Kester, In Interest of, 2--57497
| Court | United States State Supreme Court of Iowa |
| Citation | 228 N.W.2d 107 |
| Docket Number | No. 2--57497,2--57497 |
| Parties | In the Interest of Lynette R. KESTER and Robert J. Kester, Children, Cheryl Kester, Appellant. |
| Decision Date | 16 April 1975 |
Page 107
Cheryl Kester, Appellant.
Page 108
Robert W. Brinton, Clarion, for appellant Cheryl Kester.
Richard C. Turner, Atty. Gen., Lorna Lawhead Williams, Asst. Atty. Gen., and William A. Long, Eagle Grovr, for appellee State of Iowa.
Larry E. Ivers, Clarion, for appellee children.
Heard by MOORE, C.J., and RAWLINGS, REES, UHLENHOPP and McCORMICK, JJ.
McCORMICK, Justice.
This is an appeal by the mother from a trial court decree terminating the parent-child relationship between two children and their natural parents. We affirm.
The children involved are Lynette R. Kester, age 5, and Robert J. Kester, age 4. The parents are Robert and Cheryl Kester, who married in 1968 and were still married at the time of trial.
The action was commenced by a petition filed by the Wright County Attorney April 8, 1974, alleging three grounds for termination of the parent-child relationship. These grounds were based on § 232.41(2)(a), (b), and (d), The Code. Those provisions are:
'The court may upon petition terminate the relationship between parent and child:
2. If the court finds that one or more of the following conditions exist:
a. That the parents have abandoned the child.
b. That the parents have substantially and continuously or repeatedly refused to give the child necessary parental care and protection.
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.'
Page 109
The father, residing in Montana, was duly served with notice of the termination proceeding but elected through counsel not to appear and resist the petition. The mother, incarcerated in the Women's Reformatory at Rockwell City, did appear with appointed counsel and resist. Attorney Larry E. Ivers was appointed to represent the children.
Evidence was taken on two days in June 1974. The trial court filed findings of fact, conclusions of law, and the decree of termination on July 22, 1974. The court found the evidence was sufficient to sustain all three grounds for termination.
The determinative question in the mother's appeal is whether the evidence is sufficient to justify termination of her parental relationship with the children on any of these grounds.
Principles governing our review are explained in In Interest of Wardle, 207 N.W.2d 554, 556--557 (Iowa 1973). Review is de novo. The best interests of the children are paramount. The presumption that the interests of children are best served by leaving them with their parents must give way when it conflicts under the evidence in a given case with the State's duty to see that every child within its borders receives proper care and treatment.
We believe the evidence is sufficient in this case to require termination on the ground of the mother's substantial and continuous refusal to give the children necessary parental care and protection. § 232.41(2)(b), The Code. We do not reach the issue of the sufficiency of the evidence on the other two grounds relied on by the State.
Cheryl was 18 when she married Robert Kester in 1968. Lynette was born in 1969, and Robert in 1970. By 1970 the parents were involved with drugs. Cheryl developed a drinking problem and on occasion used marijuana, LSD, and heroin.
By 1971 the county department of social services was receiving complaints that the children were being neglected. The parents separated. Cheryl started receiving Aid to Dependent Children benefits. She also commenced a relationship with James Bakey.
In August 1971 Cheryl was convicted of disturbing the peace and sentenced to 14 days in jail. The children were placed in foster care and remained there until November 1971 when they were returned to her. A neighbor testified that Cheryl had numerous male visitors at various times of the day and night during two months in the winter of 1971--1972....
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Alsager v. District Court of Polk Cty., Iowa, Civ. No. 73-79-2.
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