Loeffelholz, In Interest of

• Citation: 162 N.W.2d 415
• Decision Date: 12 November 1968
• Docket Number: No. 53125,53125
• Court: United States State Supreme Court of Iowa
• Parties: In the Interest of Betsy LOEFFELHOLZ and Timothy Loeffelholz, Children. JoDee LOEFFELHOLZ and George Loeffelholz, Appellants, v. STATE of Iowa, Appellee.

Page 415

162 N.W.2d 415

In the Interest of Betsy LOEFFELHOLZ and Timothy Loeffelholz, Children.

JoDee LOEFFELHOLZ and George Loeffelholz, Appellants, v. STATE of Iowa, Appellee.

No. 53125.

Supreme Court of Iowa.

Nov. 12, 1968.

Fuerste & Carew, Dubuque, for appellants.

Alan Kean, Dubuque, guardian ad litem for children.

Michael S. McCauley, Dubuque County Atty., and Richard P. TeKippe, Asst. County Atty., for appellee.

LARSON, Justice.

In these juvenile proceedings brought under chapter 232 of the Code on June 18, 1966, the court found Betsy, age 2, and Timothy, age 1, children of George Loeffelholz, age 25 and JoDee Loeffelholz, age 22, were neglected. Pursuant to hearing on August 16, 1967, it ordered the parent-child relationship with them terminated. When the court denied the parents' petition to vacate the judgment on October 25, 1967, only the mother perfected and appeal. The status of a third child, Tony, born to this union on April 29, 1967, is not involved in these proceedings. As in most cases of this nature, the issue is largely factual and calls for an extensive examination of the relevant and material evidence.

An action charging child neglect was instituted on May 27, 1966, at the direction of the juvenile court after being informed by a child welfare worker of the Dubuque County Department of Social Welfare (hereafter called the department) that these children were without proper parental care. Notice of hearing was given on May 27, 1966, and the parents appeared personally and by written appearance.

Present at the hearing on June 18, 1966, besides the parents, were a child welfare worker, a probation officer, and the paternal grandmother. After hearing the testimony and recommendations of the authorities, the court found these children were then without proper parental care, continued the proceedings, and directed that they should be placed in the temporary custody of the department with authority to place each in a suitable foster care facility at the expense of Dubuque County, Iowa. A written report from the department within 60 days was required, including the instant circumstances of the parents. Apparently nothing was done at that time, but on December 9, 1966, a 'rehearing' of the matter was had, at which time the parents, a child welfare worker, and a deputy probation officer were present. The court then found the temporary custody should continue for a period of six months unless sooner terminated by order of court, and required another report from the department at that time.

On July 27, 1967, a petition was filed in the district court by an employee of the department stating she had knowledge which indicated the parent-child relationship of these parties should be terminated, and asked the court to set the matter for hearing and prescribe notice, to be served upon the parents, the department, and the guardian of the persons of the children, if any, including the guardian ad litem to be appointed for the minor children. This application came on for hearing on August 16, 1967, and after the court had recited the circumstances preceding the hearing, it stated:

'* * * All parties were present and represented by counsel. After introduction of evidence the matter was marked submitted to the Court. Since the original adjudication of neglect because of the immaturity of the parents and lack of proper parental care resulting therefrom, the father has been earning a net take-home pay of $80.00 a week in regular employment. However, despite an adjudication of bankruptcy in the late summer of 1966, the parties have been unable to save any money or even provide for their own needs.

'In the last six months the following has transpired: The husband and wife have fought rather frequently; the husband has demonstrated the basic desire to avoid responsibility; the mother has been arrested twice for issuing N.S.F. checks and she is now on parole for such offense; the second flurry of bad checks was a parole violation by the mother; the parents have not seen this child since early June; the father does not know how he can support the child; the mother has evidenced lack of normal maternal concern about the child's health.

'The child has been away from his parents since May 27, 1966, and it is imperative that a definitive pronouncement be made at this time.'

The court then found that, following the adjudication of neglect, reasonable efforts under the direction of the court have failed to correct the conditions and solve the problems of these parents, and ordered that the parent and child relationship between George Loeffelholz and JoDee Loeffelholz, as parents, and the children, Betsy and Timothy, be terminated, and transferred the guardianship of the children's persons and the legal custody of them to Catholic Charities, a licensed child-placing agency in Dubuque, Iowa.

