Bill Text: IA HF591 | 2019-2020 | 88th General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: A bill for an act providing for juvenile court jurisdiction over minor guardianship proceedings and including effective date and applicability provisions. (Formerly HSB 118.) Effective 1-1-20.

Spectrum: Committee Bill

Status: (Passed) 2019-05-01 - Signed by Governor. H.J. 1081. [HF591 Detail]

Download: Iowa-2019-HF591-Introduced.html

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House File 591 - Introduced
HOUSE FILE 591
BY COMMITTEE ON JUDICIARY
(SUCCESSOR TO HSB 118)
A BILL FOR
An Act providing for juvenile court jurisdiction over minor
guardianship proceedings and including effective date and
applicability provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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DIVISION I
IOWA MINOR GUARDIANSHIP PROCEEDINGS ACT
Section 1. NEW SECTION . 232D.101 Title.
This chapter shall be known as the “Iowa Minor Guardianship
Proceedings Act” .
Sec. 2. NEW SECTION . 232D.102 Definitions.
1. “Adult” means a person eighteen years of age or older
or a person declared to be emancipated by a court of competent
jurisdiction.
2. “Conservator” means a person appointed by a court to have
custody and control of the property of a minor.
3. “Court” means the juvenile court established under
section 602.7101.
4. “Demonstrated lack of consistent parental participation”
means the refusal of a parent to comply with duties and
responsibilities imposed upon a parent by the parent-child
relationship, including but not limited to providing the minor
with necessary food, clothing, shelter, health care, education,
and other care and supervision necessary for the minor’s
physical, mental, and emotional health and development.
5. “Guardian” means a person appointed by the court to have
custody of a minor.
6. “Legal custodian” means a person awarded legal custody
of a minor.
7. “Legal custody” means an award of the rights of legal
custody of a minor under which a parent has legal custodial
rights and responsibilities toward the minor child including
but not limited to decision making affecting the minor’s legal
status, medical care, education, extracurricular activities,
and religious instruction.
8. “Limited guardianship” means a guardianship that grants
the guardian less than all powers available under this chapter
or otherwise restricts the powers of the guardian.
9. “Minor” means an unmarried and unemancipated person under
the age of eighteen years.
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10. “Parent” means a biological or adoptive mother or father
of a child, a person whose parental status has been established
by operation of law due to the person’s marriage to the mother
at the time of the conception or birth of the child, by order
of a court of competent jurisdiction, or by an administrative
order when authorized by state law. “Parent” does not include a
person whose parental rights have been terminated.
Sec. 3. NEW SECTION . 232D.103 Jurisdiction.
The juvenile court has exclusive jurisdiction in a
guardianship proceeding concerning a minor who is alleged to
be in need of a guardianship.
Sec. 4. NEW SECTION . 232D.104 Venue.
1. Venue for guardianship proceedings under this chapter
shall be in the judicial district where the minor is found or
in the judicial district of the minor’s residence.
2. The court may transfer a guardianship proceeding brought
under this chapter to the juvenile court of any county having
venue at any stage in the proceedings as follows:
a. When it appears that the best interests of the minor
or the convenience of the proceedings shall be served by a
transfer, the court may transfer the case to the court of the
county of the minor’s residence.
b. With the consent of the receiving court, the court may
transfer the case to the court of the county where the minor is
found.
3. The court shall transfer the case by ordering the
transfer and a continuance and by forwarding to the clerk
of the receiving court a certified copy of all papers filed
together with an order of transfer. The judge of the receiving
court may accept the filings of the transferring court or may
direct the filing of a new petition and hear the case anew.
Sec. 5. NEW SECTION . 232D.105 Proceedings governed by other
law.
1. A petition alleging that a minor is in need of a
conservatorship is not subject to this chapter. Such
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proceedings shall be governed by chapter 633 and may be
initiated pursuant to section 633.627.
2. A petition for the appointment of a guardian for a minor
and a petition for appointment of a conservator of a minor
shall not be combined.
3. If a minor guardianship proceeding under this chapter
pertains to an Indian child as defined in section 232B.3 and
the proceeding is subject to the Iowa Indian child welfare Act
under chapter 232B, the proceeding and other actions taken in
connection with the proceeding shall comply with chapter 232B.
Sec. 6. NEW SECTION . 232D.106 Applicability of rules of
civil procedure.
The rules of civil procedure shall govern guardianship
proceedings concerning a minor who is alleged to be in need of
a guardianship except as otherwise set forth in this chapter.
Sec. 7. NEW SECTION . 232D.201 Termination of parental
rights and child in need of assistance cases.
1. The court may appoint a guardian for a minor who does not
have a guardian if all parental rights have been terminated.
2. The court may appoint a guardian for a minor in a child
in need of assistance case pursuant to section 232.101A,
232.103A, or 232.104.
Sec. 8. NEW SECTION . 232D.202 Death of parents.
