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In re Guardianship of M.E.

Court of Appeals of Iowa

June 7, 2017

MARIE ELG and STEVEN ELG, Respondents-Appellees. CAMILLE PERSON f/k/a CAMILLE KOEHN, Petitioner-Appellant,

         Appeal from the Iowa District Court for Dallas County, Richard B. Clogg, Judge.

         A mother appeals the denial of her motion to terminate a guardianship. REVERSED AND REMANDED WITH INSTRUCTIONS.

          Maureen C. Cosgrove and Kimberley K. Baer of Baer Law Office, Des Moines, for appellant.

          Earl B. Kavanaugh of Harrison & Dietz-Kilen, P.L.C., Des Moines, for appellees.

          Heard by Danilson, C.J., and Potterfield and Bower, JJ.

          DANILSON, Chief Judge.

         Camille Person, formerly known as Camille Koehn, is the mother of a child, M., born in 2008. Camille's parents, Marie and Steven Elg, have been the guardians for M. since Camille stipulated to a consent order placing the child in Marie's custody in 2008. Camille filed an application to terminate the guardianship in 2015, which the court denied. Camille now appeals, asserting Iowa law governs the termination of the guardianship. She argues the court erred in finding the guardians had overcome the parental preference, in giving weight to the counselor's and guardian ad litem's (GAL's) opinions that termination of the guardianship would pose a disruptive effect on the child, and in failing to adequately focus on the child's best interests.

         Because the Elgs have not overcome the parental preference by clear and convincing evidence, we reverse and remand with instructions that the court determine and implement a transitional plan to return the child to Camille's custody.

         I. Background Facts & Proceedings.

         On March 25, 2008, a court in Tennessee filed a consent order, [1] signed by Marie Elg and Camille Koehn (now Camille Person), which provided:

1. That [Marie and Camille] have been fully advised that to modify this final custody decision would require a material change in circumstances which makes a change in custody in the child's best interest even if they are the legal parent of the child(ren),
2. That it is in the best interest of the minor child that the petition be sustained and that custody be divested from [Camille] and that care, custody, and control of minor child be awarded to [Marie] and that a hearing before the court is hereby expressly waived.
3. That they are aware that on [sic] this agreement is based the Order of this Court, and that failure to comply herewith, without just cause, places them in contempt of court and subjects them to such action as the Court deems proper within its jurisdiction.

         Marie was granted the "authority to consent to any education, medical, surgical or hospital care necessary in the best interest of the child."

         Camille sought visitation or a return of custody of M. in June 2009. After a hearing, the Tennessee juvenile court referee (now magistrate) found:

The mother testified that the grandparents are moving to [Iowa] and want[] her to move there with them. She also stated that their visitation is unreasonable and too restricted. The mother also testified that she is currently residing in Red Bank in an apartment which she shared for two (2) weeks with an exchange student. She worked for Panera Bread part-time at first, but now she is full-time. She has attended some AA meetings, completed a domestic violence program, and her Probation Officer indicates in a letter that she does not need treatment. She is currently on probation until 2010, for violation of probation. There is a contempt of Court charge, relating to domestic violence, against her husband with a pending Court date. She further stated that she has changed since 2008, and feels she is ready to take full responsibility of her child. She admits that she has a chemical imbalance, and some unresolved emotional issues from her childhood.
During cross-examination of the mother it was brought out that the mother is presently under the care of a psychiatrist. She has been diagnosed with suffering from bipolar disorder and she was prescribed 400mg lithium to be taken twice daily, and medication to help with sleep, which she has not been taking. Since the consent Order which she signed in March of 2008, the mother has lived in four (4) different locations. She had been living with a married man for a period of time last year. She admits that her husband, Michael Koehn is a drug addict, and was with her on the night in March 2008, when she overdosed on a combination of Zanax, cocaine and alcohol. He also has a criminal record and is currently incarcerated. She admits to being afraid of him, and she also admits to having an addictive personality having used drugs since the age of fourteen (14). She admits that she has not filed for divorce from her abusive husband as she told the Court she was going to do.
The maternal grandmother testified that the mother and the married man who she is currently living with came to the mother's place of employment and got into a fight with her over a gun which he accused her of taking. He then pointed the gun at himself and threatened to kill himself, and this was very concerning to her as to the safety of her granddaughter in the mother's custody. She feels the mother is a good person and will not deliberately harm her daughter but she is concerned about the mother's judgment and the people she chooses to be around.
Based upon proof and testimony presented, and the entire record, the Court found there has been no material change in the child's current circumstances to warrant a custody change and it would not be in the best interests of the child to change custody at this time.

