Augustus, In re

• Decision Date: 07 May 1968
• Docket Number: No. 52934,52934
• Citation: 158 N.W.2d 625
• Court: Iowa Supreme Court
• Parties: In the Matter of Terry Eugene AUGUSTUS, a minor, Nedra Cummings, Grandmother and Court Appointed Guardian.

Page 625

158 N.W.2d 625

In the Matter of Terry Eugene AUGUSTUS, a minor, Nedra Cummings, Grandmother and Court Appointed Guardian.

No. 52934.

Supreme Court of Iowa.

May 7, 1968.

Cudahy & Wilcox, Jefferson, for appellant Terry Eugene Augustus.

Reading, Pauley & Hutcheon, Jefferson, for appellant Nedra Cummings.

Richard C. Turner, Atty. Gen., Lorna Lawhead Williams, Asst. Atty. Gen., and R. K. Richardson, County Atty., for appellee State of Iowa.

GARFIELD, Chief Justice.

The State of Iowa filed an information in juvenile court under chapter 232 Code, 1966 alleging Terry Eugene Augustus, age 10, is without proper parental care and a neglected and dependent child as defined in the chapter. Separate able counsel was appointed at public expense for the boy and for Nedra Cummings, his maternal grandmother with whom he lived. The appointed attorneys have represented Terry and Nedra with commendable ability.

Following a hearing at which evidence was offered for the state, the boy and Nedra, the trial court found: Terry's mother was unfit to have his custody; she had abandoned both him and his sister Athena, age nine; the care, custody and control of Terry should be taken from the mother; the guardianship of Terry by Nedra should be terminated in the best interests of the child, and his care, custody and control placed with William and Harma Augustus at Coon Rapids, his paternal grandparents who also have custody of his sister Athena, with rights of visitation to Nedra.

From order and decree pursuant to the above findings Terry and Nedra have appealed.

The brief for Terry assigns these propositions relied on for reversal: (1) Error of the trial court in finding the child's best interests would be served by placing him in the home of his paternal grandparents rather than with his maternal grandmother who is his guardian; (2) Error in giving undue consideration to a case history by a county social worker and little weight to testimony concerning Terry's schooling, improvements and adjustments; and (3) The decision is not based on clear and convincing evidence, under the rules applicable to the trial of civil cases, that Terry was then a neglected and dependent child as alleged in the information and as said to be required by chapter 232 Code, 1966 as amended by chapter 203 laws of the Sixty-second General Assembly.

The separate brief for Nedra assigns this third proposition for reversal.

No one questions the propriety of the findings that Terry's mother was unfit to have his custody--or that of his sister--and had abandoned the two children by leaving Terry with Nedra and Athena with the Augustus grandparents. The important question here is presented by the first of the above propositions--whether, as the trial court found, it is best for Terry to be transferred from Nedra's home in Jefferson to the Augustus home in Coon Rapids, 28 miles distant, where the two children would be together.

I. Our review is de novo. Code section 232.58; Harter v. State, Iowa, 149 N.W.2d 827, 829 and citations. Especially when considering the credibility of witnesses we give weight to the fact findings of the trial court but are not bound by them. Rule 344(f), par. 7, Rules of Civil Procedure; Harter v. State, supra, and citations. This proposition would seem peculiary applicable in a matter of this kind. In re Yardley, 260 Iowa 259, 265, 149 N.W.2d 162, 166.

II. The second proposition asserted in the brief for Terry, supra, need not be separately considered. Ordinarily we do not pass upon such a complaint where our review is de novo. In such matters we review the facts as well as the law and draw what we think are proper conclusions therefrom. In re Yardley, supra, and citations; Lessenger v. Lessenger, Iowa, 156 N.W.2d 845, 847, and citations. We are unwilling to admit we give too much or too little consideration or weight to any part of the evidence.

III. The mother of the children, Nedra's only child, left them in Jefferson and Coon Rapids, respectively, about two years before the hearing herein on August 17, 1967. She was apparently living then in California where she became involved in serious violations of the criminal law.