1. The court may appoint a guardian for a minor if both
parents are deceased.
2. In appointing a guardian for a minor whose parents are
deceased, the court shall give preference to a person, if
qualified and suitable, nominated as guardian for a minor by a
will that was executed by the parent or parents having legal
custody of the minor at the time of the parent’s or parents’
death, and that was admitted to probate under chapter 633.
Sec. 9. NEW SECTION . 232D.203 Guardianship with parental
consent.
1. The court may appoint a guardian for a minor if the court
finds all of the following:
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a. The parent or parents having legal custody of the minor
understand the nature of the guardianship and knowingly and
voluntarily consent to the guardianship.
b. The minor is in need of a guardianship because of any one
of the following:
(1) The parent having legal custody of the minor has a
physical or mental illness that prevents the parent from
providing care and supervision of the child.
(2) The parent having legal custody of the minor is
incarcerated or imprisoned.
(3) The parent having legal custody of the minor is on
active military duty.
(4) The minor is in need of a guardianship for some other
reason constituting good cause shown.
c. Appointment of a guardian for the minor is in the best
interest of the minor.
2. If the guardianship petition requests a guardianship
with parental consent, the petition shall include an affidavit
signed by the parent or parents verifying that the parent or
parents knowingly and voluntarily consent to the guardianship.
The consent required by this subsection shall be on a form
prescribed by the judicial branch.
3. On or before the date of the hearing on the petition,
the parent or parents and the proposed guardian shall file
an agreement with the court. This agreement shall state the
following:
a. The responsibilities of the guardian.
b. The responsibilities of the parent or parents.
c. The expected duration of the guardianship, if known.
4. If the court grants the petition, it shall approve the
guardianship agreement between the custodial parent and the
proposed guardian and incorporate its terms by reference unless
the court finds the agreement was not reached knowingly and
voluntarily or is not in the best interests of the child.
Sec. 10. NEW SECTION . 232D.204 Guardianship without
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parental consent.
1. The court may appoint a guardian for a minor without the
consent of the parent or parents having legal custody of the
minor if the court finds by clear and convincing evidence all
of the following:
a. There is a person serving as a de facto guardian of the
minor.
b. There has been a demonstrated lack of consistent
parental participation in the life of the minor by the parent.
In determining whether a parent has demonstrated a lack of
consistent participation in the minor’s life, the court may
consider all of the following:
(1) The intent of the parent in placing the custody, care,
and supervision of the minor with the person petitioning as a
de facto guardian and the facts and circumstances regarding
such placement.
(2) The amount of communication and visitation of the parent
with the minor during the alleged de facto guardianship.
(3) Any refusal of the parent to comply with conditions for
retaining custody of the minor set forth in any previous court
orders.
2. The court may appoint a guardian for a minor without the
consent of the parent or parents having legal custody of the
minor if the court finds by clear and convincing evidence all
of the following:
a. No parent having legal custody of the minor is willing or
able to exercise the power the court will grant to the guardian
if the court appoints a guardian.
b. Appointment of a guardian for the minor is in the best
interest of the minor.
3. Prior to granting a petition for guardianship, the
court shall consider whether the filing of a child in need of
assistance petition is appropriate under section 232.87. If
the court determines a child in need of assistance petition is
not appropriate, the court shall make findings of why a child
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in need of assistance petition is not appropriate.
4. A proceeding under this section shall not create a new
eligibility category for the department of human services
protective services.
Sec. 11. NEW SECTION . 232D.301 Petition.
1. Proceedings for guardianship pursuant to this chapter
may be initiated by the filing of a petition by any person with
an interest in the welfare of the minor.
2. The petition shall list, to the extent known, all of the
following:
a. The name, age, and address of the minor who is the
subject of the petition.
b. The name and address of the petitioner and the
petitioner’s relationship to the minor.
c. If the petitioner is not the proposed guardian, the
name and address of the proposed guardian and the reason the
proposed guardian should be selected.
d. The name and address, to the extent known and
ascertainable, of the following:
(1) Any living parents of the minor.
(2) Any legal custodian of the minor.
(3) Any adult who has had the primary care of the minor or
with whom the minor has lived for at least six months prior to
the filing of the petition.
3. The petition shall contain a concise statement of the
factual basis for the petition.
4. The petition shall state whether a limited guardianship
is appropriate.
5. Any additional information, to the extent known and
reasonably ascertainable, required by section 598B.209 shall be
included in an affidavit attached to the petition.
6. The petition may request that a temporary guardian for
a minor may be appointed. Such a petition shall specify the
duration of the requested temporary guardianship and the reason
for a temporary guardianship.
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Sec. 12. NEW SECTION . 232D.302 Notice.
1. The filing of a petition shall be served upon the minor
who is the subject of the petition in the manner of an original
notice in accordance with rule of civil procedure 1.305(2)
governing such notice. Notice to the attorney representing the
minor, if any, is notice to the minor.
