C. and K., In Interest of, 67721

• Decision Date: 21 July 1982
• Docket Number: No. 67721,67721
• Parties: In the Interest of C. AND K., Children.
• Court: Iowa Supreme Court

Page 76

322 N.W.2d 76

In the Interest of C. AND K., Children.

No. 67721.

Supreme Court of Iowa.

July 21, 1982.

Thomas J. Miller, Atty. Gen., John G. Black, Sp. Asst. Atty. Gen., and Brent D. Hege, Asst. Atty. Gen., for appellant State of Iowa.

Jerry R. Foxhoven of Critelli & Foxhoven, PC, Des Moines, for appellee mother.

Victoria L. Meade of Marks, Marks & Marks, Urbandale, guardian ad litem for the children.

Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, HARRIS, and LARSON, JJ.

HARRIS, Justice.

This child termination case was brought pursuant to section 232.116(5), The Code 1981. As often happens, the interests of the childrens' mother, herself a child victim of poverty and neglect, are pitted against the needs of her two children. The trial court held that the State failed in its burden to show by clear and convincing evidence that the children could not be returned to their mother's custody. § 232.116(5)(c), The Code. On our de novo review we conclude the State carried its burden. We think irreparable harm would certainly befall the children if they were entrusted to their mother. This conclusion requires us to consider and reject the mother's constitutional challenges to the termination proceeding. We reverse the trial court.

We should note that there is no appeal from that part of the trial court order which terminated the parent-child relationship between the children and their respective fathers. In each case the father had never had contact with the child and was rightly adjudged to have abandoned them. Only the relationship with the mother is involved in this appeal.

Tragedy and poverty generally go hand in hand in factual recitations in parent-child termination proceedings. Even so the facts here are exceptionally pathetic. The mother expresses a strong desire, which we accept as sincere, to regain custody of her children. Her shortcomings lie not with her wishes but in her indolence and woeful lack of inherent capacity. Though she wishes she could, she simply cannot function as a rational adult and mother. To whatever extent her surroundings have been made livable, even sanitary, all credit must go to the considerable efforts of the department of social services in Polk County. These efforts, attempting to mold the appellee into a functioning adult and mother, have been herculean, long suffering, and fruitless.

The two children, Christopher, born August 10, 1978, and Katherine, born November 24, 1979, were adjudged to be in need of assistance in an order entered September 26, 1980. The basis of the adjudication for Katherine was section 232.2(5)(b), The Code. For Christopher it was sections 232.2(5)(b) and (g), The Code. In transferring custody of children to the department of social services the trial court detailed the conditions which necessitated their removal:

Allowing the children to live in a residence where chickens and pigs are raised, where it is extremely dirty and filthy with cockroaches, where the children have inadequate meals prepared, where the natural mother fails to provide adequate food due to spending money on other items, where animal feces is commonly found on the floors and in the vicinity where the children play, where the children are allowed to retrieve candy from animal feces and continue eating the candy, where a chicken was trying to pick the scab off the head of one of the children while the child was sitting on the floor, where marijuana is found in the house together with a hash pipe, where the children sleep on mattresses that are wet and soaked with urine, living in a home where there are no diapers, bottle brush, toilet paper, wash rags and towels, sheets, soap, shampoo, table, highchair, curtains, pillows, mattress cover, where one of the children deficated in the tub while the child was receiving a bath and the tub was not cleaned for a week, where the mother took a wash cloth and wiped feces from the leg of one of the children and then immediately wiped his face with the same wash cloth, where the children are found with impetigo, nutritionally deficient with numerous insect bites and smelling dirty with a urine odor and diaper rash, where rotten meat has been found in the refrigerator, where the children have been put in the bath tub with water and the mother has left the room, where one of the children was admitted to the hospital for failure to thrive with maternal deprivation.

