Bill Text: IA HSB118 | 2019-2020 | 88th General Assembly | Introduced


Bill Title: A bill for an act providing for juvenile court jurisdiction over minor guardianship proceedings and including effective date and applicability provisions.

Spectrum: Committee Bill

Status: (N/A - Dead) 2019-02-26 - Committee report, recommending passage. H.J. 365. [HSB118 Detail]

Download: Iowa-2019-HSB118-Introduced.html
House Study Bill 118 - Introduced HOUSE FILE _____ BY (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON HOLT) A BILL FOR An Act providing for juvenile court jurisdiction over minor 1 guardianship proceedings and including effective date and 2 applicability provisions. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 1056YC (3) 88 hb/jh
H.F. _____ DIVISION I 1 IOWA MINOR GUARDIANSHIP PROCEEDINGS ACT 2 Section 1. NEW SECTION . 232D.101 Title. 3 This chapter shall be known as the “Iowa Minor Guardianship 4 Proceedings Act” . 5 Sec. 2. NEW SECTION . 232D.102 Definitions. 6 1. “Adult” means a person eighteen years of age or older 7 or a person declared to be emancipated by a court of competent 8 jurisdiction. 9 2. “Conservator” means a person appointed by a court to have 10 custody and control of the property of a minor. 11 3. “Court” means the juvenile court established under 12 section 602.7101. 13 4. “Demonstrated lack of consistent parental participation” 14 means the refusal of a parent to comply with duties and 15 responsibilities imposed upon a parent by the parent-child 16 relationship, including but not limited to providing the minor 17 with necessary food, clothing, shelter, health care, education, 18 and other care and supervision necessary for the minor’s 19 physical, mental, and emotional health and development. 20 5. “Guardian” means a person appointed by the court to have 21 custody of a minor. 22 6. “Legal custodian” means a person awarded legal custody 23 of a minor. 24 7. “Legal custody” means an award of the rights of legal 25 custody of a minor under which a parent has legal custodial 26 rights and responsibilities toward the minor child including 27 but not limited to decision making affecting the minor’s legal 28 status, medical care, education, extracurricular activities, 29 and religious instruction. 30 8. “Limited guardianship” means a guardianship that grants 31 the guardian less than all powers available under this chapter 32 or otherwise restricts the powers of the guardian. 33 9. “Minor” means an unmarried and unemancipated person under 34 the age of eighteen years. 35 -1- LSB 1056YC (3) 88 hb/jh 1/ 26
H.F. _____ 10. “Parent” means a biological or adoptive mother or father 1 of a child, a person whose parental status has been established 2 by operation of law due to the person’s marriage to the mother 3 at the time of the conception or birth of the child, by order 4 of a court of competent jurisdiction, or by an administrative 5 order when authorized by state law. “Parent” does not include a 6 person whose parental rights have been terminated. 7 Sec. 3. NEW SECTION . 232D.103 Jurisdiction. 8 The juvenile court has exclusive jurisdiction in a 9 guardianship proceeding concerning a minor who is alleged to 10 be in need of a guardianship. 11 Sec. 4. NEW SECTION . 232D.104 Venue. 12 1. Venue for guardianship proceedings under this chapter 13 shall be in the judicial district where the minor is found or 14 in the judicial district of the minor’s residence. 15 2. The court may transfer a guardianship proceeding brought 16 under this chapter to the juvenile court of any county having 17 venue at any stage in the proceedings as follows: 18 a. When it appears that the best interests of the minor 19 or the convenience of the proceedings shall be served by a 20 transfer, the court may transfer the case to the court of the 21 county of the minor’s residence. 22 b. With the consent of the receiving court, the court may 23 transfer the case to the court of the county where the minor is 24 found. 25 3. The court shall transfer the case by ordering the 26 transfer and a continuance and by forwarding to the clerk 27 of the receiving court a certified copy of all papers filed 28 together with an order of transfer. The judge of the receiving 29 court may accept the filings of the transferring court or may 30 direct the filing of a new petition and hear the case anew. 31 Sec. 5. NEW SECTION . 232D.105 Proceedings governed by other 32 law. 33 1. A petition alleging that a minor is in need of a 34 conservatorship is not subject to this chapter. Such 35 -2- LSB 1056YC (3) 88 hb/jh 2/ 26
H.F. _____ proceedings shall be governed by chapter 633 and may be 1 initiated pursuant to section 633.627. 2 2. A petition for the appointment of a guardian for a minor 3 and a petition for appointment of a conservator of a minor 4 shall not be combined. 5 3. If a minor guardianship proceeding under this chapter 6 pertains to an Indian child as defined in section 232B.3 and 7 the proceeding is subject to the Iowa Indian child welfare Act 8 under chapter 232B, the proceeding and other actions taken in 9 connection with the proceeding shall comply with chapter 232B. 10 Sec. 6. NEW SECTION . 232D.106 Applicability of rules of 11 civil procedure. 12 The rules of civil procedure shall govern guardianship 13 proceedings concerning a minor who is alleged to be in need of 14 a guardianship except as otherwise set forth in this chapter. 15 Sec. 7. NEW SECTION . 232D.201 Termination of parental 16 rights and child in need of assistance cases. 17 1. The court may appoint a guardian for a minor who does not 18 have a guardian if all parental rights have been terminated. 19 2. The court may appoint a guardian for a minor in a child 20 in need of assistance case pursuant to section 232.101A, 21 232.103A, or 232.104. 22 Sec. 8. NEW SECTION . 232D.202 Death of parents. 23 1. The court may appoint a guardian for a minor if both 24 parents are deceased. 25 2. In appointing a guardian for a minor whose parents are 26 deceased, the court shall give preference to a person, if 27 qualified and suitable, nominated as guardian for a minor by a 28 will that was executed by the parent or parents having legal 29 custody of the minor at the time of the parent’s or parents’ 30 death, and that was admitted to probate under chapter 633. 31 Sec. 9. NEW SECTION . 232D.203 Guardianship with parental 32 consent. 33 1. The court may appoint a guardian for a minor if the court 34 finds all of the following: 35 -3- LSB 1056YC (3) 88 hb/jh 3/ 26