2. Notice shall be served upon the minor’s known parents
listed in the petition in accordance with rule of civil
procedure 1.305.
3. Notice shall be served upon other known persons listed in
the petition in the manner prescribed by the court, which may
be notice by mail. Failure of such persons to receive actual
notice does not constitute a jurisdictional defect precluding
the appointment of a guardian by the court.
4. Notice of the filing of a petition given to a person
under subsection 2 or 3 shall include a statement that the
person may register to receive notice of the hearing on
the petition and other proceedings and the manner of such
registration.
Sec. 13. NEW SECTION . 232D.303 Attorney for minor.
1. Upon the filing of a petition for appointment of a
guardian pursuant to section 232D.301, the court may appoint
an attorney for the minor, if the court determines that the
interests of the minor are or may be inadequately represented.
2. An attorney representing the minor shall advocate
for the wishes of the minor to the extent that those wishes
are reasonably ascertainable and advocate for best interest
of the minor if the wishes of the minor are not reasonably
ascertainable.
Sec. 14. NEW SECTION . 232D.304 Attorney for parent.
Upon the filing of a petition for appointment of a guardian,
the court shall appoint an attorney for the parent identified
in the petition if all of the following are true:
1. The parent objects to the appointment of a guardian for
the minor.
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2. The parent requests appointment of an attorney and
the court determines that the parent is unable to pay for an
attorney in accordance with section 232D.505.
Sec. 15. NEW SECTION . 232D.305 Court visitor.
1. The court may appoint a court visitor for the minor.
2. The same person shall not serve both as the attorney
representing the minor and as court visitor.
3. Unless otherwise enlarged or circumscribed by the court,
the duties of a court visitor with respect to the minor shall
include all of the following:
a. Conducting, if the minor’s age is appropriate, an initial
in-person interview with the minor.
b. Explaining to the minor, if the minor’s age is
appropriate, the substance of the petition, the purpose and
effect of the guardianship proceeding, the rights of the
minor at the hearing, and the general powers and duties of a
guardian.
c. Determining, if the minor’s age is appropriate, the views
of the minor regarding the proposed guardian, the proposed
guardian’s powers and duties, and the scope and duration of the
proposed guardianship.
d. Interviewing the parent or parents and any other person
with legal responsibility for the custody, care, or both, of
the minor.
e. Interviewing the petitioner, and if the petitioner is not
the proposed guardian, interviewing the proposed guardian.
f. Visiting, to the extent feasible, the residence where it
is reasonably believed that the minor will live if the guardian
is appointed.
g. Making any other investigation the court directs,
including but not limited to interviewing any persons providing
medical, mental health, educational, social, or other services
to the minor.
4. The court visitor shall submit a written report to the
court that contains all of the following:
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a. A recommendation regarding the appropriateness of a
guardianship for the minor.
b. A statement of the qualifications of the guardian
together with a statement of whether the minor has expressed
agreement with the appointment of the proposed guardian.
c. Any other matters the court visitor deems relevant to the
petition for guardianship and the best interests of the minor.
d. Any other matters the court directs.
5. The report of the court visitor shall be made part of the
court record unless otherwise ordered by the court.
Sec. 16. NEW SECTION . 232D.306 Hearing on petition.
1. The court shall fix the time and place of hearing on
the petition and shall prescribe a time not less than twenty
days after the date the notice is served unless the court finds
there is good cause shown to shorten the time period. The
court shall also prescribe the manner of service of the notice
of such hearing.
2. The minor who is the subject of a petition filed pursuant
to section 232D.301 shall be entitled to attend the hearing on
the petition if the minor is of an age appropriate to attend
the hearing. A presumption shall exist that a minor fourteen
years of age or older is of an age appropriate to attend the
hearing.
3. The court shall not exclude a minor entitled to
attend the hearing under subsection 2 unless the court finds
that there is good cause shown for excluding the minor from
attendance.
Sec. 17. NEW SECTION . 232D.307 Background checks of
proposed guardians.
1. The court shall request criminal record checks and checks
of the child abuse, dependent adult abuse, and sex offender
registries in this state for all proposed guardians other than
financial institutions with Iowa trust powers unless a proposed
guardian has undergone the required background checks in this
section within the twelve months prior to the filing of a
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petition.
2. The court shall review the results of background checks
in determining the suitability of a proposed guardian for
appointment.
3. The judicial branch in conjunction with the department
of public safety, the department of human services, and the
state chief information officer shall establish procedures for
electronic access to the single contact repository necessary to
conduct background checks requested under subsection 1.
4. The person who files a petition for appointment of
guardian for a minor shall be responsible for paying the fee
for the background check conducted through the single contact
repository unless the court waives the fee for good cause
shown.
Sec. 18. NEW SECTION . 232D.308 Selection of guardian ——
qualifications and preferences.
1. The court shall appoint as guardian a qualified and
suitable person who is willing to serve subject to the
preferences as to the appointment of a guardian set forth in
subsections 2 and 3.
