No. 2-1042 / 02-0845.Court of Appeals of Iowa.
Filed April 30, 2003.
Appeal from the Iowa District Court for Kossuth County, DAVID A. LESTER, Judge.
The natural parents appeal the denial of their petition to terminate a relative guardianship of their minor daughter.REVERSED ON APPEAL; CROSS-APPEAL DISMISSED.
Evelyn Ocheltree of Legal Services Corporation of Iowa, Mason City, for appellant.
Thomas Lipps of Peterson Lipps, Algona, for appellee.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
VAITHESWARAN, J.
The natural parents of a young girl appeal the district court’s denial of their petition to terminate a guardianship. We reverse.
I. Background Facts and Proceedings
Vicky Hall suffered from depression. In 1998, she became unable to manage it in 1998. As a result, she began neglecting her seven children and the home in which they lived. Eventually the Department of Human Services removed all seven children from her home.
Vicky sought and successfully obtained treatment for her depression. While receiving treatment, she became pregnant. The father was Michael Hall.
Vicky gave birth to her eighth child, daughter Michael (Michael Jo), in June 1999. While in the hospital, her sister-in-law, Kristy Wolf, told Vicky the hospital social worker would not allow her to take her daughter home. According to Kristy, the social worker cited the removal of her other children.
Kristy and Vicky’s brother, Donald Wolf, offered to serve as the newborn’s guardians. Vicky consulted with Michael, who was then in Texas. He advised Vicky he was not in favor of the guardianship. Notwithstanding this advice, Vicky signed guardianship papers and turned her young daughter over to the Wolfs.
Meanwhile, Michael returned to Iowa. He and Vicky married and moved into a large farmhouse.
Approximately six months after Michael Jo’s birth, the Halls petitioned to terminate the guardianship. Following a hearing, the district court denied the petition, reasoning the parents were not yet suitable custodians for the child.
In the summer of 2000, the Department returned two of Vicky’s children to her home. The same year, Vicky gave birth to a ninth child who was allowed to remain in the home.
The Halls again petitioned to terminate the guardianship. They also sought expanded visitation with Michael Jo. In the interim, the Department returned another child of Vicky’s to the family home.
A lengthy evidentiary hearing was held on the Halls’ second petition. Following the hearing, the district court found the Halls to be qualified and suitable parents but denied the Halls’ petition based on a psychologist’s testimony that there was likely a bond between Michael Jo and the guardians. The court also instituted an escalating visitation schedule with the Halls that included overnight weekend visitation. The Halls appealed and the Wolfs cross-appealed.
II. Termination of the Guardianship
A petition to terminate a guardianship is an equitable proceeding triggering de novo review. In re Guardianship of Stewart, 369 N.W.2d 820, 822 (Iowa 1985). Where a child is involved, the determinative factor is the child’s best interests Zvorak v. Beireis, 519 N.W.2d 87, 89 (Iowa 1994). The law presumes that those interests will best be served by placing children in the care of their natural parents, assuming they are qualified and suitable. Id. The guardians have the burden to rebut the presumption of suitability and show that the child’s best interests require a continuation of the guardianship Stewart, 369 N.W.2d at 824. If the transfer of custody to a parent would have a “seriously disrupting effect upon the child’s development, this fact must prevail.” Painter v. Bannister, 258 Iowa 1390, 1396, 140 N.W.2d 152, 156 (1966).
A. Evidence of Presumption Favoring Qualified and SuitableParents. The district court found that Vicky and Michael were “qualified and suitable to parent [Michael Jo].” On our de novo review, we agree with this finding.
1. Vicky. It is undisputed that Vicky’s untreated mental illness precipitated the circumstances that led to the removal of her children. Following the removal, Vicky voluntarily sought both inpatient and outpatient treatment. After trying various medications, her physicians settled on one which stabilized her condition. Vicky faithfully took the medication. At the hearing, her treating psychiatrist testified she had not had a major depressive episode since 1998 and he did not recommend any additional treatment or therapy. He opined that, from a psychiatric standpoint, she was fit to be a parent.
Social workers seconded this opinion. Department employee Kori Huberty stated that, when she visited the Halls’ home in 2000, it was safe and sanitary and the children were adequately supervised. When asked to compare Vicky’s home to the situation at the time of removal, she stated “[i]t’s just a total difference. . . .” Diana Webb, the family centered services provider, concurred. She testified Vicky’s home was “[a] hundred percent improved” from the time of removal. She characterized Vicky’s relationship with the children as “very, very nurturing” and opined that there was an “emotional bond” between the parents and Michael Jo. She testified the Halls actively participated in counseling and she expressed a wish that all the parents she dealt with “were that cooperative.”
