Guardianship of Sams, Matter of, 3-59558

• Decision Date: 29 July 1977
• Docket Number: No. 3-59558,3-59558
• Citation: 256 N.W.2d 570
• Parties: In the Matter of the GUARDIANSHIP and Conservatorship OF Constance M. SAMS and Robbie L. Sams, minors. Appeal of Connie Kay SAMS.
• Court: Iowa Supreme Court

Page 570

256 N.W.2d 570

In the Matter of the GUARDIANSHIP and Conservatorship OF Constance M. SAMS and Robbie L. Sams, minors.

Appeal of Connie Kay SAMS.

No. 3-59558.

Supreme Court of Iowa.

July 29, 1977.

Patrick H. Payton, of Payton & Hearn, P.C., Des Moines, for appellant.

James F. Fowler, of Wilson & Goodhue, Indianola, for appellee.

Heard by MOORE, C. J., and RAWLINGS, REYNOLDSON, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

The mother of two small children appeals from the trial court's refusal to set aside an ex parte order appointing her father their guardian and conservator. We reverse.

This is another difficult case in which a person who has cared for the children of another seeks to obtain their custody against the wishes of the parent. See Doan Thi Hoang Anh v. Nelson, 245 N.W.2d 511 (Iowa 1976); Hulbert v. Hines, 178 N.W.2d 354 (Iowa 1970); Garvin v. Garvin, 260 Iowa 1082, 152 N.W.2d 206 (1967); Halstead v. Halstead, 259 Iowa 526, 144 N.W.2d 861 (1966); Alingh v. Alingh, 259 Iowa 219, 144 N.W.2d 134 (1966); Painter v. Bannister, 258 Iowa 1390, 140 N.W.2d 152 (1966), cert. denied, 385 U.S. 949, 87 S.Ct. 317, 17 L.Ed.2d 227; Vanden Heuvel v. Vanden Heuvel, 254 Iowa 1391, 121 N.W.2d 216 (1963); McKay v. McKay, 253 Iowa 1047, 115 N.W.2d 151 (1962); McKay v. Ruffcorn, 247 Iowa 195, 73 N.W.2d 78 (1955); In re Guardianship of Plucar, 247 Iowa 394, 72 N.W.2d 455 (1955).

The contest here is between Robert L. Slater, 46, a grandfather of the children, and his daughter Connie Kay Sams, 21, the children's mother. The children are Robbie L. Sams, 5, and Constance M. Sams, 3. Robbie has lived with his mother since his birth except for several months in 1974. Constance lived with her mother for the first year of her life but has lived with her grandfather most of the time since then.

Connie was separated from her husband Robert Eugene Sams in the summer of 1974. She commenced a dissolution action in July. At about the same time she was hospitalized for gall bladder surgery and left the children with her father and stepmother, Frances L. Slater, during that period. After she was released from the hospital she also left the children in her father's home much of the time. The reason for this is not clear, but Connie was working, having financial problems and having trouble finding an adequate place to live. At some point she was hospitalized again for a brief period. She contends this hospitalization was caused by an accidental overdose of nerve medication. Her father offered evidence suggesting that she was then having emotional problems. He also introduced evidence that she lived with another man during part of the time she was separated from her husband.

On November 20, 1974, at a time when both children were residing with him in his trailer home in New Virginia, Mr. Slater petitioned the district court for appointment as their guardian and conservator. Neither Connie nor the children's father received notice of the petition. The court entered an ex parte order also on November 20, making the requested appointment. When Connie learned of the appointment she obtained legal advice from the Polk County legal aid office and initiated steps to have the appointment terminated. In December 1974 she removed Robbie from her father's home and refused the request of Mrs. Slater that she return him.

In March 1975 Connie filed a petition to terminate the guardianship and conservatorship which, for reasons the record does not disclose, was not heard until May 1976. After the hearing the trial court made a ruling by calendar entry "that the Application for Termination of the Guardianship is denied at this time." This appeal followed.

Two questions are presented by Connie's appeal. The first relates to the constitutionality of Code §§ 633.553 and 633.567 which provide, regarding guardianship and conservatorship petitions No notice of such petition need be given when the proposed ward is a minor and such petition is filed by the person having custody of the proposed ward.

Connie contends these provisions deny due process of law under the fourteenth amendment of the Federal Constitution insofar as they do not require notice and an opportunity to be heard to natural parents. This question was not presented in the trial court and will not be entertained here. Wolfs v. Challacombe, 218 N.W.2d 564, 570 (Iowa 1974).

The second question in Connie's appeal concerns the merits of the trial court's refusal to terminate the guardianship and conservatorship. It implicates two threshold issues. One is whether she had the right to challenge the original ex parte order in the May 1976 hearing. The other is whether Mr. Slater had the burden of persuasion in the termination hearing to establish that the best interests of the children were served by his appointment as their custodian.

In her application to terminate the guardianship and conservatorship, Connie alleged the order was entered without notice to her. Mr. Slater admits the appointment was made by ex parte order. Hence this situation is governed by § 633.37, The Code, which provides:

All orders entered without notice or appearance are reviewable by the court at any time prior to the entry of the order approving the final report.

Therefore, apart from the issue of due process, Connie had the right by statute to obtain review of the ex parte order. See also Brooke v. Logan, 112 Ind. 183, 13 N.E. 669 (1897); Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81 (1931); Clarke v. Lyon, 82 Neb. 625, 118 N.W. 472 (1908); Ex parte Englebert, 70 S.D. 467, 18 N.W.2d 794 (1945); cf. Catholic Charities of the Archdiocese of Dubuque v. Zalesky, 232 N.W.2d 539 (Iowa 1975). Her right to challenge the ex parte order was not foreclosed.

She contends the real issue for adjudication in the May 1976 hearing was whether she or her father should have custody of the children. She also contends her father had the burden to prove his appointment as guardian and conservator was in the best interests of the children in view of the preference accorded natural parents for such appointment under §§ 633.559 and 633.571, The Code. Mr. Slater denies the issue was child custody, and he asserts Connie was limited to proving his appointment should be terminated because the guardianship and conservatorship was "no longer necessary" as provided in § 633.675, The Code. We agree with both of Connie's contentions.

The contest was essentially over child custody. By statutory definition a guardian is "the person appointed by the court to have the custody of the person...