McKay v. Ruffcorn

• Decision Date: 15 November 1955
• Docket Number: No. 48767,48767
• Citation: 247 Iowa 195,73 N.W.2d 78
• Parties: Russell S. McKAY, Appellee, v. Teresa Fay RUFFCORN, Defendant, June Ruffcorn Andersen, Appellant.
• Court: Iowa Supreme Court

Page 78

73 N.W.2d 78

247 Iowa 195

Russell S. McKAY, Appellee, v. Teresa Fay RUFFCORN, Defendant June Ruffcorn Andersen, Appellant.

No. 48767.

Supreme Court of Iowa.

Nov. 15, 1955.

Ross F. Caniglia, Council Bluffs, and Paul A. Harmon, Omaha, Neb., for appellant.

Kenneth Acrea, Missouri Valley, for appellee.

GARFIELD, Justice.

This is another of the many regrettable controversies that come before us involving custody of a child. Fortunately there is little doubt, as the trial court found, this child has received excellent care, since she was nine months old, in the home of her aunt and uncle and her best interests and welfare will be promoted by permitting her to remain there.

June Alexander and Charles Ruffcorn were married in 1943. She was 15, he was 18. Teresa, youngest of their four children, was born in the spring of 1948. Ruffcorn was killed in an automobile accident in August of that year. Care of the four young children was too much for June and she did not have a suitable home for them. Mrs. Donna Withem, Ruffcorn's sister, helped care for Teresa 'off and on' until she was nine months old. Then, in January or February, 1949, Donna and her husband, with June's consent, took Teresa to their home where she has since lived continuously.

Between the time Ruffcorn died and trial hereof in March, 1954, June was married and divorced twice and married a third time (fourth in all) in June, 1953, to her present husband Carl Andersen. During the five years following Ruffcorn's death, the three older children lived with June's parents except for three or four months when June and her third husband enrolled them in a school in Omaha.

June and her present husband reside in a three-room apartment in Omaha. Before school opened in September, 1953, they took the three older children there to live with them. June has stayed in Omaha much of the time since Ruffcorn died. February 3, 1954, June made a demand on the Withems for Teresa but they refused to surrender her. The Withems then evidently consulted the county attorney of Harrison county regarding their right to the child's custody.

The county attorney (who had been June's attorney in her two divorce suits) prepared and filed on February 26 what he designated 'Complaint,' sworn to by him, alleging Teresa is 'an abandoned child as defined by Code chapter 232.2' and asking that the necessary steps be taken to investigate the charge to the end that such orders be made as the court may deem advisable.

Incidentally the 'complaint' should have been designated 'petition', Code section 232.5, I.C.A. and should have alleged the child was 'dependent' or 'neglected' as defined by section 232.2, rather than 'abandoned.' An abandoned child is not defined in 232.2 or elsewhere in chapter 232. The only definition in 232.2 is of a dependent or neglected child. June, appellant here, has not mentioned any of the above inaccuracies in the petition and apparently was not misled thereby. It is not suggested the trial court's finding Teresa was a neglected child within the meaning of section 232.2 is outside the issue raised by the petition. We regard these matters as unimportant. See in this connection Code section 232.39, I.C.A.; 58 I.C.A. Rule 106, Rules of Civil Procedure; In re East Minors, 143 Iowa 370, 378, 122 N.W. 153; Cross v. Hermanson Bros., 235 Iowa 739, 742-743, 16 N.W.2d 616, 618; Sanford v. Luce, 245 Iowa 74, 80, 60 N.W.2d 885, 888; Mitchell v. Davis, Tex.Civ.App., 205 S.W.2d 812, 12 A.L.R.2d 1042, 1045.

Pursuant to section 232.7 the petition was set down for hearing and notice ordered served upon June and Mrs. Withem. The presumption is the required notice was served. In re East Minors, supra, 143 Iowa 370, 379, 122 N.W. 153; King v. Sears, 177 Iowa 163, 167, 158 N.W. 513. In any event June appeared in person and with her present attorneys. The Withems and Teresa appeared in person. See section 232.13; De Kay v. Oliver, 161 Iowa 550, 554, 143 N.W. 508. Apparently the Withems were represented by the county attorney. The probation officer (see section 231.8) was also present.

As required by section 232.13 the court tried the cause in equity. Some 2 1/2 months later, apparently after careful consideration, the district court found, as above indicated, Teresa was a neglected child within the meaning of section 232.2 and her best interests and welfare can be promoted only by permitting her to remain in the custody of the Withems. From judgment and decree pursuant to these findings June has appealed to us.