Other witnesses also spoke favorably of Vicky’s home and her ability to care for her children. A foster parent who housed Vicky’s children stated they were “[v]ery well behaved, no problems, very clean.” She stated Vicky had “an excellent relationship” with the children and opined, “[y]ou couldn’t ask for better mom or more concerned mother.” A former manager of the local Red Cross chapter stated she knew the Hall family well and found their home to be “well kept.” She thought the parents had a loving relationship with their children and thought they would be able to care for Michael Jo.
In sum, there was more than sufficient evidence to establish that Vicky was qualified and suitable to parent Michael Jo. Therefore, she, rather than the guardians, is presumed to be a more appropriate caretaker.
2. Michael. Michael is a recovering alcoholic with four convictions for operating while intoxicated and one for driving while barred. At the hearing, he testified he drank “three-four beers maybe in the last year.” He further testified he had not been arrested for an alcohol-related offense since 1996. His friend stated he had only seen Michael drink beer twice in the previous two years. Social worker Diana Webb stated she saw no evidence of drinking at the home nor smelled alcohol on Michael.
As for Michael’s parenting skills, the record reflects he stayed at home to care for the children. Diana Webb stated the children were being adequately cared for and commented on Michael’s ability to set limits for them. When Michael’s friend was asked whether he had seen Michael lose his temper with the children, the friend responded, “[n]ever. I don’t think he’s got one.”
This evidence supports the district court’s determination that Michael is a qualified and suitable parent and, accordingly, is legally presumed to be the more appropriate caretaker.
B. Evidence Rebutting Presumption. As noted, the Wolfs bear the burden of rebutting the presumption in favor of the Halls. They did not satisfy this burden.
1. Dr. Rogers. The Wolfs’ primary witness was psychologist Daniel Rogers. In evaluating expert testimony such as his, a court is to consider the person’s education, experience, familiarity with the case, reasons given for the opinion and interest, if any, in the case. In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct.App. 1994).
Dr. Rogers admitted he never met or evaluated any of the parties or Michael Jo. His opinion that Michael Jo had “almost certainly” formed an emotional bond with the Wolfs was based entirely on a paper review of records furnished to him by the Wolfs’ attorney. Notably, Dr. Rogers conceded that such a method of evaluating parental fitness was not reliable. He stated,
I don’t think that any that anyone — can make a recommendation regarding choice of parent — to provide parenting without evaluating all the parents involved nor should someone make a recommendation of placing a child with any parent without having evaluated that individual.
While he recommended the collection of “objective test data on the characteristics and strengths and weaknesses of the adult,” his own evaluation contained no such data. Instead, his opinions concerning Michael Jo’s development and the effect of transferring her care to the Halls were generalized conclusions based on “the literature that’s available. . . .” He acknowledged he had no insight into whether Michael Jo specifically had the ability to develop bonds with her parents, stating he could not “speak of her specifically” but only of “the average child.”
Our court has accorded little weight to this type of testimony See In re Marriage of Scheffert, 492 N.W.2d 203, 205 (Iowa Ct.App. 1992) (unrebutted opinion of psychologist who met with some, but not all, material parties entitled to little weight) cf. Painter, 258 Iowa at 1397, 140 N.W.2d at 156-57 (considerable weight given to expert who spent twenty-five hours interviewing child); In re Marriage of Pothast, 539 N.W.2d 199, 202 (Iowa Ct.App. 1995) (giving greater weight to evaluations involving all relevant parties). We find no reason to deviate from this precedent.
2. William Pischke. The Wolfs also called William Pischke, a child abuse investigator who was involved with the removal of Vicky’s children in 1998 and the investigation of an abuse complaint in 2000. Pischke opined that a return of Michael Jo to her parents would be “completely adverse to the health and welfare of this child.” He conceded, however, that he had not seen Vicky and Michael interact with Michael Jo and it had been more than a year since he entered their home. He further conceded that the condition of their home had improved since 1998. Finally, he admitted the report of neglect received by the Department in 2000 was deemed unfounded.
Pischke’s testimony is dated and incomplete. Unlike Diana Webb, who regularly visited the Halls’ home in the year preceding the guardianship termination hearing, Pischke had limited contact with the family and relied almost exclusively on his experiences with Vicky in 1998. His testimony was, therefore, insufficient to rebut the presumption of parental fitness.
3. RelativesThe Wolfs also called Vicky’s sister, Mary Thompson, and her former sister-in-law, Carol Wolf. Thompson said she would be concerned if Michael Jo were removed from the Wolfs’ home. However, she admitted she had never met Michael, had never been in the Halls’ current home, and had seen Vicky no more than twice during the previous seventeen years. Carol Wolf stated Michael Jo had bonded with the Wolfs and the living situation with them was “very much better.” However, she admitted she had seen Vicky less than five times in the previous two years and only at her workplace. She further admitted she had never seen Vicky and Michael with Michael Jo.
The testimony of these individuals sheds little light on the key question of whether the Wolfs rebutted the presumption of parental fitness.
