Kester, In Interest of, 2--57497

CourtUnited States State Supreme Court of Iowa
Citation228 N.W.2d 107
Docket NumberNo. 2--57497,2--57497
PartiesIn the Interest of Lynette R. KESTER and Robert J. Kester, Children, Cheryl Kester, Appellant.
Decision Date16 April 1975

Page 107

228 N.W.2d 107
In the Interest of Lynette R. KESTER and Robert J. Kester, Children,
Cheryl Kester, Appellant.
No. 2--57497.
Supreme Court of Iowa.
April 16, 1975.

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.


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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32 cases
  • S. D., Matter of, 2530
    • United States
    • Supreme Court of Alaska (US)
    • 7 de abril de 1976
    ...Pannick, 540 P.2d 1051 (Alaska 1975).12 In the Interest of Stacey, 16 Ill.App.3d 179, 305 N.E.2d 634, 638 (1973).13 In the Interest of Kester, 228 N.W.2d 107 (Iowa 1975).14 In re S.M., 39 Cal.App.3d 40, 113 Cal.Rptr. 847 (1974).15 In re J.Z., 190 N.W.2d 27 (N.D.1971).16 In re Johnson, 9 Wis......
  • Alsager v. District Court of Polk Cty., Iowa, Civ. No. 73-79-2.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • 19 de dezembro de 1975
    ...144 N.W.2d 97 (1966); In re Yardley, 260 Iowa 259, 149 N.W.2d 162 (1967); In re Robbins, 230 N.W.2d 489 (Iowa 1975); and In re Kester, 228 N.W.2d 107 (Iowa 1975). 10 In Morrison, supra, at 103, the Iowa court brushed aside a vagueness challenge to standards embodied in § 232.41(2)(b), (c) a......
  • Price, In Interest of, 52751
    • United States
    • Court of Appeals of Kansas
    • 6 de maio de 1982
    ...In re Turner, 12 Ohio Misc. 171, 231 N.E.2d 502 (1967); In re East, 32 Ohio Misc. 65, 288 N.E.2d 343 (1972); and In Interest of Kester, 228 N.W.2d 107 (Iowa 1975). Later events have virtually eliminated the precedential force of the opinions relied on by the father. Each of the two intermed......
  • Lewis, In Interest of, 3-59203
    • United States
    • United States State Supreme Court of Iowa
    • 31 de agosto de 1977
    ...only because the juvenile court theorized Barbara and Robert were entitled to yet another or third chance. But see In Interest of Kester, 228 N.W.2d 107, 110-111 (Iowa 1975). Admittedly, a fact situation could arise which would make it difficult to determine on which side of the line that p......
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