from the Iowa District Court for Dallas County, Richard B.
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.
B. Kavanaugh of Harrison & Dietz-Kilen, P.L.C., Des
Moines, for appellees.
by Danilson, C.J., and Potterfield and Bower, JJ.
DANILSON, Chief Judge.
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
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
Background Facts & Proceedings.
March 25, 2008, a court in Tennessee filed a consent order,
signed by Marie Elg and Camille Koehn (now Camille Person),
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
was granted the "authority to consent to any education,
medical, surgical or hospital care necessary in the best
interest of the child."
sought visitation or a return of custody of M. in June 2009.
After a hearing, the Tennessee juvenile court referee (now
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
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.
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
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
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.
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
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.
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. 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.
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.
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.
Gauger, a licensed clinic social worker and the child's
therapist, testified 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.
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,  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 ...