4. The Wolfs. Finally, we are not persuaded that the Wolfs’ own testimony was sufficient to rebut the presumption. Kristy acknowledged that Vicky’s mental condition had improved. Her testimony concerning the Halls’ parenting abilities was primarily based on brief observations of the children around town. While she also expressed concern about Michael’s alcoholism and both parents’ cigarette smoking, Diana Webb addressed and minimized these issues.
Don Wolf’s objections to the transfer were based primarily on the bond they had developed with Michael Jo, although he also mentioned their better home situation, Michael’s past, and an apparent lack of honesty on Vicky’s part. His testimony was not sufficiently specific to be accorded significant weight.
5. Application of Legal Principles. The evidence summarized above is insufficient to satisfy the Wolfs’ burden of proof to rebut the suitable, natural parents’ right to parent their child.
It is true that the Wolfs have met the material, physical, and emotional needs of Michael Jo. However, “[r]ecognition 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, 212-13 (Iowa Ct.App. 1998). The “strong societal interest in preserving the natural parent-child relationship” may require the removal of children “from conscientious, well intentioned custodians with a history of providing good care. . . .” Id.; see also Stewart, 369 N.W.2d at 824-25 (requiring return of child to natural parent even though guardians “fulfilled their role of substitute parents in exemplary fashion”).
It is also true that Michael Jo has developed a bond with her guardians. However, this alone is not sufficient to overcome the presumption in favor of the natural parents. See Doan Thi Hoang Anh v. Nelson, 245 N.W.2d 511, 518 (Iowa 1976) (rejecting argument made by adoptive parents that child should remain with them because he had been with them for a substantial period). The record reflects that Michael Jo has also developed a bond with Vicky and Michael, who have maintained regular contact with her since shortly after her birth. Cf. In re Guardianship of Knell, 537 N.W.2d 778, 781 (Iowa 1995) (noting father had not been part of child’s life for six years). Indeed, she refers to them as her mother and father.
What would be sufficient to overcome the presumption favoring suitable parents is a showing that the transfer would have a seriously disrupting effect on the child’s development. Painter, 258 Iowa at 1396, 140 N.W.2d at 156. That showing was not made here. Although Dr. Rogers suggested that custody transfers of children in Michael Jo’s age group might “disrupt” “important developmental dynamics,” he could not say that Michael Jo would in fact experience such a disruption. Cf. Knell, 537 N.W.2d at 781-82 (noting psychologist’s testimony that child would suffer trauma if transferred from stepfather to natural father shortly after the death of her mother); Painter, 258 Iowa at 1396-97, 140 N.W.2d at 157-58 (noting psychologist’s testimony that chances were very high child would “go wrong” if returned to father).
On our de novo review of the record, we find scant evidence of disruption. Diana Webb testified that the Halls “interacted very well” with Michael Jo. The Wolfs did not refute this testimony. Kristy admitted her knowledge of Vicky’s parenting skills was based on interaction in 1995 and 1998, rather than the present. She further conceded she had not been into the Halls’ farmhouse and could not speak to present conditions in the home. Finally, she did not testify to any trauma experienced by Michael Jo following visits with the Halls. In short, she did not refute the Halls’ evidence that Michael Jo had a happy and healthy relationship with her natural parents and siblings. Absent concrete evidence of a disruptive effect on the child, “the continuity and stability” of remaining in a familiar setting is insufficient to overcome the presumption favoring the Halls. See Stewart, 369 N.W.2d at 825.
We recognize Vicky and Michael have had problems in the past. However, the professionals who have worked with them do not believe those problems would place Michael Jo at risk in the present. Starr, 581 N.W.2d at 213 (noting “[t]he 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.”) (quoting In re Interest of Mann, 293 N.W.2d 185, 190 (Iowa 1980)).
The Halls have the ability to provide Michael Jo with a loving and nurturing, albeit less pristine, environment. Under the circumstances of this case, our jurisprudence demands they be given the opportunity to do so.
III. Disposition
The record establishes Vicky and Michael Hall are qualified and suitable parents and are, therefore, presumed to be the more appropriate parents. The Wolfs have not rebutted the presumption favoring the natural parents and specifically have not shown that a transfer of custody would severely disrupt Michael Jo’s life. Therefore, the Halls are entitled to termination of the guardianship.
The district court’s holding to the contrary is reversed. In light of our conclusion, we need not address the remaining issues raised by the parties. Costs are taxed to the Wolfs.
REVERSED ON APPEAL, CROSS-APPEAL DISMISSED.
ZIMMER, J., concurs, SACKETT, C.J., dissents.
SACKETT, C.J. (dissents)
I dissent. I would affirm the trial court.
