Miller Children, In Interest of, No. 2--56739

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHeard by MOORE; REYNOLDSON
Citation228 N.W.2d 60
Docket NumberNo. 2--56739
Decision Date16 April 1975
PartiesIn the Interest of the MILLER CHILDREN.

Page 60

228 N.W.2d 60
In the Interest of the MILLER CHILDREN.
No. 2--56739.
Supreme Court of Iowa.
April 16, 1975.

James L. Waite, LeMars, for appellant.

E. Kevin Kelley, Sioux City, for appellee.

Heard by MOORE, C.J., and MASON, LeGRAND, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

This appeal is from a juvenile court placement order returning to their mother four

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children adjudicated dependent and neglected. We affirm.

In 1967 Alvin and Bernice Miller were divorced. Custody of their three children, James (born July 30, 1961), Judyth (born March 1, 1963) and Jonathan (born October 11, 1964) was awarded to Bernice. On April 16, 1967, following the divorce, Bernice gave birth to Bradley, whose father is unknown.

In August of 1971 Bernice informed Woodbury county department of social services she was having financial and disciplinary problems with the children and stated she was currently unable to care for them. The Woodbury county attorney petitioned juvenile court to declare them dependent and neglected children pursuant to chapter 232, The Code. This was a necessary procedure to permit the Woodbury department of social welfare to provide foster home care for the children.

At the August 23, 1971 hearing all parties were represented including the children and Alvin Miller, father of the oldest three. The juvenile court adjudged the children dependent and neglected, transferred their legal custody to the department 'for placement in an appropriate foster home' and ordered Alvin to pay $50 per month toward their support. James and Judyth were placed in one foster home, Jonathan and Bradley in another.

A January 17, 1972, review hearing resulted in an order which returned 'temporary custody' of James and Judyth to Bernice; gave 'temporary custody' of Jonathan and Bradley to Alvin; and directed the department to supervise these placements closely and report its findings to the court upon review hearing.

Subsequent review hearings were held. See § 232.36, The Code. Placement of the children remained unchanged until August 22, 1973, when a juvenile court order was entered placing all four children with Bernice while custody remained with the department. In so ruling the court repeated an observation made by a substitute juvenile referee, Arlo Swalve (a department employee), that 'the natural mother, Bernice Miller, having improved her ways should have placement of all children with her.'

Alvin 'appealed' the referee's ruling and another hearing ensued in juvenile court. After considering testimony from several witnesses, the court held the prior order should stand. Alvin now appeals to this court requesting placement of all four children with him.

I. At the threshold we confront a controversy concerning our scope of review. Alvin asserts our review is De novo. See In re Augustus, 158 N.W.2d 625, 630 (Iowa 1968); State v. Sanders, 256 Iowa 999, 1007, 129 N.W.2d 602, 607 (1964). Bernice contends we may reverse only upon a finding juvenile court abused its discretion, citing State v. Visser, 249 Iowa 763, 765, 88 N.W.2d 925, 926 (1958). See In Interest of Freund, 216 N.W.2d 366, 368--69 (Iowa 1974).

Our survey of this court's decisions since 1965 under chapter 232, The Code, discloses we review De novo. This is true of adjudications of neglect and dependency, In Interest of Osborn, 220 N.W.2d 632, 634 (Iowa 1974); In re Delaney, 185 N.W.2d 726, 728 (Iowa 1971), termination of parent-child relationships, In Interest of Wardle, 207 N.W.2d 554, 562 (Iowa 1973); In re McGlasson, 195 N.W.2d 116, 117 (Iowa 1972), and delinquency proceedings. In re Henderson, 199 N.W.2d 111, 116, 124 (Iowa 1972).

Indeed, a De novo review is indicated by the relevant portion of § 232.58, The Code:

'232.58 Appeal. An interested party aggrieved by Any order or decree of the court may appeal to the supreme court for Review of questions of law and Fact. * * *' (Emphasis supplied.)

This statutory right to review of Any juvenile court order seems to dispose of an otherwise tenable argument in Bernice's brief that, after all, we are confronted with only a placement order, the lower court still

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retains jurisdiction, and legal custody remains in the department. Not only do such orders, as disclosed here, frequently determine a child's fate for years, it was just such orders we reviewed De novo in In re Augustus, and State v. Sanders, supra. In In re Karwath, 199 N.W.2d 147 (Iowa 1972) we reviewed De novo an order for medical treatment of children which was entered more than a year following adjudication of their dependency.