H.F. _____ a. The parent or parents having legal custody of the minor 1 understand the nature of the guardianship and knowingly and 2 voluntarily consent to the guardianship. 3 b. The minor is in need of a guardianship because of any one 4 of the following: 5 (1) The parent having legal custody of the minor has a 6 physical or mental illness that prevents the parent from 7 providing care and supervision of the child. 8 (2) The parent having legal custody of the minor is 9 incarcerated or imprisoned. 10 (3) The parent having legal custody of the minor is on 11 active military duty. 12 (4) The minor is in need of a guardianship for some other 13 reason constituting good cause shown. 14 c. Appointment of a guardian for the minor is in the best 15 interest of the minor. 16 2. If the guardianship petition requests a guardianship 17 with parental consent, the petition shall include an affidavit 18 signed by the parent or parents verifying that the parent or 19 parents knowingly and voluntarily consent to the guardianship. 20 The consent required by this subsection shall be on a form 21 prescribed by the judicial branch. 22 3. On or before the date of the hearing on the petition, 23 the parent or parents and the proposed guardian shall file 24 an agreement with the court. This agreement shall state the 25 following: 26 a. The responsibilities of the guardian. 27 b. The responsibilities of the parent or parents. 28 c. The expected duration of the guardianship, if known. 29 4. If the court grants the petition, it shall approve the 30 guardianship agreement between the custodial parent and the 31 proposed guardian and incorporate its terms by reference unless 32 the court finds the agreement was not reached knowingly and 33 voluntarily or is not in the best interests of the child. 34 Sec. 10. NEW SECTION . 232D.204 Guardianship without 35 -4- LSB 1056YC (3) 88 hb/jh 4/ 26
H.F. _____ parental consent. 1 1. The court may appoint a guardian for a minor without the 2 consent of the parent or parents having legal custody of the 3 minor if the court finds by clear and convincing evidence all 4 of the following: 5 a. There is a person serving as a de facto guardian of the 6 minor. 7 b. There has been a demonstrated lack of consistent 8 parental participation in the life of the minor by the parent. 9 In determining whether a parent has demonstrated a lack of 10 consistent participation in the minor’s life, the court may 11 consider all of the following: 12 (1) The intent of the parent in placing the custody, care, 13 and supervision of the minor with the person petitioning as a 14 de facto guardian and the facts and circumstances regarding 15 such placement. 16 (2) The amount of communication and visitation of the parent 17 with the minor during the alleged de facto guardianship. 18 (3) Any refusal of the parent to comply with conditions for 19 retaining custody of the minor set forth in any previous court 20 orders. 21 2. The court may appoint a guardian for a minor without the 22 consent of the parent or parents having legal custody of the 23 minor if the court finds by clear and convincing evidence all 24 of the following: 25 a. No parent having legal custody of the minor is willing or 26 able to exercise the power the court will grant to the guardian 27 if the court appoints a guardian. 28 b. Appointment of a guardian for the minor is in the best 29 interest of the minor. 30 3. Prior to granting a petition for guardianship, the 31 court shall consider whether the filing of a child in need of 32 assistance petition is appropriate under section 232.87. If 33 the court determines a child in need of assistance petition is 34 not appropriate, the court shall make findings of why a child 35 -5- LSB 1056YC (3) 88 hb/jh 5/ 26
H.F. _____ in need of assistance petition is not appropriate. 1 4. A proceeding under this section shall not create a new 2 eligibility category for the department of human services 3 protective services. 4 Sec. 11. NEW SECTION . 232D.301 Petition. 5 1. Proceedings for guardianship pursuant to this chapter 6 may be initiated by the filing of a petition by any person with 7 an interest in the welfare of the minor. 8 2. The petition shall list, to the extent known, all of the 9 following: 10 a. The name, age, and address of the minor who is the 11 subject of the petition. 12 b. The name and address of the petitioner and the 13 petitioner’s relationship to the minor. 14 c. If the petitioner is not the proposed guardian, the 15 name and address of the proposed guardian and the reason the 16 proposed guardian should be selected. 17 d. The name and address, to the extent known and 18 ascertainable, of the following: 19 (1) Any living parents of the minor. 20 (2) Any legal custodian of the minor. 21 (3) Any adult who has had the primary care of the minor or 22 with whom the minor has lived for at least six months prior to 23 the filing of the petition. 24 3. The petition shall contain a concise statement of the 25 factual basis for the petition. 26 4. The petition shall state whether a limited guardianship 27 is appropriate. 28 5. Any additional information, to the extent known and 29 reasonably ascertainable, required by section 598B.209 shall be 30 included in an affidavit attached to the petition. 31 6. The petition may request that a temporary guardian for 32 a minor may be appointed. Such a petition shall specify the 33 duration of the requested temporary guardianship and the reason 34 for a temporary guardianship. 35 -6- LSB 1056YC (3) 88 hb/jh 6/ 26
