Alsager v. District Court of Polk Cty., Iowa

• Decision Date: 19 December 1975
• Docket Number: Civ. No. 73-79-2.
• Citation: 406 F. Supp. 10
• Parties: Charles LeRoy ALSAGER, Sr., and Darlene Lauvern Alsager, Plaintiffs, v. DISTRICT COURT OF POLK COUNTY, IOWA (JUVENILE DIVISION), et al., Defendants.
• Court: U.S. District Court — Southern District of Iowa

406 F. Supp. 10

Charles LeRoy ALSAGER, Sr., and Darlene Lauvern Alsager, Plaintiffs, v. DISTRICT COURT OF POLK COUNTY, IOWA (JUVENILE DIVISION), et al., Defendants.

Civ. No. 73-79-2.

United States District Court, S. D. Iowa, C. D.

December 19, 1975.

COPYRIGHT MATERIAL OMITTED

Gorden E. Allen, Iowa Civil Liberties Union, Des Moines, Iowa, and Rena K. Uviller, Burt Neuborne, Melvin L. Wulf, Juvenile Rights Project, American Civil Liberties Union, New York City, for plaintiffs.

Ray A. Fenton, Polk County Atty., and Harold A. Young, Asst. Polk County Atty., Des Moines, Iowa, for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT

HANSON, Chief Judge.

In May of 1970, the Juvenile Division of the District Court of Polk County entered an order terminating the parental rights of Charles and Darlene Alsager "in and to" five of their six children. In March of 1973, this action was brought attacking the constitutionality of those termination proceedings. The Alsagers seek a declaratory judgment to the effect that Iowa's parent-child termination statute is unconstitutional both on its face, and as it was applied to them. Plaintiffs also complain of alleged procedural defects in the state termination proceedings, and seek monetary damages from the defendants. Their complaint is based on 42 U.S.C. § 1983. This Court has jurisdiction under 28 U.S.C. § 1343(3).

Evidence was presented to this Court, sitting without a jury, in March of 1974. In November, 1974, the Court ruled that the factual situation faced by the plaintiffs was such that federal declaratory relief would be inappropriate. See 384 F.Supp. 643. This ruling was greatly influenced by the Court's fervent belief that the interests of the five children involved in this case could be best served by further proceedings, formal or informal, on the state level. On June 17, 1975, the United States Court of Appeals for the Eighth Circuit ruled that this refusal to proceed to the merits of the plaintiffs' constitutional claims was error. 518 F.2d 1160 (8th Cir. 1975). The case was then remanded to this Court for proceedings consistent with that opinion. Accordingly, the Court acts today, under a mandate.

The Court of Appeals has specifically directed this Court to examine the question of mootness before addressing the merits of plaintiffs' constitutional claims. 518 F.2d at 1167. On September 11, 1975, this Court held a brief hearing on the mootness issue. All parties agreed at that time that the issues presented by the plaintiffs remain ripe for adjudication, and this Court so finds. See transcript of September 11, 1975 hearing, at 26-29. The possibility of mootness was apparently triggered by statements before the appellate court to the effect that the five Alsager children might be returned to their parents. 518 F.2d at 1166. The Court has been informed, however, that any such return¹ would be probationary only. Thus, the legal issue raised by this constitutional challenge would remain alive absent a declaration from this Court, for the exact nature of the Alsagers' legal relationship to their children would still be in doubt. Only a ruling as to the validity of the 1969-1970 termination proceedings will serve to "clear the air" and clarify the role the Alsagers are to have in the future upbringing of their children. See generally Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974).

Before discussing the merits of the Alsagers' constitutional contentions, the Court will reiterate the Findings of Fact made in its prior ruling.

Charles and Darlene Alsager were residing at 614 East 30th Street, Des Moines, Iowa, in the summer of 1969. At that time Mr. Alsager was 36 years old, and Mrs. Alsager was 26 years old. The couple had been married eleven years and were the parents of six children: George, who was 10 in June of 1969; Wanda, who was 8; John, age 7, Charles, Jr., age 6; Michael, age 4; and Albert, who was less than one year old.

The Alsagers began to have contact with the juvenile authorities of the Polk County District Court as early as 1965, when George was adjudicated to be a "neglected child." This adjudication prompted a removal of George from his parents' home, and he was placed in at least two foster homes before he was returned to his parents in 1968.