On or about September 21, 1967, the parents obtained new counsel through Legal Aid and filed a petition asking vacation of the August 19th judgment and a new trial, in which they alleged inter alia a violation of their constitutional rights, a lack of understanding of the effect of the June 18, 1966, hearing, a failure of the department to fully advise them thereof, a lack of knowledge as to how to defend their material rights. They also alleged that they have newly-discovered evidence not available at the prior hearing which would be material to a proper disposition of the matter, that they are 'well and able to care for their natural children and made numerous efforts to recover custody' of them without success, and that it would be for the best interest of the minor children for the court to grant their prayer therein. Hearing on their petition was set for the 20th day of October, 1967, and notice prescribed on the interested parties therein.

Pursuant to this hearing, the court found nothing in the testimony and arguments submitted convincing it of its error in the judgments and decrees heretofore entered, and nothing in the evidence or arguments submitted by counsel to show any invasion of the constitutional rights of the petitioners. It further found:

'3. A portion of petitioner's testimony and argument seems to be directed to the hearing held June 18, 1966, with a claim by them that they did not understand what they were doing when they signed the appearance and that they never received any notice of the hearing. The court does not find that the return of service has been rebutted. All parties appear to agree that the children were in fact abandoned and neglected at the time of the hearing and had an opportunity to deny that their children were neglected but they did not do so then and they do not now deny that their children were neglected on June 18, 1966.

'4. At the hearing held on or about August 19, 1967, the parties were represented by competent counsel and if any of their rights were being infringed upon their counsel surely would have invited the court's attention thereto.

'5. Petitioners made claim of new evidence but the only new evidence proffered was that of the witness Mrs. James Ingles, the person with whom petitioner Jodee Loeffelholz stayed when she abandoned her children in May of 1966.

'6. Petitioners claim that the representatives of the Iowa Department of Social Welfare, in effect, conspired to deprive them of their children whereas, in fact, the Dubuque County Department of Social Welfare and personnel in its employ provided for these children the care and affection petitioners were unable to provide while they were indulging themselves in their immature responses.

'7. Since the entry of the decree under attack, George Loeffelholz has once more changed his employment, the parties have once more moved their residence, they are still making payments on $30.00 worth of bad checks and, in all, have failed to show any observable gain in their efforts to achieve maturity.

'8. These petitioners have been admirably dogged and persistent in seeking the help of others to escape their predicament but seem to have done little to help themselves. The situation approximates, to some degree In Re Morrison ((259) Iowa (301)), 144 N.W.2d 97 * * *.'

The court said it was not convinced the improvement, if any, was sufficient to delay the opportunity of the children to have a proper home elsewhere, and denied the parents' petition for vacation and for a new trial. In our opinion the record fully sustains these findings and conclusions.

The appeal to us is prosecuted by only the mother. We are advised by stipulation of counsel that on May 8, 1968, George Loeffelholz obtained a divorce from JoDee Loeffelholz on the grounds of cruel and inhuman treatment, that the mother was awarded custody of the baby, Anthony Loeffelholz, and that she married, larry Bedtka in Galena, Illinois, on June 7, 1968. There was no mention of the children Betsy and Timothy in that divorce decree.

I. In a proceeding to have children declared neglected and to declare the parent and child relationship terminated, our review is de novo. Code section 232.58; In re Morrison, 259 Iowa 301, 306, 144 N.W.2d 97, 100, and citations.

Nevertheless, we give weight to the fact findings of the trial court, especially when considering the credibility of the witnesses, but we are not bound by them. In re Morrison, supra; In re Yardley, Iowa, 149 N.W.2d 162, 166; rule 344(f), par. 7, Rules of Civil Procedure. The rule is applicable here due to the fact that some of the State's evidence consisted of reports from the social workers received under the provisions of section 232.46 of the Code. Although some of the statements in the reports were contradicted by the parents in open court, the parties making them also testified in open court and were cross-examined.

II. In custody matters the rule is also well established 'that a determination is necessarily based on what is likely to occur in the future because of present conditions and because of...