from the Iowa District Court for Hamilton County, Timothy J.
father appeals the establishment of a guardianship for three
of his children.
A. Taylor of Taylor Law Offices, PC, Des Moines, for
C. Huss of Huss Law Office, PLC, Ames, for appellees.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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.
BACKGROUND FACTS AND PROCEEDINGS
and Kimberly Bunch 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. 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.
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.
2013, Edward was convicted and imprisoned for a felony drug
offense.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.
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. 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.
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
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.
STANDARD OF REVIEW
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).
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).
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 ...