Henderson, In re, 55080

• Decision Date: 29 June 1972
• Docket Number: No. 55080,55080
• Citation: 199 N.W.2d 111
• Parties: In the Interest of John HENDERSON, a child, Appellee. STATE of Iowa, Appellee, v. Ida Mae HENDERSON, a mother, Appellant.
• Court: Iowa Supreme Court

Page 111

199 N.W.2d 111

In the Interest of John HENDERSON, a child, Appellee.

STATE of Iowa, Appellee, v. Ida Mae HENDERSON, a mother, Appellant.

No. 55080.

Supreme Court of Iowa.

June 29, 1972.

David P. Miller, Davenport, for appellant.

Alan R. Havercamp, Davenport, for child, appellee.

Richard C. Turner, Atty. Gen., Lorna L. Williams, Sp. Asst. Atty. Gen., and Thomas G. Schebler, Asst. County Atty., Davenport, for appellee.

REES, Justice.

This is an appeal by Ida Mae Henderson, mother of John Henderson, from a decree entered in a juvenile proceedings under chapter 232.2, The Code, 1966, as amended. The child, John, was found to be a dependent child within the contemplation of section 232.2(14)(b), and a delinquent child under the provisions of section 232.2(13)(c), The Code. Following a hearing, the court ordered John to be placed in the custody of an uncle in Elgin, Illinois, where he spent the summer months of 1970. John returned to Davenport to school in the fall, but was suspended in January, 1971, and ordered placed in the Iowa Annie Wittenmyer Home pending adjudication on the original petition.

Subsequent to a hearing on the petition, the trial court entered its findings of fact and conclusions of law finding expressly that John was both dependent and delinquent, and ordering him institutionalized at the Annie Wittenmyer Home. The mother appeals. We affirm.

At the outset we feel impelled to comment on the fact counsel appointed to represent the child joined in this appeal with counsel for the State in the filing of the brief and argument. Separate counsel was appointed to represent the child as provided by section 232.28, The Code. In this appeal the child's counsel joined with the State, signed the same brief, and joined in State's argument. We are not disposed to criticize counsel for the child in this instance, but point out the necessity of complete independence on part of a child's counsel in such proceedings. He should stand alone, aloof from both the State and the parents. When in his professional judgment the best interests of the child coincide with the interests of another party, he should present those interests accordingly, but independently.

John Henderson was born in Arkansas on July 8, 1956, and moved to Iowa with his mother approximately two and one-half years before the institution of proceedings in this case. He is the second of Mrs. Henderson's ten children and her oldest son. The whereabouts of his father is unknown. The mother supports the family by means of a grant from the ADC program and by part time work as a maid. John had been attending Sudlow School in Davenport prior to his suspension and had been living at home with his mother and the other members of the family. He had attended Sudlow School since August of 1970, and prior to that time had attended Lincoln School.

We feel called upon to set forth a rather detailed narration of the facts and circumstances leading to the filing of the petition by a Scott County deputy probation officer on May 27, 1970, in which it was alleged John was both dependent and delinquent.

Mr. Spencer, principal of the Sudlow School since August of 1970, and prior to that principal of Lincoln School, testified on the hearing that John had been suspended for his actions and conduct relating to a girl student and for 'other incidents'. Spencer testified John had problems relating to his peer group--he responded by hitting, biting and using 'socially unacceptable language in a school setting'; he was getting 'more difficult to handle' in his contacts involving female students, and had directed his unwanted attentions, including one or more physical assaults and the use of obscene language over the telephone, upon one particular girl, causing her to fear for her safety and to develop an extremely nervous condition. John had a problem controlling his emotions and could possibly be re-admitted to the public schools but was probably headed for expulsion despite the willingness of the school authorities to work with him.

Miss Otting, a teacher of 17 years experience, who testified she 'liked' John, expressed the view the boy needed help more than any of her other students; that he could not 'make it' in the regular seventh grade because he was unable to read the books at that level and seemed to do better work when he was in smaller classes.

Mr. Hebrank, a teacher of seven years experience, testified he had broken up several fights between John and other boys, that John had threatened 'to get' people with whom he was provoked, and made no effort to control his temper. Hebrank advanced the view John needed special care and counseling.

Mr. Schalon, Senior Clinical Psychologist, Mental Health Center, testified John needed more than verbal therapy and would benefit from a structured setting outside the home.