In the spring and early summer of 1969, the probation department of the Polk County District Court received a number of complaints about the Alsager children from the family's neighbors. On June 13, 1969, Carl Parks, the Chief Probation Officer of the Polk County District Court, wrote a letter to the plaintiffs stating that his office had received a report about their children, and warning the parents that a petition might be filed by the neighbors seeking to remove the children from their custody.

On June 20, 1969, Jane Johnston, a probation officer with the Polk County Juvenile Court, visited the Alsager home. Miss Johnston spent approximately twenty minutes inside the Alsager residence, which at the time was occupied only by Mrs. Alsager and the baby, Albert. Based on her observations inside the house, and without seeing the other five children, Miss Johnston determined that all six children should immediately be removed to the Polk County Juvenile Home. This removal was to be temporary, pending a hearing to determine whether the children were "neglected" as defined by Section 232.2(15) of the Code of Iowa (1973). This hearing was held within one week from the initial removal, on June 26, 1969. As a result of the hearing, Polk County District Judge Don L. Tidrick found the children to be neglected, and ordered that they remain in the custody of the county court pending placement in a foster home or an institution.

Less than one month after the neglect ruling, Chief Probation Officer Parks filed a petition to institute proceedings to terminate the parent-child relationship in Polk County District Court.

This petition alleged that

the best interests of the children . . require that the parent-child relationships . . . be terminated by the Court because said parents have substantially and continuously and repeatedly refused to give their children necessary parental care and protection and because said parents are unfit parents by reason of conduct detrimental to the physical or mental health or morals of their children.

Upon a filing of the petition, a guardian ad litem was appointed in behalf of the children. A copy of the petition was served upon the parents, who then retained counsel. On September 9, 1969, a termination hearing was held before Judge Tidrick. The parents were present at this hearing, accompanied by their counsel. The children's guardian ad litem was also present. On September 29, 1969, Judge Tidrick issued an order pertaining to the termination hearing. The judge stated that "adequate and sufficient cause" existed to terminate the parentchild relationship, but he declined to do so at that time, stating that "final termination of parental rights should not take place so long as there is any substantial hope that the parents will be able to improve to the extent that they can provide even minimal care." The order then continued the matter of termination of the parental rights. The two eldest children, George and Wanda, were released to the temporary custody of their parents. The four youngest children were ordered to remain in the custody of the court.

The court held a second hearing on the matter of termination on March 19, 1970. One week prior to this hearing the attorney who represented Charles and Darlene Alsager at the September proceedings was appointed to represent them at the March hearing. A final hearing on termination was held on May 22, 1970. On that day, Judge Tidrick issued his final termination order. He ruled that Wanda, who had been returned to her parents in September, would benefit by remaining in her parents' home. The Alsagers' parental rights "in and to" the other five children were terminated. This order of termination was affirmed by the Iowa Supreme Court on October 18, 1972, in a short opinion. See State v. Alsager, 201 N.W.2d 727 (Iowa 1972). No further proceedings were commenced on the state level subsequent to the decision of the Iowa Supreme Court. This lawsuit was instituted on March 28, 1973.

CONCLUSIONS OF LAW

Plaintiffs' amended complaint asserts that their legal relationship to their children has been terminated pursuant to standards and procedures which violate the First, Ninth, and Fourteenth Amendments to the United States Constitution. The plaintiffs seek a declaratory judgment to the effect that the Iowa statute which permitted the termination of their parent-child relationships is unconstitutional both on its face and as applied. The parental termination statute of the Code of Iowa, § 232.41, provides:

The court may upon petition terminate the relationship between parent and child:

* * * * * *

2. If the court finds that one or more of the following conditions exist:

a. That the parents have abandoned the child.

b. That the parents have substantially and continuously or repeatedly refused to give the child necessary parental care and protection.

c. That although financially able, the parents have substantially and continuously neglected to provide the child with necessary subsistence, education, or other care necessary for physical or mental health or morals of the child or have neglected to pay for subsistence, education, or other care of the child when legal custody is lodged with others.

d. That the parents are unfit by reason of debauchery, intoxication, habitual use of narcotic drugs, repeated lewd and lascivious behavior, or other conduct found by the court likely to be detrimental to the physical or mental health or morals of the child e. That following an adjudication of neglect or dependency, reasonable efforts under the direction of the court have failed to correct

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