         Camille requested a rehearing before a district court judge. At the close of Camille's presentation of her testimony, the court granted the Elgs' motion for directed verdict. The court stated on the record:

And to be frank about it, I don't blame your parents at all for asking questions. You made poor choices. By your own admission, you made poor choices about a man in your life, a man from whom you're still not divorced. You did not feel that that was a priority yet, to get that cleaned up, get a fresh start. But instead you're continuing, there's a continuum here of your lifestyle with a man that has had a relationship with you.
And what bothers me and bothers your parents is that this man is also one that you've had to take out an order of protection on. It's a cycle that's still present in your life. He may be a good person, but he has flaws as well if what you told me about him is true.
Do you think this man loves you if he's circulating these pictures of you out here? Do you think he's prioritized your well-being? No. If it's a matter of the two of you not getting along well enough that you got to move out, that he has to be charged with something, he's not-he's in that same pattern as the other man. And you know from what you went through with him that's not good for you. And it's certainly not good for your child.
Now, what you do on your own is up to you. What you do when you're asking me to consider placing a child back with you takes on something else. You have to be scrutinized very differently about this because your child's well-being and safety come first. I want you to take care of yourself for yourself. I would like for you to take care of yourself for your child, but as long as you are continuing in this same lifestyle-even though you've made some positive changes, you haven't taken it to the point that you're trustworthy in making good judgments yet about your child.

         Because the Elgs had moved to Iowa, the court ordered that they pay for transportation and ensure visits occurred between Camille and M. at least every other month. The court prohibited the child from being in the home Camille shared with her current paramour.

So this will be for time you spend with your child. And then at such point in time and if you make these changes in your life and a year or so from now and you can show you've got your own residence down here, you're not dependent on this man, you're not continuing in these same circumstances that brought you to the shape you're in right now, then those are the things that you can always come back and look at.

         In 2010, several months after the Elgs moved to Iowa with M., Camille moved to Iowa as well. Camille participated in M.'s life-first sporadically and then by 2013-on a consistent basis.

         Since 2008, Camille has obtained her GED, a cosmetology license, and a certified nursing assistance certificate. She has held full-time jobs. Camille had a set back in 2012, when she used an illegal substance, was hospitalized for evaluation, and entered into outpatient treatment. In 2013, Camille married Travis. They reside in a small town about two hours away from where Travis found full-time employment as a police officer. Camille and Travis had a child in 2015.

         In January 2015, Camille registered the Tennessee consent order in the Iowa district court and filed an application to terminate the guardianship and have custody of M. returned to her. The Elgs resisted the application.[2] A temporary visitation order was entered in March 2015, which provided Camille set visitation, including overnight visits every other weekend. That court-ordered visitation has continued.

         A hearing was held in October 2015. At the time of the hearing, Camille was doing well in an accelerated nursing program working toward becoming a registered nurse. Camille reported she is managing her anxiety and depression with proper medications and regularly meets with her psychiatrist and doctor. All parties agree Camille has shown increased maturity and stability, particularly since 2013.

         The child's GAL, Kara McClure, testified it was not in the child's best interest to be reunited because it would be psychologically harmful, noting the child is "already going through anxiety." She explained:

The past couple of months, as [M.] has become more aware of conflict and that there's a possibility of her life may be undergoing change, I think that's played out. I think she's had a lot of problems with that. That has affected her at school. It's affected her at home, and it's deeply affecting her. It's affecting her in therapy sessions with [Susan Gauger].
. . . .
. . . She is already-I think it will be disruptive and damaging to her, and so I didn't approach this as to whether Camille can be a suitable parent to [M.] I approached it as what's best for [M.], and because I find there is risk of harm to [M.] psychologically to be removed, I focused more on that.

         Susan Gauger, a licensed clinic social worker and the child's therapist, testified[3] the child was "probably one of the most delightful children I've had the opportunity to meet." She described M. as "a bright, inquisitive child who is always very much concerned about doing what's right." Gauger also described M. as "highly sensitive" and one who "can read other people's behavior and feelings and concerns very readily." Gauger stated the Elgs' bond with M. was "parental." With respect to M.'s bond with Camille, Gauger testified:

Well, I think that [M.] also has a bond with her mother. Her mother has been part of her life all along, and I think that she knows her mom is her mom. And I think that [M.] is kind of at that age right now where she wants to maybe experience more of her mom's time, and she also has a little brother now, and so that's been kind of a curiosity, another way for kind of bond her to her mother as well.
I think that when she goes and stays with Mom I think she trusts that Mom will take care of her and do the things that need to happen. As far as if she has a need or if she has things that are bothering her, I think she feels she can go to Mom and talk to Mom about those.

         Gauger stated she began seeing M. weekly in therapy in May 2015. Marie Elg had brought M. in because of the pending litigation. In early October 2015, Gauger informed M. there was a discussion between her grandparents and her mother and stepfather about whether M. would continue to live with the Elgs or go live with Camille and Travis, [4] to which M. responded very anxiously (i.e., she curled up, covered her head with a blanket, and cried). M. asked, "[C]an't we all just live together in one big house"? Gauger was surprised by her ...

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