Kelly, In Interest of, s. 3--58162

• Decision Date: 17 December 1975
• Docket Number: 3--58349,Nos. 3--58162,s. 3--58162
• Citation: 236 N.W.2d 50
• Parties: In the Interest of Jeffrey Scott KELLY, a child.
• Court: Iowa Supreme Court

Page 50

236 N.W.2d 50

In the Interest of Jeffrey Scott KELLY, a child.

Nos. 3--58162, 3--58349.

Supreme Court of Iowa.

Dec. 17, 1975.

Norman, Younggren & Webber, keokuk, for appellant.

Richard C. Turner, Atty. Gen., Lorna Lawhead Williams, Sp. Asst. Atty. Gen., Theodore R. Boecker, Asst. Atty. Gen., and Barry M. Anderson, Lee County Atty., for appellee.

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

UHLENHOPP, Justice.

This appeal involves the propriety of an order placing a child in the Iowa Training School for Boys and the constitutionality of a statute denying a stay pending the child's appeal.

Jeffrey Scott Kelly, born February 8, 1959, lived with his mother and stepfather in Keokuk, Iowa, at the inception of these proceedings. In 1973 the county attorney filed a petition charging that Jeffrey was dependent, neglected, and delinquent. The county attorney twice amended the petition, and on July 19, 1974, a judge of juvenile court (Hendrickson, J.) held a hearing and found Jeffrey to be dependent, neglected, and delinquent. This valid finding is the point of departure for examining all the dispositional proceedings which followed. In the same order in which he made that finding, Judge Hendrickson ruled by way of disposition that 'the custody of the said minor be placed with the Department of Social Services, State of Iowa, for placement in the State Juvenile Home at Toledo, Iowa,' and that the matter 'will be continued until further order of this Court.'

Pursuant to Judge Hendrickson's order, Jeffrey went to Toledo, but soon after he entered the institution he cut his wrist in an apparent suicide attempt. The authorities there thought he needed evaluation and treatment and sent him to the Iowa Mental Health Institute at Mt. Pleasant. Jeffrey and two other boys thereafter ran away from the Institute; the State claims they went to Missouri in a stolen motor vehicle. After the boys were returned to Mt. Pleasant, staff members heard rumors that the boys were going to 'mutiny.' Jeffrey claims that authorities at the Institute thereafter mistreated him and the other boys.

Jeffrey's mother objected to the treatment at Mt. Pleasant, and another judge of juvenile court (Cahill, J.) held a hearing on November 4, 1974. He let the original order stand but authorized the probation officer to place Jeffrey temporarily in the Nancy Hunt Home in Ft. Madison pending further hearing on the alleged abuse at Mt. Pleasant. When problems developed at that Home, Judge Cahill ordered Jeffrey returned to the Juvenile Home at Toledo pending the hearing regarding Mt. Pleasant. While at the Toledo Home the second time, Jeffrey ran away at least once.

On January 24, 1975, another judicial officer of juvenile court (Phelan, Judicial Magistrate) conducted a hearing. This extensive hearing dealt with the Mt. Pleasant incidents. After the hearing, the magistrate ordered Jeffrey evaluated at the Iowa Training School for Boys preparatory to a full hearing regarding proper disposition of Jeffrey's case on its merits. The School made the evaluation and rendered a report.

On March 7, 1975, the magistrate held the final hearing in the series and considered the Training School report, other reports in the case, and oral testimony. The gist of the Training School's report was that the best opportunity for truly involving Jeffrey in a therapeutic process would be at that School. At the conclusion of the hearing, the magistrate confirmed Judge Hendrickson's original order of July 19, 1974, but changed the placement from the Juvenile Home to 'the Iowa State Training School for Boys . . . until further order of this Court . . ..'

Jeffrey moved the magistrate to stay the placement order pending an appeal from that order, contending the statute which provides that appeals do not suspend such orders is unconstitutional. See Code 1975 § 232.58. The magistrate overruled the motion.

Jeffrey appealed, raising several issues. The parties involved appeared and had counsel at the various hearings.

I. Retention of Jurisdiction Originally. Jeffrey first contends that when Judge Hendrickson placed custody with the Department of Social Services the juvenile court lost jurisdiction to the Department despite the judge's attempted reservation of jurisdiction by continuing the matter; hence, Jeffrey says, all of the subsequent dispositional proceedings by the court were void.

We pass the question whether the three subsequent proceedings could be considered new cases, with jurisdiction newly acquired. Jeffrey's difficulty is in the assumption that Judge Hendrickson disposed of Jeffrey as a delinquent rather than as a dependent and neglected child.

Section 232.33, relating to dependency and neglect, and § 232.34, relating to delinquency, list the dispositional alternatives. Subsection 4 of each section provides that the court may '(c)ommit the child to the commissioner of social services or his designee for placement.' Then § 232.35 provides, 'Commitment to the state director shall vest guardianship of the person of the child so committed in the state director and Shall terminate the court's jurisdiction.' (Italics added.) Thus a juvenile court does, as Jeffrey asserts, lose jurisdiction when it commits under § 232.33(4) or § 232.34(4).

But § 232.33 contains a pertinent provision which § 232.34 does not. Under § 232.33(3)(b), the court may on finding dependency or neglect '(t)ransfer legal custody of the child, Subject to the continued jurisdiction of the court, to . . . the state department of social services.' (Italics added.)

Judge Hendrickson found Jeffrey dependent and neglected and also delinquent and could dispose of the case under either § 232.33 or § 232.34, or first under one and then under the other if the first disposition did not prove successful. § 232.36. Under § 232.33(3)(b), Judge Hendrickson could transfer custody of Jeffrey to the State Department of Social Services 'subject to the continued jurisdiction of the court.' From the language of Judge Hendrickson's order, this is what we think he did. Hence the juvenile court retained jurisdiction for the dispositional proceedings which followed. See In Interest of De Rocher, 187 N.W.2d 730 (Iowa).

Section 232.36 permits a juvenile court to make other dispositions so long as it retains jurisdiction. Since the juvenile court retained jurisdiction here, it could proceed under § 232.36 to hold the subsequent dispositional proceedings.

We thus reject Jeffrey's first contention.

II. Commitment to Juvenile Home or Training School. Next Jeffrey argues that even if the juvenile court retained jurisdiction, Magistrate Phelan could not commit him to the Training School because the record did not contain substantial evidence that he eloped to Missouri in a stolen motor vehicle and also for want of substantial evidence that he should in fact be...