H.F. _____ Sec. 12. NEW SECTION . 232D.302 Notice. 1 1. The filing of a petition shall be served upon the minor 2 who is the subject of the petition in the manner of an original 3 notice in accordance with rule of civil procedure 1.305(2) 4 governing such notice. Notice to the attorney representing the 5 minor, if any, is notice to the minor. 6 2. Notice shall be served upon the minor’s known parents 7 listed in the petition in accordance with rule of civil 8 procedure 1.305. 9 3. Notice shall be served upon other known persons listed in 10 the petition in the manner prescribed by the court, which may 11 be notice by mail. Failure of such persons to receive actual 12 notice does not constitute a jurisdictional defect precluding 13 the appointment of a guardian by the court. 14 4. Notice of the filing of a petition given to a person 15 under subsection 2 or 3 shall include a statement that the 16 person may register to receive notice of the hearing on 17 the petition and other proceedings and the manner of such 18 registration. 19 Sec. 13. NEW SECTION . 232D.303 Attorney for minor. 20 1. Upon the filing of a petition for appointment of a 21 guardian pursuant to section 232D.301, the court may appoint 22 an attorney for the minor, if the court determines that the 23 interests of the minor are or may be inadequately represented. 24 2. An attorney representing the minor shall advocate 25 for the wishes of the minor to the extent that those wishes 26 are reasonably ascertainable and advocate for best interest 27 of the minor if the wishes of the minor are not reasonably 28 ascertainable. 29 Sec. 14. NEW SECTION . 232D.304 Attorney for parent. 30 Upon the filing of a petition for appointment of a guardian, 31 the court shall appoint an attorney for the parent identified 32 in the petition if all of the following are true: 33 1. The parent objects to the appointment of a guardian for 34 the minor. 35 -7- LSB 1056YC (3) 88 hb/jh 7/ 26
H.F. _____ 2. The parent requests appointment of an attorney and 1 the court determines that the parent is unable to pay for an 2 attorney in accordance with section 232D.505. 3 Sec. 15. NEW SECTION . 232D.305 Court visitor. 4 1. The court may appoint a court visitor for the minor. 5 2. The same person shall not serve both as the attorney 6 representing the minor and as court visitor. 7 3. Unless otherwise enlarged or circumscribed by the court, 8 the duties of a court visitor with respect to the minor shall 9 include all of the following: 10 a. Conducting, if the minor’s age is appropriate, an initial 11 in-person interview with the minor. 12 b. Explaining to the minor, if the minor’s age is 13 appropriate, the substance of the petition, the purpose and 14 effect of the guardianship proceeding, the rights of the 15 minor at the hearing, and the general powers and duties of a 16 guardian. 17 c. Determining, if the minor’s age is appropriate, the views 18 of the minor regarding the proposed guardian, the proposed 19 guardian’s powers and duties, and the scope and duration of the 20 proposed guardianship. 21 d. Interviewing the parent or parents and any other person 22 with legal responsibility for the custody, care, or both, of 23 the minor. 24 e. Interviewing the petitioner, and if the petitioner is not 25 the proposed guardian, interviewing the proposed guardian. 26 f. Visiting, to the extent feasible, the residence where it 27 is reasonably believed that the minor will live if the guardian 28 is appointed. 29 g. Making any other investigation the court directs, 30 including but not limited to interviewing any persons providing 31 medical, mental health, educational, social, or other services 32 to the minor. 33 4. The court visitor shall submit a written report to the 34 court that contains all of the following: 35 -8- LSB 1056YC (3) 88 hb/jh 8/ 26
H.F. _____ a. A recommendation regarding the appropriateness of a 1 guardianship for the minor. 2 b. A statement of the qualifications of the guardian 3 together with a statement of whether the minor has expressed 4 agreement with the appointment of the proposed guardian. 5 c. Any other matters the court visitor deems relevant to the 6 petition for guardianship and the best interests of the minor. 7 d. Any other matters the court directs. 8 5. The report of the court visitor shall be made part of the 9 court record unless otherwise ordered by the court. 10 Sec. 16. NEW SECTION . 232D.306 Hearing on petition. 11 1. The court shall fix the time and place of hearing on 12 the petition and shall prescribe a time not less than twenty 13 days after the date the notice is served unless the court finds 14 there is good cause shown to shorten the time period. The 15 court shall also prescribe the manner of service of the notice 16 of such hearing. 17 2. The minor who is the subject of a petition filed pursuant 18 to section 232D.301 shall be entitled to attend the hearing on 19 the petition if the minor is of an age appropriate to attend 20 the hearing. A presumption shall exist that a minor fourteen 21 years of age or older is of an age appropriate to attend the 22 hearing. 23 3. The court shall not exclude a minor entitled to 24 attend the hearing under subsection 2 unless the court finds 25 that there is good cause shown for excluding the minor from 26 attendance. 27 Sec. 17. NEW SECTION . 232D.307 Background checks of 28 proposed guardians. 29 1. The court shall request criminal record checks and checks 30 of the child abuse, dependent adult abuse, and sex offender 31 registries in this state for all proposed guardians other than 32 financial institutions with Iowa trust powers unless a proposed 33 guardian has undergone the required background checks in this 34 section within the twelve months prior to the filing of a 35 -9- LSB 1056YC (3) 88 hb/jh 9/ 26
H.F. _____ petition. 1 2. The court shall review the results of background checks 2 in determining the suitability of a proposed guardian for 3 appointment. 4 3. The judicial branch in conjunction with the department 5 of public safety, the department of human services, and the 6 state chief information officer shall establish procedures for 7 electronic access to the single contact repository necessary to 8 conduct background checks requested under subsection 1. 9 4. The person who files a petition for appointment of 10 guardian for a minor shall be responsible for paying the fee 11 for the background check conducted through the single contact 12 repository unless the court waives the fee for good cause 13 shown. 14 Sec. 18. NEW SECTION . 232D.308 Selection of guardian —— 15 qualifications and preferences. 16 1. The court shall appoint as guardian a qualified and 17 suitable person who is willing to serve subject to the 18 preferences as to the appointment of a guardian set forth in 19 subsections 2 and 3. 20 2. In appointing a guardian for a minor, the court shall 21 give preference to a person, if qualified and suitable, 22 nominated as guardian for a minor by a will that was executed 23 by the parent or parents having legal custody of the minor 24 at the time of the parent’s or parents’ death, and that was 25 admitted to probate under chapter 633. 26 3. In appointing a guardian for a minor, the court shall 27 give preference, if qualified and suitable, to a person 28 requested by a minor fourteen years of age or older. 29 Sec. 19. NEW SECTION . 232D.309 Emergency appointment of 30 temporary guardian. 31 1. A person authorized to file a petition under section 32 232D.301 may file a petition for the emergency appointment of a 33 temporary guardian for the minor. 34 2. The petition shall state all of the following: 35 -10- LSB 1056YC (3) 88 hb/jh 10/ 26
