In the Matter of the Guardianship and Conservatorship of Stuart Kennedy (Involuntary) Stuart Kennedy vs. Maria Kennedy

IN THE SUPREME COURT OF IOWA
No. 13–0505
Filed April 18, 2014
IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP
OF STUART KENNEDY (INVOLUNTARY)
STUART KENNEDY,
Appellant,
vs.
MARIA KENNEDY,
Appellee.
Appeal from the Iowa District Court for Polk County, Peter A.
Keller, Judge.
A ward appeals from probate court orders refusing to terminate his
guardianship and establishing a conservatorship. AFFIRMED.
William L. Bushell of Bushell Law Firm, Des Moines, for appellant.
John H. Judisch of Stuyvesant & Benton, Carlisle, for appellee.
Rita Bettis and Randall C. Wilson, Des Moines, for amicus curiae
ACLU of Iowa, and Cynthia A. Miller, Des Moines, for amicus curiae
Disability Rights Iowa.

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MANSFIELD, Justice.
This case presents the question whether a mother who serves as
her intellectually disabled adult son’s guardian must obtain court
approval before arranging a vasectomy for him. We conclude the relevant
statute requires court approval. However, we do not disturb the orders
entered by the probate court that declined to terminate the mother’s
guardianship and also appointed her conservator.
I. Factual and Procedural Background.
Stuart Kennedy is a twenty-one-year-old man with significant
intellectual disabilities who lives in a group home. The home is staffed
around the clock. The staff help Stuart with various daily tasks, such as
time management, finances, and transportation. Stuart has made
progress at the group home and, for example, is able to prepare simple
meals for himself. Stuart receives SSI benefits as well as $700 to $800 a
month from a job at Sam’s Club.
In late 2009, after Stuart turned eighteen, his mother Maria
Kennedy was appointed as his guardian. The guardianship continued.
In late 2012 or early 2013, Maria became concerned that Stuart was
involved in a relationship with Annamarie Jalali, a coworker at Sam’s
Club. Stuart admits he told his mother that he and Jalali were having
sex, although at the subsequent court hearing, both Stuart and Jalali
denied they were anything more than friends. Stuart also provided
money to Jalali to cover certain of her expenses. In addition, Jalali took
Stuart to a credit union to open a bank account.
In January 2013, Stuart filed a handwritten petition to terminate
the guardianship, alleging among other things that his mother was “too
control[l]ing of my life and my money.” Maria in turn filed a petition for
appointment of an involuntary conservator for Stuart and a petition for

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an injunction against Jalali, seeking a court order that she not have
further contact with Stuart.
Before these matters could be heard, on February 18, 2013, Maria
took Stuart to a doctor’s office to get a vasectomy. Maria contends that
Stuart was in favor of the procedure and that it had been discussed and
agreed to. Stuart, however, disputed that he had wanted the vasectomy.
On February 21, 2013, Stuart’s attorney filed a further petition to
terminate or modify the guardianship reciting that “the Guardian forced
the Ward to undergo forced sterilization.”
A combined hearing on the petitions was held on February 27,
2013. Maria, Stuart, and Jalali all appeared through counsel and each
of them testified. The court also received letters from Stuart’s regular
physician (not the individual who performed the vasectomy) and from
Stuart’s case manager. One subject of the hearing was whether Maria
had violated Iowa Code section 633.635(2)(b) by arranging for Stuart’s
vasectomy without court approval. Iowa Code § 633.635(2)(b) (2013).
Evidence was also presented at the hearing that when law enforcement
recently went to Jalali’s home to look for Stuart, Jalali had refused to
answer her door or inform them of Stuart’s whereabouts. Additionally,
Jalali and Stuart had discussed Stuart renting out her basement in
exchange for Stuart paying half the rent.
At the conclusion of the hearing, the probate court declined to
terminate Stuart’s guardianship. It reasoned that Stuart continued to be
in need of a guardian and that Maria was a qualified and suitable person
to continue to serve as his guardian. The court further found that Maria
had not violated section 633.635(2)(b) because the vasectomy was not
“major elective surgery.” Even if Maria had violated section
633.635(2)(b), the court added,