2. In appointing a guardian for a minor, the court shall
give preference to a person, if qualified and suitable,
nominated as guardian for a minor by a will that was executed
by the parent or parents having legal custody of the minor
at the time of the parent’s or parents’ death, and that was
admitted to probate under chapter 633.
3. In appointing a guardian for a minor, the court shall
give preference, if qualified and suitable, to a person
requested by a minor fourteen years of age or older.
Sec. 19. NEW SECTION . 232D.309 Emergency appointment of
temporary guardian.
1. A person authorized to file a petition under section
232D.301 may file a petition for the emergency appointment of a
temporary guardian for the minor.
2. The petition shall state all of the following:
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a. The name and address of the minor and the birthdate of
the minor.
b. The name and address of the living parents of the minor,
if known.
c. The name and address of any other person legally
responsible for the custody or care of the minor, if known.
d. The reason the emergency appointment of a temporary
guardian is sought.
3. The court may enter an ex parte order appointing a
temporary guardian for a minor on an emergency basis under this
section if the court finds that all of the following are met:
a. There is not sufficient time to file a petition and hold
a hearing pursuant to section 232D.301.
b. The appointment of temporary guardian is necessary to
avoid immediate or irreparable harm to the minor.
4. Notice of the emergency appointment of a temporary
guardian shall be provided to persons required to be listed in
the petition under subsection 2.
5. The parents of the minor and any other person legally
responsible for the custody or care of the minor may file a
written request for a hearing. Such hearing shall be held no
later than seven days after the filing of the written request.
6. The powers of the temporary guardian set forth in the ex
parte order shall be limited to those necessary to address the
emergency situation requiring the appointment of a temporary
guardian.
7. The ex parte order shall terminate within thirty days
after the order is issued.
Sec. 20. NEW SECTION . 232D.310 Appointment of a guardian
for a minor on a standby basis.
A petition for the appointment of a guardian for a minor
on a standby basis may be filed by any person under the same
procedure and requirements as provided under this chapter.
Sec. 21. NEW SECTION . 232D.311 Appointment of guardian for
minor approaching majority on a standby basis.
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Notwithstanding section 232D.103, any adult with an interest
in the welfare of a minor who is at least seventeen years and
six months of age may file a verified petition pursuant to
section 633.552 to initiate a proceeding to appoint a guardian
of the minor to take effect on the minor’s eighteenth birthday.
Sec. 22. NEW SECTION . 232D.401 Order appointing guardian
and powers of guardian.
1. The order by the court appointing a guardian for a minor
shall state the basis for the order.
2. The order by the court appointing a guardian for a minor
shall state whether the guardianship is a limited guardianship.
3. An order by the court appointing a guardian for a minor
shall state the powers granted to the guardian. Except as
otherwise limited by court order, the court may grant the
guardian the following powers, which may be exercised without
prior court approval:
a. Taking custody of the minor and establishing the minor’s
permanent residence if otherwise consistent with the terms of
any order of competent jurisdiction relating to the custody,
placement, detention, or commitment of the minor within the
state.
b. Consenting to medical, dental, and other health care
treatment and services for the minor.
c. Providing or arranging for the provision of education
for the minor including but not limited to preschool education,
primary education and secondary education, special education
and related services, and vocational services.
d. Consenting to professional services for the minor to
ensure the safety and welfare of the minor.
e. Applying for and receiving funds and benefits payable for
the support of the minor.
f. Any other powers the court may specify.
4. The court may grant the guardian the following powers,
which shall only be exercised with prior court approval:
a. Consenting to the withholding or withdrawal of
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life-sustaining procedures, as defined in section 144A.2, from
the minor, the performance of an abortion on the minor, or the
sterilization of the minor.
b. Establishing the residence of the minor outside of the
state.
c. Consenting to the marriage of the minor.
d. Consenting to the emancipation of the minor.
5. The guardian shall obtain prior court approval for denial
of all visitation, communication, or interaction between the
minor and the parents of the minor. The court shall approve
such denial of visitation, communication, or interaction
upon a showing by the guardian that significant physical or
emotional harm to the minor has resulted or is likely to result
to the minor from parental contact. The guardian may place
reasonable time, place, or manner restrictions on visitation,
communication, or interaction between the minor and the minor’s
parents without prior court approval.
Sec. 23. NEW SECTION . 232D.402 Duties and responsibilities
of guardian.
1. A guardian is a fiduciary and shall act in the
best interest of the minor and exercise reasonable care,
diligence, and prudence in performing guardianship duties and
responsibilities. The fiduciary duties of a guardian for an
adult set forth in chapter 633 are applicable to a guardian
under this chapter.
2. Except as otherwise limited by the court, a guardian
has the duty and responsibility to ensure the minor’s health,
education, safety, welfare, and support.
3. A guardian with whom the minor is not living should
maintain regular contact with the minor.
