas has maintained
regular contact with C.B., except for a brief period between December 2002 and March
2003.
3
While we are troubled by Pelzer’s report that C.B. “demonstrated a strong negative
emotional reaction” to Nicholas and conclusion that removing C.B. from Eve’s care
would be detrimental, we are unable to give weight to her opinion due to the insufficiency
of her investigation.
8
Nicholas’s parental rights should be pursued.
foundation for her opinion.
We find there is insufficient
Without her testimony, we are left only with the
parental presumption for Nicholas.
Even if we were to give weight to Pelzer’s opinion, the facts in this case do
not overcome the presumption favoring the natural parent. Our supreme court
has held that, if returning a child to the custody of the parent is “likely to have a
seriously disrupting and disturbing effect upon the child’s development, this fact
must prevail.” Painter, 258 Iowa at 1396, 140 N.W.2d at 156. In recent years,
the Painter standard has been difficult to meet, and the presumption favoring the
natural parent has prevailed. See, e.g., Northland, 581 N.W.2d at 213 (requiring
four-year-old boy who had lost his mother be “separated from the man he has
thought of as his father since infancy” and returned to natural father); Stewart
369 N.W.2d at 825 (requiring return of child to natural father where father had
kept in close contact, provided regular financial support, and frequently visited
during the eight years child had lived with guardians); In re Burney, 259 N.W.2d
322, 324 (Iowa 1977) (holding that, although placed with guardians when he was
four days old, two-year-old child whose mother had visited child once or twice a
month, had not been in the guardian’s custody “so long that an extraordinary
threat to his well-being is posed by the prospective transfer”); In re Guardianship
of Sams, 256 N.W.2d 570, 573 (Iowa 1977) (returning children to mother where
the presumption preferring parental custody was not overcome by showing that
“those who provided the assistance love the children and would provide them
with a good home”); Doan Thi Hoang Anh v. Nelson, 245 N.W.2d 511, 518 (Iowa
1976) (finding the presumption favoring mother was not rebutted where there
9
was no showing of parental unfitness and a cogent reason was present requiring
transfer of custody); Hulbert v. Hines, 178 N.W.2d 354, 362 (Iowa 1970) (holding
the best interests of a child, who due to the mother’s mental health problems had
lived with her aunt and uncle since shortly after her birth, would be served by
returning her to parents’ custody). But c.f. Knell, 537 N.W.2d at 783 (holding the
presumption of parental preference rebutted where the natural father had made
few attempts to contact the child over a period of six years and had given no
thought to dealing with the psychological adjustment child would face); In re
Guardianship of Stodden, 569 N.W.2d 621, 625 (Iowa Ct. App. 1997) (holding
that, where child had lost his father and been cared for by his stepmother, and
his natural mother had visited him only once every two to three months, his
interests would not be served by transferring custody). In this case, there is
insufficient evidence to establish that returning C.B. to his father’s custody is
“likely to have a seriously disrupting and disturbing effect” upon C.B.’s
development. See Painter, 258 Iowa at 1396, 140 N.W.2d at 156. Further, we
do not have the additional factor of an “unstable, unconventional, arty,
Bohemian” lifestyle with which the Painter court expressed concern.
Id.
Nicholas is a suitable father. The presumption favoring him is not overcome.
Were we to follow Painter’s prohibition against returning a child to a parent
where it will have a disruptive effect on the child’s development, and accept
Pelzer’s conclusion that, even if Nicholas made the necessary changes, it would
be contrary to C.B.’s welfare to be removed from Eve’s care, we would, in effect,
create the situation that any temporary guardianship of an infant, if not de jure, is
de facto permanent. Further, if we were to accept Pelzer’s opinion, it would have
10
to be weighed against the societal interest expressed in the presumption that the
“parents of a minor, or either of them, if qualified and suitable, shall be preferred
over all others.” Iowa Code § 633.559. If the disruption of the bond between a
child and its guardian alone were sufficient to overcome the presumption, it is
unlikely an infant would ever be returned to its parent.
