Hochmuth, In Interest of, 3-59244

Decision Date16 March 1977
Docket NumberNo. 3-59244,3-59244
Citation251 N.W.2d 484
PartiesIn the Interest of Penny Annie Helen HOCHMUTH et al. Appeal of Joyce HOCHMUTH.
CourtIowa Supreme Court

Bertram B. Metcalf, Davenport, for appellant.

Richard C. Turner, Atty. Gen., Theodore R. Boecker, Asst. Atty. Gen., and Thomas G. Schebler, Asst. County Atty., for the State.

J. Michael Hobert, Davenport, for the minor children.

Heard by MOORE, C. J., and MASON, RAWLINGS, LeGRAND and UHLENHOPP, JJ.

LeGRAND, Justice.

This is an action brought under § 232.41(2), (b) and (d), The Code, 1973, to terminate the parental rights of Wayne Hochmuth and Joyce Hochmuth to their three minor children, Penny, Joseph and Timothy. The juvenile court ordered the rights of the parents terminated. We affirm.

Wayne does not appeal, and the order of termination is final as to him. We discuss this case on appeal as though Joyce were the sole parent involved.

I. At the time of the hearing, Joyce was 36 years old. She and Wayne had then been divorced almost three years. Penny was 9 years old, Joseph was 6 years old, and Timothy was 4 years old. Joyce has been married five times. Wayne was her fourth husband. After her divorce from Wayne, she married again but that marriage, too, had ended in divorce before the time of hearing in this case.

The transcript of evidence covers 586 pages. Much of it is devoted to a detailed description of the stormy marital life of Joyce and Wayne with its inevitable adverse effect on the children. Although Wayne is not a party to this appeal, and although only Joyce's parental rights are concerned, our discussion involves him as much as her because the testimony shows conclusively Wayne was, and remains, a disturbing influence in Joyce's ability to manage her life, her home, and her children. Her continuing destructive relationship with Wayne, with its accompanying fighting and violence, has caused her to lose jobs and to be evicted from several places of residence. It has also caused her physical harm and emotional trauma.

Joyce and Wayne each came from homes in which one or both parents were alcoholics. Both of them admit they, too, are alcoholics. There is evidence that Wayne first became intoxicated at the age of seven. He has been drinking intoxicating liquor ever since with only rare periods of abstinence. Joyce first began drinking intoxicants when she was thirteen. She has continued to do so ever since although she has made determined, though futile, efforts to stop.

Both have been convicted of criminal offenses and have spent time in penal institutions. Both, too, have been patients in institutions for the treatment of alcoholism. Within the past ten years, Joyce has been attended for alcoholism in Oakdale Sanitarium, Scott County Mental Health Center, Mercy Hospital, St. Anthony's Hospital, Alcoholism Treatment Center at Mt. Pleasant State Hospital, East Moline (Illinois) State Hospital, Rock Island (Illinois) Mental Health Center at Franciscan Hospital, and Bethany Home. She has also sought help from Alcoholics Anonymous and marriage counseling from Family and Children's Services in Davenport, Iowa. By her own admission she has been unable to conquer her alcoholism for any extended period.

Most of the testimony was from social workers who have been assigned to the Hochmuth case over the years. Perhaps the most important evidence, however, came from Dr. Rip O'Keefe, a psychologist and director of the Alcoholic Treatment Program at Franciscan Hospital in Rock Island, Illinois, where Joyce was a patient for an extended period. Dr. O'Keefe's association with Joyce extended over thirty to forty treatment sessions covering three or four months. Some sessions lasted as long as an hour, some less. Thereafter Joyce was employed by Dr. O'Keefe at the Alcoholic Center but that employment was terminated after a few months by what he called "mutual consent."

Dr. O'Keefe (and several of the other witnesses as well) emphasized the part which Wayne continued to play in Joyce's life even after their divorce. According to Dr. O'Keefe there is little hope for her rehabilitation as long as Wayne intrudes on the scene. They are, according to this witness, "bad for each other." Joyce says Wayne forces his presence upon her against her will. Other evidence suggests otherwise. Certainly they enjoy drinking together. Their whole relationship before, during and after marriage has been premised on that common interest.