H.F. _____ a. The name and address of the minor and the birthdate of 1 the minor. 2 b. The name and address of the living parents of the minor, 3 if known. 4 c. The name and address of any other person legally 5 responsible for the custody or care of the minor, if known. 6 d. The reason the emergency appointment of a temporary 7 guardian is sought. 8 3. The court may enter an ex parte order appointing a 9 temporary guardian for a minor on an emergency basis under this 10 section if the court finds that all of the following are met: 11 a. There is not sufficient time to file a petition and hold 12 a hearing pursuant to section 232D.301. 13 b. The appointment of temporary guardian is necessary to 14 avoid immediate or irreparable harm to the minor. 15 4. Notice of the emergency appointment of a temporary 16 guardian shall be provided to persons required to be listed in 17 the petition under subsection 2. 18 5. The parents of the minor and any other person legally 19 responsible for the custody or care of the minor may file a 20 written request for a hearing. Such hearing shall be held no 21 later than seven days after the filing of the written request. 22 6. The powers of the temporary guardian set forth in the ex 23 parte order shall be limited to those necessary to address the 24 emergency situation requiring the appointment of a temporary 25 guardian. 26 7. The ex parte order shall terminate within thirty days 27 after the order is issued. 28 Sec. 20. NEW SECTION . 232D.310 Appointment of a guardian 29 for a minor on a standby basis. 30 A petition for the appointment of a guardian for a minor 31 on a standby basis may be filed by any person under the same 32 procedure and requirements as provided under this chapter. 33 Sec. 21. NEW SECTION . 232D.311 Appointment of guardian for 34 minor approaching majority on a standby basis. 35 -11- LSB 1056YC (3) 88 hb/jh 11/ 26
H.F. _____ Notwithstanding section 232D.103, any adult with an interest 1 in the welfare of a minor who is at least seventeen years and 2 six months of age may file a verified petition pursuant to 3 section 633.552 to initiate a proceeding to appoint a guardian 4 of the minor to take effect on the minor’s eighteenth birthday. 5 Sec. 22. NEW SECTION . 232D.401 Order appointing guardian 6 and powers of guardian. 7 1. The order by the court appointing a guardian for a minor 8 shall state the basis for the order. 9 2. The order by the court appointing a guardian for a minor 10 shall state whether the guardianship is a limited guardianship. 11 3. An order by the court appointing a guardian for a minor 12 shall state the powers granted to the guardian. Except as 13 otherwise limited by court order, the court may grant the 14 guardian the following powers, which may be exercised without 15 prior court approval: 16 a. Taking custody of the minor and establishing the minor’s 17 permanent residence if otherwise consistent with the terms of 18 any order of competent jurisdiction relating to the custody, 19 placement, detention, or commitment of the minor within the 20 state. 21 b. Consenting to medical, dental, and other health care 22 treatment and services for the minor. 23 c. Providing or arranging for the provision of education 24 for the minor including but not limited to preschool education, 25 primary education and secondary education, special education 26 and related services, and vocational services. 27 d. Consenting to professional services for the minor to 28 ensure the safety and welfare of the minor. 29 e. Applying for and receiving funds and benefits payable for 30 the support of the minor. 31 f. Any other powers the court may specify. 32 4. The court may grant the guardian the following powers, 33 which shall only be exercised with prior court approval: 34 a. Consenting to the withholding or withdrawal of 35 -12- LSB 1056YC (3) 88 hb/jh 12/ 26
H.F. _____ life-sustaining procedures, as defined in section 144A.2, from 1 the minor, the performance of an abortion on the minor, or the 2 sterilization of the minor. 3 b. Establishing the residence of the minor outside of the 4 state. 5 c. Consenting to the marriage of the minor. 6 d. Consenting to the emancipation of the minor. 7 5. The guardian shall obtain prior court approval for denial 8 of all visitation, communication, or interaction between the 9 minor and the parents of the minor. The court shall approve 10 such denial of visitation, communication, or interaction 11 upon a showing by the guardian that significant physical or 12 emotional harm to the minor has resulted or is likely to result 13 to the minor from parental contact. The guardian may place 14 reasonable time, place, or manner restrictions on visitation, 15 communication, or interaction between the minor and the minor’s 16 parents without prior court approval. 17 Sec. 23. NEW SECTION . 232D.402 Duties and responsibilities 18 of guardian. 19 1. A guardian is a fiduciary and shall act in the 20 best interest of the minor and exercise reasonable care, 21 diligence, and prudence in performing guardianship duties and 22 responsibilities. The fiduciary duties of a guardian for an 23 adult set forth in chapter 633 are applicable to a guardian 24 under this chapter. 25 2. Except as otherwise limited by the court, a guardian 26 has the duty and responsibility to ensure the minor’s health, 27 education, safety, welfare, and support. 28 3. A guardian with whom the minor is not living should 29 maintain regular contact with the minor. 30 4. A guardian should make reasonable efforts to facilitate 31 the continuation of the relationship of the minor and the 32 minor’s parents subject to section 232D.401, subsection 5. 33 5. A guardian shall file the reports with the court required 34 under section 232D.501. 35 -13- LSB 1056YC (3) 88 hb/jh 13/ 26