In this custody dispute over a little girl, M.J., born in June of 1999, I would affirm the district court’s conclusion to leave her with the appellees in the only home she has ever known. At the time M.J. was born her birth mother, appellant Vicky, was not yet married to her birth father, appellant Michael.[1] Vicky had given birth to seven older children, all of whom were removed from her care because of her inadequate parenting, evidenced by reports she had denied the children critical care in 1991, 1995, and 1998. When M.J. was born, Vicky was told she could not take M.J. home. Consequently, she petitioned the court to name her brother and his wife, appellees Donald and Kirsty Wolfe, as M.J.’s guardians and conservators. M.J. was then released to appellees. Since that time appellees have treated M.J. as their own and have integrated her into their family, which includes children now out of their home and a fourteen-year-old daughter.
At the time of the hearing from which this appeal was taken, Vicky had another child with M.J’s father and was expecting their third child.[2] In addition, she had five children from her first husband, who at one time were all placed in their father’s care. One of these children returned to Vicky’s care before the hearing. Vicky also had a nine-year-old and a seven-year-old by different men whom she never married. These children had been returned to her care in June of 2000. The children from Vicky’s first three relationships appeared to have ranged in age from about seven to eighteen years.
This was the second time following a hearing that the district court refused to terminate the guardianship and conservatorship. In the first hearing on March 30, 2000, the court found Vicky had a history of abusing her other children, that she had been unable to maintain an adequate household, and that she suffered from mental illness and had had various treatments and hospitalizations. The court also found that while she was taking an antidepressant drug and had taken other prescription medication in the past, at the time of that hearing she had missed several appointments with her psychiatrist. The court further noted Michael had been in the penal system, had other children[3] by a prior marriage, and lived with Vicky when her household was in disarray. The court refused to return M.J. to the care of Vicky and Michael, finding they were not adequate parents. The court noted that should Vicky have her younger two children returned to her and demonstrate adequate parenting abilities, the court might consider modifying the custodial arrangement.
In the second hearing, from which this appeal was taken, the district court found the appellants had proved they could provide a good home and be good parents to their children. The court refused to terminate the guardianship and conservatorships, however, finding there was basically undisputed expert testimony that returning M.J. to her birth parents’ custody was more than likely to have a traumatic and seriously disturbing effect on her development, and that the appellees had met their burden of rebutting the presumption of a preference for M.J. to be in her birth parents’ custody. I strongly agree with this conclusion, as unquestionably there is substantial bonding between M.J. and the appellees. Yet unlike the district court, I do not believe the record shows the appellants can give M.J. the care she needs and deserves. Vicky has had nine children by four different fathers. At the time of the hearing, five of those children were in her care, and she was pregnant with a tenth child. If M.J. would have been placed with her birth parents at the time of the hearing, there would have been three children under age three in the home.
Michael is not employed. Vicky works for little more than minimum wage, forty hours a week at a local convenience store. Vicky has a long history of mental illness and making inappropriate decisions concerning her children, in large part as a result of this illness. There were three separate charges of denial of critical care. While I recognize Vicki has been able to control her mental illness for several years, I am not convinced that her problems will remain under control, and I specifically note her past history which indicates even after help she tended to relapse in caring for her older children. Vicky’s psychiatrist testified Vicky has a high risk of a recurrence of depression and is at a higher risk of post-partum depression than other individuals.
Michael is an alcoholic. He has been convicted four times of driving a motor vehicle while intoxicated and was incarcerated. At the time of the hearing he still had to serve twenty days of a thirty-day sentence on a conviction of driving while barred. While Michael contends he has his alcohol problems under control, as the district court noted, he does not attend Alcoholics Anonymous. Additionally, I find hints in the record that he may still consume alcohol. Vicky said only that he does not drink in the house. I find credible the evidence that he has a high chance of a relapse.
Furthermore, there is evidence that the children who have now been returned to Vicky’s care have behavioral problems and obviously have suffered from being in foster care and from changing homes. Compared to this situation the appellees offer a superior home.
While I commend Vicky and Michael for their efforts and improvements and hope they will continue for the benefit of the other children who remain under their care, I am not optimistic that there will no longer be relapses or problems of serious magnitude in their home in the future. Furthermore, with the number of children Vicki and Michael are now caring for, coupled with their history of earlier problems and the fragile situation of each parent, I see the introduction of a new child into the home as putting a further strain on the current environment and jeopardizing the appellants’ ability to provide an adequate home and care for the children who currently live there. M.J. deserves the stability the appellees can provide her. To take the course the majority has charted will be seriously detrimental to her upbringing.
While I recognize and respect the rights of birth parents, it is important to note this is not a case where parental rights are being severed. M.J. will, if appellants’ home remains stable, have the opportunity to visit with her birth parents, siblings and half-siblings. She also will have the security of the bond to the appellees, the only custodians she has known. This dispute should end here with appellees retaining custody. That custody should only be disturbed if appellants show circumstances have changed and that they can render superior care.