It has been stated that “a parent does not lose the preference by seeking
help in caring for the children in a time of need.” Knell, 537 N.W.2d at 782; see
also Stewart, 369 N.W.2d at 823 (holding father did not relinquish his
presumptive right to custody when he voluntarily agreed that his parents-in-law
be appointed his daughter’s guardians). Parents should be encouraged to seek
help with their children without the risk of thereby losing the custody of the
children permanently. Garvin v. Garvin, 260 Iowa 1082, 1095-96, 152 N.W.2d
206, 215 (1967) (Mason, J., dissenting). “Unless we give weight to this fact,
parents may be deterred from temporarily placing children in other hands, even
where the child’s immediate best interests might be served by such a
separation.” Id., at 1096, 152 N.W.2d at 216. Based on this factual scenario, in
the case of the appointment of a guardian for an infant under the age of three,
the presumption would become meaningless. Further, to countenance this result
is to discourage a parent of an infant from seeking help. Such a result would
defeat that which we seek to encourage.
This is not a case where “a parent who has taken ‘an extended holiday
from the responsibilities of parenthood’ may not take advantage of the parental
preference for custody.” Stewart, 369 N.W.2d at 823 (citation omitted). Nicholas
has always been a part of C.B.’s life. Except for one brief period early in C.B.’s
11
life where he was denied access to C.B., Nicholas has had visitation with him at
least every month. Nicholas and C.B. have celebrated birthdays and holidays
and have had extended visitations during the summer.
This is also not a case where the parental preference is not a factor
because the prior guardianship proceeding involved a finding that the parental
preference has been overcome. See id. at 823-24. “An involuntary guardianship
would eliminate the parental preference from later consideration only if the
relative custodial rights of the proposed guardian and the parent were put in
issue and tried in the guardianship proceeding.” Id. at 824. The establishment of
this guardianship was voluntary. The presumption clearly remains with Nicholas.
Parents should be encouraged in time of need to seek assistance in
caring for their children without risk of losing custody. Sams, 256 N.W.2d at 573.
The preference for parental custody is not overcome by showing that such
assistance was obtained, nor by showing that those who provided the assistance
love the child and would provide a good home. Stewart, 369 N.W.2d at 823; see
also Doan Thi Hoang Anh, 245 N.W.2d at 516 (“[T]he law is well established that
surrender of the custody by its parents is presumed temporary unless the
contrary is made to appear by proof, clear, definite and certain.”). Nicholas’s
reliance on Eve to care for C.B. at a time when he was unable, and Eve’s
remarkable job in caring for C.B., are not alone sufficient to overcome the
preference for parental custody. Further, the natural consequence that a bond
has developed between a child and his or her guardian is not sufficient to
overcome the preference for parental custody. The presumption was enacted by
the legislature.
“The Iowa legislature presumably balanced the competing
12
interests when it made the policy decision to [create the presumption]. It is not
for this court to question the wisdom of the legislature’s decision.” Chung v.
Legacy Corp., 548 N.W.2d 147, 151 (Iowa 1996).
Two good homes are available for C.B. Eve has provided for him in an
exemplary fashion. We recognize that continuation of the guardianship would
provide C.B. continuity and stability in a familiar setting, while a change in
custody may be disruptive. The advantage of stability provided by continuation
of the guardianship must be weighed against the benefit he will receive from
living with his father. Nicholas has turned his life around. C.B.’s interests will be
best served by placing him in his care. C.B. will have the opportunity to maintain
close contact with his family during regular periods of visitation with Eve and his
mother. The presumption favoring parental custody has not been overcome. We
therefore grant Nicholas’s petition to terminate the guardianship of C.B. and
award him custody.
We remand to the district court for a determination of
Samantha’s child support and visitation schedule consistent with this opinion.
REVERSED AND REMANDED.
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