4. A guardian should make reasonable efforts to facilitate
the continuation of the relationship of the minor and the
minor’s parents subject to section 232D.401, subsection 5.
5. A guardian shall file the reports with the court required
under section 232D.501.
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6. A guardian shall promptly inform the court of any change
in the permanent residence of the minor and the minor’s new
address.
Sec. 24. NEW SECTION . 232D.403 Guardian’s acceptance of
appointment and oath and issuance of letters of appointment.
The court shall issue letters of appointment to a guardian
upon the guardian’s acceptance of appointment and the
guardian’s subscription of an oath, or certification under
penalties of perjury, that the guardian will faithfully
discharge the duties imposed by law, according to the best of
the guardian’s ability.
Sec. 25. NEW SECTION . 232D.501 Reports of guardian.
1. A guardian appointed by the court under this chapter
shall file the following reports which shall not be waived by
the court:
a. A verified initial care plan filed within sixty days of
appointment. The information in the initial care plan shall
include but not be limited to the following information:
(1) The minor’s current residence and guardian’s plan for
the minor’s living arrangements.
(2) The guardian’s plan for payment of the minor’s living
expenses and other expenses.
(3) The minor’s health status and the guardian’s plan for
meeting the minor’s health needs.
(4) The minor’s educational training and vocational needs
and the guardian’s plan for meeting the minor’s educational
training and vocational needs.
(5) The guardian’s plan for facilitating contacts of the
minor with the minor’s parents.
(6) The guardian’s plan for contact with and activities on
behalf of the minor.
b. A verified annual report filed within thirty days of
the close of the reporting period. The information in the
annual report shall include but not be limited to the following
information:
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(1) The current residence and living arrangements of the
minor.
(2) The sources of the payment for the minor’s living
expenses and other expenses.
(3) The minor’s health status and health services provided
the minor.
(4) The minor’s mental, behavioral, or emotional problems,
if any, and professional services provided the minor for such
problems.
(5) The minor’s educational status and educational training
and vocational services provided the minor.
(6) The nature and extent of parental visits and
communication with the minor.
(7) The nature and extent of the guardian’s visits with and
activities on behalf of the minor.
(8) The need for continuation of guardianship.
(9) The ability of the guardian to continue as guardian.
(10) The need of the guardian for assistance in providing or
arranging for the provision of care for the minor.
c. A final report filed within thirty days of the
termination of the guardianship under section 232D.503.
2. The judicial branch shall prescribe the forms for use by
the guardian in filing the reports required by this section.
3. The clerk of the court shall notify the guardian in
writing of the reporting requirements and shall provide
information and assistance to the guardian in filing the
reports.
4. Reports of the guardian shall be reviewed and approved
by the court.
Sec. 26. NEW SECTION . 232D.502 Removal of guardian ——
appointment of successor guardian.
1. The court may remove a guardian for a minor for failure
to perform guardianship duties or for other good cause shown.
2. The court shall conduct a hearing to determine whether
a guardian should be removed on the filing of a petition by
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a minor under guardianship who is fourteen years of age or
older, the parent of a minor, or other person with an interest
in welfare of the minor if the court determines that there are
reasonable grounds for believing that removal is appropriate
based on the allegations stated in the petition.
3. The court may conduct a hearing to determine whether
the guardian should be removed on the receipt of a written
communication from a minor under guardianship who is fourteen
years of age or older, the parent of the minor, or other
person with an interest in welfare of the minor if the court
determines that a hearing would be in the best interest of the
minor.
4. The court may decline to hold a hearing under subsection
2 or 3 if the same or substantially similar facts were alleged
in a petition filed in the preceding six months or in a written
communication received in the preceding six months.
5. The court may appoint a successor guardian on the
removal of a guardian pursuant to subsection 1, the death of a
guardian, or the resignation of a guardian.
Sec. 27. NEW SECTION . 232D.503 Termination and modification
of guardianships.
1. A guardianship shall terminate on the minor’s death,
adoption, emancipation, or attainment of majority.
2. The court shall terminate a guardianship established
pursuant to section 232D.203 if the court finds that the basis
for the guardianship set forth in section 232D.203 is not
currently satisfied unless the court finds that the termination
of the guardianship would be harmful to the minor and the
minor’s interest in continuation of the guardianship outweighs
the interest of a parent of the minor in the termination of the
guardianship.
3. The court shall terminate a guardianship established
pursuant to section 232D.204 if the court finds that the
basis for the guardianship set forth in section 232D.204
is not currently satisfied. A person seeking termination
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of guardianship established pursuant to section 232D.204
has the burden of making a prima facie showing that the
guardianship should be terminated. If such a showing is made,
the guardian has the burden of going forward to prove by clear
and convincing evidence that the guardianship should not be
terminated.
4. The court shall modify the powers granted to the guardian
if the court finds such powers no longer meet the needs of the
minor or are not in the minor’s best interest.