When Wayne is around, it is apparently impossible for Joyce to stay away from liquor. Inevitably, they end up, as they always have, on an uncontrolled drinking spree. Inevitably, too, this terminates in violence. From time to time Wayne has caused serious personal injury to Joyce. These episodes include one stabbing incident; a broken nose; a broken eardrum; and lacerations about the head and face. Once he hit her so hard her teeth went through both her upper and lower lips. Several of these beatings have resulted in hospitalization for as long as ten days. Some of this violence took place in front of the children.

In spite of this history, Wayne continues to seek her out from time to time, probably when he feels the need of a drinking companion. She confesses she is unable to stand up to him and that he bullies her now, just as he did when they were married. Wayne did not testify, and these charges are unrefuted.

Virtually all of the witnesses describe Joyce as a warm, affectionate, likeable person. She is honest, forthright and has great affection for her children. She has the ability to be an outstanding parent when she is sober.

These same witnesses, however, say that when Joyce is drinking everything is subordinated to her passion for liquor. Her home, ordinarily neat and clean, then becomes a shambles. Her children are neglected and left to fend for themselves. They are dirty and do not have proper clothing. Sometimes they are without food. On occasion Penny, the oldest, was left to mother the two younger ones, although she herself was then only five or six years old. According to Dr. O'Keefe, when Joyce is drinking, she is demanding, hostile, aggressive, belligerent and combative.

Eventually the very persons who had high hopes for her ultimate rehabilitation became the most pessimistic about her chances. Dr. O'Keefe, for instance, first felt that Joyce would rehabilitate herself. He now says her chances for recovery are "minimal." He bases this on the duration of her habit and the fact that even when not drinking she does not lead a productive life. She has over the years been unable to hold employment and has been moved from house to house. Occasionally she has no place to live and is reduced to moving in with friends. According to Dr. O'Keefe, she is always "just waiting for the next drunk." He points to her continued relationship with Wayne as being one of the reasons she can't arrange her own life.

One social worker expressed the opinion that when Joyce was sober she was "a remarkable mother." She also testified she did not believe parental rights should be terminated. The other witnesses disagreed with her.

While testifying, Joyce freely admitted there were times when she felt unable to care for her children. On several occasions she voluntarily placed them with the Board of Social Welfare for foster home care. She said she did so because she was "a mental wreck." Now she says she has recovered and feels certain she can do a good job with them. However, she was honest enough to admit that she was not certain she had beaten the drinking habit. At the time of hearing, she conceded she had been drinking within the past six weeks but not heavily "except on occasion." She admitted, too, that her heavy drinking resulted in some unfortunate experiences for the children.

During 1975 Penny and Joseph each attended six different schools. Both of them have learning and emotional problems. Penny is described as a bright, spontaneous and inquisitive child but one who is functioning, both academically and socially, on a lower level than average for a child of her age.

Joseph, who was in second grade at the time of hearing, was also functioning academically and socially far below what would be considered average for a child of his age. Joseph has a rather serious speech defect for which he was receiving special speech therapy. He also is encopretic, a condition diagnosed as emotional rather than physiological.

Timothy, the youngest of the three children, has a speech problem for which he was receiving speech therapy.

From 1970 until the 1975 hearing, there were ten or eleven separate periods of temporary placement for these children, some voluntary, some not. During that period they spent 31 months in foster homes.

The foregoing is the factual basis upon which the juvenile court terminated the parental rights of both parents.

II. We set out the statutory provisions under which this action was brought (§ 232.41(2)(b) and (d)):

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

"1. * * *

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

"(a) * * *

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

"(c) * * *

"(d) That the parents are unfit by reasons 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) * * * "

Joyce raises the following propositions for reversal:

1. The evidence is insufficient to justify termination of her parental rights;

2. The trial court erred in admitting the testimony of Dr. O'Keefe;

3. The trial court erred in admitting over proper objection a release signed by Joyce Hochmuth authorizing Dr. O'Keefe to divulge information concerning her condition and treatment;

4. The trial court erred...

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