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[Maria] did not make such arrangement or provide
assistance out of malice or some other evil intent or purpose,
but did so as a result of her desire to care for her son and do
what is in his best interest and as such, this Court would
still find that Stuart remains in need of a Guardian and
Maria Kennedy should not be removed as Guardian for
Stuart Kennedy.
The court also ordered Maria’s appointment as Stuart’s conservator.
Finally, the court entered an injunction against Jalali having contact
with Stuart until March 2014, finding she had
taken advantage of Stuart Kennedy as a result of his
significant intellectual disabilities and inability to make,
communicate, or carry out important decisions concerning
his own financial affairs and has done so to her pecuniary
gain and to the financial detriment of Stuart.
Stuart appealed the orders appointing his mother as conservator
and refusing to terminate the guardianship. He did not appeal the
injunction against Jalali. Throughout this appeal, Stuart has
maintained the probate court erred in finding the vasectomy was not
major elective surgery or a nonemergency major medical procedure
requiring prior court approval. However, at oral argument Stuart’s
attorney indicated that Stuart was no longer seeking to alter the
guardianship or the conservatorship. At this point, he simply wants a
ruling that prior court approval should be required for the sterilization of
a male ward.
II. Standard of Review.
Actions to terminate guardianships are equitable in nature, and
thus our review is de novo. Iowa Code § 633.33; In re Guardianship of
B.J.P., 613 N.W.2d 670, 672 (Iowa 2000). We give weight to the factual
findings of the probate court, but we are not bound by them. In re
Guardianship of Stewart, 369 N.W.2d 820, 822 (Iowa 1985). Actions to
appoint conservators, however, are tried at law. Iowa Code § 633.33.

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Therefore, the review is for errors at law. In re Conservatorship of
Deremiah, 477 N.W.2d 691, 692 (Iowa Ct. App. 1991).
III. Legal Analysis.
A. Motion to Dismiss Appeal. As a threshold matter, we must
address Maria’s motion to dismiss Stuart’s appeal. Maria points out that
the probate court appointed Stuart’s counsel “to represent the interests
of the proposed ward throughout the conservatorship proceedings and
until such time as an Order Appointing Conservator is filed.” Thus, she
contends Stuart’s counsel no longer has authority to represent him, such
authority having terminated on March 4, when the court entered the
order appointing her as conservator. She then maintains we should
dismiss the appeal because the attorney of record lacks authority to
pursue it.
We decline to dismiss the appeal. Maria does not dispute that
Stuart is entitled to representation in the conservatorship proceeding,
including any appeal from the order appointing her as conservator. See
Iowa Code § 633.575(1)(a).1 She does not argue that Stuart should be
represented on appeal by somebody else. She also does not dispute that
Stuart’s counsel filed and served a timely notice of appeal, is actually
pursuing the appeal, and has otherwise complied with our procedural
requirements. Her only argument is that Stuart’s counsel should have
obtained an order from the probate court renewing counsel’s
appointment for purposes of appeal.
1Although Stuart’s counsel was not specifically appointed to represent him in
the termination of guardianship proceeding, the proceedings were heard together, and
the court and the parties have treated the appointment as extending to the termination
of guardianship proceeding.

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We think this argument confuses two things—counsel’s ability to
represent Stuart and his ability to get paid for doing so. The expiration
of the appointment order could affect compensation, since the attorney
would no longer be “court appointed.” See id. § 633.575(6) (stating that
“if the ward is indigent the cost of the court appointed attorney shall be
assessed against the county in which the proceedings are pending”
(emphasis added)).2 Yet, in our view, it does not impair the attorney’s
ability to keep representing Stuart if Stuart wants the attorney to stay on
and no other counsel has been appointed. See Iowa Ct. Rule 6.109(4)
(“The attorneys and guardians ad litem of record in the district court
shall be deemed the attorneys and guardians ad litem in the appellate
court unless others are retained or appointed and notice is given to the
parties and the clerk of the supreme court.”).
Further, even if we found a violation, this is not a situation where
we would lack jurisdiction or authority over the case. Thus, we would
typically grant dismissal “only if the alleged infractions are repeated or
significant and have resulted in prejudice to another party or the
administration of justice.” Iowa Ct. R. 6.1006(1)(a); see Hanson v.
Harveys Casino Hotel, 652 N.W.2d 841, 843 (Iowa Ct. App. 2002)
(dismissing an appeal because of substantial violations of the appellate
rules). We do not find such circumstances here. Accordingly, we deny
the mother’s motion to dismiss the appeal based on the alleged lack of
authority of Stuart’s attorney to pursue it.
B. Mootness. The next question we must entertain is whether
this appeal is moot. The vasectomy has already occurred, and Stuart no
2This assumes that the original order does not cover appellate proceedings, a
point we do not decide.