5. The court may conduct a hearing to determine whether
termination or modification of a guardianship is appropriate
on the filing of a petition by a minor fourteen years of age or
older who is under guardianship, a guardian, or other person
with an interest in the welfare of the minor or on receipt of a
written communication from such persons.
Sec. 28. NEW SECTION . 232D.504 Rights and immunities of
a guardian.
1. A guardian is not required to use the guardian’s personal
funds for the minor’s expenses. If a conservator has been
appointed for the estate of the minor, the guardian may request
and the conservator may approve and pay for the requested
reimbursement without prior court approval.
2. A guardian may submit a request, together with the
guardian’s annual report, for approval by the court of
reasonable compensation for services as guardian.
3. Notwithstanding section 137C.25B or any other provision
of law to the contrary, a guardian is not liable to a third
person for an act or omission of the minor solely by reason of
the guardianship.
Sec. 29. NEW SECTION . 232D.505 Expenses.
1. Except as otherwise provided by law, the court shall
inquire into the ability of the minor or the minor’s parent to
pay expenses incurred pursuant to the guardianship proceedings
established under this chapter. After giving the minor and
the parent a reasonable opportunity to be heard, the court
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may order the minor or the parent to pay all or part of the
following:
a. Costs of legal expenses of the minor and the parent.
b. Expenses for a court visitor.
c. Filing fees and other court costs, unless the costs are
waived for good cause shown.
2. If the court finds a minor’s parents to be indigent, or
if the minor has no parent, costs shall be assessed against
the county in which the proceeding is pending. For purposes
of assessing costs under this subsection, the court shall find
a minor’s parents to be indigent if the minor’s or the parent’s
income and resources do not exceed one hundred fifty percent
of the federal poverty level, or the minor’s parent would be
unable to pay such costs without prejudicing the parent’s
ability to provide economic necessities for the parent or the
parent’s dependents.
DIVISION II
CORRESPONDING CODE CHANGES
Sec. 30. Section 232.101A, Code 2019, is amended to read as
follows:
232.101A Transfer of guardianship to custodian.
1. After a dispositional hearing the court may enter an
order transferring guardianship of the child to a custodian
close the child in need of assistance case and appoint a
guardian pursuant to sections 232D.308 and 232D.401 if all of
the following conditions are met:
a. The person receiving guardianship meets the definition
of custodian in section 232.2 .
b. The person receiving guardianship has assumed
responsibility for the child prior to filing of the petition
under this division and has maintained placement of the child
since the filing of the petition under this division .
c. The parent of the child does not appear at the
dispositional hearing, or the parent appears at the
dispositional hearing, does not object to the transfer of
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guardianship, and agrees to waive the requirement for making
reasonable efforts as defined in section 232.102 .
2. If the court transfers guardianship appoints a guardian
pursuant to subsection 1 , the court may close the child in
need of assistance case by transferring jurisdiction over the
child’s guardianship to the probate court . The court shall
inform the proposed guardian of the guardian’s reporting duties
under section 633.669 232D.501 and other duties under chapter
633 232D . Upon transferring jurisdiction, the The court shall
direct the probate clerk of court , once the proposed guardian
has filed an oath of office and identification in accordance
with section 602.6111 , to issue letters of appointment for
guardianship and docket the case in probate . Records contained
in the probate case file that were copied or transferred from
the juvenile court file concerning the case shall be subject to
section 232.147 and other confidentiality provisions of this
chapter for cases not involving juvenile delinquency.
Sec. 31. Section 232.104, subsection 8, paragraph b, Code
2019, is amended to read as follows:
b. In lieu of the procedures specified in paragraph “a” ,
the court may close the child in need of assistance case by
transferring jurisdiction over the child’s guardianship to the
probate court and may appoint a guardian pursuant to chapter
232D . The court shall inform the proposed guardian of the
guardian’s reporting duties under section 633.669 and other
duties under the probate code. Upon transferring jurisdiction,
the court shall direct the probate clerk, once the proposed
guardian has filed an oath of office and identification
in accordance with section 602.6111 , to issue letters of
appointment for guardianship and docket the case in probate.
Records contained in the probate case file that were copied or
transferred from the juvenile court file concerning the case
shall be subject to section 232.147 and other confidentiality
provisions of this chapter for cases not involving juvenile
delinquency.
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Sec. 32. Section 235A.15, subsection 2, paragraph d,
subparagraphs (1) and (2), Code 2019, are amended to read as
follows:
(1) To a juvenile court involved in an adjudication or
disposition of a child named in a report or a child that is the
subject of a guardianship proceeding under chapter 232D .
(2) To a district court upon a finding that data is
necessary for the resolution of an issue arising in any phase
of a case involving child abuse or guardianship proceedings for
a child under chapter 232D .
Sec. 33. Section 235B.6, subsection 2, paragraph d, Code
2019, is amended by adding the following new subparagraphs:
NEW SUBPARAGRAPH . (5) To a juvenile court involved in an
adjudication or disposition of a child that is the subject of a
guardianship proceeding under chapter 232D.