H.F. _____ 6. A guardian shall promptly inform the court of any change 1 in the permanent residence of the minor and the minor’s new 2 address. 3 Sec. 24. NEW SECTION . 232D.403 Guardian’s acceptance of 4 appointment and oath and issuance of letters of appointment. 5 The court shall issue letters of appointment to a guardian 6 upon the guardian’s acceptance of appointment and the 7 guardian’s subscription of an oath, or certification under 8 penalties of perjury, that the guardian will faithfully 9 discharge the duties imposed by law, according to the best of 10 the guardian’s ability. 11 Sec. 25. NEW SECTION . 232D.501 Reports of guardian. 12 1. A guardian appointed by the court under this chapter 13 shall file the following reports which shall not be waived by 14 the court: 15 a. A verified initial care plan filed within sixty days of 16 appointment. The information in the initial care plan shall 17 include but not be limited to the following information: 18 (1) The minor’s current residence and guardian’s plan for 19 the minor’s living arrangements. 20 (2) The guardian’s plan for payment of the minor’s living 21 expenses and other expenses. 22 (3) The minor’s health status and the guardian’s plan for 23 meeting the minor’s health needs. 24 (4) The minor’s educational training and vocational needs 25 and the guardian’s plan for meeting the minor’s educational 26 training and vocational needs. 27 (5) The guardian’s plan for facilitating contacts of the 28 minor with the minor’s parents. 29 (6) The guardian’s plan for contact with and activities on 30 behalf of the minor. 31 b. A verified annual report filed within thirty days of 32 the close of the reporting period. The information in the 33 annual report shall include but not be limited to the following 34 information: 35 -14- LSB 1056YC (3) 88 hb/jh 14/ 26
H.F. _____ (1) The current residence and living arrangements of the 1 minor. 2 (2) The sources of the payment for the minor’s living 3 expenses and other expenses. 4 (3) The minor’s health status and health services provided 5 the minor. 6 (4) The minor’s mental, behavioral, or emotional problems, 7 if any, and professional services provided the minor for such 8 problems. 9 (5) The minor’s educational status and educational training 10 and vocational services provided the minor. 11 (6) The nature and extent of parental visits and 12 communication with the minor. 13 (7) The nature and extent of the guardian’s visits with and 14 activities on behalf of the minor. 15 (8) The need for continuation of guardianship. 16 (9) The ability of the guardian to continue as guardian. 17 (10) The need of the guardian for assistance in providing or 18 arranging for the provision of care for the minor. 19 c. A final report filed within thirty days of the 20 termination of the guardianship under section 232D.503. 21 2. The judicial branch shall prescribe the forms for use by 22 the guardian in filing the reports required by this section. 23 3. The clerk of the court shall notify the guardian in 24 writing of the reporting requirements and shall provide 25 information and assistance to the guardian in filing the 26 reports. 27 4. Reports of the guardian shall be reviewed and approved 28 by the court. 29 Sec. 26. NEW SECTION . 232D.502 Removal of guardian —— 30 appointment of successor guardian. 31 1. The court may remove a guardian for a minor for failure 32 to perform guardianship duties or for other good cause shown. 33 2. The court shall conduct a hearing to determine whether 34 a guardian should be removed on the filing of a petition by 35 -15- LSB 1056YC (3) 88 hb/jh 15/ 26
H.F. _____ a minor under guardianship who is fourteen years of age or 1 older, the parent of a minor, or other person with an interest 2 in welfare of the minor if the court determines that there are 3 reasonable grounds for believing that removal is appropriate 4 based on the allegations stated in the petition. 5 3. The court may conduct a hearing to determine whether 6 the guardian should be removed on the receipt of a written 7 communication from a minor under guardianship who is fourteen 8 years of age or older, the parent of the minor, or other 9 person with an interest in welfare of the minor if the court 10 determines that a hearing would be in the best interest of the 11 minor. 12 4. The court may decline to hold a hearing under subsection 13 2 or 3 if the same or substantially similar facts were alleged 14 in a petition filed in the preceding six months or in a written 15 communication received in the preceding six months. 16 5. The court may appoint a successor guardian on the 17 removal of a guardian pursuant to subsection 1, the death of a 18 guardian, or the resignation of a guardian. 19 Sec. 27. NEW SECTION . 232D.503 Termination and modification 20 of guardianships. 21 1. A guardianship shall terminate on the minor’s death, 22 adoption, emancipation, or attainment of majority. 23 2. The court shall terminate a guardianship established 24 pursuant to section 232D.203 if the court finds that the basis 25 for the guardianship set forth in section 232D.203 is not 26 currently satisfied unless the court finds that the termination 27 of the guardianship would be harmful to the minor and the 28 minor’s interest in continuation of the guardianship outweighs 29 the interest of a parent of the minor in the termination of the 30 guardianship. 31 3. The court shall terminate a guardianship established 32 pursuant to section 232D.204 if the court finds that the 33 basis for the guardianship set forth in section 232D.204 34 is not currently satisfied. A person seeking termination 35 -16- LSB 1056YC (3) 88 hb/jh 16/ 26