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longer asks that Maria be removed as a guardian (or that the
conservatorship be overturned) because she arranged for an
unauthorized vasectomy. He does, however, continue to challenge the
legality of the vasectomy.
An appeal is moot if it no longer presents a justiciable
controversy because [the contested issue] has become
academic or nonexistent. The test is whether the court’s
opinion would be of force or effect in the underlying
controversy. As a general rule, we will dismiss an appeal
when judgment, if rendered, will have no practical legal effect
upon the existing controversy.
In re M.T., 625 N.W.2d 702, 704 (Iowa 2001) (citations and internal
quotation marks omitted). “We do not decide cases when there is no
longer any actual controversy, unless we exercise our discretion and
decide the case under an exception to the mootness doctrine.” In re S.P.,
719 N.W.2d 535, 537 (Iowa 2006).
An exception to the general rule exists “ ‘where matters of public
importance are presented and the problem is likely to recur.’ ” In re M.T.,
625 N.W.2d at 704 (quoting Iowa Freedom of Info. Council v. Wifvat, 328
N.W.2d 920, 922 (Iowa 1983)); see also In re B.B., 826 N.W.2d 425, 428–
29 (Iowa 2013); Reilly v. Iowa Dist. Ct., 783 N.W.2d 490, 493 n.1 (Iowa
2010); In re S.P., 719 N.W.2d at 537. An important factor thereunder is
“whether the challenged action is such that often the matter will be moot
before it can reach an appellate court.” In re M.T., 625 N.W.2d at 704–05
(citations and internal quotation marks omitted). We have applied a
four-part test that considers the following:
(1) the private or public nature of the issue; (2) the
desirability of an authoritative adjudication to guide public
officials in their future conduct; (3) the likelihood of the
recurrence of the issue; and (4) the likelihood the issue will
recur yet evade appellate review.

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State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002); accord State
v. Kramer, 760 N.W.2d 190, 195 (Iowa 2009); In re A.W., 741 N.W.2d
793, 804 (Iowa 2007); In re S.P., 719 N.W.2d at 537; In re T.S., 705
N.W.2d 498, 502 (Iowa 2005).
Both parties urge that we retain the appeal to decide whether a
guardian must obtain advance court approval before arranging for the
sterilization of a male ward. They contend this issue is of public
importance and likely to recur. We agree with them.
As we discuss below, sterilization of a ward is an important subject
with constitutional overtones. True, it is possible for the question
whether sterilization may occur without prior court approval to come
before an appellate court in a nonmoot case. However, either of the two
potential scenarios in which this might occur would be less than ideal.
In one scenario there would be prolonged uncertainty whether or not a
medical procedure will occur while an appeal winds its way through our
courts. In the other scenario (as was originally the case here) a ward
would be seeking to impose some collateral consequence on the guardian
after the procedure had already occurred. We therefore find the public
importance exception applies and turn to the meaning of Iowa Code
section 633.635(2).
C. Construction of Iowa Code Section 633.635(2). Stuart
argues on appeal that court approval should have been required for his
vasectomy. Stuart urges, contrary to the probate court’s ruling, that it is
a “major elective surgery” or a “nonemergency medical procedure.” The
relevant statute provides as follows:
2. A guardian may be granted the following powers
which may only be exercised upon court approval:
. . . .

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b. Arranging the provision of major elective surgery or
any other nonemergency major medical procedure. For the
purposes of this paragraph, “major elective surgery” and
“nonemergency major medical procedure” do not include the
provision to the ward of professional care, counseling,
treatment, or services limited to the provision of routine
physical and dental examinations and procedures under
anesthesia, if the use of anesthesia is necessitated by the
physical or mental disability of the ward, and if the
anesthesia is provided within the scope of the health care
practitioner’s scope of practice.
. . . .
3. For the purposes of this section:
a. “Routine dental examinations and procedures”
includes preventive services, diagnostic services, restorative
services, periodontal services, endodontic services, oral
surgery, prosthetic services, and orthodontic procedures.
b. “Routine physical examinations and procedures”
includes examinations and procedures performed for the
purpose of general treatment or diagnosis or for the purpose
of treatment or diagnosis related to a specific illness,
symptom, complaint, or injury.
Iowa Code § 633.635(2)–(3).
The legislature’s delineation of the guardian’s role in a ward’s care,
including medical treatment, has evolved and become more detailed over
the past thirty years. Prior to 1984, no language about medical
procedures was contained in the Code. See Iowa Code § 633.635 (1983).
The law simply said that “[u]nless otherwise directed by a court order,” a
guardian “shall have custody of a minor ward and general supervisory
responsibility for the care of a ward who has attained the age of
majority.” Id.
In 1984, the legislature removed that language and added two
sections, one outlining powers and duties a guardian could exercise
without prior court approval—including ensuring the receipt of
emergency medical services, “professional care, counseling, treatment,
and services as needed”—and another outlining those which could be