NEW SUBPARAGRAPH . (6) To a district court upon a finding
that data is necessary for the resolution of an issue arising
in any phase of a case involving proceedings for a child
guardianship under chapter 232D.
Sec. 34. Section 602.7101, subsection 1, Code 2019, is
amended to read as follows:
1. A juvenile court is established in each county. The
juvenile court is within the district court and has the
jurisdiction provided in chapter chapters 232 and 232D .
Sec. 35. Section 602.8102, subsection 42, Code 2019, is
amended to read as follows:
42. Serve as clerk of the juvenile court and carry out
duties as provided in chapter chapters 232 and 232D and article
7 of this chapter .
Sec. 36. Section 633.10, subsection 3, Code 2019, is amended
to read as follows:
3. Conservatorships and guardianships.
a. The Except as provided for in paragraph “b” , the
appointment of conservators and guardians; the granting
of letters of conservatorship and guardianship; the
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administration, settlement and closing of conservatorships and
guardianships.
b. Beginning the effective date of this Act, minor
guardianships are under the exclusive jurisdiction of the
juvenile court pursuant to, and except as limited by, chapter
232D.
Sec. 37. Section 633.552, subsection 2, Code 2019, is
amended to read as follows:
2. That the proposed ward is in either of the following
categories:
a. Is a person whose decision-making capacity is so
impaired that the person is unable to care for the person’s
personal safety or to attend to or provide for necessities for
the person such as food, shelter, clothing, or medical care,
without which physical injury or illness might occur.
b. Is a minor.
Sec. 38. Section 633.554, subsection 2, Code 2019, is
amended to read as follows:
2. a. If the proposed ward is a minor or if the
proposed ward is an adult under a standby petition and the
court determines, pursuant to section 633.561, subsection
1 , paragraph “b” , that the proposed ward is entitled to
representation, notice in the manner of original notice, or
another form of notice ordered by the court, given to the
attorney appointed to represent the ward is notice to the
proposed ward.
b. Notice shall also be served upon :
(1) The parents of the proposed ward, if the proposed ward
is a minor.
(2) The the spouse of the proposed ward , if the proposed
ward is an adult. If the proposed ward has no spouse, notice
shall be served upon the proposed ward’s adult children, if
any.
Sec. 39. Section 633.557, subsection 1, Code 2019, is
amended to read as follows:
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1. A guardian may also be appointed by the court upon the
verified petition of the proposed ward, without further notice,
if the proposed ward is other than a minor under the age of
fourteen years, provided the court determines that such an
appointment will inure to the best interest of the applicant.
However, if an involuntary petition is pending, the court shall
be governed by section 633.634 . The petition shall provide
the proposed ward notice of a guardian’s powers as provided in
section 633.562 .
Sec. 40. Section 633.561, subsection 1, paragraph b, Code
2019, is amended to read as follows:
b. If the proposed ward is either a minor or an adult under
a standby petition, the court shall determine whether, under
the circumstances of the case, the proposed ward is entitled
to representation. The determination regarding representation
may be made with or without notice to the proposed ward, as
the court deems necessary. If the court determines that the
proposed ward is entitled to representation, the court shall
appoint an attorney to represent the proposed ward. After
making the determination regarding representation, the court
shall set a hearing on the petition, and provide for notice on
the determination regarding representation and the date for
hearing.
Sec. 41. Section 633.635, subsection 5, Code 2019, is
amended to read as follows:
5. From time to time, upon a proper showing, the court may
modify the respective responsibilities of the guardian and
the ward, after notice to the ward and an opportunity to be
heard. Any modification that would be more restrictive or
burdensome for the ward shall be based on clear and convincing
evidence that the ward continues to fall within the categories
of section 633.552, subsection 2 , paragraph “a” or “b” , and
that the facts justify a modification of the guardianship.
Section 633.551 applies to the modification proceedings. Any
modification that would be less restrictive for the ward shall
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be based upon proof in accordance with the requirements of
section 633.675 .
Sec. 42. Section 633.675, subsection 2, Code 2019, is
amended by striking the subsection.
Sec. 43. Section 633.679, subsection 2, Code 2019, is
amended by striking the subsection.
Sec. 44. REPEAL. Section 633.559, Code 2019, is repealed.
Sec. 45. EFFECTIVE DATE. This Act takes effect January 1,
2020.
Sec. 46. APPLICABILITY. This Act applies to guardianships
and guardianship proceedings of minors established or pending
before, on, or after January 1, 2020.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
This bill provides the basis for appointment of a guardian
for a minor by the juvenile court, the procedures for
establishment of a minor guardianship, and court monitoring and
administration of minor guardianships.