H.F. _____ of guardianship established pursuant to section 232D.204 1 has the burden of making a prima facie showing that the 2 guardianship should be terminated. If such a showing is made, 3 the guardian has the burden of going forward to prove by clear 4 and convincing evidence that the guardianship should not be 5 terminated. 6 4. The court shall modify the powers granted to the guardian 7 if the court finds such powers no longer meet the needs of the 8 minor or are not in the minor’s best interest. 9 5. The court may conduct a hearing to determine whether 10 termination or modification of a guardianship is appropriate 11 on the filing of a petition by a minor fourteen years of age or 12 older who is under guardianship, a guardian, or other person 13 with an interest in the welfare of the minor or on receipt of a 14 written communication from such persons. 15 Sec. 28. NEW SECTION . 232D.504 Rights and immunities of 16 a guardian. 17 1. A guardian is not required to use the guardian’s personal 18 funds for the minor’s expenses. If a conservator has been 19 appointed for the estate of the minor, the guardian may request 20 and the conservator may approve and pay for the requested 21 reimbursement without prior court approval. 22 2. A guardian may submit a request, together with the 23 guardian’s annual report, for approval by the court of 24 reasonable compensation for services as guardian. 25 3. Notwithstanding section 137C.25B or any other provision 26 of law to the contrary, a guardian is not liable to a third 27 person for an act or omission of the minor solely by reason of 28 the guardianship. 29 Sec. 29. NEW SECTION . 232D.505 Expenses. 30 1. Except as otherwise provided by law, the court shall 31 inquire into the ability of the minor or the minor’s parent to 32 pay expenses incurred pursuant to the guardianship proceedings 33 established under this chapter. After giving the minor and 34 the parent a reasonable opportunity to be heard, the court 35 -17- LSB 1056YC (3) 88 hb/jh 17/ 26
H.F. _____ may order the minor or the parent to pay all or part of the 1 following: 2 a. Costs of legal expenses of the minor and the parent. 3 b. Expenses for a court visitor. 4 c. Filing fees and other court costs, unless the costs are 5 waived for good cause shown. 6 2. If the court finds a minor’s parents to be indigent, or 7 if the minor has no parent, costs shall be assessed against 8 the county in which the proceeding is pending. For purposes 9 of assessing costs under this subsection, the court shall find 10 a minor’s parents to be indigent if the minor’s or the parent’s 11 income and resources do not exceed one hundred fifty percent 12 of the federal poverty level, or the minor’s parent would be 13 unable to pay such costs without prejudicing the parent’s 14 ability to provide economic necessities for the parent or the 15 parent’s dependents. 16 DIVISION II 17 CORRESPONDING CODE CHANGES 18 Sec. 30. Section 232.101A, Code 2019, is amended to read as 19 follows: 20 232.101A Transfer of guardianship to custodian. 21 1. After a dispositional hearing the court may enter an 22 order transferring guardianship of the child to a custodian 23 close the child in need of assistance case and appoint a 24 guardian pursuant to sections 232D.308 and 232D.401 if all of 25 the following conditions are met: 26 a. The person receiving guardianship meets the definition 27 of custodian in section 232.2 . 28 b. The person receiving guardianship has assumed 29 responsibility for the child prior to filing of the petition 30 under this division and has maintained placement of the child 31 since the filing of the petition under this division . 32 c. The parent of the child does not appear at the 33 dispositional hearing, or the parent appears at the 34 dispositional hearing, does not object to the transfer of 35 -18- LSB 1056YC (3) 88 hb/jh 18/ 26
H.F. _____ guardianship, and agrees to waive the requirement for making 1 reasonable efforts as defined in section 232.102 . 2 2. If the court transfers guardianship appoints a guardian 3 pursuant to subsection 1 , the court may close the child in 4 need of assistance case by transferring jurisdiction over the 5 child’s guardianship to the probate court . The court shall 6 inform the proposed guardian of the guardian’s reporting duties 7 under section 633.669 232D.501 and other duties under chapter 8 633 232D . Upon transferring jurisdiction, the The court shall 9 direct the probate clerk of court , once the proposed guardian 10 has filed an oath of office and identification in accordance 11 with section 602.6111 , to issue letters of appointment for 12 guardianship and docket the case in probate . Records contained 13 in the probate case file that were copied or transferred from 14 the juvenile court file concerning the case shall be subject to 15 section 232.147 and other confidentiality provisions of this 16 chapter for cases not involving juvenile delinquency. 17 Sec. 31. Section 232.104, subsection 8, paragraph b, Code 18 2019, is amended to read as follows: 19 b. In lieu of the procedures specified in paragraph “a” , 20 the court may close the child in need of assistance case by 21 transferring jurisdiction over the child’s guardianship to the 22 probate court and may appoint a guardian pursuant to chapter 23 232D . The court shall inform the proposed guardian of the 24 guardian’s reporting duties under section 633.669 and other 25 duties under the probate code. Upon transferring jurisdiction, 26 the court shall direct the probate clerk, once the proposed 27 guardian has filed an oath of office and identification 28 in accordance with section 602.6111 , to issue letters of 29 appointment for guardianship and docket the case in probate. 30 Records contained in the probate case file that were copied or 31 transferred from the juvenile court file concerning the case 32 shall be subject to section 232.147 and other confidentiality 33 provisions of this chapter for cases not involving juvenile 34 delinquency. 35 -19- LSB 1056YC (3) 88 hb/jh 19/ 26