On February 10, 1967 the sheriff at Jefferson went to Nedra's home in search of Ruby, the children's mother, and her male companion upon a verbal complaint received from Los Angeles that the two were fugitives from the State of California and considered dangerous. Nedra refused to let the sheriff search her home. This was within her rights since the officer had no search warrant. About four hours later, at 4:00 a.m., the sheriff returned to the home with what we understand was a search warrant and made a search. However, Nedra met him at the door, again refused permission for the search, and said 'they' were not there. The sheriff later found Ruby and her companion who said they had been in Nedra's home. This evidence was received without objection. In any event, the sheriff observed living conditions in the home at the time.

The home was not divided into rooms and the one living space seemed to be shared by Nedra, her mother and Terry. Although three beds were in the room, only one appeared to be occupied--by these three persons. The sheriff testified the home was not very clean and he told Nedra he would call attention of the welfare office to what he saw and that this was no way for a child to be brought up. On July 6 the sheriff served Nedra in the same home with notice of the hearing on the information filed herein and he testified living conditions there had not changed since February 10.

Mrs. Sutherland, with the county department of social welfare, is the social worker to whom the sheriff made complaint following his visit to Nedra's home. She had been in the home previously, observed conditions there, and tried to suggest to Nedra improvements in them; she was particularly concerned about the lack of privacy between the three occupants; the home was not modern, the bath tub was without running water or drainage facilities; there was no toilet and no plumbing facilities. Mrs. Sutherland testified she told Nedra about the complaint by the sheriff but, except that curtains were put around a bed for Terry several months later, conditions remained about the same until after notice of the hearing was served upon Nedra on July 6.

There is little doubt the house above referred to was inadequate and undesirable as a home for Terry. Witnesses for him and Nedra so testified. A long-time friend for whom Nedra worked possibly an hour a day said the house was not a fit place for the boy. One of the main points appellants press upon us is that about a month before the hearing, after notice thereof was served upon her, Nedra moved to a more desirable home where Terry had a room of his own and there was a bathroom with plumbing facilities.

Nedra, a widow of 50, has had difficulty with the law although her troubles in this regard were minor compared to her daughter. Perhaps the less said about the daughter the better except that it would be unthinkable to return Terry--or his sister--to her. In 1959 Nedra was arrested on a charge of operating a motor vehicle while intoxicated; the charge was reduced to reckless driving for which she paid a fine. In March 1961 she was fined for intoxication and on another occasion she was arrested and paid a fine for petty larceny.

The sheriff testified he had frequently seen Nedra in bars and taverns but has had little difficulty with her since her husband died about two years previously. Nedra said she has had no difficulty with the law, nor gone to a tavern or used intoxicants in the past two years. Her husband was frequently in trouble with the law and served a term in the penitentiary.

Terry has an I.Q. of 79, high borderline retarded, was not succeeding in his school work and unable to keep up with his class. In January 1967 he was placed in a special education class where at first he was timid and didn't know quite how to play with the other children. However, after a few weeks he adjusted well to the class and seemed to enjoy it. His teacher testified he and his clothing were clean and his attendance record was excellent although it had been poor in his regular class, he was doing good work and should continue in special education. She expressed the opinion it would be harmful to the boy to move him to another home. This view was apparently largely based on the affection of the boy for his grandmother and hers for him.

Terry's adjustment to the special education class and improvement in his school work there is also pressed upon us as a reason for leaving him with Nedra.

William Augustus, the boy's paternal grandfather, testified he didn't feel a change in custody was necessary but if the court decided it was best for the boy to make a change he and his wife would be receptive to taking him into their home. He is 54, she is 51. He is custodian at the school and his wife helps him there part time. They are well respected in Coon Rapids. At the time of the hearing one son was serving in the army and their younger living son was a junior at Iowa State University. Mr. Augustus has visited Terry at Jefferson once a month or oftener the past two years and takes his sister there to visit. The boy and girl get along well together and love each other deeply. Terry has visited in the Augustus home at times and is no stranger there.

There is no special education class in Coon Rapids but students from there in need of such classes are taken 20 miles to Carroll daily. Mr. Augustus receives A.D.C. for the little girl and if Terry goes to his home to live would also receive A.D.C. for the boy.

IV. Notwithstanding the matters urged upon us in the briefs for appell...