I. Our review is de novo. Savery v. Eddy, 242 Iowa 822, 837, 842, 45 N.W.2d 872, 880, 47 N.W.2d 230, 48 N.W.2d 230, 231; In re Dependency of Stamp, 198 Iowa 1136, 1137, 199 N.W. 1007. However the trial court's findings are entitled to substantial weight (much weight, according to some of our decisions). Finken v. Porter, 246 Iowa ----, 72 N.W.2d 445, and citations; Blundi v. Blundi, 243 Iowa 1219, 1226, 55 N.W.2d 239, 243, and citations.

II. We first consider whether Teresa was a dependent or neglected child within the meaning of Code chapter 232, I.C.A. Under section 232.2 a 'dependent' or 'neglected child' means 'any child who, * * *: 1. Is destitute, or homeless, or abandoned. 2. Is dependent upon the public for support. 3. Is without proper parental care or guardianship, * * *.' We are required to construe chapter 232 liberally 'to the end that its purpose may be carried out.' Section 232.39.

Clearly Teresa was without proper parental care or guardianship when the Withems took her. It is without dispute 'Her crib had not been cleaned out for several days, she was soaking wet, had rash on her from one end to the other and there was clabbered milk in the bottle.' On at least one occasion the baby was playing in her own filth. June and her four children were living in two rooms, without bathtub, hot water or indoor toilet. Her oil burner blew up and the water pipes froze in midwinter. June was on relief and unable to repair the stove or pipes. As previously stated, care of the four children was too much for her.

Under these circumstances, with June's consent, the Withems charitably took Teresa to their home where she has now lived about six years and eight months. During all this time June has contributed only about $200 to the child's support. Most of this came from social security payments June received before August, 1952. During one period of six months the Withems did not know where June was living. So far as shown June made no demand for the return of Teresa until shortly before this action was commenced. By then the Withems had become strongly attached to the child and she to them. June must have known of these growing bonds of affection.

It has been suggested Teresa was not a dependent or neglected child at the time of trial because of the excellent care she has received from her aunt and uncle. But this care has not been parental care. Under a statute substantially identical to ours it has been held a child does not have 'proper parental care or guardianship' 10 O.S.1951 § 101 who does 'not have proper care by his natural parents'. In re Davis, 206 Okl. 405, 244 P.2d 555, 558.

A case very similar to this on the facts and the procedure followed is In re Reed, 189 Okl. 389, 117 P.2d 503, where a mother left her child with complainant about 5 1/2 years before the latter filed his petition in county (juvenile) court asking that the child be declared dependent and neglected, made a ward of the court and legally placed in his home. During the 5 1/2 years the mother paid complainant, in all, about $100 for the child's support. The court rejected the argument the child was not dependent because of the care complainant furnished her. The opinion says, page 505 of 117 P.2d: 'The mere fact that it was enjoying proper care in the home of others and was therefore not a homeless, destitute or abandoned child does not mean that it was receiving proper parental care or guardianship. * * *

'Protestant takes the position that since third parties, or 'other persons', were properly caring for the child, it could not be said to be neglected under the provision relating to proper parental care. But this cannot be a proper view where, as here, the child is placed with others and the obligation to pay for its upkeep is abandoned by the parent.'

In re Reed is followed in In re Davis, supra, 206 Okl. 405, 244 P.2d 555, 558-559, above referred to, which states: 'The mere fact that he was enjoying proper care in the Christian home of Mr. and Mrs. Roberts * * * does not mean that this child was receiving proper parental care and guardianship.' See also Argabright v. Christison, 142 Okl. 243, 286 P. 347, 348, where the child had lived with petitioner nearly four years before the petition in juvenile court was filed.

In In re Olson, 111 Utah 365, 180 P.2d 210, 213, the child had lived in her grandfather's home eight years before the petition was filed. It was held the child was nevertheless a neglected child within the meaning of the Utah statute, U.C.A.1943, 14-7-4, 14-7-5. The opinion says: 'The fact that some third person may be providing care for a child by reason of the neglect of the parent to do so, does not deprive the juvenile court of jurisdiction to inquire into the welfare of such child and to fix responsibility and determine proper custody for the child within the scope of the statutory authority granted to the court.'

In Ex parte Day, 189 Wash. 368, 65 P.2d 1049, 1054, a mother placed her three children with friends whom it was stipulated were excellent people to care for them. When, after the mother died, the father demanded one of the children, the friends who were caring for her petitioned the juvenile court to make such order for her custody as should seem proper. The court held, under a liberal interpretation of the law, the children were dependent within the scope of the statute and proper subjects for the care of the court.

43 C.J.S., Infa...