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exercised only with court approval—“major elective surgery” and “other
nonemergency major medical procedures.” These became subsections (1)
and (2) of section 633.635. See 1984 Iowa Acts ch. 1299, § 16 (codified
at Iowa Code § 633.635 (1985)).
An additional amendment in 2000 gave us the provisions excluding
routine dental and physical examinations and procedures from the scope
of “major” elective surgery or “major” nonemergency medical procedures,
and the provisions discussing anesthesia. See 2000 Iowa Acts ch. 1063,
§§ 2–3 (codified at Iowa Code § 633.635(2)–(3) (2001)).
We have not previously construed the terms “major elective
surgery” and “nonemergency major medical procedure” as used in
section 633.635(2). However, we have indirectly touched on the present
dispute. In In re Guardianship of Matejski, the legal guardians of an
intellectually disabled daughter filed a court application under section
633.635 to have her sterilized. 419 N.W.2d 576, 576, 578 (Iowa 1988).
We held that the district court had subject matter jurisdiction to hear the
application. Id. at 579–80. We rejected the notion, embraced by some
other states’ courts, that courts lack jurisdiction over this issue. Id. As
we put it,
Stated another way, we do not believe our courts lack
jurisdiction over a case merely because the case is important
or unavoidably includes a constitutional dimension.
Appellee, in effect, would have us remove the present issue
from the decisional process provided by our law and judicial
system. We know of no area of law where this has been
done.
Id. at 579.
We added,
We also disagree with appellee’s contention that the
1977 legislative repeal of the theretofore-existing mandatory
sterilization law, see Iowa Code ch. 145 (1977), coupled with

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the legislature’s failure to enact new provisions concerning
the topic, manifest a legislative intent that the district court
not be vested with the power to authorize sterilizations.
Id. at 580. Lastly, we declined to “outline a series of procedural
protections and substantive criteria to guide the lower courts in
adjudicating these applications,” explaining that we were “not persuaded
that such action is appropriate given the posture of the present case.”
Id.
While Matejski doesn’t say the district court has to authorize a
sterilization, it would be fair to say we considered the decision to
authorize it “important” and we anticipated the district courts would be
“adjudicating these applications.” Id. at 579–80. Also, while Matejski of
course involved a tubal ligation rather than a vasectomy, the opinion
used only the term “sterilization” and did not distinguish female or male
sterilizations. Id. It thus arguably offers some support to Stuart’s
position that court approval is required for a vasectomy.3
In holding that a vasectomy is not a “major elective surgery,” the
probate court here focused on two points: (1) it “is approximately a 20
minute procedure which is performed in a doctor’s office as opposed to a
surgical center or operating room and it does not require the use of
anesthesia,” and (2) it “is reversible, albeit by a more intrusive procedure
which could be deemed to be major elective surgery.” The first finding is
supported by testimony in the record, but the second is not. Amici
curiae ACLU of Iowa and Disability Rights Iowa contend that a significant
percentage of the time, a vasectomy is not reversible. We should not be
3Note that Majetski was decided after the 1984 amendment but before the 2000
amendment.

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trying to resolve a medical debate. Our decision therefore does not turn
on the rate at which a vasectomy can be reversed.
As the foregoing quotation from section 633.635 indicates, the
statute does not define “major elective surgery” or “nonemergency major
medical procedure” except to make it clear that the terms do not include
professional care, counseling, treatment, or services limited
to the provision of routine physical and dental examinations
and procedures under anesthesia, if the use of anesthesia is
necessitated by the physical or mental disability of the ward,
and if the anesthesia is provided within the scope of the
health care practitioner’s scope of practice.
Iowa Code § 633.635(2)(b). The statute goes on to explain that “[r]outine
physical examinations and procedures” include “examinations and
procedures performed for the purpose of general treatment or diagnosis
or for the purpose of treatment or diagnosis related to a specific illness,
symptom, complaint, or injury.” Id. § 633.635(3)(b) (emphasis omitted).
Thus, the term “routine” appears to modify both “examinations” and
“procedures.”
We are not persuaded that a vasectomy is a routine procedure
within the meaning of section 633.635(3)(b). It is not designed to treat a
specific illness, symptom, complaint, or injury. See Fuller v. CBT Corp.,
905 F.2d 1055, 1057 (7th Cir. 1990) (indicating that a vasectomy
produces a “condition”). If a vasectomy is not routine, it follows that it
could be “major.”
Hence, after considering the statute as a whole, we believe the
terms “major elective surgery” and “nonemergency major medical
procedure” are ambiguous as applied to a vasectomy. See Samuel v. Bd.
of Chiropractic Exam’rs, 712 P.2d 132, 135 (Or. Ct. App. 1985) (holding
that a vasectomy is “major surgery” under Oregon law that cannot be
performed by chiropractors). If the focus is on the medical risk and

