Long v. Long, 3-59262

• Court: United States State Supreme Court of Iowa
• Citation: 255 N.W.2d 140
• Docket Number: No. 3-59262,3-59262
• Parties: In the Interest of Angel LONG, a child, Appellee, v. Hazel LONG and Joe Long, Appellants.
• Decision Date: 29 June 1977

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255 N.W.2d 140 In the Interest of Angel LONG, a child, Appellee,
v.
Hazel LONG and Joe Long, Appellants. No. 3-59262. Supreme Court of Iowa. June 29, 1977.

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James C. Dunbar, Waterloo, for appellants.

Richard C. Turner, Atty. Gen., Stephen C. Robinson, Sp. Asst. Atty. Gen., Bruce Foudree, Asst. Atty. Gen., David H. Correll, County Atty., for appellee, State of Iowa.

Frederick G. White, Waterloo, for the child.

Heard by MOORE, C. J., and MASON, RAWLINGS, REES and McCORMICK, JJ.

RAWLINGS, Justice.

Joe and Hazel Long appeal trial court's termination of their parental relationship with Angel Long in a Section 232.41(2)(e), The Code 1973 proceeding. We affirm.

Before Angel's birth, January 22, 1973, her natural father had died. Thereupon the mother, Hazel, married Joe Long.

March 2, 1973, Angel, then less than six weeks old, was referred to the Department of Social Services because of suspected child abuse. A medical examination revealed the child had a fracture of the lower right leg and a small healing scar on one hand. The

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physician also found Angel malnourished, pale, weak and ill. In fact she weighed three pounds less than at birth. A petition, charging neglect, was filed in Juvenile Court, Black Hawk County.

The Department of Social Services took immediate custody of the child and upon discharge from the hospital placed her in a foster home. Although the parents denied all responsibility for the injuries, the stepfather, Joe Long, was charged and convicted of assault and battery upon Angel. His sentence was suspended on condition he undergo psychological counseling.

May 10, 1973, Angel was adjudged to be neglected and dependent. Subsequently, the parents were formally directed "to attend any counseling that the Social Services can provide". Thereafter, the department referred Longs to the Mental Health Center, Nurses Association, and Lutheran Social Services. They were also granted in-home visitation rights with Angel. During this time both Hazel and the foster mother reported seeing bruises on Angel. The foster mother admitted, however, Angel was prone to falling. But bruises occurring during Angel's visits with the Longs were never explained.

January 25, 1975, the Department of Social Services filed a petition for termination of the parent-child relationship between Longs and Angel. It thereby invoked § 232.41(2)(e) which permits termination if the court finds "(t)hat following an adjudication of neglect or dependency, reasonable efforts under the direction of the court have failed to correct the conditions leading to the termination."

At one of the three hearings which followed, Marilyn Reynolds, the social worker who originally placed Angel in foster care, recommended termination because Longs continued to deny having abused the child and blamed others for past problems. She also stated, "There has been no significant change in Mr. Long. I feel that things that led him to abuse Angel in the first place are still present."

Lowell Junkman, director of Lutheran Social Services, testified he met with the Longs twice in early 1974, but could not help them because of their attitude and motivation problems. He also saw no "possibility of growth occurring for them".

Hazel stated she has changed, is now better able to care for the children, and alludes to the fact that a son, born to her and Joe March 28, 1975, appears to be a healthy, well-cared for baby. The mother continues to deny, however, that either she or her husband ever injured Angel.

Medical testimony concerning the possibility of future abuse is contradictory. Dr. Spencer, a psychiatrist with the Mental Health Center, insisted Angel should not be returned to the Longs. He testified there is strong evidence revealing the girl was a victim of the "battered child syndrome" and "Angel wouldn't be very safe in that home". This doctor also testimonially stated there is better than a 50% chance Angel would be abused if returned to the parents. He concluded, "I don't think there has been substantial change of that type that would lessen the possibility of physical abuse."

Dr. Hastings, a psychiatrist, confined his clinical study to mental ability of the Longs to serve as adequate parents. Based thereon he did not feel there should be a termination of parental rights, but frankly admitted his inability to express an opinion regarding Dr. Spencer's "battered child syndrome" analysis and conceded Angel was possibly such a victim. Dr. Hastings further opined it would be inconsistent to take Angel from the Longs while allowing them to retain custody of their newly born son. On the other hand, this witness said "Joe Long is a rather impulsive, somewhat emotionally unstable individual who has a tendency to impress his feelings physically rather than in words." He also recommended the Longs be required to have a session with a professional mental health worker, not less than every two weeks for a period of six months if Angel were placed in their custody. Moreover, Dr. Hastings agreed with his associate, Dr. Finkelstein who, upon a "Psychological Evaluation" of Joe Long stated, in part: " * * * strong provocation can still potentially elicit rage

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reactions in him and get beyond his frustration tolerance, and at such times he may still lash out angrily and harmfully. * * * He ought not to have to baby-sit, or have them exclusively dependent on him for he cannot tolerate too much demand on him or unsocial behavior."

February 5, 1976, trial court entered an order terminating parental rights and in so doing stated, "The parents consistently refused to admit that they had any problems or that their daughter had any physical problems, or needed any treatment" and "They refused to attend any counseling sessions." It was also there determined that conditions leading to the May 1973 adjudication of neglect and dependency had not been alleviated, despite continued social service efforts.

These are the issues here raised by the mother and stepfather:

(1) Is § 232.41(2)(e), unconstitutionally vague?

(2) Did trial court err by terminating parental rights where the petition to terminate allegedly provided inadequate notice of the factual basis and statutory standards justifying the proposed termination?

(3) Did trial court err by applying a "preponderance" basis of proof rather than a "clear and convincing evidence" standard?

(4) Does the record support trial court's finding that conditions leading to an earlier adjudication of neglect and dependency had not been alleviated?

I. Our review is de novo. Code § 232.58. See also In re Scarlett, 231 N.W.2d 8, 10 (Iowa 1975); In re McGlasson, 195 N.W.2d 116, 117 (Iowa 1972); Iowa R.Civ.P. 334.

When considering credibility of witnesses we accord weight to trial court's fact findings but they are not binding. Iowa R.Civ.P. 344(f)(7). This proposition is particularly applicable in a case of the present kind. In re Interest of Yardley, 260 Iowa 259, 265, 149 N.W.2d 162 (1967). Such matters as demeanor of the parties, candor or lack thereof on the part of witnesses, attitudes, real and assumed, and apparent motives of those testifying, are all entitled to much weight in making findings. In re Morrison, 259 Iowa 301, 306, 144 N.W.2d 97, 100 (1966).

It is for us to review facts as well as the law and adjudicate rights anew upon assignments properly presented, provided issue has been raised and...