Lewis, In Interest of

• Decision Date: 31 August 1977
• Docket Number: No. 3-59203,3-59203
• Parties: In the Interest of Jay Allen LEWIS, Dawn Marie Ponx and Bobby Ponx, children. State of Iowa ex rel. Carl B. Parks, Director of Court Services, Appellant.
• Court: Iowa Supreme Court

Page 505

257 N.W.2d 505

In the Interest of Jay Allen LEWIS, Dawn Marie Ponx and Bobby Ponx, children.

State of Iowa ex rel. Carl B. Parks, Director of Court Services, Appellant.

No. 3-59203.

Supreme Court of Iowa.

Aug. 31, 1977.

Richard C. Turner, Atty. Gen., Stephen C. Robinson, Special Asst. Atty. Gen., Bruce W. Foudree and Theodore R. Boecker, Asst. Attys. Gen., William A. Price, Sp. Asst. County Atty., Des Moines, for appellant.

Mark C. Smith, of West Des Moines, for mother.

David L. Phipps, Des Moines, for father.

Glenn E. Pille, Des Moines, Guardian ad Litem.

Heard by MOORE, C. J., and RAWLINGS, REYNOLDSON, HARRIS, and McCORMICK, JJ.

RAWLINGS, Justice.

Juvenile court dismissed dual proceedings for termination of parental rights. Petitioner State appeals and respondent mother cross-appeals. We affirm in part, reverse in part.

September 2, 1975, a petition was filed in Polk County Juvenile Court seeking termination of the parent-child relationship between Barbara Louise and Robert Dean Ponx and three children, Jay Allen Lewis, age 6, Dawn Marie Ponx, age 4, and Robert Dean Ponx, Jr., age 2. Barbara is their natural mother. November 12, 1971, she married Robert Ponx. He is Jay's stepfather and natural father of the two younger children. Lloyd Edward Lee, whom Barbara believed to be Jay's real father, signed a waiver of notice and consent to termination proceedings.

The aforesaid petition alleges that after a January 1974 adjudication of dependency as to Jay and Dawn, Barbara and Robert (respondents), despite social service assistance, failed to correct conditions which had led to this adjudication. See Section 232.41(2)(e), The Code 1975. The petition also paraphrased § 232.41(2)(b) and (d) in support of a parental right termination as to all three children. December 19, 1975, an amended petition was filed, alleging respondents have "refused and failed to allow themselves and their children to be aided" by a court-directed probation department program. The Ponxes filed objections to the amended petition, but we find no ruling thereon.

December 22, 1975, Barbara challenged the constitutionality of §§ 232.41(2)(b) (d)(e) and 232.46, by amendment to her original answer. Robert raised similar issues by his resistance to the State's attempt to amend the original petition and in his January 9, 1976 amendment to answer.

These questions were again raised by Barbara's close of all evidence motion to dismiss, initially interposed at the first hearing. A request for ruling thereon was not made, however, until one week after entry of judgment on the first petition. This belated motion was overruled.

January 19, 1976, juvenile court held the State had "failed to use reasonable measures to rehabilitate the parents" and dismissed the termination petition. At the same time, Dr. Herbert Notch, clinical psychologist, was directed to provide a comprehensive program designed to rehabilitate the Ponx family. The court also ordered that the children remain in custody of Polk County Department of Social Services until further order.

February 17, 1976, the State gave notice of appeal. The next day Barbara filed notice of cross-appeal. May 26, 1976, this court stayed said appeal pending the filing of a new petition in juvenile court and a decision on the merits in such action.

June 1, 1976, the State initiated a second parent-child termination proceeding in Polk County Juvenile Court. June 7, 1976, Barbara appeared specially, thereby challenging jurisdiction of the court on the basis of alleged constitutional infirmities in the termination statute. June 28, 1976, similar grounds were advanced in support of a motion to dismiss. The special appearance and motion to dismiss were overruled.

The Ponxes also raised constitutional issues by their answers to the second petition. In addition, Barbara filed a post-trial motion to dismiss based on constitutional objections but no ruling was entered thereon.

June 28, 1976, through October 22, 1976, a series of hearings was held on the second termination petition. October 26, 1976, the court again dismissed the action, this time absent any comment as to continuing custody of the children. They have apparently remained in foster homes under department of social services supervision.

November 17, 1976, a second notice of appeal was given by the State. November 22, 1976, a cross-appeal was again taken by Barbara. December 22, 1976, per mutual consent of the parties, this court ordered the cases joined for appellate review.

