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In re Guardianship & Conservatorship of J.M.M.

Court of Appeals of Iowa

February 19, 2014

IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF J.M.M. AND A.D.M., Joseph and Shirley Cox, Temporary Guardians and Conservators, Appellants

Editorial Note:

This opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed.

Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge. Paternal grandparents appeal an order denying their application for appointment of a guardianship and conservatorship over two grandchildren.

Suellen Overton of Overton Law Office, Council Bluffs, for appellants.

Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.

OPINION

VAITHESWARAN, J.

Joseph and Shirley Cox, paternal grandparents of two children, appeal an order denying their application for appointment of a guardianship and conservatorship over the children.

I. Background Facts and Proceedings

Wayne and Bonnie had two children, born in 2000 and 2002. The couple divorced in 2003, and Wayne was granted physical care of the children. Wayne raised the children for the ensuing nine years. Bonnie visited them on occasion but maintained that Wayne thwarted regular contact.

Wayne died in 2012, and shortly thereafter, his parents applied to serve as the children's guardians and conservators. Bonnie resisted the application and sought custody of the children. Following an evidentiary hearing, the district court appointed the Coxes temporary guardians and conservators and scheduled an evidentiary review hearing to determine whether the guardianship " should terminate and the children be placed in Bonnie's care, or . . . become permanent."

After the second hearing, the court denied the Coxes' application, terminated the " temporary guardianship and temporary conservatorship . . . at the end of the present school term," and ordered " full legal custody and physical care" of the children transferred to Bonnie. The Coxes appealed.

II. Analysis

The Coxes contend " Bonnie's unilateral decision to jump back into these children's lives after ten years is not a basis to remove these children from the loving grandparents that helped raise them." Our review is for errors of law. See Iowa Code § 633.33 (2011); In re Guardianship of M.D., 797 N.W.2d 121, 126-27 (Iowa Ct. App. 2011) (noting conflicting case law and opting for statutory directive). " We will affirm if there is substantial evidence in the record demonstrating that the best interests of the children favors dismissing the petitions for guardianship." In re Guardianship of G.G., 799 N.W.2d 549, 551 (Iowa Ct. App. 2011).

As a preliminary matter, we must address the Coxes' assertion that the district court incorrectly assigned the burden of proof. The legislature has stated that " the parents of a minor, or either of them, if qualified and suitable, shall be preferred over all others for appointment as guardian." Iowa Code ยง 633.559. The non-parent bears the burden to overcome the parental preference with clear and convincing ...


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