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In re Guardianship of D.B.

Court of Appeals of Iowa

September 12, 2018

IN THE MATTER OF THE GUARDIANSHIP OF D.B., L.B., and A.B.,
v.
EDWARD PAUL BUNCH, JR., Respondent-Appellant. JAMES A. KERNES and CHERYL ANN KIRK, Petitioners-Appellees,

          Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn, Judge.

         A father appeals the establishment of a guardianship for three of his children.

          Karen A. Taylor of Taylor Law Offices, PC, Des Moines, for appellant.

          Robyn C. Huss of Huss Law Office, PLC, Ames, for appellees.

          Considered by Potterfield, P.J., and Bower and McDonald, JJ.

          BOWER, Judge.

         A father, Edward Bunch, appeals the district court's appointment of guardians for three of his children following the death of the custodial mother. Because we find substantial evidence in the record supports the district court's determination that a guardianship is warranted and the appointment of guardians, we affirm.

         I. BACKGROUND FACTS AND PROCEEDINGS

         Edward and Kimberly Bunch[1] were married from 2003 to 2012. Edward and Kimberly had four children together, born between 2001 and 2010-B.B., D.B., L.B., and A.B.[2] In 2004, Edward pled guilty to a domestic abuse assault against Kimberly. In 2012, Edward and Kimberly divorced, with the court granting Kimberly sole custody of the children. The court issued a temporary protective order for Kimberly against Edward in 2011, which became permanent once the divorce was finalized.

         In 2013, Kimberly and the children began living with James Kernes (Kernes), whom Kimberly later married. Kimberly, Kernes, and the children soon moved to Jewell, where her parents lived. In 2014, Kimberly and Kernes had a child. The children have attended schools in Jewell for a number of years. B.B., Kimberly and Edward's oldest child, currently lives with Kimberly's mother, Cheryl Kirk (Kirk). B.B.'s guardianship and custody is not at issue here. Kimberly was a stay-at-home mother. Kernes works full time in Des Moines.

         In 2013, Edward was convicted and imprisoned for a felony drug offense.[3]In 2014, shortly after he began work release, he began dating Melissa. Edward works full time in Garner. Edward and Melissa are engaged and live with Melissa's son and their daughter in Forest City. Edward has progressed from supervised visitations after the divorce to unsupervised overnight visitation with the children.

         In 2016, the Iowa Department of Human Services (DHS) monitored the Kernes family due to unconfirmed allegations of Kimberly and Kernes using controlled substances while caring for the children. DHS investigated, including talking with all four children, and found no evidence to support the allegations, . DHS suspected the complaint was custody based. During the investigation, a child told the DHS worker that Edward used controlled substances and abused the children. The children all stated they felt safe in the Kernes home.[4] After the investigation concluded, Kimberly continued working with Child Protective Services and Family Safety, Risk, and Permanency Services for assistance with behavioral and mental health issues of one child, who is receiving intensive treatment. One of the other children also requires special attention due to autism.

         On March 24, 2017, Kimberly died. Edward attempted to assume custody of the three children living with Kernes (D.B., L.B., and A.B), including filing a petition to modify custody. On April 6, Kirk and Kernes-Kimberly's mother and husband-filed applications for emergency appointment of temporary guardianship and custody of the four children, as well as petitions for permanent appointment as guardians. Edward contested the appointments as to the three younger children. On April 7, the court appointed Kernes temporary guardian of D.B., L.B., and A.B. Kirk became a stay-at-home caretaker.

         At trial to establish the guardianship on June 27, the court heard testimony from one of the children, Kirk, Kernes, one of Edward's adult children, Edward's neighbors, Melissa, and Edward. In its ruling on July 17, the court granted guardianship and custody of the three children to Kirk and Kernes. Following a motion by Edward, the court enlarged and amended the ruling without altering the guardianship. Edward appeals.

         II. STANDARD OF REVIEW

         The parties state this case was tried in equity by the district court, and both parties propose de novo review for the court to consider the best interests of the children. See Iowa R. App. P. 6.907. However, it is the termination of a guardianship, not the opening of one, which is reviewed de novo. See In re Guardianship of M.D., 797 N.W.2d 121, 126-27 (Iowa Ct. App. 2011).

         The appropriate standard of review for cases involving the establishment of a guardianship is for errors at law. Iowa Code §§ 633.33, .555 (2017); M.D., 797 N.W.2d at 126. In a review for correction of errors at law, we do not reweigh the evidence or the credibility of the witnesses. EnviroGas, LP v. Cedar Rapids/Linn Cty. Solid Waste Agency, 641 N.W.2d 776, 785-86 (Iowa 2002). The court's factual findings are binding on appeal if supported by substantial evidence. Iowa R. App. P. 6.904(3)(a); In re Guardianship of Murphy, 397 N.W.2d 686, 688 (Iowa 1986).

         III. MERITS

         The court determined the children were in need of a guardianship pursuant to Iowa Code section 633.551 because their mother, who had sole legal custody and physical care, had died and their biological father was not suitable to have the children in his physical care. See In re Guardianship of G.G., 799 N.W.2d 549, 550 (Iowa Ct. App. 2011) (requiring proof of the need for a guardian before considering who to appoint). The court ...


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