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In re Guardianship of M.I.D.

Court of Appeals of Iowa

November 7, 2018

IN RE THE MATTER OF THE GUARDIANSHIP OF M.I.D., Minor Child,
v.
BRYON OINES and PAMELA OINES, Respondents-Appellees. KOREY ISAAC DAVIS, Petitioner-Appellant,

          Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.

         A father appeals the denial of his petition to terminate a guardianship of his minor child.

          Tara S. Vonnahme of Vonnahme Law PC, Sioux City, until withdrawal, and then Anglea H. Kayl, Sioux City, for appellant..

          Lindsey Buchheit of Buchheit Law, PLC, Sergeant Bluff, for appellees.

          Jessica R. Noll of Deck Law, PLC, Sioux City, guardian ad litem for minor child.

          Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.

          MULLINS, JUDGE.

         A father, Korey, appeals the denial of his petition to terminate a guardianship of his minor child, M.I.D. Korey contends he has the fundamental right to parent his child, there is a statutory parental preference for a child's placement, and the court erred in denying this preference when there has been no showing that he is unfit to parent. Korey further contends the court erred in giving weight to the guardian ad litem (GAL) and counselor's evidence.

         I. Background Facts and Proceedings

         Korey and Molly are the parents of M.I.D., born in fall 2009. They were married shortly after M.I.D.'s birth, but the marriage was dissolved in May 2010.[1]Pamela and Bryon Oines are Korey's mother and step-father.[2] Korey lived in Texas with his biological father until early 2009, when Korey and Molly moved to Iowa to live with the Oineses before the birth of M.I.D. They moved because they believed Iowa would be a better environment in which to raise the child. They were living with the Oineses when M.I.D. was born, and M.I.D. has lived with the Oineses continuously since birth. The Oineses have been M.I.D.'s primary caretakers since Korey and Molly's dissolution. When M.I.D. was approximately nine months old and Korey was out of the state for military basic training, Molly moved back to Texas and left M.I.D. with the Oineses.[3] After basic training, Korey moved back in with the Oineses for a short time. From 2010 to 2014, Korey moved several times and lived in a number of residences in the Sioux City area. He also held a number of different jobs, not remaining at any of the jobs or residences for very long. M.I.D. remained in the care of the Oineses during this time and contact with Korey was minimal.

         In January 2014, Korey moved to Texas. He remains there with his wife and two children, [4] while M.I.D. remained with the Oineses. Less than a month later, the Oineses filed a petition for guardianship of M.I.D. They cited Korey's recent move to Texas, his minimal contact with M.I.D. before moving, and his lack of financial support as the reasons why a guardianship was necessary.[5] They further applied for the appointment of a GAL, pursuant to Iowa Code section 633.561(1)(b) (2014). The following day, the court granted the Oineses' request for a temporary injunction to prohibit either Korey or Molly from removing M.I.D. from their care.[6] The court also appointed an attorney as GAL.

         In March, the Oineses, Korey, and Molly filed a joint stipulation in which all parties agreed that a guardianship was necessary, the Oineses were the most appropriate guardians, a limited guardianship was not appropriate, and child support would not be ordered. The court accepted the stipulation, appointed the Oineses as guardians, terminated the temporary injunction, and provided Korey and Molly with visitation "at all reasonable times and places, as agreed upon between the parties. . . . Korey and Molly will be given reasonable phone and social media contact with M.I.D. Korey and Molly shall initiate any visitation or contact." The court did not order child support. The Oineses filed guardian reports on May 31, 2014; April 21, 2015; April 1, 2016; and April 25, 2017. They noted in the 2016 and 2017 reports that M.I.D. was attending "therapy as suggested." The court accepted each of the annual reports and ordered the guardianship to continue.

         On June 14, 2016, Korey filed his petition to terminate the guardianship, claiming the circumstances which warranted the guardianship no longer existed, he was able and willing to care for M.I.D., and the court did not previously find him unfit. The Oineses resisted the petition and Korey's asserted reasons for terminating the guardianship. The court continued the originally scheduled trial until Korey served the petition on the GAL and Molly, necessary parties, which occurred on October 24, 2016 and January 19, 2017, respectively.

         During the trial, the court heard from Korey, Molly, Pamela, Bryon, and Dr. Raul Sanchez, M.I.D.'s therapist for approximately two years.[7] The GAL participated during the trial and, with the court's permission, filed her written closing argument a week later in which she recommended the guardianship remain in place. Korey filed a motion to strike her argument, contending that the GAL was appointed under Iowa Code section 633.561(1)(b) and arguing this section only allowed the appointment of an attorney for a proposed ward in proceedings for the appointment of a guardian, not a GAL. Further, he argued that her appointment under section 633.561 expired in 2014, at the time the court appointed the Oineses as guardians. Finally, he argued no request was made for the appointment of a GAL in the present termination proceedings and the court did not issue an order appointing a GAL in the proceedings. The court denied the motion, finding the GAL's initial ...


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