H.F. _____ Sec. 32. Section 235A.15, subsection 2, paragraph d, 1 subparagraphs (1) and (2), Code 2019, are amended to read as 2 follows: 3 (1) To a juvenile court involved in an adjudication or 4 disposition of a child named in a report or a child that is the 5 subject of a guardianship proceeding under chapter 232D . 6 (2) To a district court upon a finding that data is 7 necessary for the resolution of an issue arising in any phase 8 of a case involving child abuse or guardianship proceedings for 9 a child under chapter 232D . 10 Sec. 33. Section 235B.6, subsection 2, paragraph d, Code 11 2019, is amended by adding the following new subparagraphs: 12 NEW SUBPARAGRAPH . (5) To a juvenile court involved in an 13 adjudication or disposition of a child that is the subject of a 14 guardianship proceeding under chapter 232D. 15 NEW SUBPARAGRAPH . (6) To a district court upon a finding 16 that data is necessary for the resolution of an issue arising 17 in any phase of a case involving proceedings for a child 18 guardianship under chapter 232D. 19 Sec. 34. Section 602.7101, subsection 1, Code 2019, is 20 amended to read as follows: 21 1. A juvenile court is established in each county. The 22 juvenile court is within the district court and has the 23 jurisdiction provided in chapter chapters 232 and 232D . 24 Sec. 35. Section 602.8102, subsection 42, Code 2019, is 25 amended to read as follows: 26 42. Serve as clerk of the juvenile court and carry out 27 duties as provided in chapter chapters 232 and 232D and article 28 7 of this chapter . 29 Sec. 36. Section 633.10, subsection 3, Code 2019, is amended 30 to read as follows: 31 3. Conservatorships and guardianships. 32 a. The Except as provided for in paragraph “b” , the 33 appointment of conservators and guardians; the granting 34 of letters of conservatorship and guardianship; the 35 -20- LSB 1056YC (3) 88 hb/jh 20/ 26
H.F. _____ administration, settlement and closing of conservatorships and 1 guardianships. 2 b. Beginning the effective date of this Act, minor 3 guardianships are under the exclusive jurisdiction of the 4 juvenile court pursuant to, and except as limited by, chapter 5 232D. 6 Sec. 37. Section 633.552, subsection 2, Code 2019, is 7 amended to read as follows: 8 2. That the proposed ward is in either of the following 9 categories: 10 a. Is a person whose decision-making capacity is so 11 impaired that the person is unable to care for the person’s 12 personal safety or to attend to or provide for necessities for 13 the person such as food, shelter, clothing, or medical care, 14 without which physical injury or illness might occur. 15 b. Is a minor. 16 Sec. 38. Section 633.554, subsection 2, Code 2019, is 17 amended to read as follows: 18 2. a. If the proposed ward is a minor or if the 19 proposed ward is an adult under a standby petition and the 20 court determines, pursuant to section 633.561, subsection 21 1 , paragraph “b” , that the proposed ward is entitled to 22 representation, notice in the manner of original notice, or 23 another form of notice ordered by the court, given to the 24 attorney appointed to represent the ward is notice to the 25 proposed ward. 26 b. Notice shall also be served upon : 27 (1) The parents of the proposed ward, if the proposed ward 28 is a minor. 29 (2) The the spouse of the proposed ward , if the proposed 30 ward is an adult. If the proposed ward has no spouse, notice 31 shall be served upon the proposed ward’s adult children, if 32 any. 33 Sec. 39. Section 633.557, subsection 1, Code 2019, is 34 amended to read as follows: 35 -21- LSB 1056YC (3) 88 hb/jh 21/ 26
H.F. _____ 1. A guardian may also be appointed by the court upon the 1 verified petition of the proposed ward, without further notice, 2 if the proposed ward is other than a minor under the age of 3 fourteen years, provided the court determines that such an 4 appointment will inure to the best interest of the applicant. 5 However, if an involuntary petition is pending, the court shall 6 be governed by section 633.634 . The petition shall provide 7 the proposed ward notice of a guardian’s powers as provided in 8 section 633.562 . 9 Sec. 40. Section 633.561, subsection 1, paragraph b, Code 10 2019, is amended to read as follows: 11 b. If the proposed ward is either a minor or an adult under 12 a standby petition, the court shall determine whether, under 13 the circumstances of the case, the proposed ward is entitled 14 to representation. The determination regarding representation 15 may be made with or without notice to the proposed ward, as 16 the court deems necessary. If the court determines that the 17 proposed ward is entitled to representation, the court shall 18 appoint an attorney to represent the proposed ward. After 19 making the determination regarding representation, the court 20 shall set a hearing on the petition, and provide for notice on 21 the determination regarding representation and the date for 22 hearing. 23 Sec. 41. Section 633.635, subsection 5, Code 2019, is 24 amended to read as follows: 25 5. From time to time, upon a proper showing, the court may 26 modify the respective responsibilities of the guardian and 27 the ward, after notice to the ward and an opportunity to be 28 heard. Any modification that would be more restrictive or 29 burdensome for the ward shall be based on clear and convincing 30 evidence that the ward continues to fall within the categories 31 of section 633.552, subsection 2 , paragraph “a” or “b” , and 32 that the facts justify a modification of the guardianship. 33 Section 633.551 applies to the modification proceedings. Any 34 modification that would be less restrictive for the ward shall 35 -22- LSB 1056YC (3) 88 hb/jh 22/ 26
H.F. _____ be based upon proof in accordance with the requirements of 1 section 633.675 . 2 Sec. 42. Section 633.675, subsection 2, Code 2019, is 3 amended by striking the subsection. 4 Sec. 43. Section 633.679, subsection 2, Code 2019, is 5 amended by striking the subsection. 6 Sec. 44. REPEAL. Section 633.559, Code 2019, is repealed. 7 Sec. 45. EFFECTIVE DATE. This Act takes effect January 1, 8 2020. 9 Sec. 46. APPLICABILITY. This Act applies to guardianships 10 and guardianship proceedings of minors established or pending 11 before, on, or after January 1, 2020. 12 EXPLANATION 13 The inclusion of this explanation does not constitute agreement with 14 the explanation’s substance by the members of the general assembly. 15 This bill provides the basis for appointment of a guardian 16 for a minor by the juvenile court, the procedures for 17 establishment of a minor guardianship, and court monitoring and 18 administration of minor guardianships. 19 JUVENILE COURT JURISDICTION OVER MINOR GUARDIANSHIPS. Code 20 chapter 633 contains provisions relating to guardianships, 21 which apply to adults and minors. The bill repeals and amends 22 the provisions that specifically refer to minor guardianships 23 and replaces them with new Code chapter 232D, the Iowa minor 24 guardianship proceedings Act. 25 The bill provides that the juvenile court shall have 26 exclusive jurisdiction over minor guardianship proceedings. 27 The effect of this provision is to transfer jurisdiction over 28 these proceedings from the probate court to the juvenile court. 29 BASIS FOR APPOINTMENT OF GUARDIAN. The bill authorizes 30 minor guardianships under the following circumstances: 31 termination of parental rights and child in need of assistance 32 cases; cases involving the death of a minor’s parents; cases 33 in which there is parental consent to the establishment of a 34 guardianship; and cases in which there is not parental consent 35 -23- LSB 1056YC (3) 88 hb/jh 23/ 26
