Morrison, In Interest of

• Decision Date: 14 July 1966
• Docket Number: No. 52224,52224
• Citation: 144 N.W.2d 97,259 Iowa 301
• Parties: In the Interest of Jody Lynn MORRISON, Michael Avery Morrison, and Kelly Wayne Morrison, Children. Wayne MORRISON and Dorothy Morrison, Appellants, v. STATE of Lowa, Appellee.
• Court: Iowa Supreme Court

Page 97

144 N.W.2d 97

259 Iowa 301

In the Interest of Jody Lynn MORRISON, Michael Avery Morrison, and Kelly Wayne Morrison, Children.

Wayne MORRISON and Dorothy Morrison, Appellants, v. STATE of Lowa, Appellee.

No. 52224.

Supreme Court of Iowa.

July 14, 1966.

Lawrence E. LeTourneau and Harold L. Van Voorhis, Jr., Des Moines, for appellants.

Ray A. Fenton, Polk County Atty., and Michael E. Hansen, Asst. County Atty., for appellee.

LARSON, Justice.

The appellants, Wayne Morrison and Dorothy Morrison, Natural father and mother of Jody Lynn, age 5, Michael Avery, age 4, and Kelly Wayne, age 23 months when these juvenile proceedings were commenced, for convenience will hereafter be referred to as Mr. and Mrs. They were married October 20, 1959, in Des Moines, Iowa after they had lived together for some time. Mrs. had been married to Eugene Norton, with whom she had five children. Norton secured an uncontested divorce from Mrs. after the birth of Jody, and he obtained custody of their children. Mr. had experienced some difficulties with the law and his kinfolks since boyhood and, although he and Mrs. got along well at first, his wanderlust or search for a better life resulted in many and long separations. Mrs. and the children lived part-time in Des Moines, on a farm in Missouri with Mr.'s folks, and in Kansas. Finally in January, 1965, she returned to Des Moines with the children and obtained work as a house-keeper and live-in babysitter. One of these jobs ended in a romantic attachment with an employer, Junior Allie, who was a widower with four children. Later, when Mr. came back to Des Moines and obtained work as a taxi driver, Mrs. and the children joined him. Domestic tranquility did not result and, when it appeared Mrs. continued seeing Allie and was carrying his child, the situation worsened.

Emotional disturbances resulted in the hospitalization of both Mr. and Mrs. At Mr.'s request the Des Moines police took the three children to the Polk County Juvenile Home on June 23, 1965. The next day, pursuant to a preliminary investigation, an officer of the Juvenile Bureau filed a petition in the district court for an order declaring these children neglected under the provisions of chapter 232, Code 1962, codified and amended by chapter 215, Acts of the 61st General Assembly, effective July 4, 1965. Notice was given and hearing set for July 14, 1965. Temporary custody was given to the Juvenile Home. Hearing was postponed to July 28, 1965, to obtain certain medical, psychiatric and social history reports. At that time Mr. was in the State Hospital at Clarinda and did not appear. However, he was represented by counsel and, in the presence of Mrs. and her counsel, testimony was taken and the matter further continued. The court then released the children to the care and control of their maternal grandmother, Bonnie Hannon, who nevertheless permitted Mrs. to care for them in the Allie home. When released from the Clarinda Hospital on August 24, 1965, Mr. returned to Des Moines and consulted the juvenile authorities. Mrs. Hannon returned the children to the Juvenile Home on August 25, 1965, and declined further responsibility for them. On September 3, 1965, the second hearing was held, with both parents and their attorneys present. At its conclusion the court found the children neglected and ordered a petition be filed for 'a different hearing, to terminate the parental rights of these people.'

On September 28, 1965, this third hearing was held, with all parties and their counsel present. At the conclusion thereof the evidence and various reports were considered, and on October 27, 1965, the court filed its findings, concluding 'both parents remain as persons of such unstable emotional status that for the children to continue to live with them would be highly detrimental to their well-being', that the parent-child relationship should be terminated, and that custody be retained by the court at the Polk County Juvenile Home pending further planning.

Both parents appeal to us. We affirm.

Appellants assign as error (1) the finding that the subject children were neglected, and (2) the order terminating the parental relationship. They also maintain chapter 232, as amended by chapter 215, Acts of the 61st General Assembly, violates the Iowa Constitution, Article III, subsection 1, and denies due process of law as guaranteed by Article I, subsection 9, of the Iowa Constitution, and Amendment XIV of the United States Constitution.