JUVENILE COURT JURISDICTION OVER MINOR GUARDIANSHIPS. Code
chapter 633 contains provisions relating to guardianships,
which apply to adults and minors. The bill repeals and amends
the provisions that specifically refer to minor guardianships
and replaces them with new Code chapter 232D, the Iowa minor
guardianship proceedings Act.
The bill provides that the juvenile court shall have
exclusive jurisdiction over minor guardianship proceedings.
The effect of this provision is to transfer jurisdiction over
these proceedings from the probate court to the juvenile court.
BASIS FOR APPOINTMENT OF GUARDIAN. The bill authorizes
minor guardianships under the following circumstances:
termination of parental rights and child in need of assistance
cases; cases involving the death of a minor’s parents; cases
in which there is parental consent to the establishment of a
guardianship; and cases in which there is not parental consent
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to the establishment of a guardianship.
The bill provides that a guardianship may be established
without parental consent under the following circumstances:
there is a person serving as a de facto guardian; there has
been a demonstrated lack of parental participation in the life
of the minor; and the appointment of a guardian is in the
best interest of the minor. The bill also provides that a
guardianship may be established if no parent is willing or able
to exercise the power the court is requested to grant to the
proposed guardian, and the appointment of a guardian is in the
best interest of the minor.
ESTABLISHING A GUARDIANSHIP. The bill contains provisions
relating to the establishment of minor guardianships. These
provisions specify the requirements regarding the contents of a
minor guardianship petition, notice, and hearing.
The bill provides that the court may appoint an attorney
for the minor if the court determines that the interests of
the minor are, or may be, inadequately represented. The bill
also provides that the court shall appoint an attorney for a
parent if the parent objects to the appointment of a guardian
and the court determines that the parent is unable to pay for
an attorney.
The bill provides that the court may appoint a court visitor
to visit the minor and other parties to the proceeding and
gather the information needed by the court in determining
whether to grant the petition.
The bill retains the existing standard for appointment of
a person as a guardian, namely that the person be qualified,
suitable, and willing to serve in that capacity.
Current law does not require background checks of proposed
guardians. The bill requires that proposed guardians, other
than financial institutions, undergo Iowa criminal record
checks and checks of the Iowa child abuse, dependent adult
abuse, and sex offender registries. The bill provides that the
judicial branch, in collaboration with other relevant state
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agencies, shall establish procedures for electronic access to
the single contact repository for the conduct of background
checks for a minimal fee. The bill gives the judge discretion
to evaluate the relevance of any negative background check
information in determining the suitability of a person for
appointment as a guardian.
The bill authorizes the emergency appointment of a temporary
guardian. The court is authorized to issue an ex parte order
appointing a temporary guardian on an emergency basis under
limited circumstances.
ORDER APPOINTING GUARDIAN AND GUARDIAN’S POWERS, DUTIES, AND
RESPONSIBILITIES. The bill contains provisions relating to
the order appointing the guardian and the guardian’s powers,
duties, and responsibilities.
The bill specifies the powers that the court may grant to
a guardian. The bill sets forth the specific powers that
the guardian may exercise without prior court approval and
those powers that the guardian may exercise only with prior
court approval. The bill also specifies the duties and
responsibilities of the guardian.
COURT MONITORING AND ADMINISTRATION OF MINOR GUARDIANSHIPS.
The bill contains provisions relating to ongoing court
monitoring of minor guardianship and administration of minor
guardianships. The court has an ongoing responsibility to
monitor minor guardianships in order to ensure the well-being
and protection of minors subject to guardianship and the
accountability of the persons appointed to serve as guardians.
The bill provides that guardians shall file an initial care
plan for the minor within 60 days of appointment for review
and approval by the court. The bill retains the existing
requirement that guardians file thereafter an annual report
describing the minor’s status and needs and the guardian’s
activities. The bill authorizes the court to remove a guardian
and appoint a successor guardian under certain circumstances.
The bill further authorizes the court to modify a guardianship
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or terminate a guardianship under certain circumstances.
EXPENSES. The bill provides that the court shall inquire
into the ability of the minor or the minor’s parent to pay
expenses incurred pursuant to the guardianship proceedings.
After giving the minor and the parent a reasonable opportunity
to be heard, the court may order the minor or the parent to
pay all or part of the following: costs of legal expenses
of the minor and the parent; expenses for a court visitor;
and filing fees and other court costs, unless the costs are
waived for good cause shown. The bill provides that if the
court finds a minor’s parents to be indigent or if the minor
has no parent, costs shall be assessed against the county in
which the proceeding is pending. The minor or the minor’s
parents are indigent if the minor’s or the parent’s income and
resources do not exceed 150 percent of the federal poverty
level, or the minor’s parent would be unable to pay such costs
without prejudicing the parent’s ability to provide economic
necessities for the parent or the parent’s dependents.
EFFECTIVE DATE AND APPLICABILITY. The bill takes effect
January 1, 2020, and applies to all minor guardianships and
guardianship proceedings established or pending before, on, or
after January 1, 2020.
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