H.F. _____ to the establishment of a guardianship. 1 The bill provides that a guardianship may be established 2 without parental consent under the following circumstances: 3 there is a person serving as a de facto guardian; there has 4 been a demonstrated lack of parental participation in the life 5 of the minor; and the appointment of a guardian is in the 6 best interest of the minor. The bill also provides that a 7 guardianship may be established if no parent is willing or able 8 to exercise the power the court is requested to grant to the 9 proposed guardian, and the appointment of a guardian is in the 10 best interest of the minor. 11 ESTABLISHING A GUARDIANSHIP. The bill contains provisions 12 relating to the establishment of minor guardianships. These 13 provisions specify the requirements regarding the contents of a 14 minor guardianship petition, notice, and hearing. 15 The bill provides that the court may appoint an attorney 16 for the minor if the court determines that the interests of 17 the minor are, or may be, inadequately represented. The bill 18 also provides that the court shall appoint an attorney for a 19 parent if the parent objects to the appointment of a guardian 20 and the court determines that the parent is unable to pay for 21 an attorney. 22 The bill provides that the court may appoint a court visitor 23 to visit the minor and other parties to the proceeding and 24 gather the information needed by the court in determining 25 whether to grant the petition. 26 The bill retains the existing standard for appointment of 27 a person as a guardian, namely that the person be qualified, 28 suitable, and willing to serve in that capacity. 29 Current law does not require background checks of proposed 30 guardians. The bill requires that proposed guardians, other 31 than financial institutions, undergo Iowa criminal record 32 checks and checks of the Iowa child abuse, dependent adult 33 abuse, and sex offender registries. The bill provides that the 34 judicial branch, in collaboration with other relevant state 35 -24- LSB 1056YC (3) 88 hb/jh 24/ 26
H.F. _____ agencies, shall establish procedures for electronic access to 1 the single contact repository for the conduct of background 2 checks for a minimal fee. The bill gives the judge discretion 3 to evaluate the relevance of any negative background check 4 information in determining the suitability of a person for 5 appointment as a guardian. 6 The bill authorizes the emergency appointment of a temporary 7 guardian. The court is authorized to issue an ex parte order 8 appointing a temporary guardian on an emergency basis under 9 limited circumstances. 10 ORDER APPOINTING GUARDIAN AND GUARDIAN’S POWERS, DUTIES, AND 11 RESPONSIBILITIES. The bill contains provisions relating to 12 the order appointing the guardian and the guardian’s powers, 13 duties, and responsibilities. 14 The bill specifies the powers that the court may grant to 15 a guardian. The bill sets forth the specific powers that 16 the guardian may exercise without prior court approval and 17 those powers that the guardian may exercise only with prior 18 court approval. The bill also specifies the duties and 19 responsibilities of the guardian. 20 COURT MONITORING AND ADMINISTRATION OF MINOR GUARDIANSHIPS. 21 The bill contains provisions relating to ongoing court 22 monitoring of minor guardianship and administration of minor 23 guardianships. The court has an ongoing responsibility to 24 monitor minor guardianships in order to ensure the well-being 25 and protection of minors subject to guardianship and the 26 accountability of the persons appointed to serve as guardians. 27 The bill provides that guardians shall file an initial care 28 plan for the minor within 60 days of appointment for review 29 and approval by the court. The bill retains the existing 30 requirement that guardians file thereafter an annual report 31 describing the minor’s status and needs and the guardian’s 32 activities. The bill authorizes the court to remove a guardian 33 and appoint a successor guardian under certain circumstances. 34 The bill further authorizes the court to modify a guardianship 35 -25- LSB 1056YC (3) 88 hb/jh 25/ 26
H.F. _____ or terminate a guardianship under certain circumstances. 1 EXPENSES. The bill provides that the court shall inquire 2 into the ability of the minor or the minor’s parent to pay 3 expenses incurred pursuant to the guardianship proceedings. 4 After giving the minor and the parent a reasonable opportunity 5 to be heard, the court may order the minor or the parent to 6 pay all or part of the following: costs of legal expenses 7 of the minor and the parent; expenses for a court visitor; 8 and filing fees and other court costs, unless the costs are 9 waived for good cause shown. The bill provides that if the 10 court finds a minor’s parents to be indigent or if the minor 11 has no parent, costs shall be assessed against the county in 12 which the proceeding is pending. The minor or the minor’s 13 parents are indigent if the minor’s or the parent’s income and 14 resources do not exceed 150 percent of the federal poverty 15 level, or the minor’s parent would be unable to pay such costs 16 without prejudicing the parent’s ability to provide economic 17 necessities for the parent or the parent’s dependents. 18 EFFECTIVE DATE AND APPLICABILITY. The bill takes effect 19 January 1, 2020, and applies to all minor guardianships and 20 guardianship proceedings established or pending before, on, or 21 after January 1, 2020. 22 -26- LSB 1056YC (3) 88 hb/jh 26/ 26
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