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inconvenience associated with the vasectomy procedure, it may not be
considered “major.” On the other hand, the immediate consequence of
the procedure, i.e., loss of the ability to procreate, is certainly important.
“Major” is not a word that cries out with precision.
We have interpreted ambiguous statutes in the past to avoid
constitutional problems. See State v. Iowa Dist. Ct., 843 N.W.2d 76, 85
(Iowa 2014) (discussing the doctrine of constitutional avoidance and
observing that “the proper course in the construction of a statute may be
to steer clear of ‘constitutional shoals’ when possible”). “If fairly possible,
a statute will be construed to avoid doubt as to constitutionality.”
Simmons v. State Pub. Defender, 791 N.W.2d 69, 74 (Iowa 2010); see also
Iowa Code 4.4(1) (setting forth the presumption that in enacting a
statute, “[c]ompliance with the Constitutions of the state and of the
United States is intended”); L.F. Noll Inc. v. Eviglo, 816 N.W.2d 391, 398
(Iowa 2012); In re Prop. Seizure for Forfeiture from Young, 780 N.W.2d
726, 729 (Iowa 2010) (noting “our mandate to construe statutes in a
fashion to avoid a constitutional infirmity where possible” but adding
that this principle does not apply when “[t]he language is not
ambiguous”).
A statutory scheme that empowered a court-appointed actor (i.e., a
guardian) to have an intellectually disabled person sterilized without
some form of judicial review would raise serious due process concerns, in
our view. Some time ago, in Skinner v. Oklahoma, the United States
Supreme Court reversed a judgment directing that a vasectomy be
performed on an Oklahoma man who was deemed a “habitual criminal.”
316 U.S. 535, 537–38, 62 S. Ct. 1110, 1111–12, 86 L. Ed. 1655, 1658
(1942). The Court emphasized that the right to procreate is
“fundamental” and found that the law did not meet the requirements of

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the Equal Protection Clause. Id. at 541, 62 S. Ct. at 1113, 86 L. Ed. at
1660.
The rationale of Skinner has been followed in cases involving the
sterilization of a ward. In In re Estate of K.E.J., the court—recognizing
the constitutional rights of the ward—set forth a detailed protocol that
had to be followed before a court could approve sterilization of either a
male or a female mentally disabled adult ward. 887 N.E.2d 704, 720–21
(Ill. App. Ct. 2008); see also In re C.D.M., 627 P.2d 607, 612 (Alaska
1981) (noting sterilization results in the permanent termination of “the
intensely personal right to procreate,” and therefore requires the court to
“jealously guard” the rights of the ward by requiring full judicial hearing
where the advocates of the operation “bear the heavy burden of proving
by clear and convincing evidence that sterilization is in the best
interests” of the individual); In re Terwilliger, 450 A.2d 1376, 1382–84 &
n.1 (Pa. Super. 1982) (noting the existence of a fundamental right under
Skinner and requiring court approval for sterilization of either a male or a
female adult ward); In re Guardianship of Hayes, 608 P.2d 635, 639, 641
(Wash. 1980) (noting “[s]terilization touches upon the individual’s right of
privacy and the fundamental right to procreate” and establishing
requirements that must be met before a court can order the sterilization
of an intellectually disabled person, including representation by a
guardian ad litem and medical, social, and psychological evaluations of
the individual); Eric M. Jaegers, Modern Judicial Treatment of Procreative
Rights of Developmentally Disabled Persons: Equal Rights to Procreation
and Sterilization, 31 U. Louisville J. Fam. L. 947, 979 (1992) (discussing
the evolution of sterilization laws in America and noting sterilization is
“the permanent physical deprivation of a fundamental constitutional
right” and “[m]odern American courts have given substantial judicial

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respect to the rights of developmentally disabled persons, allowing
sterilization only when necessary, or not at all”).
In light of the foregoing, as noted, we would have serious doubts
about the constitutionality of a statute that allowed a guardian to
arrange for a ward to undergo a vasectomy without any court
involvement. Accordingly, applying the principle of constitutional
avoidance, we hold that a vasectomy is a “major elective surgery” and a
“nonemergency major medical procedure” for which prior court approval
is required.
For the reasons previously stated, we decline to disturb the
probate court’s orders regarding Maria’s guardianship and
conservatorship of Stuart. Nonetheless, we hold that section 633.635(2)
required Maria to get prior court approval for Stuart’s vasectomy.
IV. Conclusion.
We affirm the guardianship and conservatorship orders entered by
the probate court.
AFFIRMED.

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