Osborn, In Interest of, 2--56755

• Decision Date: 31 July 1974
• Docket Number: No. 2--56755,2--56755
• Parties: In the Interest of Jerry OSBORN, a child. STATE of Iowa, Appellee, v. Donna McFARLAND, Mother, Appellant.
• Court: Iowa Supreme Court

Page 632

220 N.W.2d 632

In the Interest of Jerry OSBORN, a child.

STATE of Iowa, Appellee, v. Donna McFARLAND, Mother, Appellant.

No. 2--56755.

Supreme Court of Iowa.

July 31, 1974.

Michael W. Liebbe, Davenport, for appellant.

Richard C. Turner, Atty. Gen., Lorna Lawhead Williams, Special Asst. Atty. Gen., Theodore R. Boecker and Michael Murphy, Asst. Attys. Gen., for appellee.

Heard by REYNOLDSON, Acting C.J., and MASON, RAWLINGS, REES and UHLENHOPP, JJ.

REES, Justice.

This appeal is by Donna McFarland, natural mother of Jerry Osborn who was born January 18, 1970. Mrs. McFarland appeals from a decree in juvenile proceedings under chapter 232, The Code, 1973, finding Jerry dependent as 'dependency' is defined in section 232.2(14)(b) in that he was in need of special care and treatment required by his physical or mental condition, which care and treatment the parents were unable to provide. The court's decree placed Jerry in the custody of the Scott County department of social services.

Petition was filed by Charles Callahan, an employee of the Scott County department of social services, who was charged in his work with the investigation of alleged child abuse and child neglect cases. The petition asserted and alleged that Jerry Osborn was a dependent child as defined in section 232.2(14)(b) of the 1973 Code because he was in need of special care and treatment required by his physical or mental condition which his parents were unable to provide; that Jerry was a neglected child as defined in section 232.2(15)(c) in that he was without proper parental care because of the faults or habits of his parents, and that further he was a neglected child as defined in section 232.2(15)(d) of the 1973 Code in that he was living under conditions injurious to his mental or physical health or welfare.

At the hearing, the child Jerry, the mother Donna McFarland, and the father Larry Osborn, were all represented by separate counsel, as is required by section 232.28, The Code, 1973.

Mrs. McFarland states the following issues for review:

1) Trial court abused its discretion in removing the child from his home and mother absent 'clear and convincing' evidence, and

2) Trial court erred in not sustaining appellant's objections to a report from the University of Iowa.

Our review in this matter is de novo. Rule 334, Iowa Rules of Civil Procedure.

I. The first of two hearings involving the custody of Jerry Osborn was held on June 12, 1973, which hearing was continued to permit an evaluation of the child at the University of Iowa. Hearing was resumed on August 30, 1973, and the order and decree appealed from was entered on September 7, 1973. In its decree the trial court found Jerry to be a dependent child in accordance with the prayer of the petition but continued the matter insofar as the allegations of neglect were concerned. Temporary custody of Jerry was placed in the Scott County department of social services, and the department was directed to furnish special help to overcome the problems which had confronted the child. Donna McFarland was granted visitation rights, and the department of social services was required to report in writing at monthly intervals on the progress of the child and placement goals. The social services department was authorized to permit home visits for periods of not to exceed ten days without prior approval of the court.

At the hearing four social service workers testified. The evidence disclosed that in 1969, prior to the birth of Jerry, a child-abuse complaint had been received by the department concerning Larry Gladfelter, the oldest child of Mrs. McFarland, but details are not provided in the record and it is not clear that any court action was taken or recommended with regard to the complaint of child abuse at that time.

At the time of the hearing as above noted, Jerry was three and a half years old, having been born January 18, 1970. In March of 1971 it was reported to the department of social services that Jerry had apparently sustained a broken clavicle but that his mother had refused to seek medical attention for it. Upon investigation by a social worker the child was taken to a doctor and was diagnosed as having a broken collarbone. It developed then that the child had probably fallen out of his crib.

In September of 1972 there was a report to the authorities by a hospital that Jerry had been admitted with a cut over his left eye, a bruise on the bridge of his nose, numerous other bruises over the body, and a black eye. It developed that these injuries were sustained when Jerry was beaten by an uncle who was babysitting with him, and further investigation disclosed the uncle, aged 15, was mentally retarded.

On one other occasion Jerry sustained an injury when he fell from a porch onto a lawnmower, and had to be taken to a hospital for examination and treatment.

In March of 1973, while Mrs. McFarland was absent from the home, having just been delivered of a fourth child, Jerry was...