I. It is appellants' contention that there is no evidence of any valid grounds enumerated in the statutes to justify the finding that their children were neglected or to support an order terminating their parent-child relationship. We have often considered similar contentions under the former provisions of chapter 232 of our Code. We have pointed out these laws were enacted more for the purpose of assisting unfortunate children than for punishing them. State v. Visser, 249 Iowa 763, 88 N.W.2d 925. It was to insure a child the care, custody and discipline that should be given by its parents. State ex rel. Bruner v. Sanders, 256 Iowa 999, 1007, 129 N.W.2d 602; State ex rel. Wiley v. Richards, 253 Iowa 679, 680, 113 N.W.2d 285, 286, and citations. We are satisfied the intent and purpose of the legislature was not altered by the amendment, revision and codification of statutes relating to dependent, neglected and delinquent children in chapter 215, Laws of the 61st General Assembly, which repealed chapter 232 of the 1962 Code and enacted sections 2 through 62 in chapter 215 in lieu thereof. Spencer Pub. Co. v. City of Spencer, 250 Iowa 47, 92 N.W.2d 633. This law, now referred to as the 'Juvenile Court Law', in section 2 provides that it 'shall be liberally construed to the end that each child coming within the jurisdiction of the juvenile court shall receive, preferably in his home, the care, guidance, and control that will conduce to his welfare and the best interests of the state, * * *.'

Section 3(15) of chapter 215 provides: "Neglected child' means a child: a. Who is abandoned * * *. b. Who is without proper parental care Because of the emotional, mental, or physical disability, or state of immaturity of his parents, * * *. c. Who is Without proper parental care because of the faults or habits of his parents * * *. d. Who is living under conditions injurious to his mental or physical health or welfare.' (Emphasis supplied.)

Section 41 provides: 'No termination of the relationship between the parents and a child shall be ordered under the provisions of this Act except pursuant to the provisions set forth in sections forty-two (42) through fifty-one (51) of this Act. * * *'

Section 42 provides: 'The court may upon petition terminate the relationship between parent and child: 1. With the written consent * * *. 2. If the court finds that one (1) or more of the following conditions exist: a. That the parents have abandoned the child. b. That the parents have Substantially and continuously or repeatedly refused to give the child necessary parental care and protection. c. That although financially able, the parents have substantially and continuously neglected to provide the child with necessary subsistence, education, or Other care necessary for physical or mental health or morals of the child or * * *. d. That the Parents are unfit by reasons of debauchery, Intoxication, habitual use of narcotic drugs, repeated lewd and lascivious behavior, or Other conduct found by the court likely to be detrimental to the physical or mental health or morals of the child. e. That 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.' (Emphasis supplied.)

Section 28 provides that these hearings shall be without jury and may be conducted in an informal manner, that they may be continued from time to time and in the interim the court may make such orders as it deems in the best interests of the child, and that adoption hearings shall be conducted in accordance with the provisions of laws relating to adoption.

II. This cause is in equity and our review is de novo. A jury trial is not required. State ex rel. Bruner v. Sanders, supra; State ex rel. Gilman v. Bacon, 249 Iowa 1233, 1237, 91 N.W.2d 395, 398; McKay v. Ruffcorn, 247 Iowa 195, 198, 73 N.W.2d 78, 80, and cases cited.

Substantial weight must be given to the findings of the trial court who sees as well as hears the testimony at the informal hearing. Finken v. Porter, 246 Iowa 1345, 1347, 72 N.W.2d 445, 446, and citations. We noted in State ex rel. Gilman v. Bacon, supra, in matters of this kind the trial court has before it more than a printed record and exhibits. Such things as the demeanor of the parties, the candor or lack thereof of the witness, the attitudes, real and assumed, and the apparent motives of those testifying, are entitled to much weight in making findings in these matters. Nevertheless, our duty is to pass anew on the issues and we assume that obligation.

III. We return then to a consideration of the evidence before the trial court, keeping in mind the rule is well established in custody matters that a determination is necessarily based on what is likely to occur in the future because of present conditions and because of what has occurred in the past. Savery v. Eddy, 242 Iowa 822, 838, 45 N.W.2d 872, 47 N.W.2d 230, and 48 N.W.2d 230. Appellants admit the past record of both Mr. and Mrs. is not good. There is substantial evidence that Mr. was known as an emotionally-disturbed child and was placed in a home for delinquents. At 18 years he entered the military service and served time as a war-time deserter. In 1953 he was found guilty of robbery and served a term in the Missouri State Penitentiary. The report from that institution states he has the characteristics of a psychopath, reacts with hostility whenever...