Disregarding the procedural enigma presented by appeals stemming from two sequential and practically identical causes of action, we now elect, because of the existing singular situation and without precedential force or effect, to treat the cases before us as one proceeding. Cf. Van Orman v. Merrill, 27 Iowa 476, 480-482 (1869); Iowa R.Civ.P. 342(e). But see In re Marriage of Novak, 220 N.W.2d 592, 596 (Iowa 1974); McCauley v. Municipal Court of D. M., 254 Iowa 1345, 1346-1347, 121 N.W.2d 96 (1963).

Evidence adduced at the hearings below indicates that Ponx household was characterized by filth. Dirty dishes were often left on the table for long periods of time and dog feces on the apartment floor were continually left unattended. A strong smell of urine usually permeated the residence. Although moderately cleaned sporadically, unsanitary conditions soon thereafter prevailed.

There were also indications the children's personal hygiene was repeatedly ignored by respondents. Social workers stated they often found the children unclean and diapers were infrequently changed, resulting in severe rashes. There were reports the Ponxes also failed to provide adequate nourishment. Although one witness stated the older children "seemed to have a balanced diet", trial court found "pop, candy and similar food was often the order of the day."

Social workers reported the Ponxes were dilatory in tending to the children's medical needs. Once Barbara stated she did not have time to take the baby to the hospital for treatment of an eye infection. On another occasion, Barbara's brother testified he had to persuade her to take Dawn to the hospital for treatment because of a serious case of pinworms.

Juvenile court found the failure to provide adequate intellectual stimulus and secure emotional environment resulted in poor language development by Jay and Dawn. Test results confirmed such speech problems existed and the children were classified as being in the "low normal" range of intelligence.

There was considerable testimony regarding irrational discipline of the children. Robert admitted having punished Jay with a belt, leaving bruises across his legs. Barbara's brother testified he saw her slap Dawn "(h)arder than I would care for a man to hit me." Barbara was also said to have locked the children in a bedroom and had handcuffed Jay to the bed to keep him from turning on the stove. Even though there were reports of bruises and burn marks on the children, the record does not reveal respondents purposefully inflicted these injuries. Similarly, although references were made to possible sexual molestation of Dawn, there is no showing that respondents engaged in any sexuality with the children. On the other hand, Barbara's brother testified at length regarding repeated raw sex-related talk by Robert Ponx in the children's presence. Additionally, a foster home mother testimonially described the multiple problems created by Jay's unusual sex-simulated conduct, often alone and at times in company with his sister Dawn.

Respondents' personal problems have also contributed to an unhealthy family environment. Although both drink excessively, Robert was said to have made major steps in overcoming this problem. They also had job-related problems, but again Robert seems more aggressive in securing employment. The Ponxes see little hope for the future of their marriage. At time of the final hearings, Robert was living with a woman, pregnant with his child, and Barbara expressed strong doubts as to any reconciliation. Finally, respondents have demonstrated priority problems in money management. The record reveals that during the time agency workers were urging the couple to provide better bedding for the children, the Ponxes were liquidating a $450 veterinary bill for one of their dogs.

Nevertheless, both Barbara and Robert appear to recognize at least some of their shortcomings. Barbara confessed she is "lazy", Robert admitted he is "quick-tempered", and that the children may have been "overly punished" in the past. Respondents also seemingly realize the need for further personal adjustment.

Their efforts toward rehabilitation have met with varied success. Barbara has attended counseling sessions irregularly. A report submitted by Dr. Notch states she has "very little insight into her behavior and, thus, behavioral controls will not be developed autonomously by her." Even so, Dr. Notch opined Barbara might be able to resume parenting within one or two years from date of the last hearing, provided adequate in-home supervision is continued by appropriate agencies.

Robert's attitude was at first termed "threatening and belligerent", but he was reportedly making some corrective progress in this respect at time of the June 28, 1976 hearing. Dr. Notch said Robert had made "some rather major breakthroughs in a period of six months". Because of this progress, the doctor concluded Robert would probably be able to resolve his personal problems and achieve normal parenting skills if given at least one or two years for these possible developments.

As stated above, the two older children were adjudged in January 1974, to be dependent. Their March 25, 1975, extended social services supervision was apparently effected by reason of the court's continuing jurisdiction pursuant to the dependency adjudication. As aforesaid, they have since been in custody of Polk County Department of Social...