Mr. Zager, a social worker, had prepared reports introduced as State's exhibits which indicated John's mother was unable to cope with the boy's problems, and that he should be removed from the home and institutionalized in order to make any progress.

Dr. Carole Buckwalter, a child psychologist employed by the Department of Social Services, testified John needed special care as he could not get along with others in his peer group, that he was having trouble in school, exercised poor judgment, and lacked impulse control. She stated John needed a structured environment where he could learn the social amenities, obtain academic and vocational help within his ability and that he would benefit by the presence of an adult male.

Upon the above summarized evidence, the court determined the child was both dependent and delinquent, and that his best interests required his placement in the Annie Wittenmyer Home.

In her appeal, the mother urges three propositions:

(1) Section 232.1 to section 232.62, The Code, are unconstitutional in light of the Gault decision (In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527);

(2) The same sections are violative of equal protection; and

(3) The petitioner failed to establish either delinquency or dependency beyond a reasonable doubt.

I. Proceedings of this nature are neither criminal nor penal in nature, but rather are special proceedings with the best interest of the child as the objective. In re Delaney (Iowa 1971), 185 N.W.2d 726, 728, and citations. Our review is De novo. Rule 334, Rules of Civil Procedure. We give weight to the findings of the trial court, but are not bound by them. Rule 344(f)(7), R.C.P.

II. Due process must be afforded in juvenile proceedings. In re Delaney, Supra, 185 N.W.2d at 729; In re Interest of Chambers, 261 Iowa 31, 36, 152 N.W.2d 818, 822; McKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S.Ct. 1976, 1985, 29 L.Ed.2d 647; In re Winship, 397 U.S. 358, 359, 90 S.Ct. 1068, 1069--1070, 25 L.Ed.2d 368; In re Gault, Supra, 387 U.S. at 30, 87 S.Ct. at 1445.

III. Appellant-mother advances several bases upon which she asserts the statute (Chapter 232, Code) is unconstitutional. We shall treat each brief point separately:

(1) Appellant asserts §§ 232.3, 232.4, 232.11 and 232.12, The Code, are unconstitutional in that they fail to provide adequate, fair, and effective notice of charges and proceedings and thus deny due process. More to the point, she asserts a petition must contain evidentiary material such as acts, time and place of occurrence thereof, names of witnesses who will appear for the petitioner, rather than merely stating ultimate facts. She further argues that the introduction of testimony concerning acts and conduct of the child subsequent to the filing of the petition is a denial of due process.

In In re Gault, Supra, 387 U.S. at 33, 87 S.Ct. at 1446, the court said:

'* * * Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must 'set forth the alleged misconduct with particularity.' (Report by the President's Commission on Law Enforcement and Administration of Justice, 'The Challenge of Crime in a Free Society' (1967), p. 87)'.

This court said, in Stubbs v. Hammond, 257 Iowa 1071, 135 N.W.2d 540, 543:

'Such delicate rights and duties cannot be decided against a parent without affording him due process of law. * * * He was entitled to notice. (citations). Notice of the hearing and an opportunity to be heard appropriate to the nature of the case is the most rudimentary demand of due process of law. (citations).'

Examination of the record in the matter before us establishes appellant was given notice of the hearing and had the opportunity to be fully heard and was represented by counsel at all times. She argues, however, the petition is not sufficient as it does not set out the 'particularity' of the allegations, which she contends the statute requires.

Initially, we observe that a minor may be found dependent under three separate sub-sections of § 232.2(14) and may be found delinquent under four separate sub-sections of § 232.2(13), The Code. The petition in this case contained an allegation of delinquency specifically under § 232.2(13)(c) and an allegation of dependency under § 232.2(14)(b). We believe such specificity was sufficient to apprise appellant of the nature of the proceedings and to afford her due process. We observe further that while juvenile proceedings are special in nature, appellant had available to her a motion for more specific statement under rule 112, R.C.P.

With regard to appellant's complaint the court considered occurrences taking place after the filing of the petition, we must simply state the purpose of the juvenile process is to provide care, education and training for children involved, and not to punish them. See § 232.1, Code; State v. Stueve, 260 Iowa 1023, 1028, 150 N.W.2d 597, 600. To effectively perform this function, the juvenile court must be able to have before it all available...