Nor does a close analysis of State v. Visser, supra, support a restricted review under present statutory law. The 'discretion' referred to by the Visser court was the discretion the legislature left to the court to determine on...

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6 practice notes
  • Wheeler, In Interest of, No. 2--57681
    • United States
    • United States State Supreme Court of Iowa
    • 21 Mayo 1975
    ...Clearly, this evidence may be ignored in our review, Harter v. State, supra, 149 N.W.2d at 830, which is De novo. In re Miller Children, 228 N.W.2d 60 (Iowa Phillip tenaciously and adroitly argues this evidence was admitted over proper objection and even though trial was to the court, preju......
  • Meek, In Interest of, No. 2--58065
    • United States
    • United States State Supreme Court of Iowa
    • 17 Diciembre 1975
    ...Rules of Civil Procedure; In re Henderson, 199 N.W.2d 111, 116 (Iowa 1972); see § 232.58, The Code, and In Interest of Miller Children, 228 N.W.2d 60, 61--62 (Iowa 1975). We give weight to the trial court's findings, but are not bound by them. Rule 344(f)(7) IV. In his fifth issue stated fo......
  • C.W., In Interest of, No. 96-0041
    • United States
    • Court of Appeals of Iowa
    • 27 Junio 1996
    ...491 (Iowa 1984), cert. denied sub nom. J.G. v. Tauke, 469 U.S. 1222, 105 S.Ct. 1212, 84 L.Ed.2d 353 (1985); In re the Miller Children, 228 N.W.2d 60 (Iowa 1975). However, we give weight to the juvenile court's findings of fact, especially the credibility of the witnesses. W.G., 349 N.W.2d a......
  • In Interest of C.R.S., No. 3-317/03-0614.
    • United States
    • Court of Appeals of Iowa
    • 29 Mayo 2003
    ...487, 491 (Iowa 1984), cert. denied sub nom.; J.G. v. Tauke, 469 U.S. 1222, 105 S. Ct. 1212, 84 L. Ed. 2d 353; In re the Miller Children, 228 N.W.2d 60, 63 (Iowa 1975). However, we give weight to the juvenile court's findings of fact, especially concerning the credibility of the witnesses. W......
  • Request a trial to view additional results
6 cases
  • Wheeler, In Interest of, No. 2--57681
    • United States
    • United States State Supreme Court of Iowa
    • 21 Mayo 1975
    ...Clearly, this evidence may be ignored in our review, Harter v. State, supra, 149 N.W.2d at 830, which is De novo. In re Miller Children, 228 N.W.2d 60 (Iowa Phillip tenaciously and adroitly argues this evidence was admitted over proper objection and even though trial was to the court, preju......
  • Meek, In Interest of, No. 2--58065
    • United States
    • United States State Supreme Court of Iowa
    • 17 Diciembre 1975
    ...Rules of Civil Procedure; In re Henderson, 199 N.W.2d 111, 116 (Iowa 1972); see § 232.58, The Code, and In Interest of Miller Children, 228 N.W.2d 60, 61--62 (Iowa 1975). We give weight to the trial court's findings, but are not bound by them. Rule 344(f)(7) IV. In his fifth issue stated fo......
  • C.W., In Interest of, No. 96-0041
    • United States
    • Court of Appeals of Iowa
    • 27 Junio 1996
    ...491 (Iowa 1984), cert. denied sub nom. J.G. v. Tauke, 469 U.S. 1222, 105 S.Ct. 1212, 84 L.Ed.2d 353 (1985); In re the Miller Children, 228 N.W.2d 60 (Iowa 1975). However, we give weight to the juvenile court's findings of fact, especially the credibility of the witnesses. W.G., 349 N.W.2d a......
  • In Interest of C.R.S., No. 3-317/03-0614.
    • United States
    • Court of Appeals of Iowa
    • 29 Mayo 2003
    ...487, 491 (Iowa 1984), cert. denied sub nom.; J.G. v. Tauke, 469 U.S. 1222, 105 S. Ct. 1212, 84 L. Ed. 2d 353; In re the Miller Children, 228 N.W.2d 60, 63 (Iowa 1975). However, we give weight to the juvenile court's findings of fact, especially concerning the credibility of the witnesses. W......
  • Request a trial to view additional results

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