L.S., In Interest of, 91-477

Citation483 N.W.2d 836
Decision Date15 April 1992
Docket NumberNo. 91-477,91-477
PartiesIn the Interest of L.S., N.S. and A.S., Minor Children. L.H., Mother, G.S., Father, O.H., Maternal Grandmother, Appellants, State of Iowa and L.S., N.S., and A.S., Minor Children, Appellees.
CourtUnited States State Supreme Court of Iowa

Paul W. Demro of Clark, Butler, Walsh & McGivern, Waterloo, for appellant maternal grandmother.

Sara Kersenbrock, Waterloo, guardian ad litem for appellee children.

Bonnie J. Campbell, Atty. Gen., John M. Parmeter, Special Asst. Atty. Gen., and Kathrine S. Miller-Todd, Asst. Atty. Gen., for appellee State of Iowa.

Craig Ament, Cedar Falls, for appellant father.

Carter Stevens of Beecher, Rathert, Roberts, Field, Fister, Walker & Morris, Waterloo, for appellant mother.

Considered by McGIVERIN, C.J., and HARRIS, SCHULTZ, CARTER, and SNELL, JJ.

SNELL, Justice.

This case concerns another difficult problem involving termination of parental rights and deciding what is in the best interests of their children. Three children are affected; L.S. is a boy, age nine, N.S. is a girl, age eight, and A.S. is a girl, age six. The juvenile court determined that parental rights should be terminated and ordered custody of the three children placed with the Iowa Department of Human Services for suitable adoption placement. On appeal, the Iowa Court of Appeals reversed and remanded the case for placement in permanent foster care with O.H., the maternal grandmother. We have considered the case on further review and now vacate the decision of the court of appeals, affirm the judgment of the district court and remand for appropriate orders.

Our review of this case is de novo. We review the facts as well as the law and adjudicate the parents' rights anew. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). However, weight is accorded the findings of the juvenile court, particularly as to the credibility of witnesses. Id.

As too often happens, the status of these children has been uncertain for years. On December 8, 1986, they were adjudged children in need of assistance as defined by Iowa Code section 232.2(6)(b) and (c)(2) (1985). Their parents retained custody through review hearings on February 12, 1987, October 2, 1987, and May 3, 1988. After a review hearing on August 5, 1988, at which their mother was absent, the court ordered custody to remain with their father. That arrangement was ended on September 30, 1988, by a court order removing and placing them in foster care under the supervision of the Iowa Department of Human Services. Foster care placement has continued since then.

On May 19, 1990, a petition for termination of parental rights was filed. A review hearing was held June 15, 1990. On July 16, 1990, O.H., the maternal grandmother, intervened, asking for custody of the three children. The juvenile court heard evidence on August 13, September 6, October 10, October 15, and December 19, 1990. The order terminating parental rights was filed on March 1, 1991; the court of appeals reversed and remanded the case on October 29, 1991.

The parties from the beginning and now argue two different cases. The State presents the case for termination of the parental rights of G.S. and L.H. G.S. and L.H., on the other hand, concentrate their argument not so much on whether the State has proved the elements supporting a termination, but whether custody should be placed in the maternal grandmother. Much of this difference stems from a conflicting sociological emphasis by the parties.

The juvenile court found that the children were living in unsanitary conditions and both parents were abusing alcohol to the point they could no longer adequately supervise the children. The family home was dirty and smelled of urine. L.H., the mother, left the family home in June 1988. After L.H.'s absence the children's day care provider reported that they arrived at the center hungry, wearing dirty clothes, and were inadequately dressed for the weather conditions. G.S., the father, continued to abuse alcohol, passing out on one occasion at the elementary school from extreme intoxication. A DHS investigator found him unconscious from intoxication at his home with the children present, and no other adult to care for them. After the children were removed from the home, it was discovered that they had been sexually abused by both their father and mother. G.S. had oral, anal and vaginal sex with the children, sometimes in the presence of their mother. The mother, L.H., sexually abused the children by inappropriately fondling them and failing to protect them from G.S. L.H. and G.S. were later divorced, and G.S. married D.S.

During the time the children remained in the family home under the protective custody of DHS, various services were provided. The children attended protective day care five days per week, and homemaker services were offered on a weekly basis. Services by the public health nurse were provided at a minimum of two times a month. The court ordered that the parents participate in psychiatric counseling substance abuse evaluation and counseling at the Northeast Council on Substance Abuse. Family therapy with the Orchardale Family Support Team was offered. The parents resisted participation in the services ordered by the court, denied the charges of sexual abuse and requested a dismissal on three occasions of the child in need of assistance petition.

Since being removed from the home, the children have been in numerous foster homes. Since September 30, 1988, L.S. has been in four foster homes, N.S. in five, and A.S. in three. A contributing factor to these moves has been the negative behavior exhibited by the children. During February 1989, the three children were referred to the Cedarloo Psychiatric Clinic for counseling in distinguishing between appropriate and inappropriate sexual behavior. All three children have exhibited inappropriate sexual behavior. Both of the girls have a short attention span. A.S. has been diagnosed as having an attention deficit disorder with hyperactivity, which is currently being treated through medication.

The DHS adoption unit has done a staffing regarding the three children. It determined that the children are adoptable.

Both parents argue that their rights should not be terminated and placement of the children with their maternal grandmother, O.H., should be done. They fault DHS for failing to involve O.H. with her grandchildren when considering placement and ask the court to compensate for DHS's failure.

The maternal grandmother of the three children, O.H., was born in Mississippi in 1936, one of fifteen children. She attended school in Mississippi until the eighth grade. When O.H. was seventeen years old, she married T.H. They lived in Mississippi until 1959 and then moved to Waterloo. The couple had three children including L.H., the mother in this case. The marriage of O.H. and T.H. degenerated resulting in a divorce in 1968. T.H. also lives in Waterloo and visits regularly.

O.H. has never been employed outside of the home. During the last twenty-three years, aid to dependent children benefits has been her sole source of income. O.H.'s fourth child, C.H., was born after the 1968 divorce from T.H., who is not the father of C.H.

All three of O.H.'s daughters had teenage pregnancies that interrupted their formal high school education. O.H. does not think that there is anything that she could have done differently as a parent to supervise her two oldest daughters that would have helped them to stay in school and complete their education.

C.H., the fourth child of O.H., was in the eleventh grade when her child was born on September 24, 1990. As of the December 1990 hearing, C.H. had not started back to school because she wanted to spend more time with the baby. O.H. was not acquainted with the EXPO program for mothers with children, which provides a nursery at the school.

In addition to C.H. and C.H.'s baby, D.H., a nine-year-old child, resides with O.H. D.H. is the son of L.H. and the half sibling of the three children concerned in this case. D.H. has resided with O.H. since infancy. D.H. has had problems in school and has been enrolled in a special class.

In 1987, O.H.'s father suffered an incapacitating stroke. At that time, he moved from Mississippi to Waterloo to reside with O.H....

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