The described conditions were those in the home of Cheryl's mother, with whom Cheryl resided at the time. In these proceedings, and on this appeal, it is strenuously contended in behalf of Cheryl that these conditions no longer exist for her, now that she lives apart from her mother. It is pointed out that Cheryl's shortcomings differ vastly from the shortcomings of her mother and that the contrast must be credited as improvement. Resolution of the requirements of the statute is however not that simple. Cheryl's tragic background is only background. It does not mark a starting point from which any improvement would call for a safe return of her children. Children's safety cannot depend on so fragile a thread. It will not satisfy the statute to move merely from degradation to an environment still dangerously unsafe for children.

I. As an essential element to establish ground for termination the State must show "there is clear and convincing evidence that the child cannot be returned to the custody of his or her parents ...." § 232.116(5)(c), The Code. We have long adhered to the clear and convincing evidence standard. In Interest of Dameron, 306 N.W.2d 743, 744 (Iowa 1981). The clear and convincing evidence standard is a requirement under the United States Constitution. Santosky v. Kramer, 455 U.S. 745, ----, 102 S.Ct. 1388, 1402, 71 L.Ed.2d 599 (1982).

Doctor Herbert L. Notch, a clinical psychologist, conducted extensive tests and evaluations of Cheryl. Understandably, he found Cheryl to be notably depressed. She does not look on life's situations quickly enough to deal with them effectively. She has a lack of insight and poor impulse control which prevent her from dealing realistically with social limits. Significantly, she has a low self-concept and body concept. Testifying of Cheryl's histrionic disorder the doctor said:

A. It has to do with over-reaction to normal situations where the limited insight and inability to assess the situation in ordinary terms of understanding would suggest that the patient might react with an excess of anxiety and consequently behavioral outcomes would be changed.

Q. Going back for a second to the borderline functioning findings, Dr. Notch, are you able to determine from your testing about what level this individual was functioning intellectually? A. That's difficult to assess, because the standard deviation on any of the intellectual testing done is ten points either way, either side of a score. So that on a given test, you couldn't really use a specific score and say that it is accurate within more than about ten points either way.

Q. From all of your tests taken together, would you be able to make a finding or a statement regarding at what level you would believe this person to be functioning? A. Borderline intellectual functioning.

Q. But you could not assign, like, an average level to that; is that correct? A. No. I would expect generally with borderline functioning depending on the person's environment assets and stimulation from early childhood and gross experience, that would change.

Q. Is intellectual--borderline intellectual functioning itself likely to change much during a person's lifetime? A. That's generally an irreversible concept.

Q. Are the conditions which result from that, such as I believe you say problems with abstracting and poor impulse control, are they also unlikely to change? A. They can change with training and behavior management, but they would not change from an impetus from within the person.

Q. Are you saying there would have to be some outside control? A. Generally speaking, yes.

Q. Would that have to be ongoing probably? A. At least in a monitoring sense.

A parade of witnesses validated Dr. Notch's dismal observations. Cheryl could not be driven, even by way of two written contracts with social workers, to bathe regularly. Her personal hygiene was deplorable. She often slept in her clothes and was most indiscriminate about whom she slept with. We choose not to repeat in this published opinion the specific details of this unfortunate young woman's lack of hygiene. It seems unfair to do so. It should be sufficient to say that among all the alarming facts in this record we find her uncleanliness especially depressing.

Cheryl shared a number of apartments with various persons, more often male than female. During a five-month period following the time the children were removed from her she seems to have moved no less than six times. During this time, as will later be explained, Cheryl was furnished a myriad of welfare services, including those of a housekeeper. The housekeeper was to help clean the various apartments and instruct and train Cheryl to do so. This proved an impossible burden. Except for the efforts of the housekeeper, one of Cheryl's male companions, and those who may have cleaned the various apartments immediately before Cheryl moved into them, Cheryl's surroundings seem always to have been uniformly filthy. Upturned ashtrays, cans, and various debris were often found on the floor, dirty dishes uniformly were found in the sink, spoiled food was on top of the counter of the kitchen, and dirty laundry in the clothing basket. In addition to whatever other deficiencies from which Cheryl suffers, an overriding one seems to be that of marked indolence. Notwithstanding continued efforts by the welfare officials and helpers, and although Cheryl must have somehow realized the stakes were very high, it was impossible to persuade Cheryl to get out of bed in the morning, to bathe,...